/
Текст
Dannemann / Schulze
German
Civil Code
Bürgerliches Gesetzbuch (BGB)
Volume I: Books 1-3
Article-by-Article Commentary
CH.BECK
German Civil Code
Bürgerliches Gesetzbuch (BGB)
Volume I
Books 1-3: §§1-1296
Article-by-Article Commentary
edited by
Gerhard Dannemann
Reiner Schulze
Assistant Editor
Jonathon Watson
2020
CH.BECK
Nomos
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Foreword
Question: ‘How many Germans does it take to change a lightbulb?*
Answer: ‘One. They are efficient. And this is not a joke?
Indeed, the proverbial German efficiency and seriousness are no laughing matter. Yet these
qualities can also have their advantages, especially when it comes to doing business. A good
example of this is the renowned efficiency of the German legal system. As a jurisdiction and
place of business, Germany offers international companies considerable advantages. On
comparison with other legal systems, it is more efficient, more predictable and more cost«
effective. At the same time, it also ties in seamlessly with European and international law.
This is in no small part due to the German Civil Code - the Bürgerliches Gesetzbuch (BGB)
- which the present commentary elucidates for the first time in the English language.
Following the Roman law tradition, the Bürgerliches Gesetzbuch codifies the fundamental
rules of German civil law. From contract and tort law, all the way to family law and the law
of succession, it sets out the general guidelines and principles for legal relationships between
private persons. It governs in particular the conclusion, performance and enforcement of
contracts, as well as the main types of contracts such as purchase agreements, service
contracts and contracts to produce a work. Unless the parties have agreed otherwise, the
general rules apply automatically. The parties do not need to make arrangements for every
eventuality from scratch, but can rely on the fair and balanced rules set out in the BGB. I
would like to highlight four particular advantages that this brings:
- German contracts are significantly shorter in length than contracts concluded, for
example, under English or US law. This not only saves the parties a great deal of time,
but also means lower costs for legal advice.
- German contracts are more certain and dependable. The advantage of this is that there is a
comparatively low risk of lengthy and expensive legal disputes arising. Relative to its
population and GNP, Germany has the lowest rate of litigation in all of Europe.
- Codification allows quick and easy access to justice. The structure of the individual
provisions makes it easy to sort and search through the relevant court decisions and
jurisprudential opinions. The present commentary illustrates this perfectly. The result is
that the law is easily predictable, and court proceedings are comparatively short.
- In continental Europe, codification is a defining feature of a legal tradition that shapes
both European law as well as UN sales law. Furthermore, many important civil law
provisions are harmonised across Europe, such as those regarding the sale of consumer
goods. German law therefore provides the ideal framework for businesses that operate
internationally.
I am sure it will come as no surprise that Germany’s Minister of Justice is keen to promote
Germany as a jurisdictional location. But you need not take my word for it. I invite you to
take a closer look at German civil law with the guidance of the present commentary. Verlag
C.H.Beck is one of the leading publishing houses specialised in German legal literature.
Under the publisher’s aegis, a team of distinguished experts from research and practice have
collaborated on a commentary of the Bürgerliches Gesetzbuch, produced for the very first
time in the English language. They explain the scope, context, meaning, terminology,
relevance and practical application of the provisions of the BGB. Even if you are not already
familiar with German law, this commentary will help you to understand the BGB and gain an
overview of current legal theory and court decisions. And perhaps you might even find some
quite interesting answers to questions like: How come property loans are so cheap in
Foreword
Germany? Why is the mark-up on loans in Germany only half of what banks in the U.K
charge? What is the key to the much envied legal certainty of Germany’s land law? To give
you a hint: Take a look at the property-law regulations on the provision of securities and the
effects of the Land Register...
I would like to thank Verlag C.H. Beck and Professors Gerhard Dannemann and Reiner
Schulze as the editors of this work, as well as all the authors of the commentary. They make a
vital contribution to the good reputation of German law. Their work promotes a common
understanding across legal systems, and facilitates an international exchange of views and
experiences amongst legal professionals. I trust that this work will make for interesting
informative - and of course very serious and efficient reading.
Christine Lambrecht
Federal Minister of Justice and Consumer Affairs
Preface
No other legislation can rival the Bürgerliches Gesetzbuch (BGB) as the embodiment of
‘Law made in Germany’. Historically rooted in 19th century pandectist scholarship, it keeps a
decidedly 21s' century' outlook due to modern reforms and the integration of consumer law.1
No other codification has been equally relevant for legal education, legal methodology, and
legal practice in Germany. It eclipses other codifications in the sheer volume of transactions
and occurrences which it covers, and accompanies the population of Germany from the
cradle (in § 1) to the grave (in Book 5 on successions).
Since its enactment in 1900, the BGB has inspired legislators and scholars well beyond the
borders of Germany, from the early influence of the BGB on the Civil Codes of Japan, Greece
and Korea up to the recent codification of the General Part of the new Chinese Civil Code.
Mutual influences between the BGB and EU law, and between the BGB and the recently
partially reformed French Code civil, can be added to this list.
While the BGB has been translated numerous times and into many languages, it is almost
surprising that the present book is the first which attempts to provide a comprehensive and
systematic explanation of the BGB and its ongoing development through courts and scholars
in the modern lingua franca, English. The present volume covers general rules, the law of
obligations and property law; the second volume will include family and inheritance law.
This book is addressed to readers who are not familiar with German law, as well as to
readers who work with German private law in an English language environment. We found
this to be a highly challenging task, not least because the BGB relies heavily on concepts2
which are often equally difficult to translate and to explain. No doubt improvements can be
made, and we are very grateful for any suggestions from our readers.
We owe an enormous gratitude all those who have made this commentary possible. It is
the brainchild of Dr. Wilhelm Warth from the publishers, C.H. Beck, who provided constant
and valuable support throughout, and who even compiled the index. Dr. Jonathon Watson, a
true Anglo-German lawyer, played a decisive role as assistant editor. We are also very
grateful to our many dedicated contributors, not only because they have written most of
this book, but also for many productive discussions, and especially for their patience. We are
grateful that we were allowed to use the translation of the BGB that was initially provided in
2007 for publication on gesetze-im-internet.de by Langenscheidt Translation Service and
updated until 2013 by Neil Musset and Carmen v. Schöning? We also thank the publishers,
C.H. Beck, and especially Thomas Klich, whose skill, enthusiasm and constant support is
greatly appreciated. Last, but by no means least, we are very grateful to our helpful student
assistants: to Christoph König for the compilation of a terminology synopsis, and to Lorenz
Böttcher, Madalina Luca and Sarah Meyer for their valuable support in the editing process.
Some unplanned events have unfortunately delayed the publication of this book. The
commentaries reflect the law on 31 December 2018, whereas subsequent changes in legisla¬
tion were incorporated until 31 December 2019.
Gerhard Dannemann and Reiner Schulze
Berlin and Münster, April 2020
1 See Introduction, mil. 25-27.
■' See Introduction, mn. 28.
’ See x Introduction, mn. 62-65.
VII
Table of Contents
Foreword V
Preface VII
List of authors XIII
Abbreviations of legislation, legislative drafts and model rules XVII
Abbreviations of cited works XXIII
List of abbreviations and abbreviated literature XXV
Introduction 1
Book 1
General Part
Division 1. Persons (§§ 1-89) 17
Title I. Natural persons, consumers, entrepreneurs (§§ 1-20) 17
Title 2. Legal persons (§§ 21-89) 33
Subtitle 1. Associations (§§ 21-79a) 33
Chapter 1. General provisions (§§ 21-54) 33
Chapter 2. Registered associations (§§ 55-79a) 75
Subtitle 2. Foundations (§§ 80-88) 95
Subtitle 3. Legal persons under public law (§§ 89) 107
Division 2. Things and animals (§§ 90-103) 108
Division 3. Legal transactions (§§ 104-185) 122
Title 1. Capacity to contract (§§ 104-115) 123
Title 2. Declaration of intent (§§ 116-144) 138
Title 3. Contract (§§ 145-157) 193
Title 4. Conditions and specification of time (§§ 158-163) 209
Title 5. Agency and authority (§§ 164-181) 215
Title 6. Consent and ratification (§§ 182-185) 241
Division 4. Periods of time and fixed dates (§§ 186-193) 247
Division 5. Limitation (§§ 194-225) 255
Title 1. Subject-matter and duration of limitation (§§ 194-202) 255
Title 2. Suspension, suspension of expiry and recommencement of the limitation period
(§§ 203-213) 274
Title 3. Legal consequences of limitation (§§ 214-225) 288
Division 6. Exercise of rights, self-defence, self-help (§§ 226-231) 293
Division 7. Provision of securitiy (§§ 232-240) 299
Book 2
Law of Obligations
Division 1. Subject matter of obligations (§§ 241-310) 309
Title 1. Duty of performance (§§ 241-292) 309
Title 2. Default by the obligee (§§ 293-304) • 436
Division 2. Drafting contractual obligations by means of standard business terms (§§ 305-310) 442
Division 3. Contractual obligations (§§ 311-360) 466
T itle L Creation, subject matter and termination (§§ 311-319) 470
Subtitle 1. Creation (§§ 311-311c) 470
Subtitle 2. Principles applying to consumer contracts; particular types of sale (§§ 312-312k) 483
Chapter 1. Scope of application and principles applying to consumer contracts
(§§312-312a) 483
IX
Table of Contents
Chapter 2. Off-premiscs contracts and distance contracts (§§ 312b-312h) 489
Chapter 3. Contracts in electronic commerce (§§ 312i—312j) 498
Chapter 4. Deviating agreements and burden of proof (§§ 312k) 502
Subtitle 3. Adaption and ending of contracts (§§ 313-314) 503
Subtitle 4. Unilateral rights to specify performance (§§ 315-319) 513
Title 2. Reciprocal contracts (§§ 320-327) 521
Title 3. Promise of performance to a third party (§§ 328-335) 541
Title 4. Earnest, contractual penalty (§§ 336-345) 553
Title 5. Revocation; right of withdrawal in consumer contracts (§§ 346-361) 564
Subtitle 1. Revocation (§§ 346-354) - 564
Subtitle 2. Right of withdrawal in consumer contracts (§§ 355-361) 581
Division 4. Extinction of obligations (§§ 362-397) 616
Title 1. Performance (§§ 362-371) 616
Title 2. Deposit (§§ 372-386) 633
Title 3. Set-off (§§ 387-396) 648
Title 4. Forgiveness (§ 397) 663
Division 5. Transfer of a claim (§§ 398-413) 665
Division 6. Assumption of debt (§§ 414-419) 697
Division 7. More than one obliger and obligee (§§ 420-432) 707
Division 8. Particular types of obligations (§§ 433-853) « 732
Title 1. Purchase, exchange (§§ 433-480) 732
Subtitle 1. General provisions (§§ 433-453) 732
Subtitle 2. Special types of purchase (§§ 454-473) 802
Chapter 1. Purchase on approval (§§ 454-455) 802
Chapter 2. Repurchase (§§ 456-462) .. 804
Chapter 3. Preemption (§§ 463-473) 809
Subtitle 3. Purchase of consumer goods (§§ 474-479) 816
Subtitle 4. Exchange (§ 480) - 833
Title 2. Time-share agreements, contracts relating to long-term holiday products, brokerage
contracts and exchange system contracts (§§ 481-487) — 834
Title 3. Loan contract; financing assistance and contracts for delivery by instalments between an
entrepreneur and a consumer (§§ 488-515) 846
Subtitle 1. Loan contract (§§ 488-505e) — 846
Chapter 1. General provisions (§§ 488-490) 846
Chapter 2. Special provisions for consumer credit agreements (§§ 491-505e) 857
Subtitle 2. Financing assistance between an entrepreneur and a consumer (§§ 506-509) 906
Subtitle 3. Contracts for delivery by installments between a trader and a consumer (§ 510)... 913
Subtitle 4. Advisory services in real estate consumer credit contracts (§ 511) - 915
Subtitle 5. Mandatory nature, application to founder of new business (§§ 512-513) 916
Subtitle 6. Gratuitous credit agreements and gratuitous financing assistance between
a trader and a consumer (§§ 514-515) 918
Title 4. Donation (§§ 516-534) .... 920
Title 5. Lease, usufructuary lease (§§ 535-597) 937
Subtitle 1. General provisions for leases (§§ 535-548) 937
Subtitle 2. Leases for residential space (§§ 549-577a) 961
Chapter 1. General provisions (§§ 549-555) 961
Chapter la. Structural maintenance and modernisation measures (§§ 555a-555f) 968
Chapter 2. Rent (§§ 556-561) 972
Subchapter 1. Agreements on rent (§§ 556-556c) 972
Subchaplcr I a. Agreements on rent amount upon commencement of a lease in areas
with an overstretched housing market (§§ 556d-556g) 977
Subchapter 2. Provisions on the rent amount (§§ 557-561) 981
Chapter 3. Security right of the lessor (§§ 562-562d) 992
Chapter 4. Change of parties to the contract (§§ 563-567b) 996
Chapter 5. Termination at the lease (§§ 568-576b) 1W6
Subchapter I. General provisions (§§ 568-572) I006
Subchapter 2. Leases for an indefinite period of time (§§ 573-574c) 1011
Subchaplcr 3. Leases for a definite period of time (§§ 575-575a) 1020
Subchaplcr 4. Tied dwellings 576-576b) 10^2
Table of Contents
Chapter 6. Special features when creating apartment ownership of leased residences
(§§ 577-577a) 1023
Subtitle 3. Leases of other things (§§ 578-580a) 1025
Subtitle 4. Usufructuary lease (§§ 581-584b) 1028
Subtitle 5. Farm lease (§§ 585-597) t 1034
Title 6. Gratuitous loan (§§ 598-606) 1054
Title 7. Contract for the loan of a thing (§§ 607-610) 1061
Title 8. Sendee contract and similar contracts (§§ 6U-630h) 1064
Subtitle 1. Service contract (§§ 611-630) 1064
Subtitle 2. Treatment contract (§§ 630a-630h) 1149
Title 9. Contract to produce a work and similar contracts (§§ 631-651y) 1162
Subtitle 1. Contract to produce a work (§§ 631-650o).„. 1162
Chapter 1. General provisions (§§ 631-650) 1162
Chapter 2. Construction contract (§§ 650a-650h) 1199
Chapter 3. Consumer construction contracts (§§ 650i-650n) 1204
Chapter 4. Mandatory nature (§ 650o) 1207
Subtitle 2. Architect contract and engineer contract (§§ 650p-650t) 1207
Subtitle 3. Property development contract (§§ 650u-651) 1209
Subtitle 4. Package travel contract, retail and facilitation of linked travel services
(§§ 651a-651y) 1210
Title 10. Brokerage contract (§§ 652-656) 1254
Subtitle 1. General provision (§§ 652-655) 1254
Subtitle 2. Intermediation of consumer credit agreements and of nongratuitous financing
assistance (§§ 655a-655e) 1258
1317
1329
1345
1375
1392
1402
1411
1475
1491
1496
1501
1532
1539
1545
1555
1571
1576
1597
Subtitle 3. Marriage broking (§ 656) 1261
Title 11. Promise of a reward (§§ 657-661a) 1262
Title 12. Mandate, contract for the management of the affairs of another and payment services
(§§ 662-676c) 1269
Subtitle 1. Mandate (§§ 662-674) 1269
Subtitle 2. Contract for the management of the affairs of another (§§ 675-675b) 1287
Subtitle 3. Payment Services (§§ 675c-676c) — 1295
Chapter 1. General provisions (§§ 675c-675e) 1297
Chapter 2. Payment services contract (§§ 675f-675i) 1304
Chapter 3. Provision and use of payment services (§§ 675j-676c) 1317
Subchapter 1. Authorisation of payment transactions; payment instruments; refusal of
access to payment account (§§ 675j-675m)
Subchapter 2. Execution of payment transactions (§§ 675n-675t)
Subchapter 3. Liability (§§ 675u-676c)
Title 13. Agency without specific authorisation (§§ 677-687)
Title 14. Safekeeping (§§ 688-700)
Title 15. Bringing things onto the premises of innkeepers (§§ 701-704)
Title 16. Partnership (§§ 705-740)
Title 17. Co-ownership (§§ 741-758)
Title 18. Life annuity (§§ 759-761)
Title 19. Imperfect obligations (§§ 762-764)
Title 20. Suretyships (§§ 765-778)
Title 21. Settlement (§§ 779)
Title 22. Promise to fulfil an obligation; acknowledgement of debt (§§ 780-782)
Title 23. Order 783-792)
Title 24. Bearer bond (§§ 793-808)
Title 25. Presentation of things 809-811)
Title 26. Unjust Enrichment (§§ 812-822)
Title 27. Torts 823-853)
XI
Table of Contents
Book 3
Law of Property (§§ 854-1296)
Division 1. Possession (§§ 854-872) •• -
Division 2. General provisions on rights in land (§§ 873-902)
Division 3. Ownership (§§ 903-1017) .................. -
Title 1. Subject matter of ownership (§§ 903-924)................-...-----—•••"
Title 2. Acquisition and loss of ownership of plots of land (§§925-928).-..— -
Title 3. Acquisition and loss of ownership of movable things (§§ 929-984) -
Subtitle 1. Transfer (§§ 929-936) • ‘
Subtitle 2. Acquisition by prescription (§§ 937-945).
Subtitle 3. Combination, intermixture, processing (§§ 946-952)...........
Subtitle 4. Acquisition of products and other components of a thing (§§ 953-957)
Subtitle 5. Appropriation (§§ 958-964) —......................
Subtitle 6. Finding (§§ 965-984) .................—
Title 4. Claims arising from ownership (§§ 985-1007) ——
Title 5. Co-ownership (§§ 1008-1017) .................. ..........
1694
1712
1754
1754
1787
1796
1796
1821
1829
1837
1841
1845
1853
1888
Division 4. Servitudes (§§ 1018-1093) ........... — 1891
Title 1. Easements (§§ 1018-1029) ................. „ 1894
Title 2. Usufruct (§§ 1030-1089) .. „.. 1916
Subtitle 1. Usufruct in things (§§ 1030-1067).. ....... 1918
Subtitle 2. Usufruct in rights (§§ 1068-1084) 1944
Subtitle 3. Usufruct in property (§§ 1085-1089) . 1952
Title 3. Restricted personal easements (§§ 1090-1093) ................... 1957
Division 5. Right of preemption (§§ 1094-1104) .... 1969
Division 6. Charges on land (§§ 1105-1112) 1976
Division 7. Mortgage, land charge, annuity land charge (§§ 1113-1203) 1981
Title 1. Mortgage (§§ 1113-1190) " 19gI
Title 2. Land charge, annuity land charge (§§ 1191-1203) " 2053
Subtitle 1. Land charge (§§ 1191-1198)
Subtitle 2. Annuity land charge (§§ 1199-1203) ZZZZZ2Z7. ’061
Division 8. Pledge of movable things and over rights (§§ 1204-1296) W
Title 1. Pledge of movable things (§§ 1204-1272) "
Title 2. Pledge of rights (§§ 1273-1296) ilH
Index
List of Authors
Anna-Maria Beesch is a lawyer and specialist lawyer (Fachanwalt) for banking and capital market law
in Frankfurt am Main. She is active both in an advisory and litigation capacity with focus on banking law,
in particular payment services law, in her own ‘Rechtsanwaltskanzlei Dr. Beesch’. She is co-editor of the
juris PraxisReport Bank- und Kapitalmarktrechf (jurisPR-BKR), contributor to several BGB-commen-
taries and author of numerous journal articles, 675c-676c]
Michael Beurskens is Professor of Civil Law, German, European and International Business Law at the
I niversity of Passau. His research interests cover the law of digitalisation and artificial intelligence, as well
as the traditional areas of corporations, contracts, intellectual property, and antitrust. [$$ 1-89]
Kai Birke is partner and head of Banking & Finance practice at Gleiss Lutz in Frankfurt am Main. He
specialises in banking, finance and capital markets. He holds a doctorate (Dr. iur.) from the University of
Bonn. [$$780-811]
Jonas David Brinkman is a post-doctoral researcher (Habilitand) at the Faculty of Law, Bielefeld
University. He studied law in Bielefeld (Dr. iur.) and Berlin. [$$ 1094-1203]
Gerhard Dannemann is Professor of English Law, British Politics and Economy at the Humboldt
University of Berlin, and Visiting Research Fellow at the Institute of European and Comparative Law,
University of Oxford. His research interests include the law of obligations, comparative law, private
international law, and good academic practice. [Introduction, 516-534 (both parts jointly with Reiner
Schulze), $$662-675b, 677-687, 812-822, 985-1003]
Daniel Effer-Uhe completed his post-doctoral qualification (Habilitation) at the University of Cologne,
where he received the venia legendi for civil law, civil procedure, legal theory, Roman law and legal
psychology’. He is currently Privatdozent at Leipzig University. [$$ 186-240 (jointly with Alica Mohnert)]
Matthias Fervers is a post-doctoral researcher (Habilitand) at the Faculty of Law, Ludwig-Maximi-
lians-University of Munich. His research and publications focus on civil law, civil procedure law,
European private law, international private law and comparative law. [$$ 631-661a]
Robert Freitag is Professor of German and European Civil and Commercial Law and Director of the
Center for Banking and Capital Markets Law at the Friedrich-Alexander-University Erlangen-Nuremberg
as well as judge at the Higher Regional Court (Oberlandesgericht) at Nuremberg. His main research
interests are in the fields of corporate and commercial law (with a focus on banking and finance), the law
of obligations and private international law. [$$ 705-758, 1008-1017 (jointly with Constanze Ort)]
Martin Fries is Privatdozent at the Ludwig-Maximilians-University of Munich. His main research
interests are in the fields of private law, civil procedure, and legal technology. [$$ 305-310, 312-312k]
Leonhard Hübner is a post-doctoral researcher (Habilitand) at the Institute for Comparative Law,
Conflict of Laws and International Business Law at Heidelberg University. He studied law in Cologne,
Heidelberg (Dr. iur.) and Oxford (MJur). [$$ 535-610]
Annette Keilmann is a lawyer at Baker McKenzie in Frankfurt am Main. Her practice focuses mainly
on national and international disputes relating to construction, mechanical engineering and commercial
lease (with particular focus on plant construction and infrastructure projects). She holds a doctorate (Dr.
iurj from the University of Mannheim [$$420-432 (jointly with Maximilian Sattler)]
Sörren Kiene studied law at the University of Münster (Dr. iur.) and is a partner at BRANDI
Rechtsanwälte in Gütersloh. His main areas of practice are in international commercial law, agency law
as well as distribution law. He is a specialist lawyer (Fachanwalt) for international business law and is also
a qualified solicitor (England & Wales). [$$ 759-779 (jointly with Nils Wigginghaiis)]
Anna Kirchhefcr-Lauber studied law at the University of Münster (Dr. iur.) and the Universities of
Bristol (LL.M.) and Oxford. She is an experienced lawyer specialising in medical law and is dedicated to
lectures and research. She is also a member of the ethics committee of the University of Münster.
[$$ 630a-630hl
Roland Kläger is a partner of Haver & Mailänder in Stuttgart specialising in international arbitration
and complex litigation. He studied law in Freiburg and Tübingen (Dr. iur.), previously was a research
fellow at the University of Freiburg and a visiting fellow at the Lauterpacht Centre for International Law
of the University of Cambridge. [$$ 946-9841
XIII
List of Authors
the Chair of Civil Law, Private International Law and Comparative
of Erlangen-Nuremberg; he is currently completing his doctoral
commercial arbitration and European private international law
Lorenz Krämer is a researcher at
Law, Friedrich-Alexander-University
thesis in the fields of international
488-515]
Robert Magnus is Professor of German and International Civil Procedure Law and German Civil Uw
at the University of Bayreuth. His research interests focus primary on European civil procedure law,
conflict of laws, and family and succession law. [§§ 90-103, 854-872]
Ulrich Magnus is Professor emeritus at the University of Hamburg and presently research affiliate at
the Max Planck Institute for Comparative and International Private Law. His mam focus is on
comparative and European law of obligations, in particular tort law, international and uniform sales law
as well as on private international law. [§§ 249-254, 823-853, 1004-1007]
Caroline MeUer-Hannich is Professor of Civil Law, Civil Procedure Law and Commercial Law at the
Martin-Luther-University Halle-Wittenberg. Her research focuses on national and international civil
procedure law, including enforcement and insolvency law, as well as European private law and especially
consumer protection law. [§§ 903-945]
Alica Mohnert is a researcher at a major German law firm and a lecturer on legal psychology at the
Heinrich Heine University Düsseldorf, the German University of Administrative Sciences Speyer, and the
University of Siegen. She specialises in civil law, tort law, IT law, and corporate law; having studied at the
Universtity of Cologne and the China University of Political Science and Law, she holds graduate degrees
in psychology (German diploma), law (state examination) and Chinese law (LL.M.). [§§ 186-240 (joint!}
with Daniel Effer-Uhe)]
Evelyn Oehm is a judge at the Regional Court (Landgericht) in Frankfurt am Main. She practices in a
civil chamber focusing on insurance law in first instance and appeal cases. She studied law at the
Johannes Gutenberg University Mainz and at King’s College London (LL.M.). [§§ 362-397]
Max W. Oehm is a lawyer at Baker McKenzie’s Dispute Resolution Practice in Frankfurt am Main. He
focuses on international arbitration and ADR in infrastructure projects and post-M&A disputes. He
studied at the Johannes Gutenberg University Mainz (Dr. iur.) and the Boston University School of Law
(LL.M.). He teaches negotiation skills at the University of Mannheim. [§§ 313-345]
Constanze Ort studied law (Dr. iur.) at the Friedrich-Alexander-University Erlangen-Nuremberg and
the Maurice A. Deane School of Law at Hofstra University (LL.M.). She worked as a researcher at the
chair for German, European and International private and commercial law at the Friedrich-Alexander-
Un i ver sity Erlangen-Nuremberg. [§§ 705-758» 1008-1017 (jointly with Robert Freitag)]
Stefanie Risse is a lawyer in Münster and a registered lawyer in Spain. She studied law at the
University of Münster and at the Complutense University of Madrid (MDC). Her field of activity is in
European law, in particular real estate and travel law. [§§ 481-487]
Caroline Sophie Rupp is Junior Professor of Civil Law, European and International Private and
Procedural Law and Comparative Law, particularly European Property Law at the Julius-Maximilians-
Lniversity of Würzburg. Her main research interests are in the fields of property7 law (in particular
secured transactions law), European private law and legal harmonisation, private international law and
international civil procedure, 1204-1296]
Ingo Saenger is Professor of Civil Law, Procedural Law and Company Law and Director of the
for International Business Law at the University of Münster, His main research interests are in
the fields of company law (corporations/mergcrs & acquisitions/corporate governance), procedural la"-
international sales law and European law. 454-473, 480 (both parts jointly with Jonathon Watson)]
Adam Sagan is Professor of Civil Law and European and German Labour Law at the University of
Bayreuth. His main research interest is European labour law. 611-630 (jointly with Stephan SeiwertIO’
arc^of do'^H^M -7 “T” l^sociatc Baker M^enzie in Frankfort am Main and practices in the
areas f domestic and international commercial litigation and arbitration. He holds a doctorate (Dr. iur.)
from the Goethe Umvers.ty Frankfurt [§§420-432 (jointly with Annette Keibnann)]
an^FcXmt^ P?Vak’ ,n,crnaUonftl Law. Comparative Law, Commercial
Ku or"helaw of o r a Bochum- Her main ««as of research are private law (with a
toe us on the law of obligations), private international law, comparative law (with t focus on Anglo
List of Authors
fohanna Schmidt-Räntsch is vice-presiding judge at the Vlh Civil Senate of the Federal Court of Justice
(Bufidesgerichtshofl, which is competent for sales of real property, real property, condominium and forced
execution law. Her research interests extend further to general contract law and judges* professional law.
She is also Honorary Professor at the Humboldt University of Berlin, where she teaches contract, sales of
goods and property law. 1018-1093]
Reiner Schulze is emeritus Professor of German and European civil law and Director of the Centre of
European Private Law at the University of Münster. His main research interests are in the fields of
European business law, the law of obligations (in particular contract law and tort law) and international
contract law. [Introduction, 516-534 (both parts jointly with Gerhard Dannemann), §§ 241-248, 255-304,
311-311c]
Stephan Seiwerth is a post-doctoral researcher (Habilitand) at the Institute for German and European
Labour and Social Security Law at the University of Cologne. His research interests are in the fields of the
law of obligations, labour law, social security law and EU law. [§§ 611-630 (jointly with Adam Sagan)]
Christian Uhlmann studied law at the Johannes Gutenberg University Mainz, Heidelberg University
(Dr. iur.) and Cornell University (LL.M.). He currently is a post-doctoral researcher (Habilitand) at the
Institute for Comparative Law, Conflict of Laws and International Business Law at Heidelberg University.
398-413]
Daniel Ulber is Professor of Civil Law, Company Law and Labour Law at the Martin-Luther-
University Halle-Wittenberg. His main research interests are in the fields of European and international
labour law. /££ 688-704]
Hannes Wais is a post-doctoral researcher (Habilitand) at the Institute for Comparative Law, Conflict
of Laws and International Business Law at Heidelberg University. He studied law in Heidelberg (Dr. iur.)
and Cambridge (LL.M.). /££ 104-185]
Jonathon Watson studied English law in Liverpool and German law in Münster (Dr. iur., LL.M.). His
main research interests are in the fields of comparative law, consumer law, European contract law and
international sales law /£< 355-361; 454-473, 480 (both parts jointly with Ingo Saenger)]
Matthias Wendland studied law in Munich (Dr. iur.) and at Harvard (LL.M.). He completed his post¬
doctoral qualification (Habilitation) at the Ludwig-Maximilians-University of Munich where he received
the venia legendi for civil law, civil procedure law, international private law, comparative law, legal
philosophy and legal sociology. His research focuses on European contract and consumer protection law,
international contract law, the law of obligations (in particular the law of unfair general terms and
conditions) and the emerging field of the law of digitalisation. [§§ 346-354, 414-419]
Catherine Westerwelle is partner at Aderhold Rechtsanwaltsgesellschaft GmbH in Dortmund. She
mainly advises on commercial law and real estate law and is a lecturer in the master’s degree programme
‘Commercial Law’ at the University of Münster (JurGrad gGmbH). [§§873-902]
Nils Wigginghaus is a partner at BRANDI Rechtsanwälte in Gütersloh where he mainly advises on
corporate law. He is a specialist lawyer (Fachanwalt) for international business law and is also qualified as
a notary^ (Notar). He studied law at the University of Konstanz (Dr. jur.) and is a frequent guest lecturer
on cross-border contract drafting at the University of Konstanz and at the Humboldt University of Berlin.
[§§ 759-779 (jointly with Sörren Kiene)]
XV
Abbreviations of Legislation, Legislative Drafts and Model Rules
Germany
AAG
Aufwendungsausgleichsgesetz
Expenditure Compensation Act
ADHGB
Allgemeines Deutsches
Handelsgesetzbuch
General German Commercial Code4
AEntG
Arbeitnehmer-Entsendegesetz
Posting of Workers Act
AGBG
Allgemeine-Geschäftsbedingungs-
gesetz
Standard Terms and Conditions Act
AGG
Allgemeines Gleichbehandlungsgesetz
General Act on Equal Treatment*
AktG
Aktiengesetz
Stock Corporation Act*
AMG
Arzneimittelgesetz
Medicinal Products Act*
AnfG
Anfechtungsgesetz
Act on the Avoidance of Fraudulent
Conveyances
AO
Abgabenordnung
Fiscal Code*
StArbGG
Arbeitsgerichtsgesetz
Labour Courts Act
ArbSchG
Arbeitsschutzgesetz
Work Safety Act*
ArbStättV
Verordnung über Arbeitsstätten
Workplace Ordinance* }
ArbZG
Arbeitszeitgesetz
Working Time Act
AtG
Atomgesetz
Atomic Energy Act
AÜG
Arbeitnehmerüberlassungsgesetz
Temporary Employment Act
BauGB
Baugesetzbuch
Construction Code
BBergG
Bundesberggesetz
Federal Mining Act*
BBiG
Berufsbildungsgesetz
Occupational Education and Training
Act
BBodSchG
Bundes-Bodenschutzgesetz
Federal Soil Protection Act
BDSG
Bundesdatenschutzgesetz
Federal Data Protection Act*
BEEG
Bundeselterngeld- und Elternzeit¬
gesetz
Federal Parenting Benefit and Parental
Leave Act
BetrVG
Betriebsverfassungsgesetz
Works Constitution Act*
BeurkG
Beurkundungsgesetz
Notarisation Act
BewachV
Bewachungsverordnung
Security Services Regulation
BGB
Bürgerliches Gesetzbuch
Civil Code*
BGB-InfoV
BGB-Informationspflichten
Verordnung
BGB Information Regulations
BImSchG
Bundesimmissionsschutzgesetz
Federal Environmental Impact
Protection Act
BinSchG
Binnenschifffahrtsgesetz
Inland Waterways Act
BNatSchG
Bundesnaturschutzgesetz
Federal Nature Conservation Act
BNotO
Bundesnotarordnung
Federal Notary Act
BörsG
Börsengesetz
Stock Exchange Act
BSHG
Bundessozialhilfegesetz
Federal Social Welfare Act
♦ The English translations of the short titles are for indicative purposes only.
' An English translation is available under www.gesetze-im-internet.de.
XVII
Abbreviations of Legislation
, Legislative Drafts and Model Rules
tmg
tvg
TzBfG
UKlaG
UrnwG
UrhG
UWG
VAG
VerbrKrG
VereinsG
VerkProsG
VermAnlG
VOB/B
WG
VwGo
VwVfG
WEG
Telemediengesetz
Tarifvertragsgesetz
Teilzeit- und Befristungsgesetz
Unterlassungsklagengesetz
Umwandlungsgesetz
Urheberrechtsgesetz
Gesetz gegen den unlauteren Wett¬
bewerb
Versicherungsaufsichtsgesetz
Verbraucherkreditgesetz
Vereinsgesetz
Verkaufsprospektgesetz
Vermögensanlagengesetz
Allgemeine Vertragsbedingungen für
die Ausführung von Bauleistungen
Versicherungsvertragsgesetz
Verwaltungsgerichtsordnung
Verwaltungsverfahrensgesetz
Wohnungseigentumsgesetz
Telemedia Act
Collective Bargaining Act
Part-Time Work and Fixed-Term Em¬
ployment Act
Injunctions Act
Transformation Act*
Copyright Act*
' Act Against Unfair Competition*
Insurance Supervision Act
Consumer Credit Act
Associations Act
Prospectus Liability Act
Investment Contracts Act
Award Rules for Building Works, Part B
Insurance Contracts Act
Code Of Administrative Court
Procedure*
Administrative Procedure Act
Act on the Ownership of Apartments
and the Permanent Residential Right*
WG
Wechselgesetz
Bills of Exchange Act
WHG
Wasserhaushaltsgesetz
Water Management Act
WoVermG
Wohnungsvermittlungsgesetz
Housing Agencies Act
WpHG
Wertpapierhandelsgesetz
Trade in Securities Act
WRV
Weimarer Reichsverfassung
Constitution of the Weimar Republic
ZAG
Zahlungsdiensteaufsichtsgesetz
Acton
Supervision of Payment Services
ZPO
Zivilprozessordnung
Code of Civil Procedure*
ZVG
Gesetz über die Zwangsversteigerung
und die Zwangsverwaltung
Act on Enforced Auction and
Receivership*
Austria
ABGB
Allgemeines Bürgerliches Gesetzbuch
Austrian Civil Code
European Union
ACQP
Brussels I
Brussels la
Brussels Conven¬
tion
CESL (draft)
Charter of Funda¬
mental Rights
Commercial
Agents Directive
Principles of the Existing EC Contract Law (Acquis Principles)
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
Regulation (EU) No. 1215/20121 of the European Pariiament and the Council ot
12 December 2012 on jurisdiction and the recognition and enforcements of
judgments in civil and commercial matters
1968 Brussels Convention on jurisdiction and the enforcement of judgments in
civil and commercial matters
Proposal for a Common European Sales Law (COM(20U) 634 final)
Charter of Fundamental Rights of the European Union (2009)
Council Directive 86/653/EEC of 18 December 1986 on the coordination of the
laws of the Member States relating to self-employed commercial agents
XX
Abbreviations of Legislation, Legislative Drafts and Model Rules
Consumer Credit
Directive
Directive 2008/48/EC of the European Parliament and of the Council of 23 April
2008 on credit agreements for consumers and repealing Council Directive 87/102/
EEC
Consumer Rights
Directive
Consumer Sales
Directive
Cross-Border
Credit Directive
Distance
Marketing of
Financial Services
Directive
Distance Selling
Directive
Directive on the
Supply of Digital
Content
Doorstep Selling
Directive
DCFR
E-Commerce
Directive
Directive 2011/83/EU of the European Parliament and of the Council of
25 October 2011 on consumer rights
Directive 1999/44/EC of the European Parliament and of the Council of 25 May
1999 on certain aspects of the sale of consumer goods and associated guarantees
European Parliament and Council Directive 97/5/EC of 27 January 1997 on cross-
border credit transfers
Directive 2002/65/EC of the European Parliament and of the Council of
23 September 2002 concerning the distance marketing of consumer financial
sendees
Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997
on the protection of consumers in respect of distance contracts
Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May
2019 on certain aspects concerning contracts for the supply of digital content and
digital services
Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in
respect of contracts negotiated away from business premises.
Draft Common Frame of Reference
Directive 2000/31/EC of the European Parliament and of the Council of 8 June
2000 on certain legal aspects of information society services, in particular electro¬
nic commerce, in the Internal Market
elDAS Regulation
Regulation (EU) No 910/2014 of the European Parliament and of the Council of
23 July 2014 on electronic identification and trust services for electronic trans¬
actions in the internal market
Equal Treatment
in Goods and
Services Directive
Financial
Collateral Directive
Framework
Equality Directive
Gender Equality
Directive
Council Directive 2004/113/EC of 13 December 2004 implementing the principle
of equal treatment between men and women in the access to and supply of goods
and services
Directive 2002/47/EC of the European Parliament and of the Council of 6 June
2002 on financial collateral arrangements
Council Directive 2000/78/EC of 27 November 2000 establishing a general frame¬
work for equal treatment in employment and occupation
Directive 2006/54/EC of the European Parliament and of the Council of .5 July
2006 on the implementation of the principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation
Interchange Fee
Regulation
Late Payment
Directive 2000
Late Payment
Directive
Mortgage Credit
Directive
Regulation (EU) 2015/751 of the European Parliament and of the Council of
29 April 2015 on interchange fees for card-based payment transactions
Directive 2000/35/EC of the European Parliament and of the Council of 29 June
2000 on combating late payment in commercial transactions
Directive 2011/7/EU of the European Parliament and of the Council of
16 February 2011 on combating late payment in commercial transactions
Directive 2014/17/EU of the European Parliament and of the Council of
4 February 2014 on credit agreements for consumers relating to residential
immovable property
Package Travel
Directive
Payment Services
Directive
PECL
Product Liability
Directive
Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays
and package tours
Directive (EU) 2015/2366 of the European Parliament and of the Council of
15 November 2015 on payment services in the internal market
Principles of European Contract Law
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws,
regulations and administrative provisions of the Member States concerning liabi¬
lity for defective products
XXI
Abbreviations of Cited Works
Mugdan
Die gesammelten Materialien zum Bürgerlichen Gesetzbuch für das
Deutsche Reich Bd. I-V (Collection of materials concerning the German
civil code, Vols I-V)
MüKo BGB
Säcker et aL (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch
BGB (9* edn, C.H. Beck 2019)
Müller
NK-BGB
Müller, Besitzschutz in Europa (Mohr Siebeck 2010)
Dauner-Ueb/Heidel/Ring (eds), BGB Kommentar (3rd edn, Nomos
2014) /
NK-GA
Boecken/Düwell/Diller et al (eds), NomosKommentar - Gesamtes Ar¬
beitsrecht, Vols I-III (Nomos 2Ö16)
OSK Haftung des Arbeitneh¬
mers
Palandt
Otto/Schwarze/Krause, Die Haftung des Arbeitnehmers (4th edn, de
Gruyter 2014)
BrüdemüDer et al Palandt - BGB Kurzkommentar (78* edn, C.H.Beck
2019)
PEL Per. See.
Drobnig et al., Personal Security (Principles of European Law) (Selber
2007)
PWWBGB
RGK BGB
Schwimann ABGB
Soergel BGB
Prütting/Wegen/Weinreich(eds), BGB (13* edn, Luchterhand 2018)
Reichsgerichtsräte-Kommentar BGB (12* edn, de Gruyter 1978-2000)
Schwimann (ed.), ABGBPräMskommentar (3rd edn, LexisNexis 2005)
Bürgerliches Gesetzbuch mit Efnfühfungsgesetz und Nebengesetzen: BGB
(13* edn, Kohlhammer 2000)
Staudinger BGB
J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch: Staudinger
BGB (SeUier/de Gruyter 2007) ,
The German Law of Contract
Markesinis/Unberath/Johnston, Die German Law of Contract (2nd edn.
Hart 2006)
v. Bar/Clive, DCFR Full
von Bar/Cbve (eds),.Principles, Definitions and Model Rules of European
Private Law - Draft Common Frame of Reference - Fuß Edition (Selber
Zöller ZPO
Zöller (ed.), Zivilprozessordnung (32nd edn, Otto Schmidt 2018)
List of Abbreviations and Abbreviated Literature
AcP
ADAC
AG
Archiv civilistischer Praxis
Allgemeiner Deutscher Automobil Club (General German Automobile Club)
(1) Amtsgericht (Local Court);
(2) Aktiengesellschaft (stock corporation)
AGB
Alt.
Anm.
API
ArbG
Allgemeine Geschäftsbedingungen (standard business terms)
Alternative
Anmerkung (explanatory note)
Application Programming Interface
Arbeitsgericht (Labour Court)
arg.
Art.
Arts
B2B
B2C
BaFin
Argumentum
Article
Articles
business-to-business
business-to-consumer
Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial
Supervisory Authority)
BAG
BauR
BayObLG
BB
BeckRS
BFH
BGBl.
BGH
BKR
BR-Drs.
BReg.
BSG
BT
BT-Drs.
BVerfG
BVerfGE
BWNotZ
cf.
Ch.
Ch.App.
CIF
CJEU
COM
CR
CUP
Bundesarbeitsgericht (Federal Labour Court)
Baurecht - Zeitschrift für das gesamte öffentliche und private Baurecht
Bayerisches Oberstes Landesgericht (Highest Regional Court of Bavaria)
Betriebsberater
Beck-Online Rechtsprechung
Bundesfinanzhof (Federal Finance Court)
Bundesgesetzblatt (German Federal Law Gazette)
Bundesgerichtshof (Federal Court of Justice)
Zeitschrift für Bank- und Kapitalmarktrecht
Bundesratsrucksache (Official Document of the Federal Council)
Bundesregierung (Federal Government)
Bundessozialgericht (Federal Social Court)
Bundestag (Federal Parliament)
Bundestagsdrucksache (Official Document of the Federal Parliament)
Bundesverfassungsgericht (Federal Constitutional Court)
Entscheidung des BVerfG (Decision of the Federal Constitutional Court)
Zeitschrift für das Notariat in Baden-Württemberg
confer
Chapter
Law Reports. Chancery Division. Appeal Cases
Cost-Insurance-Freight (Incoterm)
Court of Justice of the European Union
Publications of the Commission of the EU
Computer und Recht
Cambridge University Press
XXV
List of Abbreviations and Abbreviated Literature
IMO
DB
DG
DM
DNotl
DNotZ
DStR
Dircctors-and-Officers
Der Betrieb
Director General
Deutsche Mark
Deutsches Notarinstitut
Deutsche Notar-Zeitschrift
Deutsches Steuerrecht
e-g-
e. V.
EA
exempli gratia
eingetragener Verein (registered association)
Societas Europaea
EBA
EC
ECB
ECHR
ECJ
ECtHR
ed.
Edinburgh L Rev
edn
eds
EEA
EEC
eG
Einf
European Banking Authority
European Community
European Central Bank
European Convention on Human Rights
European Court of Justice
European Court of Human Rights
editor
Edinburgh Law Review
edition
editors
European Economic Area
European Economic Community
Eingetragene Genossenschaft (registered cooperative)
Einführung (introduction)
et seq.
etc.
EU
EuCML
Euratom
EuZA
EuZW
EWCA
EWiR
EWIV
et sequentia
etcetera
European Union
Journal of European Consumer and Market Law
European Atomic Energy Community
Europäische Zeitschrift fur Arbeitsrecht
Europäische Zeitschrift fur Wirtschaftsrecht
England and Wales Court of Appeal
Entscheidungen zum Wirtschaftsrecht
Europäische Wirtschaftliche Interessenvereinigung (European Economic Interi
Groupings - EEIG)
FE
FOB
GbR
GDR
GEM A
Fundation Europaea (European Foundation)
Free On Board (Incoterm)
Gesellschaft bürgerlichen Rechts (civil law partnership)
German Democratic Republic
Gesellschaft für musikalische Auflfiihrungs- und mechanische Vervielfältigt
rechte (German Music Author’s Association)
GmbH
GPR
GRUR
i.a.
Gesellschaft mit beschränkter Haftung (limited liability company)
Zeitschrift für das Privatrecht der Europäischen Union
Zeitschrift zum Gewerblichen Rechtschutz und Urheberrecht
inter alia
id est
XXVI
List of Abbreviations and Abbreviated Literature
InvKG
IOU
JherJb
JR Rspr
juris - Die Mon¬
atszeitschrift
iurisPK-BGB
iurisPR-BKR
JuS
IZ
KB
KG
Investment-Kommanditgesellschaft
I Owe You (informal document acknowledging a debt)
Jherings Jahrbücher für die Dogmatik des bürgerlichen Rechts
Juristische Rundschau Rechtsprechung
iuris - Die Monatszeitschrift
juris PraxisKommentar BGB
juris PraxisReport Bank- und Kapitalmarktrecht
Juristische Schulung
Juristenzeitung
King's Bench
(1) Kommanditgesellschaft (limited partnership)
(2) Kammergericht (Superior Court of Berlin)
KGaA
KTS
KV
LAG
LG
MDR
MedR
MittRhNotK
MMR
Kommanditgesellschaft auf Aktien (partnership limited by shares)
Zeitschrift für Insolvenzrecht Konkurs Treuhand Sanierung
Kostenverzeichnis (cost directory)
Landesarbeitsgericht (Regional Labour Court)
Landgericht (Regional Court)
Monatsschrift für deutsches Recht
Medizinrecht
Mitteilung der Rheinischen Notarkammer
Multimedia und Recht
mn.
NJW
NJW-RR
No.
Nos
NStZ
NZA
NZA-RR
NZBau
OGH
OHG, oHG
OLG
OUP
margin number
Neue Juristische Wochenschrift
Neue Juristische Wochenschrift-Rechtsprechungsreport
number
numbers
Neue Zeitschrift für Strafrecht
Neue Zeitschrift für Arbeitsrecht
NZA - Rechtsprechungs- Report
Neue Zeitschrift für Baurecht und Vergaberecht
Obersten Gerichtshof (Austrian Supreme Court of Justice)
Offene Handelsgesellschaft (general partnership)
Oberlandesgericht (Higher Regional Court)
Oxford University Press
P-
para,
paras
PartG
PIN
POS
RAG
RdA
RegE
page
paragraph
paragraphs
Partnerschaftsgesellschaft (registered partnership)
Personal Identification Number
Point of Sale
Reichsarbeitsgericht (Imperial Labour Court 1926-1945)
Recht der Arbeit
Regierungsentwurf (Government draft)
RG
RGZ
Reichsgericht (Imperial Court 1879-1945)
Sammlung der Entscheidungen des Reichsgerichts in Zivilsachen
(Collated Decisions of the Imperial Court in Civil Cases)
XXVII
RlW
RTS
s
SCA
SCE
SCHUFA
SeC“On Authentication
Strong Cuslomc
<W'”‘ Eu,,,pta . K„dit5ichvrung (Protective Associatitmfc,
Sctal,8e„.eioSc>»f'“”"6em"nt
Sales Financing)
SE
SEPA
St.
Sub.
Subs
TAN
TPP
UCP
UK
UKHL
Societas Europaea
Single Euro Payments Area
Sentence
Subsection
Subsections
Transaction Authentication Number
Third Party Provider ...
z' »nd Practice for Documentary Credit
Uniform Customs and Practice
United Kingdom
United Kingdom House of Lords
V
(1) versus;
(2) vor
Var.
VAT
VersR
VG Wort
Vol.
VuR
Vols
WM
WuB
WuM
ZBB
ZEuP
ZEV
ZfPW
ZGS
ZHR
ZIP
ZNotP
ZNR
ZTR
Variant
Value Added Tax
Versicherungsrecht
Vemertungsgesellschaft Wort (Collecting Society Won)
Volume
Verbraucher und Recht
Volumes
Wertpapiermitteilungen - Zeitschrift fur Wirtschafts- und Bankrecht
Entscheidungsanmerkungen zum Wirtschafts- und Bankrecht
Wohnungswirtschaft und Mietrecht
Zeitschrift für Bankrecht und Bankwirtschaft
Zeitschrift für Europäisches Privatrecht
Zeitschrift für Erbrecht und Vermögensnachfolge
Zeitschrift für die gesamte Privatrechtswissenschaft
Zeitschrift für das gesamte Schuldrecht
Zeitschrift für das gesamte Handels- und Wirtschaftsrecht
Zeitschrift für Wirtschaftsrecht
Zeitschrift für die Notarpraxis
Zeitschrift für neuere Rechtsgeschichte
Zeitschrift für Tarifrecht
ZUM Zeitschrift für Urheber- und Medienrecht
ZVertriebsR Zeitschrift für Vertriebsrecht
XXV1I1
Introduction
Contents
mn,
I. An English language commentary on the German Civil Code 1
II. The BGB in the German legal system today 9
III. The process of drafting and enactment of the BGB 16
IV. Change 22
V. The Style of the BGB 28
VI. Books 1-111: An overview 34
VII. Notes on the BGB translation 62
I. An English language commentary on the German Civil Code
The present book is the first English language commentary on the Bürgerliches Gesetzbuch 1
(BGB), the German Civil Code. It has been written specifically for readers who are familiar
with neither the German language nor German law. Section by section, it presents the
German original together with an English translation and explains scope, context, meaning,
terminology, relevance and practical application. The present volume includes the first three
books of the BGB, namely the General Part (Allgemeiner Teil), the Law of Obligations
(Schuldrecht), and Property Law (Sachenrecht). A second volume will complete the commen¬
tary with the two remaining books, namely Family Law (Familienrecht) and the Law of
Succession (Erbrecht).
The Bürgerliches Gesetzbuch became the cornerstone of German civil law when it was 2
enacted on 1 January 1900. It has since been applied in millions of cases and amended
dozens of times. Scholarly contributions on the BGB fill a large library. Several dozens of
commentaries have been written on the BGB, many continue to appear.
From early on, the Anglophone world took considerable interest. In 1904, Frederic 3
William Maitland showered the BGB with praise.1 In 1905, Edward Jenks presented a digest
of English civil law which was arranged according to the structure of the General Part of the
BGB.2 3 The first English translation of the BGB and the first English language textbook on the
new German civil law both appeared in 1907? Much more has since been written in the
English language on German civil law in general, and the BGB in particular. It is therefore
almost surprising that it took almost 120 years after the BGB entered into force for the first
English language commentary to appear.
Commentaries on legislative enactments are written in many legal systems, but they take 4
traditionally a particular place in the development of German law. This is where, section by
section, legislation meets case law and scholarly contributions. Authors show how courts are
applying and developing the BGB, presenting the interaction between individual provisions
and judgments and discussing how the law could or should be developed in the future. The
proximity to legislation as primary source of law, with every single sentence being addressed,
has for long made commentaries key to the development of German law. For most
practitioners, scholars and students, they provide the first point of reference for specific legal
enquiries.
1 Fisher (ed.). The Collected Papers of Frederic William Maitland, Vol. Ill (CUP 1911), p. 463. This
article, The Laws of the Anglo-Saxons first appeared in 1904 in the Quarterly Review.
2 Jenks, A Digest of English Civil Law, Book I: General (1905).
3 Wang, 'I he German Civil Code. Translated and annotated with an historical introduction and
appendices (Steven & Sons 1907); Schuster, The Principles of German Civil Law (Clarendon 1907).
Dannemann/Schulze
1
5
6
7
8
9
Introduction
5-9 , nj scholarly writing, there is quite some
While all commentaries blend Ieg-Ia‘ion’r^fXce works which primarily aim to present
variety in emphasis. Some commentar.es a re re Jutions for disputed issues Some of
the law as it is, but not without noting gaps and propos ß^se js arguably most
these are predominantly written by judges, as .: predominantly wntten by
frequently used of all German commentaries, tne vjewJ. ßf thß a$ it t0 a
academics, but frequently also involving practi io a critical evaluation even of well-settled
systematic presentation of ongoing or past debat > and extensjve; /. von Staudingers
case law. Some commentaries are very compre _ „5 The Münchener Kommentar
K— runs presen, eommeniary has no
zum Buricrlkha OisuMi composes aroun , P g comme„ary foun<jed by Olhmar
such ambition; in size, it perhaps compares bes t academics and students
fauernig? a handy reference guide which is popular with practit oners, a^^mics and^studen^
Howlver, the present book is very different from an English translation of one; of the
existing German language commentaries. These are wntten for readers w o are aine in
German law, who are generally familiar with the legal institutions and the terminology
employed by the BGB and how it is embedded in the German legal system. Even BGB
commentaries written specifically for students expect their readers to have acquired this basic
knowledge through lectures and textbooks. It was therefore out of the question just to
translate an existing BGB commentary into the English language.
Compared to existing BGB commentaries, the present book presents in more detail the
function and scope of BGB provisions and how they relate to other parts of the BGB. It
explains in more detail the numerous concepts which the BGB employs throughout, and die
terminology which it uses. Comparative references, notably to French and English law, and
the Draft Common Frame of Reference for European Private Law (DCFR) are added where
appropriate. The present commentary also focuses more on explaining the law as it is applied
by the courts, and less on academic debates, although these are referred to where they
illuminate the present law, relate to unresolved legal issues, or where existing commentaries
provide a more detailed exposition. 6
Its style is otherwise in line with that commonly emnloved bv nthpr nr'n •
While all efforts are made to make existing German □ hw „S * /S commentary
are not German lawyers, this should not be misunderst^d «TaXemm * r
in line with international legal harmonisation projects or evZtl Z? T““
law as presented in this book is as authentic as that nr~ Z ghaS€ German law. The
commentaries. This is why this book should also be usefufto Z™ German lang“age BGB
law in an Anglophone environment, whose task mav h. ♦ aWyers "’ho use German
governed by German law, to explain German law to dientZor langua8e
English language arbitration or court proceedings The hZ J° PreSent German law in
L ve to international audiences.
II. The BGB in the German legal system tnd
Private forms one of the ««lay
distinguished from public law Thk aS °f German fecal
the BGB. Whereas private hw^eZZ"“"7 C°nCerns heatttf gZ is to
others, public law often just entitles Z u ™ ““dual’s rights and Z PnVate law
legal relationship, subject to regulation The? Z *** (°r ^otheZubZ^x^011 *
their concepts can be traced back tn 'd stlncti°n between Driver within the
back to the Roman jurist. P^lic law and
~T„, ‘ ndeed' most continental
• Miinchencl i'i'i “»»-»I»'
’ |«E. Cracl,bucl,^™
’ '-•n.Beck 2018). -Ol5~2018),
2
Da,lneinann/Schuke
Introduction
10-13
European legal systems, and other legal systems which they have inspired, are underpinned
by Roman law to a much larger degree than legal systems based on English common law.
Bürgerliches Recht is a part of German private law which contains general rules applicable, 10
in principle, to legal relationships between individuals. Bürgerliches Recht is often translated
as civil law, and indeed used as a synonym for Zivilrecht. However, Bürgerliches Recht reflects
a clearer distinction from those areas of law which only apply to specific groups and particular
social and economic relationships, such as commercial law as the 'law of merchants’, competi¬
tion law (which includes unfair competition and restraints of competition), banking law,
insurance law, and labour law (of which some is regulated in the BGB’s provisions on service
contracts). Such areas of law do indeed form part of private law, though are often referred to as
Sonderprivatrechte (literally: special private laws) in order to distinguish them from Bürgerliches
Recht as general private law.
The BGB codifies the core of civil law, which is expressed by the title Bürgerliches 11
Gesetzbuch and its translation as German Civil Code. The BGB divides the topics into five
broad areas, each referred to as a Book. Book I is the Allgemeiner Teil (General Part), which
contains rules that apply, in principle, to Books II-V, and also to other areas of private law.
Consolidating the general rules in one book reflects a drafting method whereby general
provisions are placed before specific provisions (vor die Klammer ziehen - the German
mathematical expression for factorising, i.e. finding a common denominator and placing this
outside of brackets).8 Book II concerns Schuldrecht (Law of Obligations). It is divided into
general rules applicable to all or several types of obligations (divisions 1-7; §§ 241 et seq.)
and specific rules for individual types of obligations (division 8; §§ 433 et seq., including
various types of contract, benevolent interventions, unjustified enrichment and tort).9 Book
III concerns Sachenrecht (Property Law) and contains rules on ownership, possession,
restricted real rights to land and movables, and securities in land, movables and other
rights.10 Book IV contains provisions of Familienrecht (Family Law) and is divided into
three broad divisions on marriage, kinship, guardianship, legal curatorship and custodian¬
ship. Finally, Book V covers Erbrecht (Law of Succession) with regard to succession, legal
position of the heir, will, contract of inheritance, compulsory' share, unworthiness to inherit,
renunciation of inheritance, certificate of inheritance, and purchase of an inheritance.
The BGB’s provisions on substantive law are supplemented by rules in the Einfiihrungsge- 12
setz zum bürgerlichen Gesetzbuche (EGBGB; Introductory Act to the Civil Code) for private
international law (Arts 3 et seq. EGBGB) and for conflicts between previous enactments and
subsequent amendments (intertemporal law, Arts 219 et seq. EGBGB). Several additional
statutes in the field of civil law are described as ancillary with regard to their relationship to
the BGB. Such ‘ancillary statutes’ are often a reaction to new social challenges (in particular
the 1919 Erbbaurechtsgesetz and the 1951 Wohnungseigentumsgesetz). Numerous ‘ancillary
statutes’ fully or partially serve the transposition of EU directives into German law (such as
the ProdHaftG, the AGG, and the UKlaG).
The majority of EU consumer law directives (especially consumer contract law) have been 13
transposed into the BGB. Initially, the German legislator favoured transposition via indivi¬
dual statutes (in contrast to the approach of a ‘Consumer Code’ as favoured in other EU
Member States). This changed, however, with the 2002 modernisation of the law of
obligations, which integrated consumer law into the BGB. The BGB thereby retains its
central importance for the numerous day-to-day transactions that citizens conclude as
consumers (§ 13). BGB provisions which implement EU consumer law directives change
more frequently and are also more detailed than is typical for other provisions of the BGB.
Some of the burden which such detailed and changing rules would impose on the BGB was
* See > mn. 28-34 for the various techniques employed by the BGB for allocating rules to the highest
possible level.
’Sec -► mn. 35-44 for a more detailed overview of Book I.
io See -► mn. 45-53 for a more detailed overview of Book II.
Dannemann/Schulze
3
Introduction
14-18
. Fl J law, in particular as concerns
avoided by using instead the EGBGB f°r tr“nsP Jntly> consumer law provisions in the
information duties (Arts 242 et seq. EGBGB). C H „
BGB are often supplemented by additional rules m e g forced in a dispute before
14 The BGB does not regulate how its rights and duties are io rnntinental-EuroDean
the courts. It focuses rather on substantive law, as most laws i other codes, in
tradition. The provisions concerning judicial procedures are to e o
particular in the Zivilprozessordnung (ZPO; Code of Civil Procedure) an in . u &
das Verfahren in Familiensachen und in den Angelegenheiten der freiwi igen enc ar t
(FamFG; Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdic¬
tion). Court jurisdiction and composition is regulated in the Gerichtsverfassungsgesetz
(GVG; Courts Constitution Act). According to § 13 GVG, the ordinary courts have jurisdic¬
tion over civil disputes. Ordinary courts of first instance are the Amtsgericht (AG; Local
Court) and the Landgericht (LG; Regional Court). The latter is court of first instance for
disputes concerning claims involving an amount or with a monetary value not exceeding the
sum of five thousand euros (§ 23 No. 1 GVG). Furthermore, it is a court for appeals on fad
and law (Berufungsgericht) with regard to first instance judgments from the Amtsgericht (§ 72
(1) GVG). The Oberlandesgericht (OLG; Higher Regional Court) hears appeals on fact and
law from first instance judgments from the Landgericht (§ 119(1) No. 2 GVG). Appeals on
points of law (Revision) against OLG judgments may be lodged at the Bundesgerichtshof
(BGH; Federal Court of Justice) pursuant to § 133 GVG.
k 'n, p'"ri”"s ■‘i;1’1’ “ <!“?«"»■ The Amtsgericht is com of first instil««;
a No FcVGI with regard to legal remedies (Rechtsmittel) (§ 119
ÄX ‘ “fa’“"t4"10" ™th ™ created for labour dispute
Arbeitsgericht (ArbG; Local Labour Court), Landesarbeitsvereicht /7 Ar. d • i tu
Court) and Bundesarbeitsgericht (BAG; Federal Labour Com). ’ R^Ona^ Laboor
15
16
17
18
III. The process of drafting and enactment of the BGB
The prominent role played by the BGB in the German legal system is explained not only
by its position within the legal framework but also by its historical importance. The BGB
entered into force on 1 January 1900 and was understood as a decisive contribution towards
the development of uniform law for Germany. To a certain extent, the BGB represented die
keystone in the architecture of the national law that had arisen since the formation of the
German Empire in 1871.
Uniform law had already existed in the German Empire in 1871, or shortly thereafter, La.
through its constitution, common commercial law (on the basis of the Allgemeines Deutsches
Handelsgesetzbuch, which applied since 1861 in almost all German states) and a uniform
criminal law (Strafgesetzbuch für das deutsche Reich from 15 May 1871). By 1877 the
Reichsjustizgesetze had created common rules for court structure and procedural law.
However, the constitution did not afford the German Empire the competence to legislate in
the field of civil law. Different laws therefore continued to exist across the individwd states
and in part within the different regions of these states (e.e. the
Landrecht, the bayerische Codex the Sächsische Bürgerliche Gesetzbuch, the French Ode cM
also applied in some parts of Western Germany, and also gemeines -s i
Roman law and German legal traditions). National leealZ (.C°Ta°n) A based on
viewed this fragmentation as an obstacle to the development of trade” d* 19 C^Wry
within the national framework. Moreover, examples from othercommon market
Code civil from 1804 and the Italian Codice civile from 186«ti°h?tkvSuSUdl aS
symbolism of a code for national unity. mghhghted the important
In 1873, the Empire acquired the competence to legislate in the r m <• .
of an amendment to the constitution sponsored by the Ub of 'aw by means
Eduard Lasker and Johannes von Miquel. Work on the fir tl mem’>ers Parliament,
Gesetzbuch was undertaken the following year by a pre com • P- a <^raR Bürgerliches
- ommtsston (Vorkommission) before
4
Dannemann/Schulze
Introduction
19-22
a commission of judges, civil servants and legal scholars commenced work on the draft itself.
This 'first commission’ presented its results in 1887 to Chancellor Otto von Bismarck and in
1888 published the proposal for legislation with explanatory statements (Erster Entwurf with
Motiven). These explanatory statements are still used to understand the provisions of the
BGB and are referred to as part of the historical interpretation. The overall structure of the
draft (e. g. the division into five books) and many other aspects are based on notions that had
emerged from research in Roman law over the course of the 19,h century. The work by
Friedrich Carl von Savigny (especially his System des Heutigen Römischen Rechts from
1840-1849) and subsequent doctrines from Georg Friedrich Puchta and other proponents of
the Pandektenwissenschaft heavily influenced the concepts and principles underpinning the
draft and so provided the outline for the Bürgerliches Gesetzbuch. Several criticisms were
raised during the lively discussion of this draft, i.a. that its wording was too abstract,
unwieldy and 'remote from the people’, and was too liberal and individualistic as it did not
give sufficient consideration to social demands.11
The draft was revised by a second commission which was largely dominated by civil 19
sen ants from the Reichtsjustizamt. This second draft was published in 1895 together with
the minutes (Protokollen) as explanations. The latter led to a series of changes to the content
and wording and, in particular, improved the comprehension of several parts of the text
However, it only gave little consideration to social demands and, in this respect, did not
deviate from the main features of the first draft. A third draft, which ultimately arose during
the legislative process and through controversial discussions in the Reichstag, featured several
politically motivated changes (especially in the law on associations - Vereinsrecht), but
brought no fundamental changes to other parts or to the overall structure.
The Reichstag eventually passed the BGB with a majority from the National Liberal Party 20
and the Centre Party, with the Social Democrats opposing. After approval by the Bundesrat,
Kaiser Wdlhelm II promulgated the Bürgerliches Gesetzbuch on 18 August 1896. The BGB
was to enter into force on 1 January 1900, therefore affording jurists and the public with
more than three years in order to become familiar with this new legislation. Its entry into
force was met mostly with praise as a ‘work of the century’ which not only reflected an
exceptional undertaking by legal science and the legislator but also expressed national unity.
The BGB also received considerable attention abroad, even before it entered into force e.g. 21
in the Japanese Civil Code from 1898. The English legal historian, Frederic William Maitland,
deemed the BGB as 'the best code that the world has yet seen’.12
IV. Change
The academic foundation through the Pandektenwissenschaft since the first half of the 19* 22
century, more than 25 years of legislative preparations, and praise as a ‘work of the century’
did not prevent the BGB from undergoing diverse and extensive changes since it entered into
force. This change was initially foremost apparent in the courts, as the legislator originally
preferred to regulate new matters outside of the BGB, as in the Erbbaurechtsgesetz on
hereditary building rights of 1919). Within the first decades of the 20* century, courts and
scholars moved well beyond the originally intended meaning and interpretation of BGB
provisions and principles and modified its structure with new concepts. For example, the
new notion of an established and active business’ (eingerichteter und ausgeübter Gewerbebe¬
trieb) made an inroad into the exclusion of tortious liability for pure economic loss originally
intended by § 823(1) BGB, and at the same time introduced new terminology. For contrac¬
tual liability, the BGB provisions on impossibility, delay, revocation, and damages were
solidified into an overarching l.eistungsstörungsrecht (‘law concerning the various forms non-
11 See especially von Gierke, Der Entwurf eines Bürgerlichen Gesetzbuches und das Deutsche Recht
(Duncker & llumblodt 1889) and, even more critical, Monger, Das bürgerliche Recht und die besitzlosen
Volksklassen (Laupp 1890).
12 Fisher (ed.), The (Collected Papers of Frederic William Maitland, Vol. Ill (CUP 1911), p. 463.
Dannemann/Schulze
5
23-26 Introduction
compliance with contractual obligations’)13 and expanded by the new concept of positive
Vertragsverletzung (‘positive breach of contract’).14 * The prominent libera v ues espoused by
the BGB which frequently left it to individuals to negotiate for their economic well-being
were also toned down by the courts, who would sometimes resort to more paternalistic
elements for giving more prominence to societal needs. In particular, the broad extension of
the principle of Treu und Glauben (‘good faith’) resulted in the judicial development of
additional legal institutions such as pre-contractual liability through culpa in contrahendo
and termination or modification of contracts in case of Störung der Geschäftsgrundlage
(interference with the basis of the transaction, now § 313). This approach paved the way for
the general recognition of protective duties in favour of the other party to a contract (in
practice usually the weaker party), and, to a certain extent and mostly indirectly, judicial
involvement in the relationship between performance and counter-performance.
23 The National Socialists (1933-1944) included the Bürgerliches Recht in their efforts towards
aligning society and the legal system with national socialist ideology. Initially, the BGB was to
be replaced with individual pieces of legislation - the racist Ehegesetz (Marriage Act) and the
Testanientsgesetz (Wills Act) were created in 1938 for this purpose. In the long term, leading
jurists envisioned a Volksgesetzbuch (‘People’s Code’) based on racist and fascist notions which
would be linked with a renovation of contract and other areas of law. Following the end of
National Socialist rule, a committee of the Allied Control Council repealed the provisions in
the Bürgerliches Recht which were clearly an expression of nationalist ideology.13
24 When Germany was divided after the Second World War, the BGB remained applicable in
both West and East, but developed differently. The Eastern story is shorter: in the German
Democratic Republic, the BGB was perceived as remnant of a capitalist society and even
terminologically irritating, as bürgerlich translates as bourgeois. Efforts to replace the BGB with a
socialist codification nevertheless took a long time: it was not until 1976 that a new Zivilge¬
setzbuch entered into force. With unification in 1990 the Zivilgesetzbuch was again replaced by
the BGB, which has since again applied uniformly throughout all parts of Germany. An
exception was made, however, for testamentary dispositions made under the ZGB before
unification (Art. 235 § 2 EGBGB), to which the ZGB thus still applies. There are some aspects
in which GDR reform preceded FRG reform. All legislation discriminating between men and
women (including family law provisions) were abolished by Art. 7 of the GDR constitution of
1949. The 1965 codification of family law (Familiengesetzbuch) introduced a no-fault divorce
and abolished the distinction between children bom within and outside of marriages.
25 Since the Federal Republic of Germany was founded in 1949, the BGB gradually experi¬
enced the constitutionalisation of private law. In particular, the basic rights of the Grundgesetz
(GG) and the values which it embodies have driven the change in the Bürgerliches Recht. This
is expressed, for example, in the development of the Allgemeines Persönlichkeitsrecht (general
personality right) which does not feature in the text of the BGB, but which allowed recovery” for
both pecuniary and non-pecuniary losses in cases of violations of privacy, even though the
BGB sought to limit recovery for non-pecuniary losses in cases of physical injury. In
comparison to the BGB’s original focus on the protection of property, the courts thus
highlighted the protection of personality as one of the tasks for the Bürgerliches Recht.
26 Family law is an area which has seen considerable extensive legislative changes which have
replaced the BGB’s original patriarchal structure. Art. 3(2) GG provides not only for equality
of men and women with regard to the civic rights and duties (as also under the 1919 Weimar
Constitution) but also with regard to the civil rights and duties. However, the corresponding
reform of family law in the BGB was especially slow, subject to controversy, and took many
«’ Stoll, Die Lehre von den Leistlingsstörungen (Schriften der Akademie für Deutsches Recht 1936).
«»Staub, Die positiven Vertragsverletzungen und ihre Rechtsfolgen, in: Festschrift für den
26. Deutschen Jurislcntag (Gultcntag 1902), p. 131 et seq.
1 ’ In the Federal Republic of Germany, the legislator reintegrated reformed versions of the provisions
on marriages and wills into the BGB in 1953.
6
Danncmann/Schulze
Introduction 27-28
steps to be completed. The 1957 Gleichberechtigungsgesetz (Equality Act) and the 1961
Fanuhenrechtsänderungsgesetz (Family Law Amendment Act) removed many, but not all
provisions which effectively discriminated between men and women in family law. Similarly,
the Grundgesetz postulated equality between children born outside of marriage and children
born inside of marriage (Art. 6(5) GG). In the implementation of this provision, the legislator
was dragging its feet tor so long that it took a reminder from the Bundesverfassungsgericht
(BVertG; Federal Constitutional Court) until the Nichtehelichengesetz (Extra-marital Chil¬
dren Act) was eventually passed in 1969. But it took until 1998 that the Kindschaftsrechtsre-
tormgesetz (Act on the Reform of Parent and Child Law) eventually abolished all forms of
discrimination of children born outside of marriages. Further key reforms in family law
concerned divorce (in particular in 1976 with the transition from fault-based divorce to
marital breakdown as reason for divorce), custody (1979), adoption (1970), guardianship
(1990/92) and family name (1993). Over the last two decades, German law, in line with
dex elopments in many other countries, modified family law to accommodate same-sex
couples, first by the introduction of a registered partnership with some marriage features in
the 2001 Lebenspartnerschaftsgesetz (Civil Partnership Act), and ultimately with the intro¬
duction of marriage for same-sex couples (2017).
Alongside family law the law of obligations has also experienced considerable changes. In TJ
addition to the aforementioned changes, the second part of the 20th century also saw an
extension of the scope used by the courts for value-based approaches (e.g. with regard to
compensation through the normativer Schadensbegriff (normative concept of damage) and
the judicial development of compensation for loss of use as a pecuniary' damage. Compensa¬
tion as function of tortious liability was increasingly complemented by prevention, not just in
relation to the aforementioned protection of general personality rights, but also more
generally in contract law and tort law. In consequence, the BGB gradually moved beyond
its original, liberal understanding as a legal framework for self-determined acts of individuals
and embraced as an additional function the value-based legislative regulation of the behaviour
of interacting participants. This shift in approach of both case law and legislation, exempli¬
fied in residential tenancy law, thus strengthened the protective functions of civil law for
socially weaker parties and for disadvantaged parties in particular economic situations. This
direction was also followed by the development of consumer law which, since the 1980s, was
shaped by EEC, EC and EU directives and which expressed the significant influence of
European legislation on German law. In light of these and other developments, a Kommission
zur Überarbeitung des Schuldrechts (Commission on the Revision of the Law of Obligations),
engaged by the Minister for Justice, focused since 1984 on proposals for a comprehensive
reform of the law of obligations. The implementation of several European directives
ultimately presented the opportunity to develop the Schuldrechtsmodernisierungsgesetz
(SMG; Act to Modernise the Law of Obligations) and to allow it to enter into force in 2002.
This modernisation of the law of obligations implemented the Gesetz über Allgemeine
Geschäftsbedingungen (AGBG; Standard Terms and Conditions Act) and several other
individual pieces of legislation in the field of consumer contract law (i.a. the Haustürwider¬
rufsgesetz - Doorstep Selling Withdrawal Act, and the Verbraucherkreditgesetz - Consumer
Credit Act) into the BGB and restructured broad parts of the General Law of Obligations, the
law concerning individual types of contract (especially sales and contracts to produce a
work), and the law on limitation periods.
V. The style of the BGB
Unlike the French Code civil, the BGB made no effort to be understandable to a 28
layperson: it was written by lawyers and for lawyers.*6 It has been hailed for its precision
and criticised for its thick conceptual language. The BGB certainly has its own style. The 16
16 See * mn, 18.
Danneniann/Schulze
7
29-31
Introduction
following six interacting elements can be identified:17 * (i) a high reliance on concepts, (ii) a
high level of abstraction, (iii) the allocation of rules to the highest possible level using
concentric circles and (iv) some overlapping circles of scope, (v) the use of models and
cross-references and (vi) a top-down approach with frequent use of general clauses
supplemented by specific provisions.
29 The BGB uses numerous concepts such as Rechtsgeschäft (legal transaction) and Wil¬
lenserklärung (declaration of intent)19 in order to achieve a high level of abstraction of legal
rules where e.g. provisions on mistake in § 119 are attributed to Willenserklärung and thus
apply throughout all five books of the BGB, necessitating exceptions for the rescission of a
marriage (which is seen as a contract, but where rescission is disallowed) or a will (which is
seen as a unilateral legal transaction) on the ground of mistake.20 The related principles of
separation and of abstraction,21 which distinguish sharply between the creation of an
obligation (e.g., by sales contract) and the change of rights (e.g., transfer of ownership) and
which keep apart the validity of each of these separate acts, are another obvious example for
the BGB’s high level of abstraction.22
30 One way of achieving a high level of abstraction (and avoiding repetition), is the way in
which the BGB groups its rules in concentric circles of scope. A simple transaction such as a
sales contract can thus be allocated over up to seven circles of rules which range from the
most general to the most specific. The widest of these, circle 1, is formed by rules which apply
throughout the entire private law, such as rules on Rechtsfähigkeit, the capacity to be subject
of rights in private law. These will regulate e.g. whether an unregistered football fan dub or
its members are such subjects, and can thus also be buyers in a sales contract (see § 54 BGB).
Circle 2 contains rules on Willenserklärungen (declarations of intent) in §§ 104 et seq., which
includes what elsewhere might be seen as core issues of contract law, such as mistake, deceit,
and duress, but which in German law apply over all five books of the BGB and indeed
throughout private law. Where one or several Willenserklärungen mature into a Rechts¬
geschäft (legal transaction), we have reached cirde 3, which contains La. rules on illegality in
§ 134, which again apply over all five books of the BGB and beyond to all private law. Circle
4 is formed by rules which apply to all contracts, such as rules on formation under §§ 145 et
seq. These are nevertheless placed in the General Part, not in the law of obligations, because
contracts go well beyond obligations and extend to property, family, and inheritance law
contracts. Circle 5 is formed by rules on the entire law of obligations, Le. contract, tort,
unjust enrichment and benevolent interventions (negotiorum gestio), including e.g. §§ 249 et
seq. on the assessment of damages. Circle 6 is formed by rules on synallagmatic contracts
(gegenseitige Verträge), which would e.g. allow a buyer to suspend performance under § 320.
The innermost Circle 7 consists of rules which apply to a specific type of contract, such as
sales contracts under §§ 433 et seq., where e.g. §§ 446-447 regulate the passing of risk.
31 On closer look, circles 4 (all contracts) and 5 (all obligations) are not concentric, but
overlapping, namely in their application to contracts which create, modify or extinguish
obligations. The BGB also uses this technique of partially overlapping circles of scope for
abstracting its rules to the highest possible level. Another example can be found in the
transfer of ownership (and title) in moveable property under §§ 929 et seq. which apply
regardless of whether this is done under e.g. a sales contract, a donation contract, as part of a
barter, for the purpose of providing security, or for a shareholder’s contribution in kind.-'
•7 Dannemann/Markesinis, The Legacy of History on German Contract Law, in: Cranston fed.).
Making Commercial Law: Essays in Honour of Roy Goode (Clarendon Press 1997), p, i_>9, it et seq-
is <;cc mn. 39.
” See -* mn. 39.
20 See -> §§ 1313,1314(2) and 2078.
« See * mn. 41.
» Sec ► mn. 42.
» The strict separation between any underlying obligation and the transfer of ownership follows front
the principle of abstraction (Abstraklionsprinztp)-. see ‘ mn. 42.
Dannernann/Schuke
8
Introduction
32-36
Finding the largest possible common denominator for rules in circles of higher abstraction 32
is not the BGB’s only mechanism for avoiding repetition. Another such drafting mechanism
is the use of models which are invoked in other similar situations by cross-references. For
example, rules on benevolent intervention (negotiorum gestio) in §§ 677 et seq. are modelled
on rules on mandate contracts in §§ 662 et seq. Rather than providing a special set of
benevolent intervention information duties and remedies, §§681, 683 invoke mandate
provisions for cases of justified interventions, and unjustified enrichment rules for cases of
unjustified interventions, § 684. Within the wider field of restitution type remedies, the BGB
has created a total of seven models (unjustified enrichment, unwinding of contracts after
termination, benevolent intervention, intentional intermeddling, tort, owner/possessor claims
and substitution) which relate and refer to each other.24 This has led to the infamous use of
Paragraphenketten - paragraph chains. Take the example of A who keeps a bicycle in the
reasonable belief of having inherited this from C. When it transpires that C has instead left
the entire estate to B, B asks A to surrender the bicycle. Before doing so, A repairs a puncture
and seeks recovery from B for parts and labour. § 2021 on possession of somebody else’s
inheritance refers to § 812 on unjustified enrichment. As A, when repairing the puncture,
was aware of B’s right, § 819 invokes the general provisions, meaning § 292, which refers to
property law and in particular §§ 989 and 994(2) on unauthorised expenditure. The latter
provision invokes the law of benevolent intervention for the question whether A’s repair was
justified. Assuming this is the case, § 681 then invokes § 670 on the mandatee’s right to
recover expenditure - in this case, for parts, but not for labour. This excessive use of cross-
references is certainly one of the less attractive aspects of the BGB. Some wisdom can
nevertheless be found in the use of models beyond the mere avoidance of repetition, namely
by allowing similar cases to be treated and developed by common provisions and case law.
Another defining feature of the BGB is that, in common with many continental codifica- 33
tions, it is largely written top-down, from general clauses to specific regulations. General
clauses in contract law include § 241 (the duty to perform an obligation in Sub. 1, protective
duties in Sub. 2), § 242 (the duty of good faith and fair dealing). Other obligations also use
general clauses: § 677 for benevolent interventions, § 812 for unjustified enrichment, § 823
for tort law. Important general clauses in property law include § 854 (acquisition of
possession), § 985 (vindication of property), in family law § 1353 (effects of marriage) and
§ 1626 (parental custody), in inheritance law § 1922 (universal succession).
General clauses are frequently placed at the beginning of a book, division or title. Their 34
often very broad proposition is then hedged, refined, occasionally also extended with more
specific clauses, which may then be made even more specific by additional layers of
refinement. Some general clauses use innominate terms which invite courts to elaborate the
details, as is the case for e.g. §§ 241, 242, 1353 and 1626, but not for e.g. §§ 854, 985 and
1922. The reader of a general clause is well advised to read on for more specific clauses*,
conversely, whoever first comes across a rather specific rule should look for the context in
which this rule is placed. This context is explained in the present commentary.
VI. Books I—III: An overview
Book I, the Allgemeiner Teil, is central in expressing the legal method and legislative 35
technique underpinning the BGB. It contains concepts and rules which apply to all other
parts of the BGB - and mostly in the whole of private law. This General Part contains mostly
abstract general rules which are placed in the BGB before those parts concerned with separate
areas of the Bürgerliches Recht.
The provisions in the Allgemeiner Teil provide a conceptual basis and are therefore to be 36
distinguished from catalogues of principles as well as mere introductory provisions in other
civil codes. In contrast to guiding principles, they are not simply an aid to interpretation or a
24 See > Introduction to «12-822,
Danncmann/Schulze
9
37-40 Introduction
guideline for the application of the rules in the other four books of the BGB but: are rather
directly applicable provisions. Unlike a preliminary or introductory part, the Allgemeiner
Teil does not contain fundamental principles concerning, for example, the application of the
BGB when in conflict with foreign or former laws. Such issues are regu ate separately in the
EGBGB. The Allgemeiner Teil is also not concerned with methods of statutory interpretation.
The German legislator rather left this task to legal science and the courts. At the time when
the BGB was enacted, the traditional canon of interpretation was already well established. It
proceeded from the literal meaning of a statutory provision, which was to be interpreted
taking regard of the legislative context, taking note of the historical intention of the legislator,
but above all in light of the purpose which the provision to be interpreted, and the statute in
general, aimed to achieve.25 Courts and scholars have since further developed this traditional
canon in the light of new circumstances (in particular, the interpretation in conformity with
the constitution, the interpretation in conformity with EU law, and the discussion surround¬
ing comparative interpretation).
37 Division 1 of the Allgemeiner Teil is concerned with natural and legal persons (§§ 1-89).
In this respect, the BGB follows a similar approach to most other civil codes. Title 1 on
natural persons is, however, broadened by the amendments concerning consumers and
entrepreneurs which were added when consumer law was included in the BGB (§§13, 14).
The provisions on legal persons refer specifically to associations and foundations; the rules
for associations, however, apply to other legal persons insofar as no specific rules apply.
38 The provisions on persons are followed by a short division with several definitions and
basic rules for things and animals as objects allocated to persons by subjective rights
(§§ 90-103). The third division concerns the topic central to the Allgemeiner Teil, namely
legal transactions (Rechtsgeschäfte). Further divisions contain general rules on time and fixed
dates (§§ 186-193), limitation (§§ 194-225), prohibition of chicanery, self-defence, necessity,
and self-help (§§ 200-231), and the provision of security (§§ 232-240).
39 The provisions on Rechtsgeschäfte (legal transactions, §§ 104-185) form the core of the
Allgemeiner Teil, which distinguishes the German BGB from all earlier civil codes. The
concept of a legal transaction is based on the notion that (natural and legal) persons can
establish legal relationships with others, and determine, transfer and abrogate the content
thereof (principle of private autonomy). The legal transaction is the most important legal
instrument made available by the legal system for such acts. Its necessary element is always a
Willenserklärung (declaration of intent) by at least one person who wants to create a legal
consequence within the framework of private autonomy. The legal system therefore considers
legal transactions to be declarations of intent which can create direct legal consequences.
Unilateral legal transactions (einseitige Rechtsgeschäfte) require the declaration of intent from
just one person (e.g. a will). Bilateral or multilateral legal transactions (zweiseitige or
mehrseitige Rechtsgeschäfte) consist of two or more declarations of intent (e.g. a contract).
The mere presence of the declaration(s) of intent may be decisive for the legal consequence;
other requirements may, however, be necessary (e.g. the registration in the Land Register in
order to acquire ownership of land, § 873(1)).
40 As concerns the legal consequences of legal transactions, German law distinguishes sharply
between Verpflichtungsgeschäfte (transactions creating an obligation) and Verfiigung*-
geschäfte (dispositions over rights). This distinction is central for the structure of the German
Bürgerliches Recht. The Verpflichtungsgeschäft establish obligations wherebv one person
(Schuldner - obligor) is to perform vis-ä-vis another party (Gläubiger - obligee), such as a
sales or service contract which create mutual obligations to perform In contrast, the
Verfugungsgeschäft directly affects an existing right through a change in content, transfer¬
encumbrance or termination, such as the transfer of ownership (SS <pq -t ) assignment
(§ 398) or by creating a mortgage (§1113). ‘“ eq- ‘ *
» See Dannemann, An Introduction to German Civil and Commercial Law (BUCL 1993). p.
10
Dannctnann/Schulze
Introduction
41-45
In order to achieve the desired outcome - the economic success in the case of a contract - 41
both types of legal transaction are relevant. For example, a sales contract (or a donation) just
gives rise to the Verpflichtung (obligation) to procure ownership for the other party (§§ 433(1)
Is* St.; 516). In addition, a Verfügung (disposition) is necessary in order to perform the
obligation and to transfer ownership (§§ 929 et seq. for movables, §§ 873, 925 for land). With
regard to acquisition of property, the sales (or donation) contract as the Verpflichtungsgeschäft
and the transfer of ownership as the Verfügungsgeschäft are to be viewed as two separate legal
transactions (Trennungsprinzip - principle of separation). Accordingly, performing the ob¬
ligation to transfer a claim or another right requires the distinction between, on the one hand,
the sales contract (§§ 453, 453) as the Verpflichtungsgeschäft and, on the other, the transfer of
the claim or the other right (§§ 398, 413) as the Verfügungsgeschäft.
An important feature of German law is closely related to the distinction between Verpflich- 42
tungsgeschäft and Verfügungsgeschäft. In accordance with the Abstraktionsprinzip (principle of
abstraction) these two legal transactions do not depend on each other in order to exist. For
example, the buyer of goods under a void sales contract can still acquire ownership if the
transfer is effective according to § 929. This principle aims to ease business dealings as the buyer
of goods as owner is in a position to sell the goods to a third party. Subsequent sales to third and
fourth parties will therefore not depend on whether the first sales contract was effective, or is
later avoided, e. g. due to mistake. While the first seller under a void contract therefore cannot
rely on ownership (vindication under § 985) to reclaim the goods, this seller nevertheless has
claims under unjust enrichment rules in §§812 et seq. This is initially a claim against the first
buyer for restitution of the goods in kind (§ 812(1) 1st St.). Once the goods have been acquired
by a third party, the first buyer is instead liable for compensation of value (§ 8I8(2)).-6
The BGB does not regulate the whole of contract law in one separate division. Rather, 43
different aspects are covered in different parts. Title 3 of Division 3 is concerned with the
conclusion of contract as a particular type of legal transaction (§§ 145-157). In principle, these
provisions apply to the formation of all types of contract irrespective of where they are
regulated in the BGB, whether they concern obligations or dispositions, and irrespective of
whether the respective contract contains obligations for both parties (bilateral contracts, e.g.
sale, rent etc.) or for one party (unilateral contract, e.g. donation, gratuitous loan etc.). It is
disputed whether the effects of a binding agreement may arise in particular circumstances
without the legal transactions as the basis foreseen in the Allgemeiner Teil (faktischer Vertrag -
factual contract; Selbstbindung ohne Vertrag - binding oneself without contract). The courts
have recognised this possibility in some specific situations and with particularly narrow
requirements (in particular in labour law and company law), but not as a general concept.
The provisions in the Allgemeiner Teil concerning contract are limited to the formation of 44
the contract by agreement between the parties, and the interpretation of contracts. In
contrast, the provisions on the legal consequences of the conclusion of contract are not
contained in the Allgemeiner Teil, but are rather to be found in the other Books of the BGB.
The general provisions of the Law of Obligations in Book II concerning the rights and duties
apply to contractual obligations insofar as no other specific provisions apply.
The Law of Obligations (Schuldrecht) forms the second Book of the BGB. As one of the 45
core areas of private law, it concerns the bulk of the law concerning non-corporeal assets
(Vermögensrecht), in particular the rights and obligations from contracts, the transfer of
claims and the assumption of debt, the restitution of unjustified enrichments, and the liability
for torts. Its structure follows the same pattern adopted across the BGB, namely the
regulation of the general before the specific.26 27 The first seven Divisions contain the
Allgemeines Schuldrecht (General Law of Obligations), with Divisions 1 and 2 containing
provisions concerning the content of all obligations (such as having to perform the obliga-
26 In some cases, the first buyer may be liable for surrender of a substitute under § 818(1), sec » § 818
mn. 7-8.
27 See - mn. 33.
Dannemann/Schulze
11
46-50 Introduction
tion). The provisions applicable to contractual obligations follow in Division 3 (§§ 311-361),
which as a ‘general law of contract’ contains a separate part (Title 2; §§ 320-327) with
provisions applicable specifically to reciprocal or synallagmatic contracts (such as sales,
services, lease etc.), but not to unilateral contracts such as donation, gratuitous loan and
mandate). The extensive Division 8 contains the Besonderes Schuldrecht (Specific Law of
Obligations) with specific rules for numerous different types of separate obligations
(§§ 453-853), including some two dozen different types of contracts, benevolent interven¬
tions, unjustified enrichment, and tort.
46 The Law of Obligations comprises obligations formed by legal transactions, which applies
to all contracts, as well as statutory obligations, such as torts. The former are created by
(natural or legal) persons on the basis of private autonomy, with the contract being the most
important instrument for creating such obligations. The principle of freedom of contract is
central to private autonomy and forms the primary basis for concluding and determining the
content of contracts. There are some constitutional restrictions on freedom of contract, which
is also limited by other public, by criminal and by other private law provisions. In consequence,
the BGB’s provisions in the law of obligations are primarily background law which can be
altered by way of contract, but this freedom of contract is limited by a number of mandatory
rules. Consumer law in particular provides that contractual deviations from statutory provi¬
sions are generally permitted only if they are to the advantage of the consumer. Mandatory
provisions feature with similar prominence in residential tenancy contracts, and in labour law.
47 Next to contracts, which are bilateral or multilateral legal transactions, the BGB also
recognises unilateral legal transactions (einseitige Rechtsgeschäfte). Some of these, such as
avoidance, revocation or declaration of set-off, can alter existing obligations. But as the
example of a promise of a reward (§ 657) shows, the BGB also employs unilateral legal
transactions for the creation of an obligation: the promise is effective without any need of
acceptance by the promisee.
48 In contrast to obligations which are created by legal transactions, statutory obligations are
not based on private autonomy, but arise directly from statute by the mere occurrence of
certain facts, with statutory provisions determining both requirements and consequences.
Statutory obligations include in particular benevolent interventions (negotiorum gestio)
(§§ 677 et eq.), unjustified enrichment (§§ 812 et seq.), and torts (§§ 823 et seq.). On the
borderline to contracts, statutory obligations in the form of pre-contractual liability may also
arise by the initiation of a contract or similar business contacts (§ 311(2)). Furthermore,
several provisions in the BGB’s other Books also give rise to statutory obligations (e.g. the
owner-possessor relationship in §§ 987 et seq., maintenance obligations under §§ 1601 et
seq., and the claim to a compulsory share in an inheritance under §§ 2317 et seq.).
49 The duties which arise from an obligation can be divided into various different categories
A particular distinction is necessary with regard to Leistungspflichten (performance duties)
and Schutzpflichten (protective duties). The basic rule on performance duties (§ 241(1)
1« St.) entitles the obligee to claim performance from the obligor. Such performance duties
may concern any conferral of an advantage (e.g. the transfer of ownership of goods, the
performance of a service, the payment of the price for goods or services). This basic rule is
that an obligee is entitled to performance in kind (specific performance). Exceptions exists
for some duties which are to performed personally (höchstpersönlich) due to statutory
requirements, to contractual agreement or according to their nature. For example, a party
under a duty of service must in case of doubt render the services in person (§ 613 1“ St.).
50 General protective duties (Schutzpflichten), as provided in § 241(2) are a particular
feature of German law. They oblige each party to take account of die rights legal interests
and other interests of the other party (e.g. health and property; for instance, the" seller must
not damage the buyer’s furniture when laying a carpet in the buyer’s home) While such
protective duties often form part of an obligation alongside performance duties, they can also
exist as standalone duties (in particular with respect to pre-contractual liability under § -’ll
(2). (3)). Protective duties do not entule the obligee to request their performimce, but their
12
Dannetnann/Schulze
Introduction 51-54
breach may entitle the obligee to damages or a right of revocation (§§ 280, 241(2); 280(2),
(3), 282, 241(2); 324).
A further distinction concerns Haupt- and Nebenpflichten (primary and collateral duties). 51
Primary duties are those which form the core of the obligation. They arise directly from
statute in the case of statutory obligations, or concern the essentialia negotii in a contract.
Independent collateral duties are also actionable (in particular notification and information
duties, as well as duties to render account which serve to preparation, performance and
security of the main performance duty, e.g. the previous obligee’s duty to provide informa¬
tion to the new obligee according to § 402). The protective duties under § 241(2) are not
independent collateral duties because they are not actionable by themselves; their breach only
triggers compensation claims and rights of revocation.
Vast parts of the Law of Obligations were redesigned in 2002 by the Schuldrechtsmoder- 52
nisierungsgesetz (SMG). This legislation created new statutory provisions for matters
originally not contained in the BGB, but which had been developed by the courts (such as
§311(2), (3) for pre-contractual liability and § 313 for interferences with the basis of the
transaction). In addition, the SMG also integrated consumer contract law into the BGB and
used the opportunity presented by the necessary implementation of EU directives (especially
the EU Consumer Sales Directive) to undertake reforms extending beyond consumer law.
The SMG not only adapted sales law beyond consumer sales law but also took account of
principles and tendencies at European and international level in reforming general contract
law and the General Law of Obligations. This concerns, for example, the introduction of
uniform requirements for breach and non-conforming performance (§§ 280, 323) in line
with the model under the CISG and for non-conformity in line with the EU Consumer Sales
Directive. The influence of these two sources extended to a restructuring of the system of
remedies not only for sales but also for the Law of Obligations in general. The German
legislator did, however, follow the European approach under the EU Consumer Sales
Directive rather than the CISG by allowing revocation even without a fundamental breach
(§ 323). In contrast to the CISG, it does not impose strict liability in damages. The obligor is
liable only if this person is responsible for a non-performance, whereby the obligor bears the
burden of pleading and proving that this is not the case (§ 280).
It is with these and later changes that the modernisation of the law of obligations has led, 53
for the most part, to a ‘recodification’ of the Law of Obligations into the BGB taking account
of international and especially European contract law. The modern German Law of Obliga¬
tions has acquired features of a ‘Euro-German’ law through the link between original concepts
in the BGB with such European models. The 2002 ‘recodification’ did not in any case end the
development of the Law of Obligations, but appears to the starting point of a phase of further
changes in the redesigned framework, as can be seen by the new provisions introduced over
recent years (in particular the new provisions on treatment contracts in §§ 630a et seq., in the
implementation of new European directives on consumer rights, mortgage credit, and
package travel, adapting consumer sales law to CJEU case law (e.g. § 439(3)), and most
recently, the new provisions on architect and engineering contracts (§§ 650p et seq.).
Property Law is covered in Book III. This builds on the definition of things in § 90 as 54
corporeal, i.e. tangible objects only, excluding both intellectual property rights and rights in
personam, which are often considered to be part of property law in the common law world
(choses in action). The BGB notion of property is thus limited to land (Grundstücke) and
movables (bewegliche Sachen), i.e. chattels. Both the style and development of Book III difler
considerably from Book II: whereas the law of obligations has witnessed considerable
developments since 1900 in both case law and legislation,2" property law has by comparison
remained almost static. This is not accidental: property law was designed to be considerably
more rigid than contract law in particular.
“ See ■* mn. 27.
Dannemann/Schulze
13
55
56
57
58
59
60
55-61 Introduction
. pe QC4 1296:29 (i) absoluteness, (ii) standards
Five principles lie behind the provisions in
sation, (iii) abstraction, (iv) speciality^and erhaps the easiest to explain:
The principle of absoluteness against anybody else, whereas
rights in rem are absolute and provide equa nrooertv.
the common law world applies a more relative conceP . contrast to the law of
The prtndpie of ,und.«
obligations and in particular the principle of fire ..ciliated bv the RCR
create new property rights but are limited to the types which are regulated by the BGB
Z rÄ ?ea.ed by „.her legislation, including »
building rights (Erbbaurechte) under the Erbbaurechtsgesetz of 1919, and co-ownerstap
of a residential property (Wohnungseigentum) under the Wohnungseigentumsgesetz of
1951. Courts have been reluctant to expand the types provided by legislation; arguably
the only dear inroad is the so-called Anwartschaftsrecht, an inchoate nght to ownership
which may arise where transfer of ownership depends on a condition, as e.g. under a
sales contract where payment in instalments is combined with a retention of title
clause.30
(iii) The principle of abstraction (Abstraktionsprinzip), which has been explained above,31
provides a barrier between property law and the law of obligations in particular;
property law dispositions are valid even where the underlying obligations are not.
(iv) The principle of speciality (Spezialitätsprinzip) means that rights in rem can be created
and transferred only in specified objects. If, for instance, goods stored in a warehouse are
to be used as security, these must be ascertained at the time when a security right is
created. It is not sufficient that the goods can be ascertained at a later date.
(v) The principle of publicity (Publizitätsgrundsatz) requires that any creation, transfer or
extinction of a right in rem must be somehow visible to the outside world. For rights in
land, this is effectuated by a change in the Land Register, the same applies to chattels for
which a similar registry exists, in particular boats and aircraft. For other chattels, transfer
of possession (which may precede or follow transfer of ownership) is the standard
method of achieving publicity. However, the BGB provides inroads to the principle in
§§ 930 and 931, whereby transfer of possession can be replaced by an agreement or
assignment, neither of which is normally visible to the outside woricL
Book III contains eight divisions. The first regulates possession (§§ 854-872). The second
contains general provisions on rights in land (§§ 873-902), including provisions on die ide
and function of the Land Register (Grundbuch). Division 3 regulates property indudina
content and limit of property rights, transfer of ownership in land, transfer of ownership iii
chattels, claims arising from property (such as vindication and actio negatoria but also some
rights in personam against possessors) and rules on co-ownership? Division 4 regulat«
senatudes, mdud.ng easements, usufruct and so-called restricted personal easement Divi¬
sion 5 covers pre-emption (as a nght in rem to acquire somebody rise’s Pronertv) Division6
covers charges on land (Eeallasten). Practically more relevant thanScSu isSn 7
on the three types in which ownership in land can he .. • °nS 4 .
mortgage (Hypothek), land charge (Grundschuld) and anm h name1'’ ,
Division 8 contains rules on how moveable propertv and C^ar^e (Rentensc^'\i
security, namely by way of pledge (P>d) P P Other "ghtS * ™ can be used as
(i)
(ii)
61
» See MüKo BGB/Gaier, Einl. SachenR mn. 9-22 (addinc At-« '
30 But see MüKo BGB/Gaier, Einl SachenR inn. 11-14^ as sixth principle, mn. 23).
Sicherungsgrundschuld are also judicial extensions of the ar^uin8 <hat both Sicherunpeigcntunt anu
Reichsgericht, on the other hand, thought it fairly obvious thaT^u of BGB P^riv rights. The
in chattels as security (Sicherungseigentuni): RG 9.3 1926 vi transfer of foil ownership
grundschuld is now mentioned in § ll92(la). * VI’ RGZ 113, 57. The Sichernd*
31 See > mn, 42.
14
Dannemann/Schulze
Introduction
62-66
Book III has arguably the highest concentration of provisions which are difficult to 62
understand for persons who are not trained in German law. If readers should find the
BGB’s property law divisions somewhat enigmatic even after having read our commentaries,
they may derive some comfort from the fact that many German lawyers who are not experts
in property law may harbour similar feelings.
VII. Notes on the BGB translation
The translation of the provisions of the BGB used for this commentary is the one which 63
the German Federal Ministry for Justice and Consumer Affairs and juris GmbH have made
publicly available at gesetze-im-internet.de.32 As this represents the state of legislation of
2013, Jonathon Watson and Gerhard Dannemann have added translations of all subsequent
amendments using, where possible, the same terminology and style as the 2013 version. It is
of course always the German original which represents the existing law, not the English
translation.
The BGB uses terminology with a high degree of consistency: the mere mention of a term 64
must often be understood as reference to other provisions using the same term. Consistency
in terminology is thus paramount for any translation. But sometimes, this cannot be achieved
without either committing linguistic cruelty or misleading the readers. There is, for example,
only one English word, namely performance, to cover Leistung und Erfüllung. Similarly,
Anspruch and Forderung are not the same, but there is again just one English word for both,
namely claim. Neologisms are sometimes an option, but are frequently irritating and even
more misleading. Conversely, Bestellung can take the meaning of either appointment (of a
person to a position), an order of works or of goods, or the creation of a property right.
Different English words will thus sometimes have to be used to translate one single German
expression. ‘False friends’ can also hamper understanding: the German Gegenleistung is very
different from the notion of consideration in English law, and the same applies to a German
Hypothek and an English mortgage. For these and many other reasons, translating statutes in
general, and the BGB with its thick conceptual language in particular, is an all but impossible
task
As would be expected, the BGB translation which we used also contains some avoidable 65
flaws, more of which were bound to become apparent during the process of writing the
commentaries. When we embarked on the project in 2016, we sought permission to alter the
translation whenever we saw room for improvement. For a variety of reasons, we did not
have this permission at the time when the meanwhile assembled team of authors embarked
on writing the comments. Any post-drafting attempt to improve on the translation in a
consistent manner would have been very time-consuming and would have delayed the
publication by a long stretch.
This is why readers will frequently find in the comments suggestions for better English 66
translations of the BGB’s provisions. We hope that a future edition of this commentary will
give us an opportunity to improve on the accuracy and clarity of the BGB translation without
reducing its consistency.
32 http://www.gesetze-im-internet.de/englisch_bgb/index.html. Translation provided by the Lan¬
genscheidt Translation Service. Translation regularly updated by Neil Mussett and most recently by
Samson Übersetzungen GmbH, Dr. Carmen v. Schöning. The same website also provides translations of a
number of other important German statutes.
Dannemann/Schulze
15
BOOK 1
GENERAL PART
Division 1
Persons
Title 1
Natural persons, consumers,
entrepreneurs
§1
Beginning of legal capacity
The legal capacity of a human being begins
on the completion of birth.
BUCH 1
ALLGEMEINER TEIL
Abschnitt 1
Personen
Titel 1
Natürliche Personen, Verbraucher,
Unternehmer
§1
Beginn der Rechtsfähigkeit
Die Rechtsfähigkeit des Menschen beginnt
mit der Vollendung der Geburt,
Contents
mn.
A. Function 1
I. Underlying principle 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
I. Historical 4
II. European .. 5
III. Comparative 6
C. Explanation 7
I. Legal capacity 7
II. Beginning ~ 8
III. Exceptions 9
IV. End of legal capacity .. 10
A. Function
I. Underlying principle
The most basic principle of any legal system is the notion of capacity, i.e. the ability to be 1
entitled to rights and subjected to obligations of any kind. While § 1 determines the
beginning of legal capacity, it does not explicitly state when it ends.
II. Position within the BGB
The BGB places the rule on legal capacity of human beings at the very beginning of its 2
General Part. Legal capacity does not necessarily imply the capacity to contract (cf. §§ 104 et
seq.), testamentary capacity (§ 2229), to enter into a marriage (§§ 1303 et seq.) or the ability to
be liable for damages (cf. §§ 827 et seq.). The ability to be a party to a legal proceeding depends
on legal capacity as such (§ 50 ZPO), a minor must be represented by a legal guardian.
lieurskens
17
§ 1 3-7
Division 1. Persons
III. Scope of application
3 While § 1 explicitly limits legal capacity to humans whose birth was ‘completed’. However,
an unborn child (nasciturus) and even a person not yet conceived (nondum conceptus) can
be entitled to certain rights. Specifically, § 331(2) allows for a nasciturus as beneficiary of a
contract and § 1923(2) (cf. §§ 2108, 2178) allows for a nasciturus to be assigned as heir.
Furthermore, an unborn child has a claim for damages under tort law when a person legally
obliged to pay maintenance is killed (§ 844(2) 2nd St.; cf. § 10(2) 2nd St. StVG, § 35(2)
2nd St. LuftVG, § 5(2) 2nd St. HPflG, § 28(2) 2nd St. AtG, § 12 SGB VII).
B. Context
I. Historical
4 The provision on legal capacity has remained unchanged since 1 January 1900. Under the
fundamental rule of human dignity emphasised by Art. 1(1) GG, legal capacity is an essential
and non-disposable property of any human being. Unlike Roman law, German law does not
distinguish between different levels of legal capacity of humans (slaves, foreigners, family
members). It is also not possible for a living person to lose legal capacity, even though such
rules did exist in the German states in the 19th century, e.g. for nuns and monks (§ 1200,
Title 11, Part 2 prALR).
II. European
5 European law does not expressly harmonise the legal capacity of human beings. However,
the guarantee of human dignity under Art. 1 EU Charter of Fundamental Rights requires
Member States to grant legal capacity to all living human beings. Legal capacity is explicitly
not covered by the Rome I Regulation (cf. Art. 1 (2)(a)).
III. Comparative
6 The precise moment when legal capacity is granted to humans is subject to differing
national rules. This is especially relevant when infants die immediately after birth: French
courts require at least a general ability to survive (Art. 725 Code civil), whereas Art 30
Spanish Cödigo Civil requires the foetus to live at least 24 hours after birth (‘with human
appearance’). Some countries retain rules providing for a loss of legal capacity (e.g. § 79-a
Civil Rights Law New York: a person sentenced to imprisonment for life is thereafter deemed
civilly dead). Such rules are in direct violation of the German ordre public, as human dignity
necessitates legal capacity.
C. Explanation
I. Legal capacity
7 The BGB does not define legal capacity as such. Nevertheless, its meaning and scope are
undisputed in regard to all human beings, without any distinction: they can be subject to
legal obligations and may be entitled to rights (e.g. property-). Even if they are unable to form
a contract by their own will (§§ 104 et seq.) they can be represented by a euardian, custodian
or parent (§§ 164, 1629,1902).
18
Bcurskens
Beginning of majority
1-2 §2
II. Beginning
Legal capacity begins with completion of birth. Only an entity which is completely physically 8
separated from its mother is treated as an individual and subjected to duties and entitled to
rights.1 Cutting the umbilical cord is not necessary. It is sufficient that the child was alive at the
moment of separation - even if it was unable to survive for even a brief amount of time
thereafter. Thus, the child will inherit if it survives its mother for even a second.
III. Exceptions
Even though an unborn child lacks legal capacity, special rules may take precedence. It is 9
widely acknowledged that a conceived yet unborn child may generally be beneficiary of a
right, though not liable (much like under Roman law). It must be represented by its parents
or a curator (§ 1912). The BVerfG has ruled that the fundamental right to human dignity
protects an unborn child.2 A child not yet conceived may be subsequent heir (§2101(1)) and
be beneficiary to a contract (§ 331(2)). It must be represented by a curator (§ 1913).
IV. End of legal capacity
While there is no express rule on the end of legal capacity, it is undisputed that it terminates 10
with death. In general, modern interpretation refers to brain death, whereas traditionally
cardiac death was deemed necessary. Due to the development of life-support-machines the
latter requirement is generally assumed to be impractical. As it is directly connected to the
fundamental right of human dignity (Art. 1 GG), legal capacity cannot be waived, contracted
around or withdrawn by court decisions. However, a person may be declared dead under the
strict requirements of the Verschollenheitsgesetz (VerschG; Missing Persons Act).
§2
Beginning of majority
Majority begins at the age of eighteen.
§2
Eintritt der Volljährigkeit
Die Volljährigkeit tritt mit der Vollendung
des 18. Lebensjahres ein.
A. Function
I. Purpose
Majority marks the point where a human is considered legally fully independent. Thus, 1
parental custody (§ 1626) ends.
II. Position within the BGB
The rule on the age of majority is placed at the beginning of the General Part as it is not 2
only relevant to legal transactions (§§ 104 et seq.), but also in tort law (§§ 828 et seq.). As a
general definition, it is placed at one of the earliest possible locations in the statute.
1 Mot. I 28.
2 BVerfG 28.5.1993 - 2 BvF 2/90, 2 BvF 4/90, 2 BvF 5/92, NJW 1993, 1751.
Beurskens
19
§2 3-9
Division 1. Persons
3
III. Scope of application
While the age of mapnty i. of general relevance in civil law,« b
decisive age. Full criminal liability only applies to Pers^s ® liability for both
JGG). However, it is relevant to the capacity to contract (§ 104) and in liability for both
contractual (§ 276(1) 2nd St.) and (§§ 828 et seq.) damages in tort
B. Context
L Historical
4 The protection of minors originates in Roman law. While Roman law accepted general
majority at the age of 14 it allowed for provision of a curator up to the age of 25. The BGB
originally granted majority at 21 years, however allowed for earlier majority by marriage. This
was changed by law of 31 July 1974,1 which entered into force on 1 January 1975. Today the age
of majority is fixed at 18. Thus a married minor retains limited capacity to contract (§ 1303).
Current law does not provide for a shortening or an extension of the state of minority.
IL Comparative
5 The EU has no plans to harmonise the age of majority. However, most EU Member States
grant majority at the age of 18, such as Germany. Furthermore, the same age as in Germany
is also sufficient e.g. in Turkey or Switzerland.
C. Explanation
I- Age
6 Majority begins at completion of the 18th year of life, i.e. at midnight on the last day of die
18lh year after birth.
II. Other relevant limits
7 Apart from majority, age is relevant e.g. in § 107 (limited contractual capacity: seven
years), whereas adoption requires an age of 21 or 25 (§ 1743). Other age limits include 40 to
be elected as Federal President (Bundespräsident) or judge at the BVerfG, or 14 (earliest age
for criminal liability).
8
III. Administrative law
Majority is especially relevant in legal or administrative proceedings. At the age of 18. *
* vVwGO’§ 71 sgg’
e.g. granting the right to vote and be elecied in Federal dirion^Art SgG) t «
employee representative (§§ 7 et seq. BetrVG). ns 'Art‘ ^G) 01 15
IV. Maintenance
9 Although parental custody ends with majority (8 uwm .k u..
remains (§§ 1603 et seq.). Since the agents of a minor tnw h2’ °b,lgat,on to main,ain
allows for a restriction of liability for these obligations toth? Created ,8ev«« debt' § 1629a
was acquired (i.e. the 18th birthday), ' assets available when majority
1 BGB). 1 1974, p. 1713.
20
Beurskens
Residence; establishmenl ami lermhnitian
1-4 §7
§§ 3-6
(repealed)
§§ 3 bis 6
(weggefallen)
§7
Residence; establishment and
termination
(1) A person who settles permanently in a
place establishes his residence in that place.
(2) There may be a residence in more than
one place at the same time.
(3) Residence is terminated if the person
abandons the place of residence with the in¬
tention of giving it up.
§7
Wohnsitz; Begründung und
Aufhebung
(1) Wer sich an einem Orte ständig nieder¬
lässt, begründet an diesem Orte seinen
Wohnsitz.
(2) Der Wohnsitz kann gleichzeitig an
mehreren Orten bestehen.
(3) Der Wohnsitz wird aufgehoben, wenn
die Niederlassung mit dem Willen aufgeho¬
ben wird, sie aufzugeben.
A. Function
I. Underlying principle
The German Grundgesetz guarantees the right to freely choose a place of residence (Art. 11 1
GG). In general, a person may determine one or more placets) of residence, which is
necessary e.g. to determine jurisdiction. That place of residence is, howescr, not determined
by mere factual developments, but requires a conscious decision, i.e. capirty to contract
(§ 104) as evidenced by § 8.
II. Position within the BGB
Only natural persons may have a residence, legal persons and partnerships have a 2
registered seat (§ 24, § 17 ZPO) or a place of business (§§ 21(1) ZPO, § 269(2)). Thus, the
rules on residence are placed under Title 1 (dealing w'ith natural persons).
III. Scope of application
The place of residence is relevant in both civil law and beyond. The residence of the 3
obligor determines the place of performance unless another place is specified (§ 269).
Residence is also relevant to jurisdiction (cf. § 13 ZPO, § 8 StPO, § 52 No. 4 VwGO, § 57
SGG), including international jurisdiction both under Art. 59 Brussels I as well as for cases
not within the scope of European law. It also applies to bankruptcy proceedings (§§ 2, 3
InsO). Furthermore, it is relevant to the authority of certain administrative agencies (e.g. § 68
(2) StVZO; § 12 PStG).
B. Context
I. Historical
Residence is acknowledged in Roman law (domicilium) and was based on aitualis 4
habitatio. This notion was initially accepted in the civil procedure rules of the German states.
§ 7 remained unchanged since 1900.
lieursketis
21
Division 1. Persons
§7 5-9
II. Comparative
ommon law has no direct equivalent
5 The distinction between domicile and corresponds to domicile but is also
in German law; residence as determined by 9 7 c ” may only h one
based on factual elements, such as the center ot ac r equivalent residences.
domicile under French law, whereas German <habituai residence as referred to in
Residence under German law is not i enic . ete(j autonomously.
international treaties (e.g. Art. 10 CISG), wh.ch are interpret
C. Explanation
I. Place
6 Residence ta io be « . place. This does not refer to the
but only to the smallest administrative unit this place is assigned to (city, village, etc.). Hus
interpretation also applies to § 269.
II. Permanent settlement
7 Sub. 1 states the general rule that a person may determine his residence by settling
permanently. This requires the chosen place to have a certain amount of relevance to a
person’s affairs.1 * * It has to be at least one of multiple focal points of a person’s existence.
Residence has to be permanent, though not necessarily infinite or unchangeable; however,
locations chosen merely for a brief time (hotel rooms, etc.) are considered temporary and
irrelevant with regards to residence. The election of a residence has to be a wilful act*
Although choosing a place of residence does not constitute a legal transaction, it is a
sufficiently similar act to allow for analogous application of the relevant rules e. g. on agency
(§§ 164 et seq.). However, residence also requires factual presence? A legal right to make use
of the chosen place of residence or lack thereof is irrelevant to § 7. Furthermore, formal
notifications required under public law (Meldegesetz) may indicate a place of residence, but
are as such insufficient.
Ill. Multiple places of residence
8 Sub. 2 allows for more than one place of residence. Thus, a residence must not necessarih’
be the sole centre of a person s existence. It also ensures that the selection of a new place of
residence does not necessanly .rnply a termination of the former place of residence (see
Sub. 3). Accordingly, a person may live in his town house . icsiucn« v
country residence in winter and will be assumed a resident nf h ^Ut m ^’S soulhern.
residence are an exception. However, there is an assumption that P
a single place. A university student supposedly does not^enerdlv n - °” ' ►
study away from home.4 generally take residence at a place ot
IV. Termination of residence
9 According to Sub. 3, terminating residence is the inver -
factual element and the corresponding intent T *° US estaWishment; it requires a
perspective of a neutral third-party observer.5 erni»nation is determined from the
1 RG 9.12.1907 - Rep. VI. 276/07. ~ —
1 BGH 19.6.1996 - XII ARZ 5/96, NJW-RR W6
’ BVerwG 24.4.1963 - VI C 92.60. ’ '
4 BVerfG 22.6.1990 - BvR 116/90, NJW 1990 ->193
* BGH 27.10.1987 - VI ZR 268/86. NJW 1998'713'
22
Bi’ursfcens
Residence of a soldier
§9
§8
Residence of persons who lack full
capacity to contract
A person who is not capable of contracting
or who has limited capacity to contract can
neither establish nor terminate residence
without the consent of his legal representa¬
tive.
§8
Wohnsitz nicht voll
Geschäftsfähiger
Wer geschäftsunfähig oder in der Ge¬
schäftsfähigkeit beschränkt ist, kann ohne
den Willen seines gesetzlichen Vertreters ei¬
nen Wohnsitz weder begründen noch auf¬
heben.
A. Function
Since choosing a place of residence is not a legal transaction, §§ 104 et seq. do not apply 1
directly. § 8 sets a special rule relevant to persons lacking capacity to contract - while they
may not form contracts (§ 105), they may choose a place of residence with the consent of
their legal representative.
B. Context
Originally, § 8 contained a second subsection that covered married minors. It was 2
amended in 1957 and changed in 1974 to allow for independent choice of residence by
married minors, who under the original rule remained subject to the will of their parents or
their spouse. The provision was abolished in 2017, as minors are generally not able to validly
mam’ anymore.
C. Explanation
I. Establishment or termination
The act of establishment or termination as such is determined by the person incapable of 3
contracting. It only requires that person to take residence and to have a corresponding will to
live at that location.
II. Consent
Valid establishment or termination of residence requires additional consent by the legal 4
representative, which is not subject to any form. Thus, even implied consent is sufficient.
The legal representative may consent ex post, which has retroactive effect (§ 184(1)).
§9
Residence of a soldier
(1) 1A soldier has his residence in his gar¬
rison. 2The residence of a soldier who has no
garrison within the country is deemed to be
his last garrison within the country.
(2) These provisions do not apply to sol¬
diers who are merely doing compulsory mili¬
tary service or who cannot independently
establish residence.
Wohnsitz eines Soldaten
(1) ’Ein Soldat hat seinen Wohnsitz am
Standort. 2Als Wohnsitz eines Soldaten, der
im Inland keinen Standort hat, gilt der letzte
inländische Standort.
(2) Diese Vorschriften finden keine An¬
wendung auf Soldaten, die nur auf Grund
der Wehrpflicht Wehrdienst leisten oder die
nicht selbständig einen Wohnsitz begründen
können.
Heurskens
23
Division 1. Persons
§111
A. Function
person’s will, at least one of a soldier’s
1 Whereas both § 7 and § 8 subject residence to a p preclude the option to
residences is determined independently of hts choices. lh>s
choose an additional residence.1
B. Context
2 The current text is based on § 68 SG (Soldatengesetz - Law on Soldiers).
C. Explanation
I. Soldier
3 § 9 directly only applies to German soldiers, not foreign soldiers stationed in Germany.
However, it is applied analogously with regard to the latter. It does not apply either to the
police or to other public servants.
II. Garrison
4 A garrison is determined by military law; brief assignments do not change that residence.
Only garrisons within German borders are subject to § 9 (Sub. 1 2nd St.). Furthermore,
compulsory military service and soldiers subject to §§ 8, 11 (i.e. persons incable of contract¬
ing and minors) will not be deemed to be residents of their garrison.
§ 10 § 10
(repealed) | (weggefallen)
§11
Residence of a child
lA minor child shares the residence of its
parents; it does not share the residence of a
parent who lacks the right to care for the
person of the child. 2If neither parent has the
right to care for the person of the child, the
child shares the residence of the person who
has this right. 3The child retains the residence
until it validly abandons it.
§ 11
Wohnsitz des Kindes
’Ein minderjähriges Kind teilt den Wohn¬
sitz der Eltern; es teilt nicht den Wohnsitz
eines Eltemteils, dem das Recht fehlt, für die
Person des Kindes zu sorgen. 2Steht keinem
Eltemteil das Recht zu, für die Person des
indes zu sorgen, so teilt das Kind den
Wohnsitz desjenigen, dem dieses Recht zu¬
steht. Das Kind behält den Wohnsitz, bis es
I ihn rechtsgültig aufhebt.
A. Function
1 § 8 may allow persons incapable of contracting to detemV i, •
consent on a case-by-case basis, however that rule wo H 1 -e lhe,r l''ace residence with
therefore derives the residence of a minor from thei°U lH 1?1l1ract‘ca' on a large scale. § 11
,r parents residence.
24
Bcurskens
Right to a nante
1 § 12
B. Context
Originally, the law assigned the child of married parents to the residence of its father and 2
the child of unmarried couples to the residence of its mother. This was in line with
traditional ius commune. However, that rule did not only discriminate against women
(Art. 3(3) GG), but also against children of unmarried couples (Art. 6(5) GG). Thus, § 11
was changed by Art. 1 No. 4 GleichberG and Art. 1 No. 1 NEhelG.
C. Explanation
I. Right to care for the child
In general, both parents share the right to care for the child (§ 1626(1)). Thus, if the 3
parents are separated, their child has two residences (§ 7(2)).’ However, the parents may
determine differently, e.g. choose a residence with only one of them. If both parents are
deceased or lack the right to care for the person of the child, a guardian (§§ 1773 et seq.) or
custodian (§§ 1896 et seq.) determines the residence (2nd St.).
IL Termination of residence
A child retains its residence even if it reaches majority. Termination of residence requires 4
an additional act of termination (§ 7(3)). The child also remains a resident of the former
location if the parents leave their residence without choosing a new residence.
§12
Right to a name
'If the right of a person to use a name is
disputed by another person, or if the interest
of the person entitled to the name is injured
by the unauthorised use of the same name by
another person, the person entitled may re¬
quire the other to remove the infringement.
2If further infringements are to be feared, the
person entitled may seek a prohibitory in¬
junction.
§12
Namensrecht
■Wird das Recht zum Gebrauch eines Na¬
mens dem Berechtigten von einem anderen
bestritten oder wird das Interesse des Berech¬
tigten dadurch verletzt, dass ein anderer un¬
befugt den gleichen Namen gebraucht, so
kann der Berechtigte von dem anderen Besei¬
tigung der Beeinträchtigung verlangen. 2Sind
weitere Beeinträchtigungen zu besorgen, so
kann er auf Unterlassung klagen.
A. Function
I. Underlying principle
The protection of names as a means of identification is essential not only for trademarks 1
or copyright but also a fundamental aspect of respecting a person as a legal subject.1 § 12
grants the right to an injunction against misappropriation of a name by another as well as
denial of one’s name. A claim for damages can be based on the general rule of § 823.
1 OLG Karlsruhe 7.5.2009 - 16 WL 61/09, NJW HR 2009, 1598.
' BVerfG 21.8.2006 - I BvR 2047/03, NJW 2007, 671.
Hcurskens
25
Division I. Persons
§ 12 2-7
2
3
II. Position within the BGB
• •.«-Uretsndinffs: It is not limited to natural
The position of the rule might give rise to misu $ to |egaj persons and partner¬
persons and not even to their given names, but a pp^
ships as well as to aliases and nicknames. It is also of the namK
expressly granting a right to a prohibitory injunction. Assignmen 1757) and nublir law
of „.,ur.l persons J’coveredby family la« (SS 1616, 1626 135, 1757) and publ.c law
(Namensänderungsgesetz, NamÄndG - Law on the Change of i ame).
IIL Scope of application
The right to a name is complemented by the rules protecting business names (§ 37(2)
HGB), trade names (§§ 5, 15 MarkenG) and trademarks (§§ 4, 14 MarkenG). It has also been
applied to domain names2 and even the Red Cross emblem? Even though it is located in title 1
(Natural Persons) it applies to any organisation identified by a name, e.g. (domestic and
foreign) corporations, states, political parties, universities, religious organisations, etc. How¬
ever, privacy and reputation as such are not covered by § 12 but are instead derived from
Arts 1, 2 GG and protected under the general rules of tort law (§§ 823, 10C4).
B. Context
4 The rule on the protection of a name has been included since the second draft of the BGB.
It has remained unchanged since 1900.
C. Explanation
5
I. Name
The claimant has to prove ownership of a name’. Due to broad interpretation § 12 is the
general clause on protection of names (both given names and surnames), aliases and" marks
as well as their respective abbreviations and graphical illustrations. It is applicable to
corporations, states political parties, and even unregistered partnerships and names of
specific business establishments. The right to use a specific domain name is generally subject
to a mere rule of priority (first come, hrst serve).4 v *
6
7
II. Dispute of a name
The first alternative of § 12 provides for injunctions when someone denies another the
right to use a name or repeatedly misnames that person. It is not necessary to demonstrate a
special interest or economic loss, a mere personal interest is sufficient.
IIL Unauthorised use of a name
The second alternative of § 12 covers the use of the nan^ .c i.
similar5 name, if it leads to the risk of confusion of affiliation °ra contusin^'
against the registration of domain names? Authorisation (whi -h iniunictl°^
' nas to be proven bv the
2 BGH 22.11.2001 - I ZR 138/99. ZUM 2002, 545; BGH ’6t, ->(wÄ ""
5 BGH 23.6.1994 - I ZR 15/92, NJW 1994, 2820. * 1 ZR 2%,oo. NJW 2003, 29'8.
< BGH 17.5.2001 - 1 ZR 216/99, N)W 2001. 32o2.
’ BGH 28.3.2002 - I ZR 235/99, NJW-RR 2002, 1401
* BGH 8.2.2007 - 1 ZR 59/04, N)W 2007, 2633; BGH 19 ■> ■>»«.
26.6.2003 - I ZR 296/00, NJW 2003, 2978. 4'1 ZR 82/01, NJW 2004 1'9 3 BGH
26
Bcurskciis
Consumer
1-2 § 13
potential infringer) may be either by law (especially use of one’s given name or surname) or
by consent. A descriptive use to identify another person is no unauthorised use. Only an
assumption to use the name to misleadingly identify oneself is prohibited. A strong risk of
contusion may in exceptional cases require an exclusive assignment of a name’s use to a
specific party in a certain context (e.g. in commerce or with regards to domain names).
IV. Injunction, abatement and removal
The name bearer may seek injunctive relief, i.e. prevention of conduct in the future. An 8
injunction may even be sought before the first infringement, if a future infringement is likely
(as expressly provided for in § 1004(1) 2nd St.). Furthermore, § 12 provides for abatement and
removal, e.g. revocation and provision of measures to prevent further abuse in the future.
§13
Consumer
A consumer means every natural person
who enters into a legal transaction for pur¬
poses that predominantly are outside his
trade, business or profession.
§ 13
Verbraucher
Verbraucher ist jede natürliche Person, die
ein Rechtsgeschäft zu Zwecken abschließt, die
überwiegend weder ihrer gewerblichen noch
ihrer selbständigen beruflichen Tätigkeit zu¬
gerechnet werden können.
Contents
mn.
A. Function 1
I. Purpose 1
II. Position within the BGB 2
B. Context 3
I. Historical 3
II. European 4
C. Explanation 5
I. Interpretation 5
II. Employees 6
III. Partnerships 7
IV. Agency and assignment 8
V. Founders 9
VI. Legal transaction 10
VII. Purpose of transaction 11
A. Function
I. Purpose
The definition of consumer in the General Part aims to ensure uniform application of rules 1
both implementing European directives (e.g. §§ 312 et seq., 355 et seq., 474 et seq., 40) et
seq.) as well as those created by national legislation (e.g. 312a, 650i et seq.).
II. Position within the BGB
The position of the rule in the earliest sections of the General Part ot the BGB was severely 2
criticised.1 While every human gains legal personality as a natural person (§ 1) and has a
1 f lume, Vom Beruf unserer Zeit für Gesetzgebung Die Änderungen des BGB durch das l'crnabsatzge-
setz, ZIP 2000, 1427, 142«.
ik’itrskcns
27
§ 13 3-6 Division 1. Persons
unique name (§ 12), being a consumer is neither related to human dignity and freedom nor
is it a permanent status. However, consumer protection gains increasing“J C*V>1
law. § 13 also applies beyond the BGB, e.g. in unfair trade practices law (§ 2(2) UWG), in the
HGB (e.g. § 414(3) HGB) or in civil procedure (e.g. in § 1031(5) ZPO).
B. Context
I. Historical
3 Consumer protection was initially not a goal of the BGB. Yet the need for protection of
disadvantaged parties in contractual negotiations caused adjustments long before the EU
began to influence German law through directives. Protection was provided by special
statutes existing outside the BGB. The current, uniform definition was however only
amended in 2000. During the modernisation of the law of obligations (Schuldrechtsmodemi-
sierung), many of the existing special statutes on consumer protection were integrated into
the BGB, but § 13 remained unchanged. It was clarified in 2014 during implementation of
the EU Consumer Rights Directive by amending the word predominantly.
IL European
4 § 13 largely corresponds to the definition under Art. 2(1) EU Consumer Rights Directive.
However, only German law expressly requires a predominantly non-business purpose and
only German law expressly declares employees as consumers. It is applicable to the German
implementation of directives, but inapplicable to regulations which are interpreted autono¬
mously (e.g. Art. 15 Brussels la).
C. Explanation
I. Interpretation
5 As § 13 implements requirements imposed by European law, it has to be interpreted in
light of that basis. As the German legislator sought a uniform application of consumer
protection, this also applies to cases where consumer protection is not based on EU-
directives. Therefore, the CJEU will have a final say in the interpretation of the definition.
II. Employees
6 § 13 goes beyond EU consumer protection law insofar as it also covers actions within an
employment relationship (selbständigen beruflichen Tätigkeit = independent profession2).
This makes the review of employment contracts under § 310(3) available to the employment
courts.3 4 Even GmbH-managers are considered dependent on the members (§ 37(1) GmbHG)
which allows review of their contracts under § 310(1).-* However, this does not necessarily
imply uniform application of any rules mentioning consumers to employment contracts: for
example, the increased interest under § 288(2) will not apply to withheld wages,5 and the
right to revocation under §§ 312 et seq. is inapplicable.6 The application of EU-consumer
Ht is to be noted that the translation of § 13 provided under xvww.gesetze-im-intemet.de (see -
Introduction mn. 63 et seq.) is inaccurate insofar as it does not make reference to that independent nature
of the professional activity required by the original German wording
3 BAG 25.5.2005 - 5 AZR 572/04, NJW 2005, 3305; BVerfG 23.li.2006 - 1 BvR 1909/06, NJW 2007,
286.
4 BAG 19.5.2010 - 5 AZR 253/09, NJW 2010, 2827.
5 BAG 23.2.2005 - 10 AZR 602/03.
6 BAG 27.11.2003 - 2 AZR 135/03, NJW 2004, 2401.
28
Beurskens
Consumer 7-11 § 13
protection laws to non-consumers is possible as this constitutes neither an extension nor
modification of those directives, but instead covers a completely separate area.
III. Partnerships
§ 13 refers only to natural persons. However, multiple consumers might undertake their 7
(private) activities together, organised as a partnership. Under the modern interpretation,
even a non-commercial partnership is granted legal personality - thus any legal transaction
will be attributed to the partnership as such and not to its members. To prevent gaps in
protection, a general partnership (§ 705) formed for a non-commercial activity and consist¬
ing only of consumers will be protected to the same extent as its members.7 § 13 also applies
to residential co-ownership (§ 10(6) 1st St. WEG) if at least one owner is a consumer.8 On the
other hand, § 13 is indisputably inapplicable to commercial partnerships (OHG, KG, EWIV).
It also does not apply to legal persons including non-commercial associations (§§ 21 et seq.).9
IV. Agency and assignment
In agency cases the agent, not the principal, must be a consumer. § 166(1) is insofar 8
inapplicable. However, a consumer involving an entrepreneur in the formation of a contract
might be denied protection if the specific dangers associated with the contractual situation
(e.g. the element of inexperience and surprise in § 312b) do not apply.10 A consumer acting
as agent for an entrepreneur will be protected if he is liable under § 179. Assignment of
obligations by an entrepreneur to a consumer will not change the nature of the original
obligation. Assignment of obligations by a consumer to an entrepreneur will not extend
consumer protection to the entrepreneur.11
V. Founders
While §§ 513, 655e(2) expressly provide for application of protection rules to founders of 9
new enterprises, there is no general rule extending protection to start-up entrepreneurs. The
courts consequently apply § 310(1) and not § 310(3) even to newly founded enterprises.12
However, acts of preparation for professional activities in the distant future (e.g. legal or
financial advice whether to start a business at all) remain consumer transactions.13
VI. Legal transaction
The term legal transaction (Rechtsgeschäft) is not limited to contracts, but also covers 10
unilateral acts, such as the termination of a contract. However, it also covers mere factual
preparations for contracting (§ 311(2), 241a, 661a)). In addition, even a void transaction
would be subject to consumer protection laws (e.g. the right to revocation) and is therefore
sufficient for § 13.
VII. Purpose of transaction
§ 13 excludes certain purposes, but does not positively state what constitutes a ‘consumer 11
transaction’. Thus, the purpose is not limited to private consumption as long as it is not an
independent commercial or professional activity. The purpose is determined at the moment
7 BGH 23.10.2001 - XI ZR 63/01, NJW 2002, 368.
8 BGH 25.3.2015 - VIII ZR 243/13, NJW 2015, 3228.
’CJEU C-541/99 and C-542/99 Cape ECLl:EU:C:2001:625.
10 BGH 2.5.2000 - XI ZR 150/99, NJW 2000, 2268; BGH 28.3.2006 - XI ZR 239/04, NJW 2006, 2118.
11 cf. CJEU C-89/91 Shearson Lehman Hutton ECLI:EU:C:1993:15 (Interpretation of Brussels Conven¬
tion).
12 BGH 24.2.2005 - III ZB 36/04.
15 BGH 15.11.2007 - III ZR 295/06, NJW 2008, 435.
Beurskens
29
§ 14 1 Division 1. Persons
the transaction is conducted, any later change is irrelevant. An amendment in 2014 clarified
that when a transaction serves multiple purposes (so-called ‘dual use’ transactions), the
application of consumer protection is determined by the predominant purpose. e purpose
is determined by objective criteria, hidden intentions are irrelevant (arg. § ). ere is a
presumption that a natural person acts as a consumer as long as not ing> indicates a
commercial purpose.14 Otherwise, the burden of proof is upon the consumer.
§14
Entrepreneur
(1) An entrepreneur means a natural or
legal person or a Partnership with legal per¬
sonality who or which, when entering into a
legal transaction, acts in exercise of his or its
trade, business or profession.
(2) A Partnership with legal personality is a
Partnership that has the capacity to acquire
rights and to incur liabilities
§14
Unternehmer
(1) Unternehmer ist eine natürliche oder
juristische Person oder eine rechtsfähige Per¬
sonengesellschaft, die bei Abschluss eines
Rechtsgeschäfts in Ausübung ihrer gewerb¬
lichen oder selbständigen beruflichen Tätig¬
keit handelt.
(2) Eine rechtsfähige Personengesellschaft
ist eine Personengesellschaft, die mit der Fä¬
higkeit ausgestattet ist, Rechte zu erwerben
und Verbindlichkeiten einzugehen.
Contents
nm.
A. Function 1
I. Purpose 1
II. Position within the BGB 2
B. Context 3
I. Historical 3
II. European 4
III. International 5
C. Explanation 6
I. Legal transaction 6
II. Purpose 7
III. Trade, business or profession 8
IV. Estoppel 9
V. Partnerships with legal personality 10
A. Function
I. Purpose
1 The definition of entrepreneur (Unternehmer) is of central relevance and often referred to
(e.g. §§ 241a(l), 312(1), 355, 474(1), 481(1), 491(1)). Even though the German word is
identical, it must be distinguished from Unternehmer as used in §§ 631 et seq. The definition
of partnership with legal personality (Sub. 2) seemingly refers to § 124(1) HGB, §7(2)
PartGG. However, modern legal opinion extends the definition to any civil law partnership
acting vis-ä-vis third parties,* 1 i.e. any partnership-agreement not limited to mere participa¬
tion in the dealings of another (silent partnership).
i« BGH 30.9.2009 - VIII ZR 7/09, NJW 2009, 3780.
is BGH 11.7. 2007 - VIII ZR 110/06, NJW 2007, 2619.
1 BGH 29.1.2001 - II ZR 331/00, NJW 2001, 1056.
30
Beurskens
Entrepreneur
2-6 § 14
II. Position within the BGB
Originally, the definition in § 14(1) was repeated in several special consumer protection 2
acts, but was neither defined nor used in the BGB. The definition was integrated into the
General Part in 2000, whereas other consumer-protection rules (§§ 312 et seq., §§ 355 et
seq.) were only integrated in 2002. The definition is misplaced as it is not limited to natural
persons, but expressly applies to legal persons and partnerships with legal personality.
Nevertheless, it is of high importance to German civil law as a whole and therefore rightfully
placed near the beginning. The definition of a partnership with legal personality in § 14(2)
was added to § 1059a(2) in 1996, but was moved to § 14(2) to indicate the significance to
civil law as a whole.
B. Context
I. Historical
Traditionally, German law only provided special rules for merchants (§§ 1-7 HGB). The 3
implementation of European consumer protection laws necessitated a broader term, as
merchants require either registration (§§ 2, 3, 5, 6 HGB) or a non-insignificant size of
operations (§ 1 HGB) and the traditional understanding of'merchants’ excludes e.g. lawyers
or medical practitioners. Today, many rules either exclude consumers (§§ 271a, 288(2), (5))
or specifically address entrepreneurs (§§ 310(1), 478). This leads to a strange distinction
between merchant-only rules (e.g. § 39 ZPO) and rules applicable to all entrepreneurs.
IL European
The entrepreneur in German law corresponds to the definition of a trader under Art. 2 4
No. 2 EU Consumer Rights Directive (and the former EU Distance Selling Directive; EU
Doorstep Selling Directive). A similar definition is employed i.a. in the EU Consumer Sales
Directive (cf. §§ 474-479) as well as the EU Unfair Terms Directive (cf. §§ 350-310) and in
the EU Unfair Commercial Practices Directive. It is also related to the definition of an
‘enterprise’ in Art. 1 of the Annex to Recommendation 2003/361/EC (‘An enterprise is
considered to be any entity engaged in an economic activity, irrespective of its legal form’).
III. International
Art. 2(a) CISG excludes sales of goods bought for personal, family or household use. This is 5
closely related to § 14(1), but expressly protects good faith sellers (‘unless the seller, at any
time before or at the conclusion of the contract, neither knew nor ought to have known that
the goods were bought for any such use’). This is similar to cases of estoppel under German
law, which are interpreted far more restrictively, however.
C. Explanation
I. Legal transaction
Whereas the term ‘merchant’ is status-based, entrepreneurs (such as for consumers in § 13) 6
are determined on basis of a specific transaction (Sub. 1, similar to § 343 HGB). § 14(1)
further covers both transactions intended to prepare the business for operation and transac¬
tions in liquidation. The transaction must not be part of an existing business or be a typical
part of the entrepreneur’s business. The entrepreneur must not act in person, but may
involve agents or other representatives.
Beurskens
31
§§ 15-20
Division 1. Persons
7
IL Purpose
The purpose of the transaction must be detei™jnabl5 .baS(§ ^HGB) is inapplicable, the
couS^’Ä thXsXri bearTThe burden of proof. However, that burden must
not be excessive to ensure a sufficient level of consumer protection.
III. Trade, business or profession
8 Whereas trade (Gewerbe) would exclude higher, liberal professions (such as lawyers,
medical doctors or artists) the broader reference to professions allows for their inclusion.
Thus, privileges for these professions do not apply in § 14(1). Similarly, farmers will generally
not be subject to the HGB (§ 3 HGB), but are covered by § 14(1). Even public entities may
act as an entrepreneur. An intention to profit is not required,2 but an entrepreneur must at
least intend to contribute to their livelihood for a relevant amount of time. Thus, ‘power¬
sellers’ on eBay are deemed to be entrepreneurs. The acquisition of shares as such is not
‘trade’ but mere administration of existing assets and therefore not covered by § 14(1).
IV. Estoppel
In general, consumer protection may not be waived. However, a natural person pertaining
to be an ‘entrepreneur’, e.g. by written statement, will be treated as such.3 This general rule of
estoppel will apply to any person who neither knows nor could have known, that the other
party is not an entrepreneur.
10
V. Partnerships with legal personality
The definition of § 14(2) covers OHG (§ 124 HGB), KG (88 161(2) 124 HCR1 P
(2) PartG, § 124 HGB), EWIV (Art. 1(2) Reg. (EEC) No 2137/85^nd ’ G. § a
GbR (§ 705). Even though partnerships are not legal nerstns th d aCC°rdin§ to case lawd
obligations, owners, debtors and may sue or be s Jd ? 6 ‘° ** Sub^eCt t0
§§ 15-20
(repealed)
§§ 15 bis 20
(weggefallen)
• S X 22S0.
32
beurskens
Non-commercial association
1-2 § 21
Title 2
Legal persons
Subtitle 1
Associations
Chapter 1
General provisions
Titel 2
Juristische Personen
Untertitel 1
Vereine
Kapitel 1
Allgemeine Vorschriften
§21
Non-commercial association
§21
Nicht wirtschaftlicher Verein
An association whose object is not com¬
mercial business operations acquires legal
personality by entry in the register of associa¬
tions of the competent local court [Amtsge¬
richt].
Ein Verein, dessen Zweck nicht auf einen
wirtschaftlichen Geschäftsbetrieb gerichtet
ist, erlangt Rechtsfähigkeit durch Eintragung
in das Vereinsregister des zuständigen Amts¬
gerichts.
Contents
mn.
A. Function 1
I. Underlying principle 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
I. Historical 4
II. European 5
IIL Comparative 6
C. Explanation 7
I. Non-commercial business 7
II. Registration 8
III. Situation before registration 9
IV. Situation before agreement upon formation 10
V. Abuse after registration 11
A. Function
I. Underlying principle
Non-profit organisations have a central role in German society. The general rule of § 21 1
grants such organisations legal personality only if they are registered with the competent
court, whereas § 54 seemingly covers the situation of non-registered entities (which are
expressly denied legal personality).
II. Position within the BGB
Under the traditional system of the BGB, rules on legal persons logically follow the rules on 2
natural persons. However, the original framework did not specifically discuss Partnerships
with legal personality (§ 14(2)). Thus, partnerships are only considered a ‘particular type of
obligation’ and thus covered by §§ 705 et. seq. Similarly to § 1 covering the legal capacity of
human beings, the rules on legal persons also begin with the acquisition of legal capacity.
Beurskens
33
§ 21 3-7
Division 1, Persons
3
III. Scope of application
Whereas the BGB covers all natural persons, the rules on legal persons are g
best. Even though they are contained in the ‘General Part they on y app y o
regulated legal forms. The most important organisational form, the Gesel ft
beschrankter Haftung (GmbH), is covered by a special statute (GmbHG) as is the Ak g -
Seilschaft (AktG). However, some rules, e.g. § 31 can be carefully app ie to °$e s
analogously. Special public rules also apply to political parties (Law on o itica a les
Parteiengesetz] PartG). In addition, public law requirements on associations can be toun in
the Law on Associations (Vereinsgesetz] VereinsG).
B. Context
I. Historical
4 In the late 19th century formation of private associations was neither commonplace nor
universally accepted. Formation of a German corporation had only recently been simplified
and the drafters of the BGB were wary of the dangers of easy acquisition of limited liability.
Thus §§21, 22 were a compromise: only non-comniercial associations could gain legal
personality by mere registration, whereas other associations would still require an express
state grant, unless they chose an AG or GmbH. The rules relating to associations were
partially modernised in 2009, but still retain much of the original structure and contents.
IL European
5 The EU has not yet harmonised rules on non-commercial entities. However, the European
Commission presented a Proposal for a Regulation on the Statute for a European association1
(EA) in the 1990s, which was officially withdrawn in 2006. No further plans for harmonisa¬
tion or a uniform EU association have been announced.
III. Comparative
6 There is no statutory conflicts-of-laws rule on legal persons. However, it is widely agreed
that legal personality is determined by the real seat, i.e. the location of a business* central
administration. Only under freedom of establishment, as applicable to members of the EU
and the EEA, will the mere valid existence in another Member State be deemed sufficient
(practically leading to application of the incorporation theory).
C. Explanation
I. Non commercial business
7 Determining whether the object of an association is not commercial business operations is
by no means a clear-cut decision. An activity is commercial if the association independently
acts vis-ä-vis third parties on a regular basis and intends to gain profit for itself or its
members. It is presumed, that a tax-exempt association is non-commercial.2 It is furthermore
almost universally accepted that mere side-activities will not exclude an association from
registration (Nebentätigkeitsprivileg). An activity is only considered a side-activity if it is both
subordinated in fact and intended to merely support the non-profit-oriented main objective.3
1 COM(1991) 273 final; amended as COM(1993) 252 final.
2 BGH 16.5.2017 - II ZB 7/16, NJW 2017, 1943.
3 BGH 29.9.1982 - I ZR 88/80, NJW 1983, 569.
34
Beurskens
Non-commercial association 8-11 § 21
In practice, non-commercial associations not only cover leisure activities (e.g. sports clubs)
and charitable work (e. g. supporting development aid) but also professional soccer clubs and
even the enormous ADAC (Allgemeiner Deutscher Automobil-Club e. V- General German
Automobile Club) with over 18 million members, and an annual income of over 1 billion
euros providing e. g. repair services in car breakdowns.
II. Registration
An association has to be registered to gain legal personality. However, even an association 8
in formation (Vorgesellschaft) is deemed to be able to validly form contracts. The association
in formation is considered to be identical to the later legal person (much as the unborn child
is identical to the natural person in § 1), thus all debt incurred before registration will still
affect the association. Details on registration procedure are governed by §§ 55 et seq. as well
as §§ 374 No. 4, 377, 400 et seq. FamFG.
IIL Situation before registration
Since a non-commercial association only gains legal personality with registration (§ 54), 9
§§21 et seq. do not apply directly. Nevertheless, it is well-accepted that the formal agreement
on the articles of association creates a pre-association (Vorverein) largely subject to the same
rules as a registered association. Specifically, the Vorverein has a general meeting of its
members, who elect the board charged with representation. However, the power of repre¬
sentation is generally limited to those acts necessary to create the association and manage¬
ment of existing assets, unless the members expand those powers. A Vorverein may already
act in court (§ 50(2) ZPO). All representatives will be jointly and severally liable for
obligations incurred in the name of the future association before registration (§ 54 2nd St.).
It is unclear and heavily debated in how far members are liable for debt of the pre¬
association. After registration any assets and debt of the Vorverein are automatically deemed
to belong to the association, which is identical to the pre-association - there is no act of
transfer and no special act of transformation. However, the former representatives remain
jointly and severally liable.
IV. Situation before agreement upon formation
Even before the founders validly agree on the articles of association and formation of the 10
association, they may incur expenses to ensure the later acts (e.g. costs of a notary public). The
promoters of an association form a partnership amongst themselves and thus are personally
liable for any obligations. § 54 does not apply before the formal agreement on the formation of
the association. Debts and assets incurred before that agreement are not automatically
transferred to the association but remain with the partners unless otherwise agreed.4
V. Abuse after registration
Once an association is registered, the abuse of the privilege of legal personality (and 11
limited liability) by commercial activities as such does not give sufficient cause for piercing
the corporate veil.5 However, the court of registration may deregister the respective associa¬
tion under § 395 FamFG, thereby completely terminating its existence.
4 BGH 7.5.1984 - II ZR 276/83, NJW 1984, 2164.
5 BGH 10.12.2007 - II ZR 239/05, DNotZ 2008, 542.
Beurskens
35
§ 22 1-5
Division 1. Persons
§22
Commercial association
'An association whose object is commercial
business operations acquires legal personal¬
ity, for lack of special provisions under fed¬
eral law, by state grant. 2The grant is in the
power of the Land in whose territory the
association has its seat.
§22
Wirtschaftlicher Verein
'Ein Verein, dessen Zweck auf einen wirt¬
schaftlichen Geschäftsbetrieb gerichtet ist, er¬
langt in Ermangelung besonderer bundes¬
gesetzlicher Vorschriften Rechtsfähigkeit
durch staatliche Verleihung. 2Die Verleihung
steht dem Land zu, in dessen Gebiet der
Verein seinen Sitz hat.
A. Function
1 Whereas § 21 allows for mere registration of non-commercial associations, § 22 generally
prevents registration of commercial entities. Such organisations may choose to form a
GmbH, an AG or an UG (haftungsbeschränkt) but are generally not allowed to form an
association.
B. Context
2 Plans to expand the rules on commercial associations, especially for smaller business and
cooperative societies in 20171 failed.
3
C. Explanation
I. Commercial association
In practice, only few associations are granted legal personality. Commercial organisations
are required to choose one of the specific legal forms available. The commercial association is
only available when those rules would provide an objectively insufferable burden or specific
!awS aUow the choice. The Law on Copyright Collectives (Verwertungsgesellschaftengesetz;
VGG) allows collection societies (VG Wort, GEMA, etc.) to be organised as association;
uPw tk eX1St e' f°restVSSOCiatiOnS (UW on Federal Crests - Bundeswaldgesetz;
BWaldG). The reason for this reluctance is the complete lack of any creditor or investor
protection m the BGB s rules on associations. 7
II. Procedure
4
™sdteo'™Xby th;“T
independently (§ 24 VwVfG); the decision is subject to court^eview^^ FeleVant
III. State grant
5
The grant is subject to discretion of the respective state authority. It must be denied unW
onducting the intended activity as a GmbH or AG would constitute an undue burden.
?°n, of proof is upon the founders of the association? The granting authority has 0
Stance the^ interests of the association with the n..«;- ■— the lack of an>
balanC 36 VwVfG).
.... r-uv.u. interest, especially
asures for creditor protection. The grant may be subject to conditions (.§
> BT-Drs. 18/11506 of 13.3.2017.
2 BVerwG 24.4.1979 - 1 C 8/74, NJW 1979, 2261
36
Beurskens
Seat
1-4 § 24
IV. Commercial activities without State grant
A commercial association not granted legal personality is treated as a (misnamed) 6
partnership. Thus, all members are personally liable for any debt incurred (§128 1st St.
HGB). The same rules apply with regards to the period after agreement on the articles of
association and before the state grant: There is no Vorverein allowing for limited liability for
commercial associations.3
§ 23 § 23
(repealed) (aufgehoben)
§24
Seat
The seat of an association, unless otherwise
provided, is the place where the management
is conducted.
§24
Sitz
Als Sitz eines Vereins gilt, wenn nicht ein
anderes bestimmt ist, der Ort, an welchem die
Verwaltung geführt wird.
A. Function
I. Underlying principle
The seat of an association determines jurisdiction (§17 ZPO), the court covering registra- 1
tion (§ 55) or the authority providing for a grant (§ 22). The seat is also referred to e.g. in § 45
(3) and § 57(2). In general the seat is determined in the articles of association (§ 57).
IL Scope of application
§ 24 only applies to associations. A partnership agreement may not freely determine a 2
seat. Instead, the actual place of business administration determines the seat of a partnership
(by applying § 7 analogously).* 1 Special rules apply to the GmbH (§§ 3(1) Nos 1, 4a GmbHG)
and the AG (§ 23(3) Nos 1, 5 AktG). The applicable law is determined by the real seat - thus
a place determined in the articles of association is largely irrelevant in conflicts of laws.
B. Explanation
I. Seat
Every association requires a unique, specific seat. An association without any seat, multiple 3
seats or a non-existing, virtual seat is invalid. The seat of a registered association has to be
expressly determined in its articles of association. A flexible seat subject to external circum¬
stances (e.g. residence of the board’s president) or possibly referring to multiple locations, is
invalid.
II. Place
Like in § 7 and § 269 place refers to the smallest political unit (town, city), not the specific 4
street or building. The seat has to be on German territory; a corporation without a seat in
Germany will be dissolved.2
3 BGH 18.12.2000 - II ZR 385/98, NJW 2001, 748.
1 BGH 27.5.1957 - II ZR 317/55.
2 BGH 21.11.1955 - II ARZ 1/55, NJW 1956, 183.
Beurskens
37
§ 25 1-2
Division 1. Persons
III. Presumption
5 While registered associations have to expressly determine their seat, unregistered associa¬
tions (§ 54) and commercial associations (§ 22) may lack an express statement in their
articles. Therefore, the seat is presumed to be at the focal point of activities of the
associations’ directors. The presumption does not apply if another seat is stated in the
articles of association.3
IV. Other places
6 § 24 allows the association to choose its seat at any place. The association may choose any
place in its articles of association, even if it does not conduct any activities there. This is only
limited by an abuse of rights (§§ 138, 242).4
V. Contact address
7 To ensure the ability to contact the association it has to inform the registration authority
about at least one contact address (§15 VRV), which may be separate from the seat.
Therefore, the lack of an office or post box at the seat does not create an abuse as such.
VI. Movement of seat
8 An association may move its seat. There are no special rules on the procedure, but the
general rules on amendments to the articles of association (§§ 33, 71) apply. Express rules
exist only for commercial entities in § 13c HGB and § 45 AktG. An association formed by
means of a merger will take its seat at either of the seats of the merged entities or another
place agreed upon in the new articles of association.
§25
Constitution
The constitution of an association with
legal personality is, to the extent that it is
not based on the following provisions, deter¬
mined by the articles of association.
§25
Verfassung
Die Verfassung eines rechtsfähigen Vereins
wird, soweit sie nicht auf den nachfolgenden
Vorschriften beruht, durch die Vereinssat¬
zung bestimmt.
A. Function
I. Underlying principle
1 § 25 emphasises the general freedom of contract with regards to associations (in contrast
to § 23(5) AktG). It also requires the core rules of the association’s life to be governed by the
articles, i.e. not by mere practice, other contracts or informal rules. Dispositive rules are
listed in § 40.
II. Scope of application
2 § 25 only relates to the constitution of the association. Details on application and
execution of these fundamental decisions may be left to internal rules, bylaws or regulations.
On the other hand, unless stated in § 40, §tj 26-31 are binding.
3 RG 19.1.1918 - 225/17 V.
4 LG Berlin 10.6.1998 - 84 T 372-98, NJW-RR 1999, 335.
38
Beurskens
Board and representation
§26
B. Explanation
I. Constitution
The articles of association may contain both constitutional and non-constitutional rules. The 3
distinction is far from clear: at least the binding minimum content mentioned in § 57(1) is part
of the constitution. In general, any restriction of a member’s rights or imposition of duties
must at least have a basis in the articles. This applies e.g. to penalties, subjugation to potential
arbitration proceedings or membership dues. However, detailed rules on fees and dues are not
required to be part of the articles,1 as long as the articles provide a sufficient anchor.
IL Binding law
§§ 26 et seq. are generally binding and may not be modified. § 40 allows for modification 4
of §§ 26(2) 1st St., 27(1), (3), 28, 31a(l) 2nd St., 32, 33, 34. Furthermore, associations are
bound by unwritten, generally accepted principles.
III. Articles of association
The articles of a registered association (§§21, 55) are filed with the court, whereas the 5
articles of a commercial association have to be reviewed by the granting authority (§ 22).
Non-registered associations usually have written articles, even though no form is required.
Even though the articles are originally a contract between the founders2 they are interpreted
objectively (independent from the original contractor’s intent according to the wording and
the articles’ context).3 They may be reviewed for fairness (§§ 138, 242) and violation of legal
rules (§ 134) but are not subject to the rules on review of business terms (§ 310(4)). If a
clause is invalid, the remaining articles stay valid (i.e. § 139 does not apply).
§ 26 § 26
Board and representation Vorstand und Vertretung
(1) ’An association must have a board.
2The board represents the association in
court and out of court; it has the status of a
legal representative. 3The extent of the power
of agency may be restricted by the articles of
association with effect against third parties.
(2) ’If the board consists of several persons,
the association is represented by the majority
of the board members. 2If a declaration of
intent is to be submitted to an association, it
is sufficient to submit it to one member of
the board.
(1) ’Der Verein muss einen Vorstand ha¬
ben. 2Der Vorstand vertritt den Verein ge¬
richtlich und außergerichtlich; er hat die Stel¬
lung eines gesetzlichen Vertreters. 3Der
Umfang der Vertretungsmacht kann durch
die Satzung mit Wirkung gegen Dritte be¬
schränkt werden.
(2) ’Besteht der Vorstand aus mehreren
Personen, so wird der Verein durch die Mehr¬
heit der Vorstandsmitglieder vertreten. 2Ist
eine Willenserklärung gegenüber einem Ver¬
ein abzugeben, so genügt die Abgabe gegen¬
über einem Mitglied des Vorstands.
1 BGH 19.7.2010 - II ZR 23/09, NJW 2010, 3521.
2 BGH 6.3.1967 - II ZR 231/64, NJW 1967, 1268.
3 BGH 21.1.1991 - II ZR 144/90, NJW 1991, 1727.
Beurskens
39
§ 26 1-5
Division 1. Persons
A. Function
1
As a legal person an association needs a legal representative. The “ng mle °f Sub. 1
determines that this representative is the board (which may con^‘ , association
further clarifies that the boards’ power of agency is subject to t e a
Sub. 2 covers boards consisting of multiple members.
B. Context
2 § 26 was amended in 2009 to clarify the power of representation in a multi-member board
without express rules in the articles of association.
C. Explanation
I. Representation
3 Representation of an association is subject to the general rules of agency (§§ 164 et seq.).
The power of representation in court is directly dependent on the general power of
representation (§ 51(1) ZPO). Attribution of knowledge to the association is governed by
§ 166(1); attribution of (tortuous) acts is covered by § 31. Representation vis-ä-vis current
and future members is not directly covered by § 26(1), but treated analogously unless
specified otherwise.
IL Board
4 Every association must have a board. Board-membership in a registered association can be
proven by court certificate (§ 69). Any person originally representing the association is
considered to be part of that board* The association may name persons without powers of
representation ‘board-members’ (‘extended board’), but they will not be considered part of
the board under §§ 26, 27. § 26(1) 1st St. does not preclude the association (represented by
the board) from granting a letter of authorisation to someone else. It only ensures that
neither the members as such nor the general meeting may represent the association vis-ä-vis
third parties.
III. Limitation of powers
5 Generally, the board has unlimited powers. The general restrictions of § 181 will apply to
the board. Additionally, the powers of representation may be limited by unambiguous rules
in the articles of association (see § 26(1) 3rd St., see also § 70)? This is a significant and
intentional difference compared to GmbH (§ 37(2) 1« St. GmbHG) and AG (§ 82(1) AktG)3
Furthermore, transactions against the purpose of the association will not bind the association
to a bad-faith counterparty (§§70, 68) unless ratified (§177(1))? The members may
internally restrict the powers of the board (§§27(3), 665) beyond the articles; however,
such restrictions will only give cause for internal liability and restitution but not affect third
parties.
1 BayObLG 27.1.1992 - BReg. 3 Z 199/91, NJW-RR 1992, 802
2 BGH 22.4.1996 - II ZR 65/95, NJW-RR 1996, 866.
3 Mot. 97 = Mugdan I 405.
4 BGH 18.3.1953 - II ZR 182/52, NJW 1953, 824.
40
Beurskens
Appointment of and management by the board
§27
IV. Employment and appointment of board members
The association is represented by its general meeting with regards to transactions relating 6
to employment and appointment of board members (§ 27) in order to avoid a conflict of
interest.5
V. Management
Powers of representation are distinct from the internal authority to conduct business 7
(management), which may be limited by the articles, resolutions or bylaws.6 The internal
authority to manage the association must not necessarily remain with the board (§§40, 27
(3)). The board does not represent the association with regards to transactions specifically
assigned to the members (e. g. changes to the articles of association).
VI. Representation in multi-person boards
The board may consist of a single person, which would be the sole representative. 8
However, usually the articles of association require multiple persons. In that case, Sub. 2
1st St. requires a majority of members (two of three, three of five, etc.) to represent the
association vis-ä-vis third parties. The articles may (§ 40) instead provide for representation
by all members (Gesamtvertretung) or allow every member to represent the association
independently from others (Einzelvertretung).7 Furthermore, board members may authorise
each other (see § 78(1) 1st St. AktG) or ratify transactions conducted without the necessary
group size. The binding rule of Sub. 2 2nd St. ensures that reception of declaration may be
handled by any member independent of others. That rule applies analogously to attribution
of knowledge (§ 166(1)).
§27
Appointment of and management
by the board
(1) The appointment of the board is by
resolution of the general meeting.
(2) ’The appointment is revocable at any
time, notwithstanding the claim to payment
in conformity with contract. 2The revocability
may be restricted by the articles of association
to the case where there is a compelling reason
for the revocation; such a reason includes
without limitation a gross breach of duty or
inability to effect proper management.
(3) lThe management by the board is gov¬
erned by the provisions on mandate in §§ 664
to 670 with the necessary modifications. 2The
members of the board act without remunera¬
tion.
§27
Bestellung und Geschäftsführung
des Vorstands
(1) Die Bestellung des Vorstands erfolgt
durch Beschluss der Mitgliederversammlung.
(2) ’Die Bestellung ist jederzeit widerruflich,
unbeschadet des Anspruchs auf die vertrags¬
mäßige Vergütung. 2Die Widerruflichkeit kann
durch die Satzung auf den Fall beschränkt wer¬
den, dass ein wichtiger Grund für den Widerruf
vorliegt; ein solcher Grund ist insbesondere
grobe Pflichtverletzung oder Unfähigkeit zur
ordnungsmäßigen Geschäftsführung.
(3) ’Auf die Geschäftsführung des Vor¬
stands finden die für den Auftrag geltenden
Vorschriften der §§ 664 bis 670 entspre¬
chende Anwendung. 2Die Mitglieder des Vor¬
stands sind unentgeltlich tätig.
5 BGH 21.1.1991 - II ZR 144/90, NJW 1991, 1727.
6 BGH 12.10.1992 - II ZR 208/91, NJW 1993, 191.
7 BGH 19.9.1977 - II ZB 9/76, NJW 1977, 2310.
Beurskens
41
§ 27 1-6
Division 1. Persons
A. Function
1 While § 26 covers the representation vis-ä-vis third parties, § 27 deals with the internal
role of the board. Sub. 1 covers appointment of natural persons to the board, while Sub. 2
deals with revocation of that appointment. Sub. 3 covers the internal relation between the
association and its board by reference to the provisions on mandates.
B. Explanation
L Eligibility for board membership
2 Both natural and legal persons are eligible for board membership in an association, while
the latter is expressly prohibited for AG and GmbH. Board members are not required to be
members of the association. The articles of association may provide stricter requirements,
e.g. experience, minimum membership period, etc. A single person may perform multiple
functions in a board. Minors may be part of a board if their legal representatives consent
(§§ 106, 107), while a person incapable of contracting cannot be a member of the board.
II. Appointment procedure
3 The articles determine how board members are elected and dismissed. As Sub. 1 is not binding
(§ 40), the power may be assigned to any part of the association and even third parties. However,
any rule must respect the association’s autonomy and may not subject it to unrestricted control
by a third party. Unless otherwise stated, a simple majority of votes (§ 32(1) 3rd St.) is required
In addition, the appointed person has to agree, as Sub. 3 imposes significant duties.
III. Revocation
4 Revocation is the mirror image to appointment. As such it requires a simple majority in
the general meeting unless the articles specify otherwise. The revocation must be declared,
but does not require acceptance. Even if the articles provide otherwise the general meeting
retains the right to revoke an appointment for any important cause. An irrevocable
appointment is invalid under §§ 40, 27(2) 2nd St. Powers of representation and management
terminate as soon as the board member receives the declaration of revocation. Revocation as
such does not affect the claim to payment, however it may be connected to the termination of
an employment relationship.
IV. Other reasons for termination of board membership
5 In addition to revocation under Sub. 2, the position as a board member automatically
terminates with death, loss of capacity to contract, passing of a possible term of appointment
or loss of eligibility according to the articles. A board member may unilateraUy declare to
terminate his position.
V. Board members in fact
6 A person not or invalidly appointed as a board member who willingly and with acceptance
by the members conducts the association’s business is considered a board member in fact-1
Reliance by third parties on unregistered board members in fact cannot be based on the
register of associations. Thus, power of representation of board members in fact can only be
i BGH 21.1.1991 - II ZR 144/90, NJW 1991, 1727.
42
Beurskens
Passing of resolutions by the board § 28
based on agency by estoppel or ostensible authority. Even without authority vis-a-vis third-
parties, the association will be liable for their conduct under § 31, whereas a factual board
member has to perform the duties of a properly appointed board member, especially apply
for insolvency proceedings (§ 42(2)).
VI. Management
While representation (§ 26) covers the validity of transactions vis-ä-vis third parties, 7
management applies to the internal powers to make binding decisions. Every act of
representation is consequently also an act of management. Sub. 3 provides for application
of the rules of mandate (§§ 664 et seq.) to acts of management. Unless otherwise stated,
management is a personal, non-transferable duty imposed upon each member (§ 664(1)
1st St.). Unlike representation, management is not an exclusive domain of the board, but may
be assigned in the articles e.g. to an advisory council, an extended board (comprising
members without powers of representation) or even the general meeting. Even under the
statutory regime, the board is bound by decisions of the general meeting (§ 665). Further¬
more, the board as a whole is obliged to report to the annual meeting (§ 666). Although
Sub. 3 2nd St. expressly excludes a right to remuneration,2 § 670 provides for compensation of
expenses. Further rights and duties may be imposed by the articles.
VII. Liability
Board members are liable for mismanagement under § 280, but may be privileged under 8
§ 31a. The prevailing opinion also applies the ‘business judgment rule’ (§ 93(1) 2nd St. AktG)
to conduct by board members. Board members may also be liable under § 823 or §§ 280, 311
(3); they might seek recourse against the association under §§ 27(3), 670. While D&O
insurance is available, it is uncommon in non-profit associations.
VIII. Appointment and employment
While appointment (Bestellung) is sufficient to grant powers of representation and impose 9
organisational duties, under German law it has to be distinguished from the employment
relationship (Anstellung). Unless otherwise stated, the employment relationship will be based
on the rules of mandate (§§ 27(3), 664 et seq.). However, the general rule on unpaid services
(Sub. 3 2nd St.) is subject to deviating provisions in the articles of association (§ 40). Yet,
Sub. 3 2nd St. ensures that a contract providing for payment to board members is void, unless
allowed for by a provision in the articles. If permitted, the association may enter into a
contract on the non-gratuitous management of the affairs of another (§ 675). Appointment
and employment are independent of each other - thus a revoked board member may remain
employed, while a board member with a terminated employment relationship may remain a
representative of the association.
§28
Passing of resolutions
by the board
In case of a board consisting of more than
one person, resolutions are passed under the
provisions of §§ 32 and 34, which govern the
resolutions of the members of the association.
§28
Beschlussfassung des Vorstands
Bei einem Vorstand, der aus mehreren Per¬
sonen besteht, erfolgt die Beschlussfassung
nach den für die Beschlüsse der Mitglieder
des Vereins geltenden Vorschriften der §§ 32
und 34.
2 BGH 14.12.1987 - II ZR 53/87, NJW-RR 1988, 745.
Beurskens
43
§ 28 1-7
Division 1. Persons
A. Function
I. Purpose
1 § 28 complements the rule on majority representation vis-a-vis third-parties in § 26(2) by
providing a majority rule for the internal decision-making process. It requires application of
the rules on general meetings, specifically § 32 (decision by majority, agenda, decision by
written consent) and § 34 (exclusion from voting in cases of conflicting interests).
IL Scope of application
2 § 28 applies not only to registered associations (§21) but also to unregistered associations
(§ 54), and associations by grant (§ 22).
B. Explanation
I. Articles of association
3 § 28 is subject to rules agreed upon in the articles of association. The articles may even
grant the internal decision-making power to another organ, e.g. a supervisory or advisory
board.1 Often, decision-making is granted to an ‘extended board’ including persons without
powers of representation (which will therefore not be board members under § 26). § 28 only
refers to §§ 32, 34 - additional rules in the articles modifying decision-making in the general
meeting do not necessarily apply to the board but require interpretation. However, the
provision on conflicts of interest may not be derogated from (§ 40 2nd St.).
II. Meeting
4 Under §§ 28, 32(1) lsr St. decisions are made at a meeting of board members. This requires
proper notice in advance, including an agenda (§§ 28, 32(1) 2nd St.). If all board members are
present, they may (impliedly) waive the notice requirement. There is no minimum quorum
of board members, however a quorum may be stated in the articles, in bylaws or internal
regulations. The board members have to participate in person (§§ 27(3), 664(1) 1st St.).
Meetings are private and not open to the public or even members of the association.
Decisions may also be reached by written consensus (§§ 28, 32(2)) without a meeting.
III. Majority
5 Decisions are reached by simple majority (§§ 28, 32(1) 3rd St.). Abstentions from voting
and invalid votes (especially those in violation of § 34) will be ignored.2 Decisions by written
consensus must be unanimous (§§ 28, 32(2)).
IV. Defects
6 Any defective resolution is void, unless the defect had no effect on the actual result. Defects
include participation by non-board members in voting, and lack of notice.
V. Effect vis-ä-vis third parties
7 § 28 only covers the internal affairs, whereas representation is subject to § 26(2). Thus,
even lack of a valid resolution will not preclude valid representation.
1 BGH 19.9.1977 - Il ZB 9/76, NJW 1977, 2310.
2 BGH 25.1.1982 - 11 ZR 164/81, NJW 1982, 1585.
44
Beurskens
Emergency appointment by local court [Amtsgericht]
1-5 § 29
§29
Emergency appointment by
local court [Amtsgericht]
To the extent that the board is lacking the
necessary members, they are to be appointed,
in urgent cases, for the period until the defect
is corrected, on the application of a person
concerned, by the local court [Amtsgericht]
that keeps the register of associations for the
district in which the association has its seat.
§29
Notbestellung durch Amtsgericht
Soweit die erforderlichen Mitglieder des
Vorstands fehlen, sind sie in dringenden Fäl¬
len für die Zeit bis zur Behebung des Mangels
auf Antrag eines Beteiligten von dem Amts¬
gericht zu bestellen, das für den Bezirk, in
dem der Verein seinen Sitz hat, das Vereins¬
register führt.
A. Function
I. Purpose
A legal person has to remain capable of acting. Therefore, § 29 provides the emergency 1
power to appoint board members without a general meeting by a court.
II. Scope of application
§ 29 is applicable to registered (§21) and unregistered associations (§ 54) as well as 2
associations by grant (§ 22). It is applicable analogously to other legal persons under private
law, especially the GmbH.1 It is inapplicable to partnerships.
B. Explanation
I. Necessary members
A board member is only deemed necessary if valid decision-making (§ 28) or representa- 3
tion (§ 26(2)) require a certain number of board members (e.g. when a quorum is required
by the articles of association). If the articles determine a specific number of board members,
§ 26(2) refers to the majority of the stated amount, not the majority of active members, thus
possibly requiring emergency appointment.
II. Lacking members
A board member may be lacking if the original appointment is revoked or void, due to the 4
end of the term of appointment or due to death or loss of contracting capacity. However,
§ 29 also applies if the board member is merely unavailable, e. g. due to long-term illness or
absence or a complete denial to perform its duties. Even mere conflicts within the board
which prevent necessary decisions (§ 28) might give rise to an emergency appointment
(though this is subject to significant debate).
III. Subsidiarity
In general, it is up to the association itself, specifically to the general meeting, to appoint new 5
board members. Emergency appointment by a court is a last resort, which may only be
considered to prevent harm to the association, its members or third parties. It is necessary if
the remaining board members are unable to convoke a general meeting or if an important,
urgent transaction requires representation of the association before such a meeting can be held.
1 BGH 20.12.1982 - II ZR 110/82, NJW 1983, 938.
Beurskens
45
§30 1
Division 1. Persons
IV. Procedure
6 Emergency appointment requires a formal request to the court; jurisdiction is based on
the seat (§ 24). Only persons who will be directly affected by the decision (especially
members, current and former board members, creditors and debtors) are entitled to initiate
proceedings. A loss of legal interest in the state of the association (e.g. withdrawal) will
terminate appointment proceedings. Appointment will be made by a judicial officer, not a
judge (§ 3(1) No. 1(a) RPflG). Procedure is governed by §§ 1-110 FamFG, which requires
determination of all relevant facts ex officio. The court may appoint any person deemed able
to perform the necessary duties. It has to ensure neutrality and prevent favouritism, which is
of special concern if the requesting party makes specific, non-binding suggestions. The
appointment and powers of representation have to be registered (§ 67(2)). The court decision
is subject to an appeal (§§ 58 et seq. FamFG).
V. Effects
7 Appointment (if accepted)2 grants the full powers and responsibilities of a board member.
The court may however restrict (e. g. limit the power of agency to a single urgent transaction)
or extend (e.g. provide for sole representation by a single appointed board member) the
powers of decision-making and representation. Often, appointment will be limited to a
(short) term to ensure that decision-making-power is returned to the members as soon as
possible. Even if the court erroneously assumed a need for appointment, the appointed
person will stay a valid board member until revoked.3 Similarly, a board member erroneously
found lacking will be considered validly replaced, even if he was in fact still able and available
to perform his duties.
§30
Special representatives
’It may be provided by the articles of asso¬
ciation that, in addition to the board, special
representatives are to be appointed for parti¬
cular transactions. 2In case of doubt, the
power of agency of such a representative ex¬
tends to all legal transactions that the sphere
of business allocated to him normally entails.
§30
Besondere Vertreter
’Durch die Satzung kann bestimmt wer¬
den, dass neben dem Vorstand für gewisse
Geschäfte besondere Vertreter zu bestellen
sind. 2Die Vertretungsmacht eines solchen
Vertreters erstreckt sich im Zweifel auf alle
Rechtsgeschäfte, die der ihm zugewiesene Ge¬
schäftskreis gewöhnlich mit sich bringt.
A. Function
I. Purpose
1 § 30 provides the option to appoint representatives who are not board members and
therefore do not take part in the internal decision-making process (§ 28). Thus, the general
meeting retains the power to determine representatives, which would not be available in case
of power of attorney (§ 167) granted by the board. In practice, § 30 is often used analogously
as a basis for attribution of liability to the association (§31), thus avoiding the\strict
requirements of § 831.
2 KG 4.4.2000 - 1 W 3052/99, NJW-RR 2001, 900.
3 BGH 21.3.1957 - 11 ZR 172/55, NJW 1957, 832.
46
Beurskens
Liability of an association for organs
§31
II. Scope of application
§ 30 applies to registered (§ 21) und unregistered (§ 54) associations as well as associations by 2
grant (§ 22). It also applies analogously to the GmbH and even to legal persons under public
law. It is inapplicable to the AG, which expressly only allows for representation by a board
(§§ 76, 23(5) AktG), and to partnerships. However, liability to persons allowed to act indepen¬
dently (§ 31) applies to all legal persons and partnerships with legal personality (§ 14(2)).
B. Explanation
I. Articles of association
Special representatives have to be provided for in the articles of association. A general 3
provision allowing the general meeting (analogously to § 27) or the board to elect and
appoint representatives is sufficient. The term ‘special representative’ is not necessary, instead
applicability of § 30 is determined by the actual function and powers of the respective person
(s). Occasionally, the power to appoint special representatives was considered implied by the
total contents of the articles, e. g. if the articles provide for subsidiaries which in turn require
a person to independently conduct local management.1
II. Powers
A special representative is no board member with limited powers (as allowed for under 4
§ 26(1) 3rd St.) but acts independently of the board. Therefore, they do not participate in
meetings or other means of decision-making (§ 28), but are granted the original power to
conduct any affairs assigned to them independently. Their powers must be (at least broadly)
determined by the articles and may further be limited by the act of appointment. Thus, a
board member may simultaneously be a special representative to allow for extended powers
in special transactions. § 30 2nd St. assumes powers similar to the commercial authority to act
(§ 54 HGB). However, it is possible to provide for special representatives without any agency
power (Haftungsvertreter = agents in accountability only).
III. Registration
Special representatives and their powers of representation are subject to registration 5
(analogously to § 64).2
§31
Liability of an association
for organs
The association is liable for the damage to
a third party that the board, a member of the
board or another constitutionally appointed
representative causes through an act com¬
mitted by it or him in carrying out the busi¬
ness with which it or he is entrusted, where
the act gives rise to a liability in damages.
§31
Haftung des Vereins für Organe
Der Verein ist für den Schaden verantwort¬
lich, den der Vorstand, ein Mitglied des Vor¬
stands oder ein anderer verfassungsmäßig be¬
rufener Vertreter durch eine in Ausführung
der ihm zustehenden Verrichtungen begange¬
ne, zum Schadensersatz verpflichtende Hand¬
lung einem Dritten zufügt.
1 BGH 12.7.1977 - VI ZR 159/75, NJW 1977, 2259.
2 BayObLG 11.3.19«! - BReg. 2 Z 12/81.
Beurskens
47
§ 31 1-5
Division 1. Persons
A. Function
1 § 31 expresses a general rule applicable to all legal persons (e.g. GmbH, AG, KGaA,
Genossenschaft (co-operative)) and partnerships (e.g. OHG, KG, even the general partnership
under §§ 705 et seq.)1 2 with legal personality, including foreign entities. § 89 provides for
applicability of § 31 to private activities of legal persons under public law. It provides for
attribution of tortious liability to associations who benefit from activities on their behalf, thus
avoiding the strict requirements of § 831.3 It thereby protects the damaged party by
providing an additional debtor. The association may also be directly liable for strict liability
based on mere ownership of dangerous items (e.g. § 833; § 7 StVG).
B. Explanation
I. Organs
2 § 31 expressly covers the board as a whole or at least in a sufficient quorum as well as
every individual board member. In addition, all special representatives (§ 30) are considered
organs. Furthermore, the general meeting is formally an organ, though liability under § 31 is
heavily debated. Since members as such are not organs, their acts cannot be attributed to the
association.
IL Extensive interpretation
3 It is almost universally accepted that constitutionally appointed representatives not only
covers special representatives under § 30, but extends to any person validly acting on behalf
of the association. Thus, even an agent authorised by a general commercial power of
representation (Prokura-, § 48 HGB) is considered a representative, even though they only
hold derivative power of agency. Neither an express provision nor any implication in the
articles is needed as long as the association allows the representative to act independently on
its behalf. § 31 does not require power of agency, but only the power to act in fact.4 It is
irrelevant whether the representative is subject to directions, as long as it acts for the
association vis-ä-vis third parties.
IIL Attribution of liability
4 § 31 is no statutory basis for an independent claim, but only provides for attribution of
liability to the association. Therefore, § 31 requires personal liability of the representative for
tortious conduct.5 This liability may be both fault-based (e.g. § 823(1)) or strict (e.g. § 231).
It also applies to pre-contractual liability under §§ 280, 311(2) as well as contractual liability
under §§ 280, 241(2). An omission by the representative is sufficient if the association had a
duty to act, e.g. insufficient supervision of subordinates or insufficient measures to provide
for public safety.
IV. In carrying out the business
5 Liability of the association only applies when the representative acts in carrying out the
business of the association. This excludes both private activities and coincidental opportu-
1 BGH 24.2.2003 - II ZR 385/99, NJW 2003, 1445.
2 OLG Köln 7.1.1998 - 13 U 103/97, NJW-RR 1998, 756.
3 Mot. I 102 f. = Mugdan I 409.
‘ BGH 8.2.1952 - I ZR 92/51, NJW 1952, 537.
5 BGH 13.1.1987 - VI ZR 303/85, NJW 1987, 1193.
48
Beurskens
Liability for organs § 31a
nities (see the comparable distinction § 278). This is determined from the perspective of an
objective bystander.6 Therefore, powers of agency or internal directions are irrelevant. Only
actions clearly beyond the powers of the representative are excluded. Liability of a represen¬
tative for lack of agency power (§ 179) will not be attributed to the association as that would
contradict § 177.7 Attribution of liability is not subject to provisions in the articles of
association (§ 40), but may be excluded for all cases not based on intent (§ 276(3)) by
individual contract with a third party.
V. Lack of representative
§ 31 seemingly allows the association to avoid liability by simply not naming any 6
representative or putting a person wholly dependent on directions in its place. This gap was
closed by unwritten rules on liability for lack of organisation (Organisationsmangel). It is
universally accepted that every legal entity is required to put (independent) representatives
into place for all relevant activities. An organisation lacking necessary representatives will be
held liable if it knew or should have known that lack of that person might cause damage to a
third party.8
VI. Application to breach of contract
Although § 278 allows for attribution of both actions and fault or legal representatives to 7
the debtor, § 31 is also applied in contractual and semi-contractual (§ 311(2)) relation¬
ships.9 This precludes contractual exemptions from liability for intentional acts which would
otherwise be possible under § 278 2nd St.
VII. Liability of representative
§ 31 does not exclude liability of the representative, who remains jointly and severally 8
liable. This does not necessarily apply to omissions, as the representative (unlike the
association) may not be personally obliged to protect potential victims. In addition to § 426
(1), § 31a provides for full or partial indemnification under certain circumstances.
§ 31a
Liability of members of executive
bodies and special representatives
(1) 4f members of executive bodies or spe¬
cial representatives act free of charge, or if
they receive remuneration for their activity
which does not exceed 720 euro per year, they
are liable towards the association for damage
caused in performing their duties only in case
of intent or gross negligence. 2Sentence 1 also
applies to liability towards the members of the
association. 3If there is a dispute as to whether
a member of an executive body or a special
representative has caused damage with intent
or gross negligence, the burden of proof is
incumbent on the association or on the mem¬
ber of the association.
§31a
Haftung von Organmitgliedern
und besonderen Vertretern
(1) 'Sind Organmitglieder oder besondere
Vertreter unentgeltlich tätig oder erhalten
sie für ihre Tätigkeit eine Vergütung, die
720 Euro jährlich nicht übersteigt, haften
sie dem Verein für einen bei der Wahrneh¬
mung ihrer Pflichten verursachten Schaden
nur bei Vorliegen von Vorsatz oder grober
Fahrlässigkeit. 2Satz 1 gilt auch für die Haf¬
tung gegenüber den Mitgliedern des Vereins.
3Ist streitig, ob ein Organmitglied oder ein
besonderer Vertreter einen Schaden vorsätz¬
lich oder grob fahrlässig verursacht hat, trägt
der Verein oder das Vereinsmitglied die Be¬
weislast.
6 BGH 8.7.1986 - VI ZR 47/85, NJW 1986, 2941.
7 BGH 8.7.1986 - VI ZR 47/85, NJW 1986, 2941.
* BGH 8.7.1980 - VI ZR 158/78, NJW 1980, 2810.
9 BGH 6.2.1984 - II ZR 119/83, NJW 1984, 1884.
Beurskens
49
§ 31a 1-5 Division
(2) ’If members of executive bodies or
special representatives are obliged under
subsection (1) sentence 1 to provide to an¬
other party compensation for damage which
they caused in performing their duties, they
may demand from the association to be re¬
leased from the obligation. 2Sentence 1 does
not apply if the damage was caused with
intent or gross negligence.
. Persons
(2) ’Sind Organmitglieder oder besondere
Vertreter nach Absatz 1 Satz 1 einem anderen
zum Ersatz eines Schadens verpflichtet, den
sie bei der Wahrnehmung ihrer Pflichten ver¬
ursacht haben, so können sie von dem Verein
die Befreiung von der Verbindlichkeit verlan¬
gen. 2Satz 1 gilt nicht, wenn der Schaden vor¬
sätzlich oder grob fahrlässig verursacht wur¬
de.
A. Function
I. Purpose
1 § 31a was added in 2009 to protect voluntary board members receiving no or nominal
remuneration in order to reduce disincentives hindering pro bono activities.
IL Scope of application
2 The provision is not limited to tax-exempt, charitable activities but covers any registered
(§21) and even commercial associations by state grant (§ 22). Applicability to unregistered
associations (§ 54) is unclear and heavily debated in legal scholarship. It is inapplicable to
other organisations (e.g. GmbH, AG), even if they perform a charitable (and tax-exempt)
purpose.1 Liability for non-performance of duties in taxation is limited to gross negligence
and wilful conduct (§ 69 AO), non-payment of social security contributions will only lead to
liability if intent is shown (§§ 15, 14, 266a StGB).
B. Explanation
I. Privileged persons
3 § 31a applies to members of executive bodies or special representatives, thus to all persons
whose liability would be attributed to the association under § 31. They must act free of charge
or receive an annual remuneration of 720 euro or less. Any additional payment in cash or
benefits in kind (e.g. provision of a car, a flat) preclude the statutory limitation on liability.
However, the association may reimburse any expenses (§§ 27(3), 670).
IL Privileged acts
4 § 31a only covers damage caused in performing the persons’ relevant duties towards the
association, which (as § 31) excludes private activities and actions evidently beyond their
powers. Both acts and omissions are covered. No privilege applies to intentional torts and
those caused by gross negligence. This flexible standard allows for adjustment based on the
abilities and competences of the specific individual (e.g. experience, special knowledge) as
well as the demands imposed by the specific association (e.g. size, risk of activities). It is up
to the association to prove the required level of fault.
III. Third parties
5 Liability vis-ä-vis third parties remains unrestricted. Instead, § 31a(2) grants a claim
for indemnification against the association. This is subject to the same restrictions as
the limitation of liability under § 31a(l). However, liability towards members is excluded
(§ 31a(l) 2nd St.).
1 BT-Drs. 16/10120 of 13.8.2008, p. 10.
50
Beurskens
Liability of members of the association
1-2 § 31b
IV. Additional protection
Additional protection may be imposed by D&O insurance or provisions in the articles of 6
association, which may exclude liability for gross negligence, but not for wilful conduct.2 On
the other hand, § 31a as such is a binding minimum standard and may not be disposed of or
reduced in the articles of association.
§ 31b
Liability of members
of the association
(1) jIf members of the association act for
the association free of charge, or if they re¬
ceive remuneration for their activity which
does not exceed 720 euro per year, they are
liable to provide to the association compensa¬
tion for damage caused in performing the
duties of the association, in accordance with
the articles of association, that have been
assigned to them, only in case of intent or
gross negligence. 2§ 31a(l) sentence 3 applies
with the necessary modifications.
(2) ’If members of the association are ob¬
liged under subsection (1) sentence 1 to pro¬
vide to another party compensation for da¬
mage which they caused in performing the
duties of the association, in accordance with
the articles of association, that have been
assigned to them, they may require the asso¬
ciation to release them from the obligation.
Sentence 1 does not apply if the members of
the association have caused the damage with
intent or gross negligence.
§ 31b
Haftung von Vereinsmitgliedern
(1) ’Sind Vereinsmitglieder unentgeltlich
für den Verein tätig oder erhalten sie für
ihre Tätigkeit eine Vergütung, die 720 Euro
jährlich nicht übersteigt, haften sie dem Ver¬
ein für einen Schaden, den sie bei der Wahr¬
nehmung der ihnen übertragenen satzungs¬
gemäßen Vereinsaufgaben verursachen, nur
bei Vorliegen von Vorsatz oder grober Fahr¬
lässigkeit. 2§ 31a Absatz 1 Satz 3 ist entspre¬
chend anzuwenden.
(2) ’Sind Vereinsmitglieder nach Absatz 1
Satz 1 einem anderen zum Ersatz eines Scha¬
dens verpflichtet, den sie bei der Wahrneh¬
mung der ihnen übertragenen satzungsgemä¬
ßen Vereinsaufgaben verursacht haben, so
können sie von dem Verein die Befreiung
von der Verbindlichkeit verlangen. 2Satz 1
gilt nicht, wenn die Vereinsmitglieder den
Schaden vorsätzlich oder grob fahrlässig ver¬
ursacht haben.
A. Function
I. Purpose
§ 31b was added in 2013. It ensures that not only official representatives but also any 1
member acting on behalf of an association gains the benefits of liability limited to wilful
conduct and gross negligence. There was no convincing reason to limit protection to board
members (as was the case from 2009-2013). Like § 31a, the privilege is a binding rule not
subject to abolishment or reduction by the articles of association.
IL Scope of application
§ 31b only grants a privilege to members. Therefore, it is not applicable to other persons 2
acting on behalf of an association. These are only privileged by an analogous application of
the unwritten rules on employee liability.
2 OLG Nürnberg 13.11.2015 - 12 W 1845/15, NJW-RR20I6, 153.
Beurskens
51
Division L Persons
§ 32 1-4
§32
General meeting;
passing of resolutions
(1) ‘The affairs of the association, to the
extent that they are not to be attended to by
the board or another organ of the association,
are dealt with by resolution in a meeting of
the members. 2In order for the resolution to
be valid, it is necessary for the subject to be
stated when the meeting is convened. 3The
resolution is decided by the majority of the
votes cast.
(2) Even without a meeting of the mem¬
bers, a resolution is valid if all members
declare their approval of the resolution in
writing.
§32
Mitgliederversammlung;
Beschlussfassung
(1) 'Die Angelegenheiten des Vereins wer¬
den, soweit sie nicht von dem Vorstand oder
einem anderen Vereinsorgan zu besorgen
sind durch Beschlussfassung in einer Ver¬
sandung der Mitglieder geordnet. Zur Gül¬
tigkeit des Beschlusses ist erforderlich, dass
der Gegenstand bei der Berufung bezeichnet
wird. 3Bei der Beschlussfassung entscheidet
die Mehrheit der abgegebenen Stimmen.
(2) Auch ohne Versammlung der Mitglie¬
der ist ein Beschluss gültig, wenn alle Mit¬
glieder ihre Zustimmung zu dem Beschluss
schriftlich erklären.
A. Function
I. Purpose
1 The general meeting is the central body of an association charged with all questions of
fundamental importance (§§ 33, 41). Sub. 1 1st St. provides for a general competence of the
general meeting unless otherwise determined. Sub. 1 2nd and 3rd St. are basic rules of
procedure. Sub. 2 allows for decision-making in lieu of a meeting.
II. Scope of application
§ 32 is applicable to decision-making by the board, unless otherwise agreed (§ 28).
B. Explanation
I. Powers of the general meeting
2
The general meeting has the original competence (Kompetenz-Kompetenz) to decide on all
questions relevant to the association. Those competences may however be (permanently or
temporarily) assigned to other boards or even third parties bv the artiris „f °
resolution. Unlike the general meeting of an AG, the genend mtT r °f aSSOCiatlOn or
give binding directions to the board (§§ 27(3), 665). assoc'at'on maY
IL Resolution
3 Resolutions are legal transactions that consist of a certain
participating members. Voting in a meeting requires a amount of votes of the
3rd St.), whereas a resolution by written agreement reX™±„ of votes <Sub'1
resolution is binding not only to those voting in favL’ k consent (Sub. 2). A
rejecting members. ’ but ^so to absent, abstaining or
III. Meeting
4 In general, resolutions will be passed at meetings. Sub 1 2nd e.
information on the agenda in advance. Unless otherwise sr>» f * requires notification and
meeting. The description of the topics to be voted upon mthe b°ard invoke the
H n must be sufficiently clear to allow
52
Beurskens
Amendment of articles of association §33
members to prepare and decide to participate or abstain. Unless stated in the articles of
association, decisions are subject to no quorum - i.e. even a single member may pass a
resolution if no one else is present. A special quorum is only required under § 33 and § 40.
IV. Articles of association
Although § 32 is subject to modification by the articles of association (§ 40), the general 5
meeting as such is considered an essential element of any association (as it is required under
§§ 36, 37, 41, which are binding) and may not be completely abolished. However, most
decisions may be delegated to a meeting of delegates (arg. § 43a GenG, § 29 VAG, § 9 PartG)
to ensure operability for large associations. Even though § 33(1) 2nd St. is no binding rule as
such, at least important decisions (dissolution, changes to the articles of association, expul¬
sion, revocation of board members, etc.) must be disclosed in advance to ensure proper
preparation.1 However, the articles may impose stricter, more detailed requirements on
resolutions, especially on the form of notification, a convocation period or a necessary
quorum.2 They may also provide for online meetings, which would be prohibited otherwise.3
V. Faulty resolutions
A resolution in violation of §§ 134, 138 is void per se and has no legal consequences. 6
Similarly, failure to meet binding legal requirements or requirements imposed under the
articles voids the resolution. However, the courts have denied invalidity for mere procedural
violations if the violation had no possible relevance to the eventual resolution (i. e. it would
have been passed even if all procedural rules were maintained).4 Furthermore, invoking
invalidity is subject to forfeiture if a member knew the relevant facts but did not act and
instead gave rise to the assumption that it would accept the resolution.5 The detailed rules on
voidable resolutions for corporations (§§ 241 et seq. AktG) are inapplicable.
§33
Amendment of
articles of association
(1) 'A resolution containing an amend¬
ment of the articles of association must have
a majority of three quarters of the votes cast.
2In order to alter the objects of the associa¬
tion, the approval of all members is neces¬
sary; the approval of the members not present
must be declared in writing.
(2) If the legal personality of the associa¬
tion results from a grant, the consent of the
competent authority is necessary for every
amendment of the articles of association.
§33
Satzungsänderung
(1) 'Zu einem Beschluss, der eine Ände-
rung der Satzung enthält, ist eine Mehrheit
von drei Vierteln der abgegebenen Stimmen
erforderlich. 2Zur Änderung des Zweckes des
Vereins ist die Zustimmung aller Mitglieder
erforderlich; die Zustimmung der nicht er¬
schienenen Mitglieder muss schriftlich erfol¬
gen.
(2) Beruht die Rechtsfähigkeit des Vereins
auf Verleihung, so ist zu jeder Änderung der
Satzung die Genehmigung der zuständigen
Behörde erforderlich.
1 BGH 17.11.1986 - II ZR 304/85, NJW 1987, 1811.
2 See -* § 58 mn. 4.
3 OLG Hamm 27.9.2011 - 27 W 106/11, NJW 2012, 940.
4 BGH 9.11.1972 - II ZR 63/71, NJW 1973, 235.
5 OLG Hamm 10.6.1996 - 8 U 150/95, NJW-RR 1997, 989.
Beurskens
53
§ 33 1-5
Division 1. Persons
A. Function
L Purpose
1 The articles of association form the core of the constitution of an association (§ 25). § 33
determines the necessary majority requirements.
IL Scope of application
2 The requirement applies to registered (§21) and unregistered (§ 54) associations as well as
to associations by state grant (§ 22). Comparable rules exist in § 179(1) 1st St. AktG, § 53(2)
1st St. GmbHG and § 16(2) GenG.
B. Explanation
I. Amendments
3 The articles of association refer only to the formal document establishing the core elements
of the constitution, not mere bylaws supplementing it. All modifications, deletions or
amendments including corrections and clarifications are subject to the formal requirements.
§ 33 distinguishes normal amendments (requiring a % majority of votes cast under Sub. 1
1st St.) from amendments altering the objects (requiring unanimity of all members under
Sub. 1 2nd St.). There is no minimum quorum of members present for normal amendments,
abstentions are not counted.1 Modification of the objects of the association requires any
member not present to express their agreement in writing; abstentions preclude the
modification. However, implied acceptance without objection over a significant period of
time after registration has been deemed sufficient.2 Both requirements are intended to protect
minorities.
II. Additional requirements
4 In registered associations (§21), amendments to the articles will only be valid after
registration (§ 71). Associations by grant (§ 22) require the consent of the competent
authority (Sub. 2). Both requirements are binding as they are essential to the protection of
the public.
IIL Modified requirements
5 Even though § 40 expressly allows for modification of § 33 by the articles of association, it
has been convincingly argued that this only covers the necessary majority, but not the
original competence to modify the articles as such (see also §§ 119(1) No. 5 AktG, § 53(1)
GmbHG).3 However, the prevailing opinion allows rules delegating the competence to
modify the articles to specific bodies within the association. Delegation to a third party (i.e.
someone who is neither a member of the association nor of a specific body within the
association) is considered invalid as it would intrude upon the association’s autonomy.4
However, both members and third parties may be granted veto rights (see also § 35).
1 BGH 25.1.1982 - II ZR 164/81, NJW 1982, 1585.
2 BGH 13.1.1955 - II ZR 249/53, NJW 1955, 457.
» Flume, Vereinsautonomie und kirchliche oder religiöse Vereinigungstreiheit und das Vereinsrecht. JZ
1992, 238, 239.
4 OLG Frankfurt a. M. 9.3.1982 - 20 W 577/81, NJW 1983, 2576.
Beurskens
54
Exclusion from voting
1-4 § 34
IV. Implied modifications
A resolution in violation of a provision of the articles is invalid, even if the majority voting 6
in favour of the resolution would have been sufficient to cancel or modify the contradicting
provision in the association. § 33 precludes implied modification of the articles.5 The mere
intent of the members to circumvent requirements in a specific case will not provide
sufficient justification; validity requires an express and formal amendment of the articles
before the violating resolution is passed.
§34
Exclusion from voting
A member has no right to vote if the
resolution concerns entering into a legal
transaction with him or commencing or dis¬
posing of litigation between him and the
association.
§34
Ausschluss vom Stimmrecht
Ein Mitglied ist nicht stimmberechtigt,
wenn die Beschlussfassung die Vornahme ei¬
nes Rechtsgeschäfts mit ihm oder die Einlei¬
tung oder Erledigung eines Rechtsstreits zwi¬
schen ihm und dem Verein betrifft.
A. Function
I. Purpose
§ 34 is a fundamental rule preventing personal conflicts of interest from affecting conduct 1
of the association.
IL Scope of application
Like § 32, § 34 also applies to resolutions of the board. It is also applied analogously to 2
partnerships. Comparable rules exist in § 136(1) AktG, § 47(4) GmbHG and § 43(6) GenG.
§ 34 is binding and may not be disposed of by the articles of association (§ 40). However, the
articles may impose additional reasons for exclusion.
B. Explanation
I. Conflict of interests
The courts interpret § 34 narrowly and limit it to the explicitly mentioned legal transac- 3
tions and litigation between a member (or board member) and the association (comparable
to § 181 for agency).1 However, the additional cases mentioned in § 136(1) 1st St. AktG,
§ 47(4) GmbHG should apply analogously to prevent the member from acting as a judge in
their own case (e.g. in deciding on claims for liability, revocation of appointment as board
member, etc.). Other cases have to be resolved on the basis of an actual abuse of the voting
right (which has to be proven by the association in court) under §§ 138, 242.
IL Circumvention
§ 34 also precludes circumvention by use of agents or involvement of single-member 4
organisations or partnerships with personal liability of a member. However, mere private or
5 BGH 7.6.1993 - II ZR 81/92, NJW 1993, 2246.
* KG 22.2.2005 - 5 U 226/04, BeckRS 2005, 03529.
Beurskens
55
» „ . , Division 1. Persons
§35 . t give sufficient cause for an
business relationships or even a family connection
exclusion of voting rights.2
III. Consequences
.. a not be counted. A resolution based on
5 Any vote cast in violation of § 34 is void and m woujd have been achieved even
invalid votes is also invalid, unless the necessa^ member from participating in
without consideration of that vote. § 34 does no p
the meeting, giving speeches or asking questions.
§35
Special rights
Special rights of a member may not be
adversely affected by a resolution of the gen¬
eral meeting without his approval.
§35
Sonderrechte
Sonderrechte eines Mitglieds können nicht
ohne dessen Zustimmung durch Beschluss
der Mitgliederversammlung beeinträchtigt
werden.
A. Function
I. Purpose
1 The articles of association may grant special privileges to a member (e. g. multiple votes in
meetings, claim to a seat in the board, exemption from membership fees, privileged access to
facilities of the association). To protect the member from a loss by a resolution passed by the
majority (§ 33), § 35 requires his approval (§§ 182 et seq.). § 35 is binding and may not be
changed by the articles of association. It is applied analogously to other private organisations.
IL Scope of application
2 Only special rights granted to members as such by the association are protected under § 35.
This excludes e. g. rights granted to mere creditors.
B. Explanation
3
4
I. Special rights
A special right must be distinguishable from the rights granted to all (other) members or
nghts granted to minonties (e.g. § 37). Since every member has a right to equal treatment
creation of special rights requires the consent of all non-privileeed i a ‘1
amendment will be sufficient only if the special right causes^ Am ■ mber®’ A normal
or a general basis for creating privileges is provided for in the article^6111 memberS
II. Approval
Approval may be both an approval in advance (8 18'3') nr a •
passed (§ 184). It is not subject to any form and may be implied Cat’°n 1116 resolution
2 BGH 16.2.1981 - II ZR 168/79, NJW 1981, 1512.
3 BGH 28.1.1985 - II ZR 79/84, BeckRS 2009, 10067
1 RG JR Rspr. 1926 No. 353.
56
Beurskens
Convening a meeting at the request of a minority
§ 37
III. Effects
Denial of a special right without approval is a violation of the rights of the member and 5
gives rise to a claim for damages (§ 280, § 823(1)).
§36
Convening of the general meeting
The general meeting is to be convened in
the cases laid down in the articles of associa¬
tion and when the interests of the association
require it.
§36
Berufung der
Mitgliederversammlung
Die Mitgliederversammlung ist in den
durch die Satzung bestimmten Fällen sowie
dann zu berufen, wenn das Interesse des Ver¬
eins es erfordert.
A. Function
§ 36 ensures that a general meeting is convened under certain circumstances. It is a 1
binding rule (§ 40). Comparable requirements are provided in § 121(1) AktG, § 49 GmbHG
and § 44 GenG.
B. Explanation
I. Duty to convoke
§ 36 is not addressed to any person or any body in particular. Unless otherwise specified, 2
convocation is a duty of the board (i.e. a number of members having power of agency under
§ 26(2)). The articles may assign that duty to any other person or body.
II. Articles of association
According to § 58 No. 4, the articles shall provide conditions for convening of the general 3
meeting. Usually, they will provide for annual general meetings (ordinary meetings) and
special meetings for specific reasons.
III. Lack of convocation
Members may not sue the board to convene a meeting, but may request the court for 4
authorisation to convene the meeting themselves under § 37(2). Furthermore, the association
(not its members) may seek damages for any loss incurred if a necessary meeting is not
convened (§ 280).
§37
Convening a meeting at the
request of a minority
(1) The general meeting is to be convened
if the proportion of the membership laid
down in the articles of association or, in the
absence of a provision, one-tenth of the mem¬
bers call in writing for a meeting to be con¬
vened, stating the purpose and the reasons.
§37
Berufung auf Verlangen einer
Minderheit
(1) Die Mitgliederversammlung ist zu be¬
rufen, wenn der durch die Satzung bestimmte
Teil oder in Ermangelung einer Bestimmung
der zehnte Teil der Mitglieder die Berufung
schriftlich unter Angabe des Zweckes und der
Gründe verlangt.
Beurskens
57
§ 37 1-4 Division
(2) *If the request is not granted, the local
court [Amtsgericht] may authorise the mem¬
bers who made the request to convene the
meeting; it may make orders on the conduct
of the chairmanship at the meeting. 2The
court with jurisdiction is the local court
[Amtsgericht] that keeps the register of asso¬
ciations for the district in which the associa¬
tion has its seat. 3The authorisation must be
referred to in the notice convening the meet¬
ing.
1. Persons
(2) *Wird dem Verlangen nicht entspro¬
chen, so kann das Amtsgericht die Mitglieder,
die das Verlangen gestellt haben, zur Beru¬
fung der Versammlung ermächtigen; es kann
Anordnungen über die Führung des Vorsitzes
in der Versammlung treffen. 2Zuständig ist
das Amtsgericht, das für den Bezirk, in dem
der Verein seinen Sitz hat, das Vereinsregis¬
ter führt. 3Auf die Ermächtigung muss bei
der Berufung der Versammlung Bezug ge¬
nommen werden.
A. Function
1 § 37 is the central rule governing minority protection in associations. By presenting their
issues in front of the members as a whole they may prevent misconduct by the board and try
to convince others of their ideas for the future of the association. While § 37 as such is
binding (§ 40), the articles may both increase and decrease the necessary quorum, i. e. grant
the right to a smaller or larger group of members up to a quorum of 50 percent of members
in special cases. Comparable rules exist in § 122 AktG, § 50 GmbHG, § 45 GenG, which
impose a strict maximum of 10 percent.
B. Explanation
2
3
4
I. Demand
Sub. 1 requires a written demand (§ 126) signed by the necessary number of members
(10 percent of the total number of members). Later additions or ratifications are insufficient.
To acquire a sufficient number of signatures, the association has to provide a member
seeking to request a general meeting contact data for the other members,1 2 the association has
no right to reject the demand due to privacy concerns.2 If convocation requires more than a
single person to act (§ 26(3)), the demand may be addressed to any of them. The demand
must state the purpose of the general meetings, i. e. a provisional agenda.
IL Rejection
§ 37 imposes a duty to convoke a meeting. Convocation may be rejected for formal
deficits (i.e. insufficient signatures, lack of written form, no statement of purpose). Addi¬
tional abusive demands may be rejected under exceptional circumstances (§§ 138 ”6 W)
- e.g. if the intended resolutions would be invalid anyway (due to lack of competence or
violation of §§ 134.138) or if another meeting already convoked would be able to discuss the
purpose effectively. S.miiarly, repeated demands may be rejected when a previous general
meeting has already refused to pass an injunction and the amount of time passed oives no
grounds for the assumption of a possible change in mind. d gl es
III. Authorisation by court
The minority may seek authorisation by a court once a . .
ignored for a significant period (Sub. 2). Procedure is governed7^0/*™3'1'1 ‘S denied °F
urgency the court may authorise the members to convoke 7 s 37 FamFG» in case of
the meetlng even without hearing
1 OLG München 243.2016 - 23 U 3886/15, BeckRS 2016, 06179
2 BVerfG 18.2.1991 - 1 BvR 185/91, BeckRS 2012, 47998.
58
Beurskens
Membership 1-3 § 38
the board.3 Authorisation is limited to the purpose and agenda stated by the minority. The
costs of convocation will be reimbursed by the association (analogously § 122(4) AktG). The
court decision is subject to an appeal within a month (§§ 58, 63(1) FamFG). However, an
appeal will be unsuccessful for lack of a grievance once the requested meeting has been held.
§38
Membership
'Membership is not transferable and
not inheritable. 2The exercise of member¬
ship rights cannot be entrusted to another
person.
§38
Mitgliedschaft
'Die Mitgliedschaft ist nicht übertragbar
und nicht vererblich. 2Die Ausübung der Mit¬
gliedschaftsrechte kann nicht einem anderen
überlassen werden.
A. Function
Unless otherwise stated, membership in an association is a right that is personal in nature. 1
The relationship between the association and its members as well as between multiple
members imposes significant duties of loyalty and trust. § 38 thus generally prevents transfer
of membership as such. This is a significant difference to both the GmbH and AG, where
shares may be freely transferred. However, the rule is not binding (§ 40).
B. Explanation
I. Membership
Being a member imposes duties and grants rights to a person. One distinguishes rights to 2
participate in control of the association’s activities (e.g. right to ask questions, right to
participate in meetings, right to vote, right to be elected as a board member, right to convoke
a meeting) and mere claims to the association’s assets (e. g. payment of dividends, participa¬
tion in devolution of assets). In addition, bilateral unwritten duties of loyalty (based on
§ 242) bind both members and the association.* 1 They require members not to act against the
interests of the association, especially not to cause any damage and the association to ensure
equal treatment under identical circumstances and to protect its members from damages.
Breach of these duties by either the association or the member gives grounds for liability
(§ 280(1)). However, members or representatives acting on behalf of the association may be
privileged under §§ 31a, 31b. Further sanctions may be imposed under the articles of
association. Grave violations may constitute compelling reasons for termination of the
membership (§314).
IL Becoming a member
While § 39 covers leaving the association, the rules on acquisition of membership are 3
subject to the articles of associations. They usually require a contract between the interested
person and the association.2 Under exceptional circumstances there may be a legally enforce¬
able claim to admission in associations of monopolistic power (arg. §20(1), (5) GWB).3
Similarly, rules of non-discriminatory treatment may apply under § 18(1) AGG.
3 BayObLG 23.7.1986 - BReg. 3 Z 62/86, NJW-RR 1986, 1499.
1 BGH 12.3.1990 - II ZR 179/89, NJW 1990, 2877.
2 BGH 29.6.1987 - II ZR 295/86, NJW 1987, 2503.
3 BGH 10.12.1984 - II ZR 91/84, NJW 1985, 1216.
Beurskens
59
§ 39 1-2
Division 1. Persons
III. Non-transference
4 § 38 covers not only membership as a whole but also rights derived from membership
(e.g. voting rights). These rights are not transferable and cannot be seized (§ 851 ZPO).
However, rights to mere financial benefits (dividends, etc.) may be assigned to third parties
as they are not directly related to the personal relationship. The articles may allow for a
transfer of the membership, which would be governed by §§ 309, 413. However, separate
transfer of membership rights (analogously to § 717 1st St.) is not permitted to retain the
associations’ autonomy.4
IV. Acquisition by inheritance
5 Once a member dies, all rights derived from membership expire. Only existing financial
claims are subject to inheritance (§ 1922). While the articles of association may make
membership inheritable, this will cause significant practical issues: If a member is succeeded
by multiple persons, the heirs will take his position as a community of joint owners. Thus,
they will only have one vote in meetings and must internally coordinate their activities.
V. Prohibition on agency
6 All membership rights must be exercised in person - thus, agency is prohibited (2nd St.).
However, it is disputed whether this also applies to legal representation of a minor or legally
incompetent person. The articles of association must not allow representation by a non¬
member to ensure the association’s long-term autonomy.
§39
Leaving the association
(1) The members have the right to leave the
association.
(2) The articles of association may specify
that leaving is admissible only at the end of a
business year or only after a notice period;
the maximum notice period is two years.
§39
Austritt aus dem Verein
(1) Die Mitglieder sind zum Austritt aus
dem Verein berechtigt.
(2) Durch die Satzung kann bestimmt wer¬
den, dass der Austritt nur am Schluss eines
Geschäftsjahrs oder erst nach dem Ablauf ei¬
ner Kündigungsfrist zulässig ist; die Kündi¬
gungsfrist kann höchstens zwei Jahre betragen.
A. Function
1 The constitutional freedom of association (Art. 9(1) GG) requires the right to leave an
association. It is essential to ensure free competition between multiple associations. § 39(1)
therefore guarantees a binding right (§ 40) and may not be excluded by the articles. However,
§ 39(2) allows for temporal limitations.
B. Explanation
I. Right to leave
2 The right to leave may not be excluded or limited either by the articles of association or
an individual contract between the member and the association or a third party.* 1 The
4 OLG Stuttgart 19.3.2010 - 8 W 112/10, BeckRS 2010, 10797.
1 RG 17.9.1909 - Rep. II 704/08.
60
Beurskens
Flexible provisions 1-2 § 40
declaration of intent is not subject to any form and does not require acceptance. A
declaration of resignation may only be revoked with the association’s approval.
IL Notice period
Sub. 2 allows the articles to determine a period of notice up to two years. A longer term is 3
reduced to the maximum term of two years.2 Even a notice period will not preclude members
from immediately resigning for a compelling reason (§ 314).3
III. Additional requirements
Details on resignation should be determined in the articles of association (§ 58 No. 1), which 4
may also require written form of the declaration (§ 127). Any measures imposing an undue
burden or costs is void (e. g. involvement of a notary public, approval by the board or a third
party). Similarly, no sanctions (e.g. fines, black-listing) may be imposed upon the leaving
member. However, re-admission may be subject to higher requirements after wilful resignation.
IV. Consequences
Leaving the association excludes any claims due after the end of membership, even if they 5
were caused beforehand.4
§40
Flexible provisions
*The provisions of § 26(2) sentence 1, § 27
(1) and (3), §§ 28 and 31a(l) sentence 2, as
well as §§ 32, 33 and 38, do not apply where
otherwise provided by the articles of associa¬
tion. 2It is not possible to derogate from § 34
through the articles of association, even for
the passing of resolutions by the board.
§40
Nachgiebige Vorschriften
'Die Vorschriften des § 26 Absatz 2 Satz 1,
des § 27 Absatz 1 und 3, der §§ 28, 31a Abs. 1
Satz 2 sowie der §§ 32, 33 und 38 finden
insoweit keine Anwendung als die Satzung
ein anderes bestimmt. 2Von § 34 kann auch
für die Beschlussfassung des Vorstands durch
die Satzung nicht abgewichen werden.
A. Function
Although freedom of contract is fundamental to German law, the law of associations is 1
largely binding in order to protect minorities and third parties. Thus, § 40 (insofar compar¬
able to § 23(5) Is* St. AktG) enumerates the provisions subject to modification by the articles
of associations - the rules not mentioned are binding. However (unlike § 23(5) 2nd St. AktG),
the articles may freely amend the statutory rules and are expressly required to do so in § 58.
Even derogable provisions require express overriding provisions in the articles - a mere
practice or rules in bylaws will not derogate the statutory requirements.
B. Explanation
I. Flexible provisions on board
§ 26(2) Is’ St. provides for representation by majority; the articles may instead require joint 2
representation by all members or allow sole representation by a single member. § 27(1)
2 BGH 29.7.2014 - II ZR 243/13, NJW-Spezial 2014, 687.
3 BGH 24. 3. 1954 - II ZR 33/53, NJW 1954, 953.
4 BGH 1.2.1968 - II ZR 212/65, BeckRS 1968, 00169.
Beurskens
61
3
S411_, Division 1. Persons
8 , the articles may assign the competence to
requires the general meeting to elect board members, aUy determined by the law on
any other body. The applicable rules on management are g^ (espedally §§ 675. 611 et seq.).
mandate — however the association is free to choos simplified (e.g. by providing for
Furthermore, internal decision-making (§9 2», J ) 7 reouirements on minutes, commit¬
teleconferencing) or subjected to additional orgamsa io vi(je for liability of pro bono
tees, fixed departments, etc. F“rtherm°^^^^ second sentence expressly prevents
board members vis-ä-vis members (§ 3 () • memhers with conflicting interests,
the articles from allowing broader involvement of board memo
II. Flexible provisions on general meeting
The competence of the general meeting may be limited or assigned to different bodies
(§ 32(1)), the articles may provide rules on procedure for such meetings an spe ia quora
(§§ 32, 33).
IIL Flexible provisions on members
4 Finally, membership may be declared transferable and agency with regards to members
rights may be allowed (§ 38).
IV. Additional room for determination
5 Some rules expressly allow for overriding provisions in the articles of associations. § 26(1)
3rd St. allows limitations on the power of agency. § 30 2nd St. leaves detailed provisions on the
powers of special representatives to the articles. §37(1) expressly allows different quora in
demands on convocation, § 39(2) grants the power to provide a term for leaving the
association. § 41 2nd St. allows for a different quorum on dissolution of an association.
§41
Dissolution of the association
’An association may be dissolved by reso¬
lution of the general meeting. 2The resolution
must have a majority of three-quarters of the
votes cast, unless otherwise provided in the
articles of association.
§41
Auflösung des Vereins
’Der Verein kann durch Beschluss der Mit¬
gliederversammlung aufgelöst werden. 2Zu
dem Beschluss ist eine Mehrheit von drei
Vierteln der abgegebenen Stimmen erforder¬
lich, wenn nicht die Satzung ein anderes be¬
stimmt.
1
A. Function
Dissolution terminates the existence of the orcanisatinn . u ,, ,.
§§ 43 and 44 cover the mere loss of legal personality without direct" effe^
the organisation. Qlrect effect on the existence of
B. Explanation
2
I. Cause for dissolution
Dissolution is caused by resolution (1st St.) or bv insnl
matically if the association is limited in time (§ 74(2)) nr e« It may occur auto¬
articles or if no members remain. The impossibility or faihJ t ? * Condition (§ 158) bv its
e t0 «hieve its objectives gives rise
62
Beurskens
Insolvency 1 § 42
to a resolution, but (unlike § 726) no cause for automatic dissolution.1 Furthermore, dissolu¬
tion may be imposed by administrative prohibition (§§ 3, 11 VereinsG).
IL Resolution
Dissolution by resolution is subject to the general rules on decisions of the general meeting 3
(§ 32). However, it is subject to a qualified quorum of 3/4, while a change in purpose would
require unanimity under § 33(1) 2nd St. The 3/4-majority is subject to modification by the
articles of association. It is widely accepted that this allows both lower and stricter require¬
ments.
IIL Consequences
Dissolution does not automatically cause the association to expire. Instead, the association 4
must enter liquidation proceedings (§ 47), unless otherwise provided (§§ 42, 46).
§42
Insolvency
(1) ’An association is dissolved by the
commencement of insolvency proceedings
and on the order becoming legally final by
means of which the commencement of the
insolvency proceedings has been rejected for
insufficiency of assets. 2If the proceedings are
discontinued on the application of the debtor
or terminated after the confirmation of an
insolvency plan that provides for the associa¬
tion to continue in existence, the general
meeting may pass a resolution that the asso¬
ciation is to continue in existence. 3The arti¬
cles of association may provide that, if insol¬
vency proceedings are commenced, the
association is to continue as an association
without legal personality; in this case too, if
the requirements of sentence 2 above are
satisfied, a resolution may be passed to con¬
tinue the association as an association with
legal personality.
(2) ’If an association is insolvent or is
overindebted, the board must petition for
the commencement of insolvency proceed¬
ings. 2If there is delay in petitioning, the
members of the board who are at fault are
responsible to the creditors for the damage
resulting from this; they are liable as joint
and several debtors.
§42
Insolvenz
(1) ‘Der Verein wird durch die Eröffnung
des Insolvenzverfahrens und mit Rechtskraft
des Beschlusses, durch den die Eröffnung des
Insolvenzverfahrens mangels Masse abgewie¬
sen worden ist, aufgelöst. 2Wird das Verfah¬
ren auf Antrag des Schuldners eingestellt
oder nach der Bestätigung eines Insolvenz¬
plans, der den Fortbestand des Vereins vor¬
sieht, aufgehoben, so kann die Mitgliederver¬
sammlung die Fortsetzung des Vereins
beschließen. 3Durch die Satzung kann be¬
stimmt werden, dass der Verein im Falle der
Eröffnung des Insolvenzverfahrens als nicht
rechtsfähiger Verein fortbesteht; auch in die¬
sem Falle kann unter den Voraussetzungen
des Satzes 2 die Fortsetzung als rechtsfähiger
Verein beschlossen werden.
(2) ’Der Vorstand hat im Falle der Zah¬
lungsunfähigkeit oder der Überschuldung die
Eröffnung des Insolvenzverfahrens zu beantra¬
gen. 2Wird die Stellung des Antrags verzögert,
so sind die Vorstandsmitglieder, denen ein
Verschulden zur Last fällt, den Gläubigern für
den daraus entstehenden Schaden verantwort¬
lich; sie haften als Gesamtschuldner.
A. Function
§ 42 provides two separate rules: Sub. 1 governs the consequences of insolvency, while Sub. 2 1
imposes a duty on the board members to petition for insolvency proceedings. Corresponding
duties are imposed on board members in AG, GmbH and foreign corporations by § 15a(l) InsO.
1 BGH 30.J 1.1967 - II ZR 3/66, NJW 196«, 545.
Beurskens
63
§43 1
Division 1. Persons
B. Explanation
2
I. Insolvency
If insolvency proceedings .,e refused for hck of assefs <§ 26
dissolved auiomaiically. Similarly, dissolution «ill. O«»T °” a liquidation
however the insolvency estate retains legal personality m j n the articles
and distribution of assets (by analogous application of § ( ))• ’ allows
may provide for continued existence as an unregistered association (§ )- §
the members to decide to continue as a registered association (without the assets distributed
to the creditors) once proceedings end. Members bear no duty to pay contributions not due
at dissolution under § 42, unless otherwise provided.2
IL Duty to apply for insolvency proceedings
3 Since insolvency proceedings require a petition (§13 InsO), continued existence of an
insolvent association would continually endanger potential creditors. Thus, § 15a InsO
imposes an individual duty on representatives of a legal person to petition for insolvency
proceedings in case of over-indebtedness (§ 19 InsO) or insolvency (§17 InsO). Sub. 2
aggravates that duty by excluding the three-week term (§ 15a(3)) applicable to other legal
persons. Sub. 2 2nd St. further provides for joint and several liability for breach of that duty
vis-ä-vis creditors. The association itself has a claim under §§ 27(3), 280.
§43
Deprivation of legal personality
An association whose legal personality is
the result of a grant can be deprived of its
legal personality if it pursues objects different
from those in the articles of association.
§43
Entziehung der Rechtsfähigkeit
Einem Verein, dessen Rechtsfähigkeit auf
Verleihung beruht, kann die Rechtsfähigkeit
entzogen werden, wenn er einen anderen als
den in der Satzung bestimmten Zweck verfolgt
A. Function
Deprivation of legal personality is a weaker consequence than full dissolution The
assoc.at.on seems o continue to ex.st as an unregistered organisation (§ 54) However § 4<
(1) requires either liquidation or devolution of assets to the treasurv ..nL K“owever’ * 4'
upon by .« members. This will prorec. lhe members a, rhey 'S X“ ""
liable under Partnership law (§ 54 2nd St.; § 128 HGB) 841 1 d °“lerwise be personally
grant (§ 22), not registered associations. Originally, 8 43p’) „ ” associations by state
personality of registered associations if they exceeded th P Ty1060 tor deprivation of legal
however, that requirement was deemed unnecessary due t °:?eCtlVes allo"’ed under § 21;
registration of associations ex officio under § 395 FamFG ° C°Urt power to terminate
1 BGH 11.11.1985
2 BGH 11.11.1985
1346.
- II ZR 37/85, NJW 1986, 1604
- II ZR 37/85, NJW 1986. 1604; BGH 23.4 2007 „
~ Il ZR 190/06, NJW-RR 2007,
64
Beurskens
Devolution of the assets of the association
§45
B. Explanation
I. Discretionary power
The authority has discretionary power in determining the possible consequences of an 2
actual change in activities (can not must). However, the original grant is limited to the
specific objects stated in the original application. Any modification requires formal re¬
accreditation (§ 33(2)). A change in activities without formal review would endanger
creditors. Thus, an unreviewed change will almost universally cause loss of legal personality
and personal liability of the members.
II. Other reasons for loss of legal personality
Both registered associations (§21) and associations by grant (§ 22) may waive their legal 3
personality (as implied by its power to vote on dissolution under § 41). Registered associa¬
tions lose their legal personality by losing all but two or fewer members (§ 73) or by removal
from the register (§ 395 FamFG).
§44
Jurisdiction and proceedings
Jurisdiction and the procedure for the de¬
privation of legal personality under § 43 are
decided under the law of the Land in which
the association has its seat.
*) Under Article 129 of the Basic Law
[Grundgesetz], the Federal Minister of the
Interior [Bundesminister des Innern] is now
competent.
§44
Zuständigkeit und Verfahren
Die Zuständigkeit und das Verfahren für
die Entziehung der Rechtsfähigkeit nach § 43
bestimmen sich nach dem Recht des Landes,
in dem der Verein seinen Sitz hat.
Since the grant of legal personality is subject to the Land of the seat (§ 22), the reverse act 1
of devolution is subject to the same laws. This only refers to the necessary administrative
procedure and jurisdiction, as the reason for deprivation is provided for by § 43 (as super¬
vening federal law). The decision to deprive an association of legal personality is subject to
court review (§§ 74, 42 VwGO).
§45
Devolution of the assets
of the association
(1) On the dissolution of the association or
its deprivation of legal personality, the assets
devolve on the persons specified in the arti¬
cles of association.
(2) 'The articles of association may provide
that the persons entitled to receive the assets
are specified by a resolution of the general
meeting or by another organ of the associa¬
tion. 2If the objects of the association are not
commercial business operations, the general
meeting may, even without such a provision,
§45
Anfall des Vereinsvermögens
(1) Mit der Auflösung des Vereins oder der
Entziehung der Rechtsfähigkeit fällt das Ver¬
mögen an die in der Satzung bestimmten
Personen.
(2) 'Durch die Satzung kann vorgeschrieben
werden, dass die Anfallberechtigten durch Be¬
schluss der Mitgliederversammlung oder eines
anderen Vereinsorgans bestimmt werden. 2Ist
der Zweck des Vereins nicht auf einen wirt¬
schaftlichen Geschäftsbetrieb gerichtet, so
kann die Mitgliederversammlung auch ohne
Beurskens
65
Division
1. Persons
§ 45 1-4
allocate the assets to a public foundation or
institution. A
(3) If no persons entitled are specified,
then if according to its articles the association
exclusively served the interests of its mem¬
bers, the assets pass in equal shares to the
members at the date of the dissolution or the
deprivation of legal personality, and failing
this to the treasury of the Land in whose
territory the association had its seat.
w cn fällt das Vermögen, wenn
de!bV«ein^nach der Satzung ausschließl.ch
den Interessen seiner Mitgl.eder diente, an
die zur Zeit der Auflösung oder der EnUie-
hung der Rechtsfähigkeit vorhandenen. Mit¬
glieder zu gleichen Teilen, anderenfalls an
den Fiskus des Landes, in dessen Gebiet der
Verein seinen Sitz hatte.
A. Function
1
§ 45 determines the (eventual) effects of dissolution and deprivation of legal Penality. It
applies to registered (§ 21) and unregistered (§ 54) associations as well as associations by
grant (§ 22).
B. Explanation
I. Devolution of assets
2 Although the law uses a unified term of devolution, it actually refers to two separate legal
constructs: devolution on the treasury (§ 46) occurs by universal succession, whereas
devolution on third parties only grants an obligatory claim against the association in
liquidation. Both forms of devolution cover all kinds of assets, e.g. claims, real estate and
movables.
II. Articles of association
3 The beneficiary may be named or at least determined by objective criteria in the articles of
association (Sub. 1), which may also allow the general meeting or another body within the
association to determine the beneficiary. To ensure tax-exempt status, another tax-exempt
entity or a legal person under public law must be appointed and use the assets for tax-exempt
purposes (§ 55(1) No. 4 AO). The articles may provide for a prioritised fist of beneficiaries,
in case a named person rejects the assets or is unavailable (e.g. deceased or dissolved) While
the association may assign the right to determine the beneficiary to the board the General
meeting or any other body within the association (Sub. 2), third parties may not be inwived
to ensure autonomy ot the association. 7
4
III. Lack of provision
If the articles do not name a beneficiary and do not provide fnr a • u ,
general meeting of a non-profit association (§ 21) may dete mine m Y
institution (Sub. 2 2nd St.), but not another private emitv Thri "
associations (§ 21) if all persons appointed in the articles are unt, u°waPPheS.in non-Protlt
Otherwise, devolution is based on the objects of the association . t-* C °r rt’ect assets’
members (especially associations subject to § 22), assets are dV* WaS se^‘senrin^ to
equal parts, otherwise (or if the members are unavailable or 1Stnt?ted to the members in
on the treasury (§ 46). ' re)ect the assets) assets devolve
66
Beurskens
Liquidation
1 § 47
§46
Devolution on the treasury
lIf the assets of the association devolve on
the treasury, the provisions on an inheritance
that devolves on the treasury as the heir on
intestacy apply with the necessary modifica¬
tions. 2The treasury shall if possible use the
assets in a manner corresponding to the ob¬
jects of the association.
§46
Anfall an den Fiskus
1 Fällt das Vereinsvermögen an den Fiskus,
so finden die Vorschriften über eine dem
Fiskus als gesetzlichem Erben anfallende Erb¬
schaft entsprechende Anwendung. 2Der Fis¬
kus hat das Vermögen tunlichst in einer den
Zwecken des Vereins entsprechenden Weise
zu verwenden.
A. Function
§ 46 provides for universal succession, i.e. precludes the need for liquidation procedures if 1
assets devolve on the treasury. However, the treasury must use the assets in agreement with
the objects of the association.
B. Explanation
I. Universal succession
The 1st St. provides for analogous application of inheritance law, especially §§ 1922, 1967. 2
The treasury may not reject the association’s assets (§ 1942(2)), but may limit liability to the
assets received (§§ 1975 et seq.). Claims are only due after the required decision by the court
of succession (§§ 1966, 1964).
IL Use of assets
The 2nd St. imposes a public law duty on the treasury to make use of the assets in a manner 3
corresponding to the objects of the association. Under the prevailing opinion, neither the
members nor other beneficiaries have an enforceable claim to a specific use of those assets.
§47
Liquidation
If the assets of the association do not de¬
volve on the treasury, there must be a liqui¬
dation, unless insolvency proceedings have
commenced with regard to the assets of the
association.
§47
Liquidation
Fällt das Vereinsvermögen nicht an den
Fiskus, so muss eine Liquidation stattfinden,
sofern nicht über das Vermögen des Vereins
das Insolvenzverfahren eröffnet ist.
A. Function
Liquidation is the general means to properly dissolve a legal person or partnership. All 1
assets are turned into money to satisfy any obligations to creditors.
Beurskens
67
§ 48 1-2
Division 1. Persons
B. Explanation
I. Alternatives
2 Instead of liquidation, universal succession on the treasury (§ 46) or continuation as an
unregistered association (§ 54) are available. Furthermore, insolvency proceedings preclude
liquidation. No liquidation is required if the association has no assets or debts.
IL Improper liquidation
3 Any distribution not based on proper liquidation lacks a legal base and gives grounds for a
claim for unjust enrichment (§812(1) 1st St. 1st Alt.) and liability for damages under § 280
and/or § 53.
§48
Liquidators
(1) !The liquidation is effected by the
board. 2Other persons may also be appointed
as liquidators; the appointment is governed
by the provisions for the appointment of the
board.
(2) The liquidators have the legal status of
the board, unless the purpose of the liquida¬
tion leads to a different conclusion.
(3) If there are several liquidators, they are
only empowered to represent jointly, and can
only enact orders unanimously, unless pro¬
vided otherwise.
§48
Liquidatoren
(1) lDie Liquidation erfolgt durch den Vor¬
stand. 2Zu Liquidatoren können auch andere
Personen bestellt werden; für die Bestehung
sind die für die Bestellung des Vorstands
geltenden Vorschriften maßgebend.
(2) Die Liquidatoren haben die rechtliche
Stellung des Vorstands, soweit sich nicht aus
dem Zwecke der Liquidation ein anderes er¬
gibt.
(3) Sind mehrere Liquidatoren vorhanden,
so sind sie nur gemeinschaftlich zur Vertre¬
tung befugt und können Beschlüsse nur ein¬
stimmig fassen, sofern nicht ein anderes be¬
stimmt ist.
A. Function
1 The board as such loses its powers (§§ 26, 27) once liquidation begins. Instead, representa¬
tion and management are assigned to special liquidators. § 48 determines the appointment
(Sub. 1) and powers (Sub. 2, Sub. 3) of liquidators.
B. Explanation
I. Appointment
2 The board constitutes the original liquidators. However, the articles of association may
provide for different persons or a special procedure. Furthermore, Sub. 1 2nd St. refers to
§ 27, thereby allowing for appointment and removal of any or all board members. Thus,
modifications in the articles relating to appointment of board members also apply to
liquidators; appointment and removal otherwise lies with the general meeting. The court
may also appoint liquidators if the necessary liquidators are lacking (§ 29).
68
Beurskens
Duttes of the liquidators
1-2 § 49
II. Powers
Sub. 2 assigns the liquidators equal powers to those of the board. However, they are limited 3
to the purpose of liquidation (§ 49); limitations or modifications conflicting with that
purpose are invalid. Liquidators have no right to participate in general meetings. Liquidators
are liable to the association under Sub. 2, §§ 27(3), 280(1); the association is liable for
tortious conduct of the liquidators under §31.
IIL Representation
While a multi-members-board represents by majority unless otherwise specified (§ 26(2) 4
1st St.) and decides by majority (§§ 28, 32(1)), liquidators generally represent jointly and act
unanimously (Sub. 3). Rules in the articles expanding the powers of the board do not
automatically apply to liquidators. § 26(2) 2nd St. applies analogously to liquidators. How¬
ever, modifications may be enacted in the resolutions on dissolution or on appointment of
liquidators.
§49
Duties of the liquidators
(1) lThe liquidators must complete the
current business, collect the receivables, con¬
vert the rest of the assets into cash, satisfy the
creditors and pay out the surplus to those
entitled to receive it. 2In order to complete
transactions that are in progress, the liquida¬
tors may also enter into new transactions.
3The collection of receivables and the conver¬
sion of the rest of the assets into cash may be
omitted to the extent that these measures are
not necessary to satisfy the creditors or to
distribute the surplus among those entitled
to receive it.
(2) The association is deemed to continue
in existence until the end of the liquidation if
the purpose of the liquidation requires this.
§49
Aufgaben der Liquidatoren
(1) lDie Liquidatoren haben die laufenden
Geschäfte zu beendigen, die Forderungen ein¬
zuziehen, das übrige Vermögen in Geld um¬
zusetzen, die Gläubiger zu befriedigen und
den Überschuss den Anfallberechtigten aus¬
zuantworten. 2Zur Beendigung schwebender
Geschäfte können die Liquidatoren auch neue
Geschäfte eingehen. 3Die Einziehung der For¬
derungen sowie die Umsetzung des übrigen
Vermögens in Geld darf unterbleiben, soweit
diese Maßregeln nicht zur Befriedigung der
Gläubiger oder zur Verteilung des Überschus¬
ses unter die Anfallberechtigten erforderlich
sind.
(2) Der Verein gilt bis zur Beendigung der
Liquidation als fortbestehend, soweit der
Zweck der Liquidation es erfordert.
A. Function
To ensure satisfaction of all obligations and distribution of the remains to the beneficiaries 1
(§ 45), Sub. 1 imposes specific duties on the liquidators. Sub. 2 ensures the necessary ability of the
association in liquidation to own assets and be party to contractual claims during liquidation.
B. Explanation
I. Duties of liquidators
Sub. 1 covers the internal responsibilities of liquidators and the necessary minimum 2
powers in addition to § 48(2). Their duty to finish current business allows for any transaction
necessary to prevent loss of any kind, including new transactions in order to complete
Beurskens
69
§ 50 1 Division 1. Persons
. , „kii^finnc mav be resolved by performance,
transactions in progress (2nd St.). Existing ob‘8 be finaIly decided by a court,
cancellation, avoidance for cause, etc. Any legal actio u:m€ aaainst third nart;
before liquidation (and the duties of the liquidators) ends.^An\dal™
must be collected upon. Assets must be converted into cash, eit er y as a
whole. However, collection and conversion are only mandatory i necessary p y en to
creditors or distribution to members (3rd St.). Thus, conversion is unnecessary the
beneficiaries prefer the assets in kind to mere payment of cash. The powers of limitation
vis-ä-vis third parties are heavily debated: traditional opinion limited agency powers to the
purpose stated in Sub. 1, and only protected good faith third parties in their reliance on the
necessity of a transaction for liquidation. Modern opinion rejects any automatic limitation
and requires a (registered) limitation in the articles (§§ 64» 76(1) 2nd St.» (2) 2nd St.). However,
bad faith parties aware of the lack of internal powers will be precluded from claiming agency.
IL Association in liquidation
3 Sub. 2 simulates continued existence of a dissolved association or an association which was
deprived of legal personality (§ 43). However» under the modem view, even partnerships
(and all the more unregistered partnerships) have legal personality; thus, an association in
liquidation would merely be an association with different objects. Sub. 2 is therefore mainly
justified for historical reasons. The association retains the general meeting, but lacks a board
(which is replaced by the liquidators). Furthermore, the entry of new members into the
association is precluded and there is no duty to provide further contributions unless
otherwise specified in the articles of association.
§50
Public notice of the
association in liquidation
(1) ’The dissolution of the association or
its deprivation of legal personality must be
announced by the liquidators in a public
notice. 2In the notice, the creditors must be
requested to register their claims. 3The public
notice is made through the newspaper speci¬
fied in the articles of association for this
purpose. 4Public notice is deemed to have
been made at the end of the second day after
the publication or first publication.
(2) Known creditors must be requested
by special invitation to register their claims.
§50
Bekanntmachung des
Vereins in Liquidation
(1) ’Die Auflösung des Vereins oder die
Entziehung der Rechtsfähigkeit ist durch die
Liquidatoren öffentlich bekannt zu machen.
2In der Bekanntmachung sind die Gläubiger
zur Anmeldung ihrer Ansprüche aufzutor-
dem. 3Die Bekanntmachung erfolgt durch
das in der Satzung für Veröffentlichungen
bestimmte Blatt. 4Die Bekanntmachung gilt
mit dem Ablauf des zweiten Tages nach der
Einrückung oder der ersten Einrückung als
bewirkt.
(2) Bekannte Gläubiger sind durch beson¬
dere Mitteilung zur Anmeldung aufzufor-
dem.
A. Function
Full dissolution will cause creditors to lose access to any assets. In order to provide them
with sufficient protection, § 50 requires public notice to inform unknown creditors (Sub. 1)
as well as a special invitation to all known creditors (Sub. 2).
70
Beurskens
Newspaper for notices
1-2 § 50a
B. Explanation
I. Public notice
The duty to give public notice is imposed on every individual liquidator; they must act in 2
the necessary number of members required for power of agency (§ 48(3)). The notice must
hsc31? the faCt °f dlsso’ut,on or deprivation of legal personality as such but not the reasons
• i- 1 -La re^uest t0 re?ister any ckum (2nd St.) and the name and the seat of the association
in liquidation. The medium used for notice may be determined in the articles of association,
but must be publicly accessible (see § 50a). The date of notice is relevant to the waiting
period in § 51. Breach of § 50(1) gives rise to liability to the association under § 280 and to
creditors under § 53.
II. Special invitation
The liquidators must inform creditors whose identities are known to at least one 3
liquidator, as long as the basis for and the approximate amount of their claim can be
determined. This includes uncertain and disputed claims. The special invitation is not subject
to any formal requirements and may therefore be made orally (e.g. by telephone). Breach
gives rise to liability under § 53.
IIL Exception
Notice and invitation are unnecessary if the association has no assets whatsoever.1 4
§ 50a
Newspaper for notices
If an association has not specified a news¬
paper in the articles of association, or if the
newspaper specified for notices has ceased
publication, notices of the association must
be published in the newspaper that is speci¬
fied for public notices of the local court
[Amtsgericht] in whose district the associa¬
tion has its seat.
§ 50a
Bekanntmachungsblatt
Hat ein Verein in der Satzung kein Blatt
für Bekanntmachungen bestimmt oder hat
das bestimmte Bekanntmachungsblatt sein
Erscheinen eingestellt, sind Bekanntmachun¬
gen des Vereins in dem Blatt zu veröffentli¬
chen, welches für Bekanntmachungen des
Amtsgerichts bestimmt ist, in dessen Bezirk
der Verein seinen Sitz hat.
A. Function
§ 50a was amended in 2007 to ensure the public is properly informed. It is misplaced as it 1
is not limited to publication of dissolution.
B. Explanation
An association may determine a newspaper to be used for notices. To ensure appropriate 2
information for the public in absence of a valid determination notices will be published (m
case of dissolution and beyond) in the newspaper commonly used by court of the seat.
Commercial entities will instead publish notices online in the Bundesanzeiger (hxkial
Gazette) (§ 25 AktG, § 12 GmbHG, § 158 GenG).
' BayObLG 11.5.1982 - 3 Z 39/82.
Beurskens
71
Division I. Persons
§ 52 1-2
§51
One-year waiting period
The property may not be paid out to the
persons entitled to receive it until a year has
passed after the announcement by public no¬
tice of the dissolution of the association or
the deprivation of legal personality.
§51
Sperrjahr
Das Vermögen darf den Anfallberechtigten
nich^vor dem Ablauf eines Jahres nach der
Bekanntmachung der Auflösung des Verems
oder der Entziehung der Rechtsfähigkeit aus¬
geantwortet werden.
A. Function
8 51 improves creditor protection by providing a minimum period before distribution of
tZEspecially Jefi.s crecli.ocsEpkn»» » *e association »ho may not kno.
about dissolution. Comparable rules exist in § 272 AktG, § 73 GmbHG, §
B. Explanation
2 The waiting period is calculated in accordance with §§ 187(1), 188(2). Creditors may
enjoin any potential distribution within the waiting period. Distributions in breach of § 51
give rise to personal liability of the liquidators vis-ä-vis creditors (§ 53) and the association
(§ 280). Any person receiving assets (even if acting in good faith) are liable to the association
for their return under § 812(1) 1st St. 1st Alt. (but incur no liability to the creditors).
§52
Security for creditors
(1) If a known creditor does not register
his claim, the amount owed, if the right to
deposit exists, must be deposited for the cred¬
itor.
(2) If the discharge of an obligation is not
possible at the time, or if an obligation is
disputed, the property may be distributed to
the persons entitled to receive it only if secur¬
ity is provided to the creditor.
§52
Sicherung für Gläubiger
(1) Meldet sich ein bekannter Gläubiger
nicht, so ist der geschuldete Betrag, wenn die
Berechtigung zur Hinterlegung vorhanden
ist, für den Gläubiger zu hinterlegen.
(2) Ist die Berichtigung einer Verbindlich¬
keit zur Zeit nicht ausführbar oder ist eine
Verbindlichkeit streitig, so darf das Ver¬
mögen den Anfallberechtigten nur ausgeant¬
wortet werden, wenn dem Gläubiger Sicher¬
heit geleistet ist.
A. Function
1
Creditors might miss the opportunity to register their claim. If
about an obligation, § 52 requires a deposit or security in order to
creditor. u
the association knows
protect the respective
B. Explanation
I. Deposit
2 Even though known creditors receive a special invitation ca, xx
further protection. A creditor is considered known as lone h 5™2)) they are awarded
amount of debt is known to at least one liquidator even d t ° reason and approximate
en t e identity is still uncertain.
72
Beurskens
Liability in damages of the liquidators 1-2 § 53
LKt n §§ 37i " S'q- T? lk|“i<il“OTS mus'waive their "Sh' >° b“k *=
deposit (s 376(2) No. 1) in order to render performance of the obligation (§ 378).
II. Security
Sub. 2 covers uncertain or undue (§271) obligations. Securities are governed by §§ 232 et 3
seq. Unlike Sub. 1, Sub. 2 covers both registered and unregistered obligations. Performance
by non-returnable deposit takes priority over mere provision of securities.
III. Exception; breach
Neither deposit nor securities are required if the end of liquidation is delayed until all 4
known obligations are satisfied. If the liquidators distribute assets in lieu of § 52, they will be
liable under § 53.
§53
Liability in damages of the
liquidators
Liquidators who commit breaches of their
duties under § 42(2) and §§ 50, 51 and 52 or
who, before the satisfaction of the creditors,
distribute assets to the persons entitled to
receive are, if they are at fault, responsible to
the creditors for the damage resulting from
this; they are liable as joint and several debt¬
ors.
§53
Schadensersatzpflicht der
Liquidatoren
Liquidatoren, welche die ihnen nach dem
§ 42 Abs. 2 und den §§ 50, 51 und 52 oblie¬
genden Verpflichtungen verletzen oder vor
der Befriedigung der Gläubiger Vermögen
den An fall berechtigten ausantworten, sind,
wenn ihnen ein Verschulden zur Last fallt,
den Gläubigem für den daraus entstehenden
Schaden verantwortlich; sie haften als Ge¬
samtschuldner.
A. Function
Liquidators are mainly liable to the association in liquidation as such (§§ 43(2), 27(3), 1
280). § 53 provides for additional direct claims of creditors for breach of certain duties. It is a
special case of liability for violation of protective legislation (§ 823(2)).
B. Explanation
Liability applies to the delay of an application for insolvency (§ 42(2)), delayed notice to 2
creditors (§ 50), early distribution of assets (§ 51) and lack of provision of security for
known, but unregistered creditors. § 53 requires fault i.e. intent or negligence (S 276(1))
The burden of proof for all requirements including fault lies with the creditor. The claim is
limited to the loss caused by the breach of duty. In case of insolvency, existing crednors only
receive their loss in insolvency rates while new creditors have a claim for reliance damages
(partially disputed in legal scholarship).
73
Beurskens
§ 54 1-3
Division 1. Persons
§54
Associations without
legal personality
'Associations without legal personality are
governed by the provisions on Partnership.
2When a transaction is entered into with a
third party in the name of such an associa¬
tion, the person acting is personally liable; if
more than one person acts, they are liable as
joint and several debtors.
§54
Nicht rechtsfähige Vereine
*Auf Vereine, die nicht rechtsfähig sind,
finden die Vorschriften über die Gesellschaft
Anwendung. 2Aus einem Rechtsgeschäft, das
im Namen eines solchen Vereins einem Drit¬
ten gegenüber vorgenommen wird, haftet der
Handelnde persönlich; handeln mehrere, so
haften sie als Gesamtschuldner.
A. Function
1 Even though § 54 pertains to associations without legal personality, even application of
partnership law (as mandated in the 1st St.) would grant the association legal personality (see
§ 14(2)). It is commonly agreed, that even unregistered associations might have organisa¬
tional features more akin to an association than to a typical partnership (e.g. possibility to
easily gain membership and leave the organisation instead of dissolution on death of or
notice of termination by a member under §§ 723, 727, decision-making by majority instead
of unanimity under § 709). § 50(2) ZPO expressly grants an unregistered association the
right to sue and be sued in court, § 735 allows enforcement of judgments directly against the
association; § 11(2) 2nd St. InsO provides for the unregistered associations’ ability to enter
insolvency. Art. 7(2) EU Directive 2017/1132 relating to certain aspects of company law
requires Member States to provide actor liability for commercial entities with limited liability.
Therefore, comparable rules to the 2nd St. exist in § 11(2) GmbHG, § 41(1) 2nd St AktG.
B. Context
2 The legislator of the late 19th century was well aware that partnership law was unable to
resolve the issues in an association and therefore misleading.1 2 The reference to unsatisfactory
legal rules was merely intended as a detriment to unregistered associations or positively put
as an incentive to register. However, the constitutionally guaranteed freedom of association
(Art. 9 GG) would be infringed by overly strict requirements on formation. Thus, associa¬
tions covering non-commercial activities may be validly organised as an association without
registration and were granted legal personality even before this was accepted for the general
partnership under § 705. A draft in 20042 therefore attempted to replace § 54 1st St. with a
reference to modified application of §§ 22-53, but was rejected as an unsatisfactory* and
unclear solution.
C. Explanation
I. Unregistered associations subject to § 21
3 Under Art. 9 GG an association may be formed without formalities (e.g. involvement of a
notary public, minimum number of members) by mere agreement on the objects and some
sort of (not necessarily written) articles of association. § 54 1st St. is therefore superseded by
constitutional requirements and thereby inapplicable. The core difference to a partnership
1 Mugdan I 640.
2 Entwurf eines Gesetzes zur Änderung des Vereinsrechts of 25.8.2004.
74
Beurskens
Jurisdiction over entry in the register §55
lies in the internal structure. The §§21 et seq. apply insofar as they do not require
involvement of a public register (e.g. §§ 68, 70 are inapplicable, whereas §§ 25-46 generally
apply). Liability among members is not limited to diligentia quam suis (§ 708), but may be
excluded or modified under §§ 31a, 31b. As long as §§ 705 provide flexible rules, the same
result could be achieved by mere interpretation of the agreement (derogating those rules).
However, the courts have also partially overruled binding rules - especially regarding the
liability of members: while all partners in a partnership are personally liable for debts of the
partnerships, members in an unregistered association are not liable - creditors may only
access the assets of the association.3
IL Commercial associations lacking a grant (§ 22)
The Is’ St. applies without restriction to commercial associations. Depending on the size of 4
operations they will be treated either as a general Partnership (§ 705) or a commercial
partnership (§ 105 HGB). The constitutional guarantee of freedom of association is insofar
limited by the overriding need to protect society from limited liability without constraints
and transparency. A commercial organisation seeking registration as GmbH or AG is not
subject to the 1st St. but to special rules derived from case law:4 the rules of the planned
organisational form apply insofar as registration (and court review) are not essential.
III. Personal liability of actors
Any person validly acting expressly or impliedly on behalf of the association (whether as 5
board member, special representative under § 30 or mere agent by proxy) will be personally
liable for any debt incurred. However, that liability only arises in relation to third parties,
which excludes any transaction with members5 or other board members. Since an unregis¬
tered association cannot be reasonably supervised, the 2nd St. provides for an alternate means
of creditor protection. Liability of the acting person does not affect liability of the unregis¬
tered association as such. Since the acting party is already empowered to represent the
association, ex-post authorisation (§ 177) does not exclude liability. Internally, the associa¬
tion must indemnify the acting party (§ 670). In addition the third party may waive liability
(even impliedly). Persons acting on behalf of unregistered political parties will generally not
be held liable under the 2nd St. (§37 PartG).
Chapter 2
Registered associations
Kapitel 2
Eingetragene Vereine
§55
Jurisdiction over entry
in the register
The entry of an association of the kind
specified in § 21 above in the register of
associations must be made at the local court
[Amtsgericht] for the district in which the
association has its seat.
§55
Zuständigkeit fur die
Registereintragung
Die Eintragung eines Vereins der in § 21
bezeichneten Art in das Vereinsregister hat
bei dem Amtsgericht zu geschehen, in dessen
Bezirk der Verein seinen Sitz hat.
3 BGH 11.7.1968 - VII ZR 63/66, NJW 1968, 1830.
4 BGH 24.10.1968 - II ZR 216/66, NJW 1969, 509.
5 BGH 30.6.2003 - H ZR 153/02, NJW-RR 2003, 1265.
Beurskens
75
Division 1. Persons
§ 55a
A. Function
1 As registration is not centralised with a central authority, but assigned to the local courts,
§ 55 is a necessary rule determining jurisdiction. Procedure is governed by §§ 374, 376 et
seq., 400-401 FamFG and the Regulation on the Register of Associations (Vereinsregisterver¬
ordnung', VRV).
B. Explanation
2 Jurisdiction is determined by the seat of the association (§ 24), which in turn is
determined by its articles of association. The Länder may focus jurisdiction on specific
court(s) (§ 23d GVG). Registration is generally not decided by a judge, but by judicial officers
(Rechtspßeger, § 3 No. 1 a RPflG). Registration at a court lacking jurisdiction is still valid, but
gives a reason for removal ex officio.
§ 55a
Electronic register of associations
(1) ’The Land governments may provide by
statutory order that and to what extent the
register of associations is maintained in elec¬
tronic form as a computerised data file. 2It
must be guaranteed that
1. the principles of proper data processing
are observed, in particular that precautions
against a loss of data are taken, the necessary
copies of the databases are kept current at
least on a daily basis and the original data¬
bases and copies of them are kept in safe
custody.
2. the entries to be made are immediately
entered into a memory and it remains perma¬
nently possible to reproduce their contents
unchanged in readable form.
3/ the necessary requirements under
Articles 24, 25 and 32 of Regulation (EU)
2016/679 are met.
3The Land governments may by statutory
order transfer the authorisation under sen¬
tence 1 to the Land justice administration
authorities.
(2) ’The electronic register of associations
takes the place of one page of the previous
register as soon as the entries on this page
have been entered in the memory intended
for the entries in the register of associations
and made available as the register of associa¬
tions. 2A note of closure must be added to the
corresponding pages of the previous register
of associations.
§ 55a
Elektronisches Vereinsregister
(1) ’Die Landesregierungen können durch
Rechtsverordnung bestimmen, dass und in wel¬
chem Umfang das Vereinsregister in maschi¬
neller Form als automatisierte Datei geführt
wird. 2Hierbei muss gewährleistet sein, dass
1. die Grundsätze einer ordnungsgemäßen
Datenverarbeitung eingehalten, insbesondere
Vorkehrungen gegen einen Datenverlust ge¬
troffen sowie die erforderlichen Kopien der
Datenbestände mindestens tagesaktuell gehal¬
ten und die originären Datenbestände sowie
deren Kopien sicher aufbewahrt werden,
2. die vorzunehmenden Eintragungen als¬
bald in einen Datenspeicher aufgenommen
und auf Dauer inhaltlich unverändert in les¬
barer Form wiedergegeben werden können,
3. die nach den Artikeln 24, 25 und 32 der
Verordnung (EU) 2016/679 erforderlichen
Anforderungen erfüllt sind.
3Die Landesregierungen können durch
Rechtsverordnung die Ermächtigung nach
Satz 1 auf die Landesjustizverwaltungen über¬
tragen.
(2) ’Das maschinell geführte Vereinsregister
tritt für eine Seite des Registers an die Stelle
des bisherigen Registers, sobald die Eintragun¬
gen dieser Seite in den für die Vereinsregister¬
eintragungen bestimmten Datenspeicher auf¬
genommen und als Vereinsregister freigegeben
worden sind. 2Die entsprechenden Seiten des
bisherigen Vereinsregisters sind mit einem
Schließungsvermerk zu versehen.
‘ This new version of § 55a(3) entered into force on 26.11.2019.
76
Beurskens
Minimum number of members of the association
1-2 § 56
(3) ’An entry comes into effect as soon as it
is entered in the memory intended for the
register entries and its contents can be per¬
manently reproduced unchanged and in read¬
able form. 2There must be a verification, by a
confirmation message or in another appro¬
priate way, that these requirements are satis¬
fied. 3Each entry should show the date on
which it came into effect.
(3) ’Eine Eintragung wird wirksam, sobald
sie in den für die Registereintragungen be¬
stimmten Datenspeicher aufgenommen ist
und auf Dauer inhaltlich unverändert in les¬
barer Form wiedergegeben werden kann.
2Durch eine Bestätigungsanzeige oder in an¬
derer geeigneter Weise ist zu überprüfen, ob
diese Voraussetzungen eingetreten sind. 3Jede
Eintragung soll den Tag angeben, an dem sie
wirksam geworden ist.
A. Function
Traditional, paper-based registers are hard to research, slow to administer and subject to 1
significant risk of data loss. § 55a was therefore amended in 1993 to allow for the use of
computers to manage the official register (see also § 8a HGB for the commercial register). It
was changed multiple times in accordance with developments in other areas. Online
inspection is governed by § 79(2).
B. Explanation
§§ 55a attempts to ensure minimum standards with regard to electronic registers. The 2
provision thus emphasises reliability and security. It furthermore clarifies that the transition
to electronic registers happens successively on an association-by-association-basis and not
uniformly at once for all associations in Germany or registered at a specific court. Details are
determined by the Regulation on the Register of Associations (Vereinsregisterverordnung-, VRV).
§56
Minimum number of members of
the association
The entry in the register should be made
only if the number of members is at least
seven.
§56
Mindestmitgliederzahl des Vereins
Die Eintragung soll nur erfolgen, wenn die
Zahl der Mitglieder mindestens sieben be¬
trägt.
A. Function
A minimum number of members is required in order to keep irrelevant associations from 1
registration and prevent an abuse of the privilege of limited liability.
B. Explanation
The court charged with registration must reject an application by fewer than seven persons 2
(which may be determined from the application, § 59(3)). Only direct members of the
association are counted; not the members of legal persons or partnerships seeking member¬
ship. Erroneous registration of an association with a lower number of members is valid; it
may only be removed from the register once it has less than three members (§ 73). § 395
FamFG does not apply.1
1 KG 29.5.2001 - 1 W 2657/00, BeckRS 9998, 54084.
Beurskens
77
§58
Division 1. Persons
§57
Minimum requirements of the
articles of association
(1) The articles of association must contain
the objects, the name and the seat of the
association and indicate that the association
is to be registered.
(2) The name should differ appreciably
from the names of the registered associations
in existence in the same place or in the same
municipality.
§57
Mindesterfordernisse an die
Vereinssatzung
(1) Die Satzung muss den Zweck, den Na¬
men und den Sitz des Vereins enthalten und
ergeben, dass der Verein eingetragen werden
soll.
(2) Der Name soll sich von den Namen der
an demselben Orte oder in derselben Ge¬
meinde bestehenden eingetragenen Vereine
deutlich unterscheiden.
A. Function
1 § 58 ensures that registered associations provide for the core requirements essential to
operation in their articles of associations. Lack of any provision gives rise to rejection of the
registration or removal of the erroneously registered association from the register ex officio
(§§ 374 No. 4, 395 FamFG).
B. Explanation
I. Minimum contents
2 The articles have to be provided in German language and in text form (§ 126b) to enable
review by the court. The objects must be stated to ensure the ability to register under § 21,
but must not be highly specific. The seat may be at any municipality in Germany (§ 24).
Finally, the intent to register must be evident from the articles themselves.
IL Name
3 Every association must bear a single unique name (not multiple names for different
activities). The name can be freely determined - it may include abbreviations and be in a
foreign language. However, it must be writable in the German alphabet, mere symbols cannot
be registered. The name must not be misleading to the public (see § 18(2) HGB). The name
shall be distinct from other associations at the same seat (Sub. 2). This may be achieved by
adding clarifying elements, e.g. a year or description of the objects. Protection of the name is
subject to § 12.
§58
Recommended contents of the
articles of association
The articles of association should contain
provisions:
1. on becoming a member of the associa¬
tion and leaving it,
2. on whether the members are to make
contributions, and if so, in what amount,
3. on the composition of the board,
§58
Sollinhalt der Vereinssatzung
Die Satzung soll Bestimmungen enthalten:
1. über den Eintritt und Austritt der Mit"
glieder,
2. darüber, ob und welche Beiträge von den
Mitgliedern zu leisten sind,
3. über die Bildung des Vorstands,
78
Beurskens
Application for registration
1 § 59
4. on the conditions under which the gen¬
eral meeting is to be convened, on the form
of the convening and on the notarial record¬
ing of the resolutions.
4. über die Voraussetzungen, unter denen
die Mitgliederversammlung zu berufen ist,
über die Form der Berufung und über die
Beurkundung der Beschlüsse.
A. Function
Whereas § 57 provides for the bare essentials, § 58 covers questions deemed important for 1
proper operation. Failure to provide provisions on these topics gives cause for rejection of the
application (§ 60), but unlike § 57 does not allow for removal of the association ex officio
once it is registered.
B. Explanation
While leaving the association is at least partially covered by § 39, the articles should 2
determine how to become a member, e.g. by granting a right to membership or providing
special application procedures (No. 1). The articles also (No. 2) determine whether the
association has a claim to contributions and in what amount (though the amount may be
left to bylaws or resolutions as long as the articles provide a clear anchor-point for those
provisions). While § 27 outlines basic rules on the appointment of board members, the
articles may provide the number of members, specific departments and responsibilities
and additional personal requirements as well as terms and detailed procedures of appoint¬
ment (No. 3); the articles must clearly distinguish the board (§ 26) from other bodies and
special representatives (§ 30). Similarly, the articles should complement the statutory rules on
the general meeting (§ 32), e.g. by determining the means of and reasons for convocation,
minutes, voting procedures, etc. (No. 4).
§59
Application for registration
(1) The board must apply for the associa¬
tion to be registered.
(2) Copies of the articles of association and
of the documents on the appointment of the
board must be attached to the application.
(3) The articles of association should be
signed by at least seven members and should
state the date of their execution
§59
Anmeldung zur Eintragung
(1) Der Vorstand hat den Verein zur Ein¬
tragung anzumelden.
(2) Der Anmeldung sind Abschriften der
Satzung und der Urkunden über die Bestel¬
lung des Vorstands beizufügen.
(3) Die Satzung soll von mindestens sieben
Mitgliedern unterzeichnet sein und die An¬
gabe des Tages der Errichtung enthalten.
A. Function
Registration requires a formal petition by the board; there is no registration ex officio or by 1
application of a merely interested party (e.g. a member). Otherwise the court would have no
point of contact for potential clarification and amendments. § 59 additionally lists the
documents to be provided for registration. Any application lacking those documents will be
rejected under § 60.
beurskens
79
§§ 61-63
Division 1. Persons
2
B. Explanation
Th. Is obliged <o peU.ioee for
majority (§ 26(2) 1« St.) i. sufficient unless th. XenE’ "“**
members. Registrarion on the basis " u m„ be provided as digital
to revocation ex officio (§§ 374 No. 4, 395 FamFG). Documents^ may J *
copies (scans), provision o( original (printed) copies .soot necessary, "embersW
the articles may be any persons who participated in formation or joined the ^s«ciat'on
before application. Erroneous registration in lieu of those documents remains valid and is
not subject to revocation.
§60
Rejection of the application
If the requirements of §§56 to 59 above
have not been met, the application must be
rejected by the local court [Amtsgericht],
stating the reasons.
§60
Zurückweisung der Anmeldung
Die Anmeldung ist, wenn den Erfordernis¬
sen der §§ 56 bis 59 nicht genügt ist, von dem
Amtsgericht unter Angabe der Gründe zu¬
rückzuweisen.
A. Function
1 § 60 grants the court the power to reject an application for registration and thereby implies
an obligation to review the application.
B. Explanation
2
3
L Basis for rejection
The court is not limited to review of the enumerated criteria, i.e § 56 (minimum
members) §§ 57, 58 (minimum and recommended contents of articles) and § 59 (applica¬
tion procedure). Thus, illegal articles of association (in violation of § 134) will be denied
registration even though § 134 is not mentioned in § 60. The court wili look for compliance
with any mandatory provisions and requirements. The burden of proof lies with the
association seeking reg.stration. However, the court will often only look for obvious iUesaüW
and the formal requirements specifically stated in § 60. The court must nnt S i^
f» d.rity, transparency and especl.Hy nM for
II. Appeal
The rejection of the application (§ 383(3) FamFG) is subject tn i
(§§ 382(3), 58(1) FamFG). The unregistered association is represent^ * m°nth
application may only be based on different facts (e.g. modified articles^ A
§§ 61-63
(repealed)
§§ 61 bis 63
(»eggefallen)
1 OLG Köln 20.9.1991 - 2 Wx 64/90, NJW 1992, 1048
80
Beurskens
Addition to name
1 § 65
§64
Contents of the entry in the
register of associations
On entry in the register, the name and seat
of the association, the date of the execution of
the articles, the members of the board and
their powers of representation are to be stated.
§64
Inhalt der
Vereinsregistereintragung
Bei der Eintragung sind der Name und der
Sitz des Vereins, der Tag der Errichtung der
Satzung, die Mitglieder des Vorstands und
ihre Vertretungsmacht anzugeben.
A. Function
§ 64 defines the information to be included in the register. It imposes a duty upon the 1
court of registration (see also § 382(2) FamFG), but has no effect on the validity of
registration in general. However, registration without a name or seat will not allow for
identification of the legal person and therefore have no effect.
B. Explanation
I. Conclusive list
§ 64 contains a conclusive list of facts subject to registration. Any other information will 2
not be listed in the register.1 This ensures clarity and transparency and is of special relevance
in highly formalised electronic registers.
II. Missing data
The court has to review the application and give opportunity to fix any omissions or 3
mistakes, it must reject registration if defects are impossible to remedy (§ 382 FamFG).
III. Effect
Under the statutory regime, an association as a legal entity only begins to exist after 4
registration; registration has constitutive effect. However, broad interpretation of § 54 has
made this distinction largely obsolete. Even a registration in error or subject to fundamental
mistakes will not preclude the valid creation of a legal person. Successful registration is not
subject to an appeal (§ 383(3)).
§65
Addition to name
When the association is entered in the
register, the name of the association is given
the additional element eingetragener Verein
[registered association].
§65
Namenszusatz
Mit der Eintragung erhält der Name des
Vereins den Zusatz eingetragener Verein.
A. Function
In order to inform the public about the limited liability and thereby allow creditors to take 1
appropriate protective measures, it is necessary to distinguish registered associations from
1 RG 12.6.1914 - Rep. II. B. 1/14; BayObLG 27.1.1992 - BRcg. 3 Z 199/91, NIW-RR 1992, «02.
Beurskens
81
§ 66 1-3
Division 1. Persons
partnerships and sole proprietorships with personal liability. § 65 therefore requires addition
of an indication of registration to the name of the association.
B. Explanation
2 A registered association must use an unambiguous reference to its legal form. This may
be either eingetragener Verein or the (common) acronym e. V. The reference may not be
translated into another language. Omission of the reference may give rise to liability of the
acting board members or representatives (§§ 280(1), 311(2)) or in the case of repeated,
intentional omission even unlimited liability of the representative under § 54 2nd St. by
analogy.1 The additional element does not become a formal part of the name. The association
may therefore enjoin third parties from using its (distinctive) name even if those third parties
omitted the addition (§ 12).
§66
Public notice of the entry and
safekeeping of documents
(1) The local court [Amtsgericht] must
publish the entry of the association in the
register of associations by means of publica¬
tion in the electronic information and com¬
munication system designated by the Land
justice administration authority.
(2) The documents submitted with the ap¬
plication are kept by the local court [Amts¬
gericht].
§66
Bekanntmachung der Eintragung
und Aufbewahrung von
Dokumenten
(1) Das Amtsgericht hat die Eintragung des
Vereins in das Vereinsregister durch Ver¬
öffentlichung in dem von der Landesjustizver¬
waltung bestimmten elektronischen Informa¬
tions- und Kommunikationssystem bekannt
zu machen.
(2) Die mit der Anmeldung eingereichten
Dokumente werden vom Amtsgericht auf¬
bewahrt.
A. Function
1 Like § 10 HGB, § 66 ensures publicity of the existence of the legal person. It further covers
the storage of documents submitted with the application.
B. Explanation
I. Publication
2 Lack of publication does not affect the validity of registrations. However, it may give rise to
damage claims against the treasury (§ 839, Art. 34 GG). Publication covers the name,
registration identification and date of entry (§ 14 VRV); other information is not published.
There is no general good faith protection on the basis of publications (unlike §§ 1 ■?(!), (3'
HGB), but see §§ 68, 70. In addition to publication, the board members will be directly
notified of registration (§ 383 lsl St.) FamFG).
II. Documents
3 Documents are stored at the local court. In practice, most documents will only be
submitted in electronic form. Submissions made on paper may be scanned and converted
1 OLG Celle 14.10.1998 - 13 U 47/98, NJW-RR 1999, 1052.
82
Beurskens
Changes to the board 1-4 § 67
into an electronic document (§ 14(1) FamFG, § 298a(2) ZPO). If the court still keeps Hies on
paper, it has to print out electronic documents (§ 14(1) FamFG, § 298(1) ZPO).
§67
Changes to the board
(1) ‘Every change to the board must be
notified by the board for registration. 2A
copy of the document about the change is to
be attached to the notification.
(2) Board members appointed by the court
are entered in the register by the court at its
own motion.
§67
Änderung des Vorstands
(1) ‘Jede Änderung des Vorstands ist von
dem Vorstand zur Eintragung anzumelden.
2Der Anmeldung ist eine Abschrift der Ur¬
kunde über die Änderung beizufügen.
(2) Die Eintragung gerichtlich bestellter
Vorstandsmitglieder erfolgt von Amts wegen.
A. Function
I. Purpose
Any register has the essential function to inform the public about the persons currently 1
able to act on behalf of the registered association. Insofar the register of associations performs
an identical function to the commercial register under § 39 GmbHG, § 81 AktG, § 106 HGB
and the co-operative register under § 28 GenG.
II. Scope of application
Only changes in membership of the board (dismissal, death, termination, appointment of 2
new members, etc.) require registration, not a mere reappointment or extension of term of an
already existing board member. Board members are only those having at least some power of
representation (§ 26(1)), not mere members of an ‘extended board’. § 67 is also applied to
special representatives (§ 30).
B. Explanation
I. Procedure
In general, changes must be notified by a number of board members having sufficient 3
powers of representation (§ 77); thus, there is no need for a joint application by all board
members (unless the articles require representation by all board members). Former board
members may not apply to the register, but instead have a claim against the association. The
court will review the application before registration, especially on the basis ol documents
provided as proof of the change (e.g. the vote of the general meeting). The application may
be revoked until registration is performed. Sub. 2 makes an exception for court appointed
members (§ 29) - they will be registered ex officio without prior application and review.
II. Effect
Registration has only declaratory effect, i.e. an appointment or termination is valid even 4
without registration. Third parties are protected by § 68. The court may force the board to
notify changes by imposing fines (§ 78).
Beurskens
83
§69
Division 1. Persons
§68
Protection of public confidence by
the register of associations
*If a transaction is entered into between
the previous members of the board and a
third party, the change of the board can be
used as a defence against the third party only
if at the time when the legal transaction is
entered into the change has been recorded in
the register of associations or is known to the
third party. 2If the change has been entered,
the third party need not allow it to apply
against him if he does not know of it and his
lack of knowledge does not result from negli¬
gence.
§68
Vertrauensschutz durch
Vereinsregister
»Wird zwischen den bisherigen Mitgliedern
des Vorstands und einem Dritten ein Rechts¬
geschäft vorgenommen, so kann die Ände¬
rung des Vorstands dem Dritten nur ent¬
gegengesetzt werden, wenn sie zur Zeit der
Vornahme des Rechtsgeschäfts im Vereins¬
register eingetragen oder dem Dritten be¬
kannt ist. 2Ist die Änderung eingetragen, so
braucht der Dritte sie nicht gegen sich gelten
zu lassen, wenn er sie nicht kennt, seine
Unkenntnis auch nicht auf Fahrlässigkeit be¬
ruht.
A. Function
I. Purpose
1 While the commercial register provides for broad reliance on missing facts required to be
entered in the register (§ 15(1) HGB), the register of associations protects third parties only
with regards to certain, enumerated facts. § 68 covers changes in board composition (§§ 64,
67(1)). It is complemented by § 70 covering limitations on the power of representation. The
second sentence protects third parties even after proper registration as long as their lack of
knowledge is not based on negligence (§ 276(2)) - which is the exact opposite rule to § 15(2)
HGB, where proper registration generally precludes reliance.
IL Scope of application
2 While § 68 only mentions the board, it is suggested that it might also apply to special
representatives (§ 30). § 68 only protects third parties, i.e. not the association itself. It is
debated, but generally agreed, that members may be third parties. Furthermore, it is only
relevant to legal transactions (and actions in court), not to mere factual actions or omissions.
Thus, the association will neither be liable under § 31 nor under § 278. Bad faith third
parties, who know or at least should have known about the changes are not protected. On the
other hand, actual reliance is not required - the third party is not required to inspect the
register. Indeed, the 2nci St. protects a good faith party even in case of proper registration.
§69
Evidence of composition
of the board
Evidence that the board consists of the
persons entered in the register is furnished
to public authorities in the form of a local
court [Amtsgericht] certificate confirming
the entry.
x §69
Nachweis des Vereinsvorstands
Der Nachweis, dass der Vorstand aus den
im Register eingetragenen Personen besteht,
wird Behörden gegenüber durch ein Zeugnis
des Amtsgerichts über die Eintragung ge
84
Beurskens
Protection of public confidence in case of entries on power of agency 1-2 § 70
A. Function
§ 69 provides for a uniform means of proof for powers of representation in contact to 1
public authorities.
B. Explanation
The certificate covers both the identity of the representatives and their power of represen- 2
tation. However, the certificate is only used as evidence. It may be contradicted by other
sources. Thus, authorities will require additional evidence in case of doubt. § 69 has no effect
against private parties, who would require a letter of authorisation (§ 172) which is different
from a certificate by the court.
§70
Protection of public confidence in
case of entries on power of agency;
passing resolutions
The provisions of § 68 above also apply to
provisions that restrict the scope of the power
of agency of the board or that lay down
different arrangements for the power of
agency of the board than the provision in
§ 26(2) sentence 1 above.
§70
Vertrauensschutz bei
Eintragungen zur
V ertretungsmacht
Die Vorschriften des § 68 gelten auch für
Bestimmungen» die den Umfang der Vertre¬
tungsmacht des Vorstands beschränken oder
die Vertretungsmacht des Vorstands abwei¬
chend von der Vorschrift des § 26 Absatz 2
Satz 1 regeln.
A. Function
I. Purpose
While § 68 only protects reliance on the identity of the board members, § 70 protects third 1
parties against unregistered limitations on their powers.
II. Scope of application
§ 70 covers both express limitations on the power of agency (§ 26(1) 3rd St.) as well as 2
requirements on the number of members necessary for representation (§ 26(2) 1st St.).
However, the reference to § 68 1st St. is largely irrelevant with regards to powers of agency,
as changes in these powers require a basis in the articles of association and amendments will
only be effective after registration (§71). On the other hand, § 68 2nd St. protects third
parties even if the amendment is properly registered and therefore theoretically valid. This is
only partially compensated for by the fact that the burden of proof regarding lack of
knowledge (or negligence in that regard) lies with the third party.
Beurskens
85
§72 1
Division 1. Persons
§71
Amendments of the
articles of association
(1) ‘Amendments of the articles of associa¬
tion are effective only when entered in the
register of associations. 2The board must
make notification of the amendment for en¬
try in the register. 3 A copy of the order con¬
taining the amendment and of the wording of
the articles of association is to be enclosed
with the registration. 4In the wording of the
articles of association, the amended provi¬
sions must agree with the order on the
amendment of the articles of association, un¬
changed provisions must agree with the most
recently submitted full wording of the articles
of association and, if the articles of associa¬
tion have been amended without the full
wording of the articles of association being
submitted, must also agree with the pre¬
viously-entered amendments.
(2) The provisions of §§ 60, 64 and § 66(2)
apply with the necessary modifications.
§71
Änderungen der Satzung
(1) ’Änderungen der Satzung bedürfen zu
ihrer Wirksamkeit der Eintragung in das Ver¬
einsregister. 2Die Änderung ist von dem Vor¬
stand zur Eintragung anzumelden. 3Der An¬
meldung sind eine Abschrift des die
Änderung enthaltenden Beschlusses und der
Wortlaut der Satzung beizufügen. 4In dem
Wortlaut der Satzung müssen die geänderten
Bestimmungen mit dem Beschluss über die
Satzungsänderung, die unveränderten Be¬
stimmungen mit dem zuletzt eingereichten
vollständigen Wortlaut der Satzung und,
wenn die Satzung geändert worden ist, ohne
dass ein vollständiger Wortlaut der Satzung
eingereicht wurde, auch mit den zuvor einge¬
tragenen Änderungen übereinstimmen.
(2) Die Vorschriften der §§ 60, 64 und des
§ 66 Abs. 2 finden entsprechende Anwen¬
dung.
A. Function
1 Sub. 1 1st St. protects members and the general public from hidden clauses in the articles of
association by making only publicised clauses effective.1 Furthermore, it ensures review of
any amendments to the articles by the court.
B. Explanation
2 Notification must be made according to § 77 - i.e. not by all members of the board, but by
any number of members having sufficient powers of representation (§ 26(2)). An invalid or
void amendment does not become valid by registration.
§72
Certificate on number of members
At the request of the local court [Amtsger¬
icht] at any time, the board shall file a written
confirmation on the number of members of
the association.
§72
Bescheinigung der Mitgliederzahl
Der Vorstand hat dem Amtsgericht auf
dessen Verlangen jederzeit eine schriftliche
Bescheinigung über die Zahl der Vereinsniit-
glieder einzureichen.
1 Since § 73 requires a minimum of two members, § 72 provides the court with a means to
ascertain current membership. There is no corresponding obligation for non-registered
(§ 54) and associations by state grant (§ 22). In those cases, witnesses must be heard, to
ascertain the necessary quora under § 33 or under § 37(2).
1 BGH 17.1.1957 - II ZR 239/55, NJW 1957, 497.
86
Beurskens
Dissolution
§74
§73
Decrease in number of members
If the number of members of the associa¬
tion falls below three, the local court [Amts¬
gericht] shall, on an application by the board
and, if the application is not made within
three months, of its own motion, after hear¬
ing the board, deprive the association of legal
personality.
§73
Unterschreiten der
Mindestmitgliederzahl
Sinkt die Zahl der Vereinsmitglieder unter
drei herab, so hat das Amtsgericht auf Antrag
des Vorstands und, wenn der Antrag nicht
binnen drei Monaten gestellt wird, von Amts
wegen nach Anhörung des Vorstands dem
Verein die Rechtsfähigkeit zu entziehen.
A. Function
§ 73 aims to prevent an abuse of limited liability by requiring a minimum number of 1
members. It thereby complements § 56, which requires seven persons for initial registration.
The original obligation to provide a list of members was abolished in 1908.
B. Explanation
I. Procedure
The board is obliged to request deprivation of legal personality, once none or only one or 2
two members remain. The court has to determine the number of current members with
sufficient certainty. If it is shown that the number of members will increase within the three-
month period, the association will remain registered. The court may act ex officio if it learns
about the lack of members and the board does not apply for deprivation of legal personality.
It may be required to appoint a board (§ 29) to ensure proper representation of the
association.
IL Decision
The decision on deprivation has constitutive effect, i.e. appeals prevent loss of legal 3
personality (§401 FamFG). An appeal may be filed within a month after service of the
decision (§§ 58, 63(1) FamFG). Once the decision is final, liquidation must take place (§ 47).
§74
Dissolution
(1) The dissolution of the association and
the deprivation of legal personality must be
entered in the register of associations.
(2) !If the association is dissolved by reso¬
lution of the general meeting or by the expiry
of the time determined for the duration of
the association, the board must notify the
dissolution to be registered. 2In the former
case, a copy of the resolution for dissolution
must be attached to the notification.
§74
Auflösung
(1) Die Auflösung des Vereins sowie die
Entziehung der Rechtsfähigkeit ist in das Ver¬
einsregister einzutragen.
(2) ’Wird der Verein durch Beschluss der
Mitgliederversammlung oder durch den Ab¬
lauf der für die Dauer des Vereins bestimm¬
ten Zeit aufgelöst, so hat der Vorstand die
Auflösung zur Eintragung anzumelden. 2Der
Anmeldung ist im ersteren Falle eine Ab¬
schrift des Auflösungsbeschlusses beizufiigen.
Beurskens
87
Division 1. Persons
§75
1
A. Function
. 1 .• m nf the corporation for any reason,
The public must be informed about the dissolution
including bankruptcy (§ 75).
B. Explanation
2
I. Registration
While oc mÄ ” “
Will not be notified. Additional information w.ll only b« Pro™ea ds
(§75). The end of liquidation proceedings will be registered under § 76(1) 2
3
II. Procedure
Th. bo.rd must formally Inform th. court of a dissolution by resolut,on or the Posing »fa
term stated In the charter. That registration is subject to the of § 77. Oita
grounds for termination will be registered ex officio (Sub. 1 1 St.. § 395 Fam . § . §
VereinsG).
4
III. Lack of registration
Registration of dissolution only has declaratory effect; dissolution is effective even without
registration. However, changes to the charter remain invalid before registration (§ 71).
§75
Entries in the case of insolvency
(1) lThe commencement of insolvency pro¬
ceedings and the order finally rejecting the
commencement of the insolvency proceedings
for insufficiency of assets, as well as the dis¬
solution of the association pursuant to
§ 42(2) sentence 1, are to be registered by
the court of its own motion. 2The following
are also to be entered of its own motion
1. the reversal of the order commencing the
insolvency proceedings,
2. the appointment of a provisional insol¬
vency administrator, if in addition the debtor
is generally enjoined from transferring assets
or it is ordered that disposals by the debtor
are effective only with the approval of the
provisional administrator in insolvency pro¬
ceedings, and the termination of such a pro¬
tective measure,
3. an order of self-management by the
debtor and the reversal of this order, and an
order that specific legal transactions of the
debtor require approval,
§75
Eintragungen bei Insolvenz
(1) ’Die Eröffnung des Insolvenzverfahrens
und der Beschluss, durch den die Eröffnung
des Insolvenzverfahrens mangels Masse
rechtskräftig abgewiesen worden ist, sowie
die Auflösung des Vereins nach § 42 Absatz 2
Satz 1 sind von Amts wegen einzutragen.
2Von Amts wegen sind auch einzutragen
1. die Aufhebung des Eröffnungsbeschlus¬
ses,
2. die Bestellung eines vorläufigen Insol¬
venzverwalters, wenn zusätzlich dem Schuldner
ein allgemeines Verfugungsverbot auferlegt
oder angeordnet wird, dass Verfügungen des
Schuldners nur mit Zustimmung des vorläufi¬
gen Insolvenzverwalters wirksam sind, und die
Aufhebung einer derartigen Sicherungsmaß-
nahme,
3. die Anordnung der Eigenverwaltung
UI*c en Schuldner und deren Aufhebung
7 ,Ayor^nung der Zustimmungs-
bedurftigkeit bestimmter Rechtsgeschäfte des
Schuldners,
88
Beurskens
Entry in case of liquidation
§76
4. the discontinuance and termination of
the proceedings and
5. the monitoring of compliance with an
insolvency plan and the termination of the
monitoring.
(2) ’If the association is continued by order
of the general meeting pursuant to §42(1)
sentence 2, the board must register the con¬
tinuation for an entry. 2A copy of the order is
to be enclosed with the registration.
4. die Einstellung und die Aufhebung des
Verfahrens und
5. die Überwachung der Erfüllung eines
Insolvenzplans und die Aufhebung der Über¬
wachung.
(2) ’Wird der Verein durch Beschluss der
Mitgliederversammlung nach § 42 Absatz 1
Satz 2 fortgesetzt, so hat der Vorstand die
Fortsetzung zur Eintragung anzumelden.
2Der Anmeldung ist eine Abschrift des Be¬
schlusses beizufügen.
A. Function
Insolvency of an association is of high relevance to the public and must therefore be 1
published in the register.
B. Explanation
I. Registration ex officio
Unlike other information, insolvency is not registered on the basis of notification by the 2
board, but based on internal information by the insolvency court. The relevant decisions (e.g.
§ 31 InsO) are automatically transferred to the court of registration.
IL Notification of continuation
Under § 42(1) 2nd St. the general assembly of an association may decide to continue the 3
association when insolvency proceedings are discontinued on the application of the debtor or
terminated after the confirmation of an insolvency plan that provides for the association to
continue in existence. That decision has to be registered to inform the public, which requires
notification by the board.
§76
Entry in case of liquidation
(1) ’In case of the liquidation of the asso¬
ciation, the liquidators and their power of
agency must be entered in the register of
associations. 2The same applies to the termi¬
nation of the association subsequent to liqui¬
dation.
(2) ’The notification of the liquidators for
registration must be made by the board. 2The
notification for registration must state the
extent of the power of agency of the liquida¬
tors. ’Changes to the liquidators or their
power of agency, as well as the termination
of the association, are to be registered by the
liquidators. 4The notification for registration
of the liquidators appointed by resolution of
the general meeting must have attached to it
a copy of the appointing order, and the noti¬
fication for registration of the power of
§76
Eintragungen bei Liquidation
(1) ’Bei der Liquidation des Vereins sind
die Liquidatoren und ihre Vertretungsmacht
in das Vereinsregister einzutragen. 2Das Glei¬
che gilt für die Beendigung des Vereins nach
der Liquidation.
(2) ’Die Anmeldung der Liquidatoren
hat durch den Vorstand zu erfolgen. 2Bei
der Anmeldung ist der Umfang der Vertre¬
tungsmacht der Liquidatoren anzugeben.
’Änderungen der Liquidatoren oder ihrer Ver¬
tretungsmacht sowie die Beendigung des Ver¬
eins sind von den Liquidatoren anzunielden.
4Der Anmeldung der durch Beschluss der Mit¬
gliederversammlung bestellten Liquidatoren
ist eine Abschrift des Bestellungsbeschlusses,
der Anmeldung der Vertretungsmacht, die ab¬
weichend von § 48 Absatz 3 bestimmt wurde,
Beurskens
89
§ 76 1-5
Division 1. Persons
agency which was determined by way of de¬
rogation from § 48(3), i on the passing of
resolutions by the liquidators must have at¬
tached to it a copy of the document contain¬
ing this provision.
(3) Liquidators appointed by the court are
entered in the register by the court of its own
motion.
ist eine Abschrift der diese Bestimmung ent¬
haltenden Urkunde beizufügen.
(3) Die Eintragung gerichtlich bestellter
Liquidatoren geschieht von Amts wegen.
A. Function
1 As liquidation affects creditors and the public at large, § 76 ensures registration of relevant
facts. Registration only has declaratory effect, i.e. termination and liquidation are effective
even without registration.
B. Explanation
I. Liquidation
2 Since termination or loss of legal personality does not necessarily lead to liquidation, the
change in purpose must be notified to the public. Similarly, the termination of the
association at the end of liquidation must be registered.
II. Liquidators
3 An association in liquidation is not represented by its board, but by liquidators (§ 48). To
ensure proper information of the public, their appointment and termination of office must be
published in the register of associations. However, §§ 64, 67 expressly only cover board
members. Therefore, the more specific registration requirement of Sub. 1 1st St. and § 3 VRV
provide for registration of liquidators.
III. Notification
4 The original liquidators have no power to notify the court of their appointment themselves
- instead the change must still be notified by the (former) board. Later changes must be
notified by the liquidators. Sub. 2 clarifies the necessary information to be communicated to
the court: apart from the names (even if the board acts as liquidator under § 48(D), the
powers of representation must be stated (as in § 64), even if they remain unchanged from
statutory joint representation (§ 48(3)). Furthermore, a copy of the appointing order bv the
general meeting must be provided.
IV. Liquidators appointed by the court
5 Court appointed liquidators will be registered ex officio by the court (Sub. 3).
90
Beurskens
Assessment of coercive fines
§78
§77
Parties obliged to notify and form
of notification
'The notifications for entry in the register
of associations are to be submitted by mem¬
bers of the board and by the liquidators, who
are entitled to represent the association in
this regard by way of notarially certified
statement. 2The submission may be sub¬
mitted to the court in the original or in a
publicly-certified copy.
§77
Anmeldepflichtige und Form der
Anmeldungen
’Die Anmeldungen zum Vereinsregister
sind von Mitgliedern des Vorstands sowie
von den Liquidatoren, die insoweit zur Ver¬
tretung des Vereins berechtigt sind, mittels
öffentlich beglaubigter Erklärung abzugeben.
2Die Erklärung kann in Urschrift oder in
öffentlich beglaubigter Abschrift beim Ge¬
richt eingereicht werden.
A. Function
§ 77 clarifies the persons responsible for notifications to the register. 1
B. Explanation
L Board members
In a multi-member board, the notifying members must be entitled to represent the 2
association in this regard, which usually requires a majority of members (§ 26(2) 1st St.)
unless otherwise provided in the articles of association. They do not have to act in person and
may be represented by an agent. Unless otherwise agreed, a notary public is granted the
power to file any document he certified with the court (§ 378 FamFG).
IL Form
Any submission must be made as a notarially certified statement (§ 129); a power of 3
attorney must similarly be notarially certified. That statement may be transmitted in
electronically certified form (§ 39a BeurkG).
III. Invalid submissions
Invalid submissions will be rejected by the court. However, registrations made by mistake 4
will only be deleted ex officio if the notifying person(s) lacked the necessary power to
represent the association.
§78
Assessment of coercive fines
(1) The local court [Amtsgericht] may en¬
join the members of the board to comply
with the provisions of § 67(1), § 71(1), § 72,
§ 74(2), § 75(2) and § 76 by imposing coer¬
cive fines.
(2) In the same way, the liquidators may be
enjoined to comply with the provisions of
§76.
§78
Festsetzung von Zwangsgeld
(1) Das Amtsgericht kann die Mitglieder
des Vorstands zur Befolgung der Vorschrif¬
ten des § 67 Abs. 1, des § 71 Abs. 1, des § 72,
des § 74 Abs. 2, des § 75 Absatz 2 und des
§ 76 durch Festsetzung von Zwangsgeld an¬
halten.
(2) In gleicher Weise können die Liquida¬
toren zur Befolgung der Vorschriften des § 76
angehalten werden.
Beurskens
91
§79
Division 1. Persons
A. Function
1 Fines are intended to enjoin the board members (not the association as such!) to comply
with legal requirements; they are not criminal penalties. § 78 is complemented by §§ 388-391
FamFG.
B. Explanation
I. Cause
2 The ability to impose fines is limited to changes of the board (§ 67), changes of the
constitution (§ 71), information on the number of members if requested (§ 72), dissolution
of the association (§ 74), continuation in case of bankruptcy (§ 75(2)) and appointment of
liquidators (§ 76). Other duties relating to registration, like the initial registration or changes
in power of representation, may not be enforced by fines. Similarly, duties beyond registra¬
tion, e. g. annual meetings, will not be enforced by fines. In case of a breach, the court is
obliged to initiate proceedings, there is no room for discretion.
II. Amount
3 Fines may be between 5 to 1,000 euro (§ 6 EGStGB). Even if a fine is not paid, the duty
may not be enforced by imprisonment for default. Only the board members as such are
liable; the association is neither addressee nor liable for the fine; reimbursement under §§27
(3), 670 is not possible. Imposition of fines is subject to formal objection and potential
appeal (§§ 388(1), 390, 391 FamFG).
§79
Inspection of the
register of associations
(1) ‘Everyone is permitted to inspect the
register of associations and the documents
filed with the local court [Amtsgericht] by
the association. 2A copy of the entries may
be required; on request, the copy must be
certified. 3If the register of associations is
kept by computer, the copy is replaced by a
print-out and the certified copy by an official
print-out.
(2) ‘The introduction of a computerised
procedure enabling the data to be trans¬
mitted from electronic registers of associa¬
tions by retrieval is admissible if it is guaran¬
teed that
1. the retrieval of data does not exceed the
inspection permitted under subsection (1)
above and
2. the admissibility of the retrievals can be
monitored on the basis of a log.
§79
Einsicht in das Vereinsregister
(1) ‘Die Einsicht des Vereinsregisters sowie
der von dem Verein bei dem Amtsgericht
eingereichten Dokumente ist jedem gestattet
2Von den Eintragungen kann eine Abschrift
verlangt werden; die Abschrift ist auf Verlan¬
gen zu beglaubigen. 5Wird das Vereinsregis¬
ter maschinell geführt, tritt an die Stelle der
Abschrift ein Ausdruck, an die der beglaubig¬
ten Abschrift ein amtlicher Ausdruck.
(2) ‘Die Einrichtung eines automatisierten
Verfahrens, das die Übermittlung von Daten
aus maschinell geführten Vereinsregistern
durch Abruf ermöglicht, ist zulässig, wenn
sichergestellt ist, dass
1. der Abruf von Daten die zulässige Ein¬
sicht nach Absatz 1 nicht überschreitet und
2. die Zulässigkeit der Abrufe auf der
Grundlage einer Protokollierung kontrolliert
werden kann.
92
Beurskens
Inspection of the register of associations
1-2 § 79
2The Länder may specify a nationwide elec¬
tronic information and communication sys¬
tem for the proceedings.
(3) lThe user must be informed that he can
use the data transmitted only for information
purposes. 2The competent agency must verify
(e.g. by spot checks) whether there is evi¬
dence that the inspection permitted under
sentence 1 above has been exceeded or trans¬
mitted data are being misused.
(4) The competent agency may exclude a
user from taking part in the computerised
retrieval procedure if he endangers the func¬
tional reliability of the retrieval equipment,
exceeds the inspection permitted under
subsection (3) sentence 1 above or abuses
transmitted data; the same applies in the
case of imminent exceeding of the permissi¬
ble inspection or imminent abuse.
(5) !The competent agency is the Land
justice administration authority. 2The agency
with local jurisdiction is the Land justice
administration authority within whose port¬
folio the competent local court [Amtsgericht]
falls. 3This provision on jurisdiction may be
varied by statutory order of the Land govern¬
ment. 4The Land government may transfer
this authorisation to the Land justice admin¬
istration authority by statutory order. 5The
Länder may also agree to the jurisdiction
being transferred to the competent agency of
another Land.
2Die Länder können für das Verfahren ein
länderübergreifendes elektronisches Informa¬
tions- und Kommunikationssystem bestim¬
men.
(3) !Der Nutzer ist darauf hinzuweisen,
dass er die übermittelten Daten nur zu Infor¬
mationszwecken verwenden darf. 2Die zustän¬
dige Stelle hat (z.B. durch Stichproben) zu
prüfen, ob sich Anhaltspunkte dafür ergeben,
dass die nach Satz 1 zulässige Einsicht über¬
schritten oder übermittelte Daten miss¬
braucht werden.
(4) Die zuständige Stelle kann einen Nut¬
zer, der die Funktionsfähigkeit der Abrufein¬
richtung gefährdet, die nach Absatz 3 Satz 1
zulässige Einsicht überschreitet oder übermit¬
telte Daten missbraucht, von der Teilnahme
am automatisierten Abrufverfahren aus¬
schließen; dasselbe gilt bei drohender Über¬
schreitung oder drohendem Missbrauch.
(5) 1 Zuständige Stelle ist die Landesjustiz¬
verwaltung. 2Örtlich zuständig ist die Landes¬
justizverwaltung, in deren Zuständigkeits¬
bereich das betreffende Amtsgericht liegt.
3Die Zuständigkeit kann durch Rechtsverord¬
nung der Landesregierung abweichend gere¬
gelt werden. 4Sie kann diese Ermächtigung
durch Rechtsverordnung auf die Landesjus¬
tizverwaltung übertragen. 5Die Länder kön¬
nen auch die Übertragung der Zuständigkeit
auf die zuständige Stelle eines anderen Landes
vereinbaren.
A. Function
Much like the commercial register (§ 9 HGB), the register of associations is open to the 1
public. § 79 provides the necessary procedural framework, especially with regards to network
based, digital registers. § 79 is complemented by § 13 FamFG and §§ 16, 17 VRV.
B. Explanation
I. Online register
Since 2007, inspection may occur on the Internet if the Land of the seat (§ 24) provides the 2
necessary access. A digital register only allows access to the digital files, but not to the
original document (§§ 13(5) FamFG, 31, 32 VRV). Sub. 2 restricts access to online registers
to information purposes (cf. § 9(1) HGB) and provides for supervision and logging to ensure
the necessary protection of privacy. On the other hand, the separate registers may be
consolidated on a common platform (www.handelsregister.de) to ease access for interested
parties. This corresponds to §§ 9 HGB» 376(2) 3rd St. FamFG.
Beurskens
93
Division 1. Persons
§ 79a
IL Costs
3 Inspection in person at the court is free, while online inspection is subject to fees under
KV 1140, 1141 JVKostG (currently 4.50 euro per association).
§79a’
Application of Regulation (EU)
2016/679 in the registration
procedure
(1) ’The rights pursuant to Article 15 of
Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April
2016 on the protection of natural persons
with regard to the processing of personal data
and on the free movement of such data, and
repealing Directive 95/46/EC (General Data
Protection Regulation) (OJ L 119, 4.5.2016,
p. 1; L 314, 22.11.2016, p. 72; L 127,
23.5.2018, p. 2) are granted in accordance
with § 79 and the provisions of the Regulation
of the Register of Associations [Vereinsregis¬
terverordnung] issued for this purpose by in¬
spection of the register or the retrieval of
register data via the nationwide information
and communication system. 2The registration
court is not obliged to inform persons, whose
personal data is contained in the association
register or in the register files, of the disclosure
of these data to third parties.
(2) The right to rectification pursuant to
Article 16 of Regulation (EU) 2016/679 may
be exercised in respect of personal data con¬
tained in the register of associations or in the
register files only under the requirements and
in the procedure for erasure or rectification of
entries as regulated in the Act on Proceedings
in Family Matters and in Matters of Non-con-
tentious Jurisdiction [Gesetz über das Verfah¬
ren in Familiensachen und in den Angelegen¬
heiten der freiwilligen Gerichtsbarkeit] and in
the Regulation of the Register of Associations.
(3) The right to object pursuant to
Article 21 of Regulation (EU) 2016/679 does
not apply to personal data contained in the
register of associations and in the register
files.
§79a
Anwendung der Verordnung (EU)
2016/679 im Registerverfahren
(1) ’Die Rechte nach Artikel 15 der Verord¬
nung (EU) 2016/679 des Europäischen Par¬
laments und des Rates vom 27. April 2016
zum Schutz natürlicher Personen bei der Ver¬
arbeitung personenbezogener Daten, zum
freien Datenverkehr und zur Aufhebung der
Richtlinie 95/46/EG (Datenschutz-Grundver¬
ordnung) (ABI. L 119 vom 4.5.2016, S. 1; L
314 vom 22.11.2016, S. 72; L 127 vom
23.5.2018, S. 2) werden nach §79 und den
dazu erlassenen Vorschriften der Vereinsregis¬
terverordnung durch Einsicht in das Register
oder den Abruf von Registerdaten über das
länderübergreifende Informations- und Kom¬
munikationssystem gewährt.2Das Registerge¬
richt ist nicht verpflichtet, Personen, deren
personenbezogene Daten im Vereinsregister
oder in den Registerakten gespeichert sind,
über die Offenlegung dieser Daten an Dritte
Auskunft zu erteilen.
(2) Das Recht auf Berichtigung nach
Artikel 16 der Verordnung (EU) 2016/679
kann für personenbezogene Daten, die im
Vereinsregister oder in den Registerakten ge¬
speichert sind, nur unter den Voraussetzun¬
gen und in dem Verfahren ausgeübt werden,
die im Gesetz über das Verfahren in Famili¬
ensachen und in den Angelegenheiten der
freiwilligen Gerichtsbarkeit sowie der Ver¬
einsregisterverordnung für eine Löschung
oder Berichtigung von Eintragungen geregelt
sind.
(3) Das Widerspruchsrecht nach Artikel 21
der Verordnung (EU) 2016/679 ist auf per¬
sonenbezogene Daten, die im Vereinsregister
und in den Registerakten gespeichert sind,
nicht anzuwenden.
’ § 79a entered into force on 26.11.2019.
94
Beurskens
Formation of a foundation having legal personality
§80
Subtitle 2
Foundations
Untertitel 2
Stiftungen
§80
Formation of a foundation having
legal personality
(1) The creation of a foundation with legal
personality requires an endowment transac¬
tion and recognition of the foundation by the
competent public authority of the Land in
which the foundation is to have its seat.
(2) lA foundation is to be recognised as
having legal personality if the endowment
transaction satisfies the requirements of
§81(1) below, if the long-term and sustained
achievement of the object of the foundation
appears guaranteed and if the object of the
foundation does not endanger the common
good. 2In the case of a foundation which is
established for a specific period the assets of
which are to be depleted in pursuing its pur¬
pose (principal-depleting foundation), the on¬
going performance of the object of the founda¬
tion is to be deemed secured if the foundation
is to exist for a period defined in the endow¬
ment transaction which is at least ten years.
(3) ’Provisions of the Land legislation on
church foundations are unaffected. 2The
same applies with the necessary modifications
to foundations which Land legislation treats
as equivalent to church foundations.
§80
Entstehung einer rechtsfähigen
Stiftung
(1) Zur Entstehung einer rechtsfähigen
Stiftung sind das Stiftungsgeschäft und die
Anerkennung durch die zuständige Behörde
des Landes erforderlich, in dem die Stiftung
ihren Sitz haben soll.
(2) ’Die Stiftung ist als rechtsfähig anzuer¬
kennen, wenn das Stiftungsgeschäft den An¬
forderungen des § 81 Abs. 1 genügt, die
dauernde und nachhaltige Erfüllung des Stif¬
tungszwecks gesichert erscheint und der Stif¬
tungszweck das Gemeinwohl nicht gefährdet.
2Bei einer Stiftung, die für eine bestimmte
Zeit errichtet und deren Vermögen für die
Zweckverfolgung verbraucht werden soll
(Verbrauchsstiftung), erscheint die dauernde
Erfüllung des Stiftungszwecks gesichert, wenn
die Stiftung für einen im Stiftungsgeschäft
festgelegten Zeitraum bestehen soll, der min¬
destens zehn Jahre umfasst.
(3) ’Vorschriften der Landesgesetze über
kirchliche Stiftungen bleiben unberührt.
2Das gilt entsprechend für Stiftungen, die
nach den Landesgesetzen kirchlichen Stiftun¬
gen gleichgestellt sind.
Contents
mn.
A. Function 1
I. Purpose 1
II. Position within the BGB 2
III. Scope of application 3
1. Public law foundations 4
2. Associations and GmbH 5
3. Dependent foundations 6
B. Context 7
I. Historical 7
II. European 8
III. Comparative 9
C. Explanation 10
I. Creation of foundations 10
II. Recognition requirements 11
III. Special requirements for church foundations 12
Beurskens
95
§ 80 1-6
Division 1. Persons
A. Function
1
2
3
4
5
I. Purpose
Foundations are legal entities, which are not based on an ° ^at purpose.1 § 80
fulfil a specified purpose by means of assets' Pe^ which combL private law
determines the general requirements for creation of foundations, wm *^0
(endowment transaction) and public law (recognition) eeme • ketween federal law
completely governed by federal law, the law of foundations is split between federal aw
(covering the consequences for private law) and laws by the Länder covenng e pu c w
aspects (specifically the recognition of legal personality, supervision and review). This is
based on a historical scepticism against private welfare efforts and legal entities reaching
beyond the life of their founders.2 Since public welfare is generally a competence of the
Länder, approval of foundations aiding in that effort was not considered a federal compe¬
tence. Under the Grundgesetz, it is widely accepted that a federal regulation of foundations
would be covered by Art. 74(1) 1st St. GG.
IL Position within the BGB
Following the rules on associations, foundations are the second form of legal persons
covered by the BGB. For historical reasons, the rules on foundations are rather light and
especially lack any element of publicity. As a legal person, a foundation is subject to the
general rules on contracts, torts and property, which explains the early position in the statute.
III. Scope of application
§ 80 applies to all foundations under private law, irrespective of purpose. The law
distinguishes the foundation by endowment of a living person (§ 81) and the testamentary
foundation created post mortem (§ 83). Currently, there are approximately 19,000 founda¬
tions in Germany.
1. Public law foundations
SS mTL1™3?0 Pr°iVid 1S fOr fou1nda‘ions Publlc law. which are not covered by
§t h i q/heSe 8a,nJe8al Personality by specific statutes or at least an administrative act
which also determine their internal structure and duties. aammistrauve act,
2. Associations and GmbH
To avoid the traditionally tedious and strict annroval ,
Konrad Adenauer Stiftung e. V., Friedrich Ebert Stiftung e V T°Ciation (e^
Bosch Stiftung GmbH) have been used to achieve 4eGfflbH (e.g. Robert
constructs are not governed by §§ 80 et seq., but instead hv ri? i tO 3 foundation- Those
etseq.). 4 ead by law on associations (§§ 21
6
3. Dependent foundations
Another closely related legal construct not specifically rP„. i * . .
tion (unselbstständige Stiftung), which implies the mere tr/ ..ated?s tbe 'dependent founda-
or legal) person, who will act as a fiduciary and will «se T °f aSSets to another (natural
_ 111 lh°“ for a spirit purpose
.2.2.,,,, - 3 C 3». NJW ,W
2cf. Mugdan I 420,961-962. 567/2, NJW 1973,
96
Beurskens
Formation of a foundation having legal personality 7-11 §80
(especially to the benefit of a specific group). Such ‘dependent foundations’ are not subject to
§§ 80 et seq. and require neither government approval nor specific state supervision. The
'dependent foundation' lacks legal personality and is only governed by the internal duties of
the trustee under the respective contract (§§ 662 et seq.).
B. Context
I. Historical
The notion of a foundation reaching beyond the lifetime of its founders can be traced at 7
least to Roman law. Later foundations were created, administered and supervised for
religious purposes under canon law. The rise of private foundations began in the 13th
century, which also led to increasing influence of local governments on the foundations’
activities. Eventually, recognition of foundations was strictly limited to welfare purposes and
government review in the early 19th century. The BGB marked a counteraction to those
limitations and allowed for foundations as legally independent assets, even if the foundation
was not specifically dedicated to the public good. The law of foundations was amended and
clarified to a moderate extent in 2002, limiting the influence of the Länder and generally
making foundations easier to create. Otherwise, §§80 et seq. proved largely resistant to
changes and were only indirectly affected by amendments to the law of associations. There
are, however, recent plans to further modernise the law of foundations.3
II. European
Although the European Commission published a proposal for a European Foundation 8
(Fundatio Europaea - FE) in 2012,4 it was impossible to reach a consensus among the
Member States. Thus, the proposal was retracted in 2014.
III. Comparative
The conflict of laws rules applicable to foundations are largely similar to those applied to 9
associations? Most states acknowledge foundations in one form or another, usually restricted
to public welfare purposes. Especially in the United States foundations play an important
role in public welfare, which significantly exceeds their importance in Germany. While the
core idea of legal personality is largely accepted, the requirements and structure differ
significantly.
C. Explanation
I. Creation of foundations
Creation of a foundation follows a two step-process: on the one hand it requires a private 10
action by the founder (endowment) (§§81, 83), on the other hand public law recognition
by the competent authorities of the Land where the foundation will take its seat (§ 80). The
law specifically provides for church foundations (Sub. 3).
II. Recognition requirements
Recognition requires a formal application (cf. §§ 81, 83) with the competent authority. 11
Since 2002 there is a legal right to recognition if the requirements of Sub. 2 are met - the
J cf. Bericht der Bund-Ländcr-Arbeitsgruppc Stiftungsrecht an die Ständige Konferenz der Innenmin¬
ister und -Senatoren der Länder of 9.9.2016 (http://www.innenmini.sterkonferenz.de/IMK/DE/termine/to-
beschluesse/2016-1 J -29_30/nummer%2026%20reform%20stiltung.srccht.pdf).
<COM(2012) 35 final.
5 cf. BGH 8.9.20)6 - III ZR 7/15, BeckRS 2016, 16911.
Ifeurskens
97
§ 81 Division 1. Persons
recognising authority has no discretionary power. Apart from formal requirements the
foundation must prove its ability for long-term and sustained achievement of its object. This
requires a justified prognosis and a specific statement whether the foundation is supposed to
gain perpetual existence, existence only for a limited term or serve a inherently limited
purpose. In 2013 an additional requirement was added for principal-depleting foundations: a
foundation spending its assets (and not merely its profits) for the specified purpose must
ensure sufficient funds for an existence of at least 10 years. Furthermore, the purpose must
not amount to an illegal or socially unaccepted practice (§§ 134, 138). The requirement does
not generally limit the availability of foundations to welfare-purposes. It also does not
preclude limitation of benefits to a specific group, which may be defined by sex, religion,
etc. However, a foundation exclusively intended to further a commercial purpose is
considered to be against public policy (as it would circumvent the specific requirements on
limited liability under AktG and GmbHG). Thus, even though there is no discretion per se,
the broad terms of § 80 allow the authority to decline recognition by interpretation.
IIL Special requirements for church foundations
12 Whereas the Länder are generally limited to review of the requirements in Sub. 2, Sub. 3
allows for additional requirements for church foundation. In general, the Länder require
approval by the church. Furthermore, state supervision of church foundations is reduced to
respect the church’s right to self-determination (Art. 140 GG).
§81
Endowment transaction
(1) ’A lifetime endowment transaction
must be in writing. 2lt must contain the
binding declaration by the founder that he
will dedicate assets, which may also be in¬
tended for depletion, to achieve an object
specified by himself. 3The endowment trans¬
action must give the foundation a charter
with provisions on
1. the name of the foundation,
2. the seat of the foundation,
3. the objects of the foundation,
4. the assets of the foundation,
5. the composition of the foundation board.
4If the endowment transaction does not sa¬
tisfy the requirements of sentence 3 above and
if the founder is dead, § 83 sentences 2 to 4
apply with the necessary modifications.
(2) 1 Until the foundation is recognised as
having legal personality, the founder has a
right to revoke the endowment transaction.
2If an application has been made for recogni¬
tion by the competent public authority, the
revocation may be declared only to that pub¬
lic authority. 3The heir of the founder is not
entitled to revoke the endowment transaction
if the founder made the application to the
competent public authority, or, if the endow¬
ment transaction was notarially recorded, the
founder, at or after the notarial recording,
instructed the notary to make the application.
§81
Stiftungsgeschäft
(1) ’Das Stiftungsgeschäft unter Lebenden
bedarf der schriftlichen Form. 2Es muss die
verbindliche Erklärung des Stifters enthalten,
ein Vermögen zur Erfüllung eines von ihm
vorgegebenen Zweckes zu widmen, das auch
zum Verbrauch bestimmt werden kann.
3Durch das Stiftungsgeschäft muss die Stiftung
eine Satzung erhalten mit Regelungen über
1. den Namen der Stiftung,
2. den Sitz der Stiftung,
3. den Zweck der Stiftung,
4. das Vermögen der Stiftung,
5. die Bildung des Vorstands der Stiftung.
4Genügt das Stiftungsgeschäft den Erfor¬
dernissen des Satzes 3 nicht und ist der Stifter
verstorben, findet § 83 Satz 2 bis 4 entspre¬
chende Anwendung.
(2) ’Bis zur Anerkennung der Stiftung als
rechtsfähig ist der Stifter zum Widerruf des
Stiftungsgeschäfts berechtigt. 2Ist die Aner¬
kennung bei der zuständigen Behörde bean¬
tragt» so kann der Widerruf nur dieser gegen¬
über erklärt werden. 'Der Erbe des Stifters ist
zum Widerruf nicht berechtigt, wenn der
Stifter den Antrag bei der zuständigen Be-
hörde gestellt oder im Falle der notariellen
Beurkundung des Stiftungsgeschäfts den No¬
tar bei oder nach der Beurkundung mit <*er
Antragstcllung betraut hat.
98
Beurskens
Endowment transaction
1-5 §81
A. Function
A foundation is not created by a contract, but by a unilateral declaration of intent without 1
a specific recipient. Thus, it is governed by §§ 105 et seq., §§ 116 et seq., §§ 164 et seq. - but
not by §§ 145 et seq. § 81 defines the minimum provisions to be included in that act and its
formal requirements.
B. Explanation
I. Endowment
The founder may be any natural or legal person as well as a partnership with legal 2
personality. Endowment comprises two separate elements - the binding commitment to
provide assets for the stated purpose and the determination of the future charter (subject to
state approval). The endowment has to be in writing or in electronic form (§§ 126, 126a).
However stricter requirements (§§ 128, 129) may apply depending on the assets involved (e.g.
§ 311b, § 15(3) GmbHG) - which is partially disputed due to the necessary review imparted in
the recognition proceedings. Notarial recording may prevent an heir from revoking the
endowment, if the notary is instructed to apply to the competent state authority (Sub. 2).
IL Charter
The charter of the foundation is closely related to the articles of association in a private 3
association under §§ 21 et seq. § 81 determines the minimum contents - additional content
is possible. Unlike an association, a foundation may generally not change its charter once it is
recognised as having legal personality. If any of the required elements are missing or invalid,
the founder has to amend the charter; the recognising authority may only fix mistakes when
the founder is deceased (Sub. 1 4th St.).
III. Revocation
The endowment transaction can be freely revoked until the foundation is formally recog- 4
nised by the competent state authority. Afterwards, revocation can only be achieved under the
rules on avoidance (§§ 119-124, §§ 142-144). As long as there has been no application to the
authority, revocation has no specific addressee, after that moment it has to be received by the
competent authority (§ 130(3)). If the foundation is validly revoked, no liability applies.
IV. Death of founder
When the founder dies, the right to revocation transfers to the heirs (§ 1922). However, 5
the heirs may not revoke an endowment when there has been an application to the authority
or if the endowment was recorded by a notary public and the founder instructed the notary
public to make the application.
Beurskens
99
Division 1. P^ons
§83
§82
Duty of founder to make transfers
'If the foundation is recognised as having
legal personality, the founder has a duty to
transfer to the foundation the assets pro¬
mised in the endowment transaction. Rights
that can be transferred by contract of transfer
pass to the foundation on recognition, unless
the endowment transaction indicates that the
founder intended otherwise.
§ 82
Übertragungspflicht des Stifters
-Wird die Stiftung als rechtsfähig anerkannt,
Stifter verpflichtet, das in dem Stif-
tungsgeschäft zugesicherte Vermögen auf die
Stiftung zu übertragen. Rechte, zu deren
fmprtragung der Abtretungsvertrag genügt,
gehen tSl der Anerkennung auf die Stiftur^
SU, sofern nicht aus dem Stiftungsgeschaft
sich ein anderer Wille des Stifters ergjbt
A. Function
1
Any (oundabon require, suffiden. fand, to «per,re (§ 80(21). 8 82 “f
obligation of the founder to provide sufficient assets created by the act of endowment (§81).
B. Explanation
I. Minimum amount
2 While there is no minimum capital, § 80(2) requires an appropriate amount to ensure its
operation; in practice approx. 50,000 euro are deemed sufficient in most cases.
II. Provision of assets
3 § 82 only creates a binding obligation to provide funds, but does not automatically transfer
ownership. Thus, provision of assets is subject to the individual rules on transfer, i.e. §§ 929
et seq., §§ 925, 873. Transfer of rights (§§ 398, 413) is simplified by allowing for an
automatic transfer once the foundation is validly recognised by the competent authority.
Other transfers may also be made prior to recognition subject to the condition of recognition
(§ 158). The obligation transfers to the heirs (§§ 1922, 1967).
IIL Liability of founder
4 Liability of the founder is limited to a similar extent as in a promise of donation
(§§ 521-524). This is partially disputed due to the need to protect creditors, since recognition
by the authority does not sufficiently ensure that the foundation will indeed be able to
perform its purpose. Liability will only apply once the foundation has been recognised, since
the foundation will only gain legal personality at that point.
§83
Testamentary foundation
!If the endowment transaction is a testa¬
mentary disposition, the probate court must
inform the competent public authority of this
for the purpose of recognition, unless appli¬
cation is made by the heir or the executor. 2If
the endowment transaction docs not satisfy
the requirements of §81(1) sentence 3, the
foundation shall be given a charter or addi-
§83
Stiftung von Todes wegen
fiiminSteh* ^fiftungsgeschäft in einer Ver-
"egcn’ s°hat das Nach-
Anerkp WS ^er Zust^ndigen Behörde zur
von demnFUnK8 lriitzutei*en, sofern sie nicht
cker beantr- °der dem Testan'entsvollstre-
S“ ErfG'"üs,d“
Abs 1 i .n ^rtordernissen des § 81
1 SaU3’ der Stiftung durch die
100
Beurskens
Testamentary foundation
1-5 § 83
tions shall be made to an incomplete charter
by the competent public authority before re¬
cognition; when this is done, the will of the
founder is to be taken into account. 'The seat
of a foundation, unless otherwise provided, is
the place where the management is carried
out. 4In case of doubt, the last residence of
the founder within the country is deemed the
seat.
zuständige Behörde vor der Anerkennung
eine Satzung gegeben oder eine unvollstän¬
dige Satzung ergänzt; dabei soll der Wille des
Stifters berücksichtigt werden. 3Als Sitz der
Stiftung gilt, wenn nicht ein anderes be¬
stimmt ist, der Ort, an welchem die Verwal¬
tung geführt wird, '•im Zweifel gilt der letzte
Wohnsitz des Stifters im Inland als Sitz.
A. Function
§ 83 modifies the rules on the act of endowment for the special case of testamentary 1
dispositions. It solves two evident problems: firstly, the deceased will not be able to
(personally) apply for recognition (thus a duty is imposed upon the heir or executor as well
as the probate court). Secondly, an invalid or incomplete charter cannot be amended by the
founder (thus the recognising authority will fix possible omissions and mistakes).
B. Explanation
I. Testamentary disposition
A testamentary foundation may be created both by a contract of inheritance (§§ 2274 et 2
seq.) as well as a testament (§§ 2231 et seq.). Thus, the formal requirements are governed by
the laws of succession (Book 5). This also modifies other rules, e.g. agency is inapplicable
(§§ 2064, 2065), and testamentary capacity (§ 2229) overrides the general rules of §§ 104 et
seq. § 81 (not § 83) applies when the deceased merely imposes a testamentary burden
(§ 1940) upon an heir or legatee.
II. Transfer of assets
The to-be-formed foundation may be heir or merely legatee (§ 2147). In the latter case it only 3
receives a claim to the assigned assets, but is deemed to exist at the moment of death (§ 84).
III. Application for recognition
The heir is obliged to apply for state recognition at the competent authority’ (at the seat of 4
the foundation). Additionally, the probate court must inform the authority if the heir (or
executor) fails to perform his duty. Even without any application, the authority' may
recognise the foundation. Revocation is only possible under the restrictive rules of §§2153
et seq.; § 81(2) does not apply.
IV. Interpretation, gap-filling and amendment
The charter of a foundation is subject to the same rules of interpretation whether it was 5
created by a lifetime endowment (§81) or by testamentary disposition (§84). However, the
obligation to provide assets is subject to the specific rules of the laws of succession. The authority
charged with recognition must amend the charter to fix omissions and replace invalid rules; the
heir or executor will not be heard. Only the lack of any commitment or purpose cannot be
replaced. However, Art. 14(1) GG and § 81(1) 2nd St. require the authority to try to approximate
the founder’s will as far as possible. Insofar it has no competence to freely set up a charter.
Beurskens
101
§85
Division 1. Persons
6
V. Seat
The seat is of special importance as it determines the omitted^n the
(§ 80(1)). § 83 therefore provides two separate poin wjJJ determine the seat If
charter: if there is already an admimstration in pl , h deceaSed’s last residence in
there is not yet an administration, the seat is determine y
Germany (§§ 7 et seq.).
§84
Recognition after the
death of the founder
If the foundation is recognised as having
legal personality only after the death of the
founder, then for the purpose of the endow¬
ment payments made by the founder it is
deemed to have come into existence before
his death.
§84
Anerkennung nach
Tod des Stifters
Wird die Stiftung erst nach dem Tode des
Stifters als rechtsfähig anerkannt, so gilt sie
für die Zuwendungen des Stifters als schon
vor dessen Tod entstanden.
A. Function
1 § 84 ensures that a foundation which is yet to gain legal personality can already be heir or
legatee. It is an exception to § 1923(1). It is not limited to § 83, but also applies to cases of
§ 81, if the founder dies before recognition.
B. Explanation
I. Administration until recognition
2 The foundation only gains legal personality with recognition and therefore cannot be
entitled to claims and other rights beforehand. However, if the assets to be transferred require
administration or care, a trustee may be assigned for the interim.
II. Lifetime gifts
§ 84 is not applicable to gifts and donations by a living person. Since the
not exist, it is unable to declare acceptance.
foundation does
III. Testamentary disposition by third parties
4
§ 84 only applies to payments by the founder himself. Thus other
donate assets to the foundation by testamentary disposition until
such a disposition may be interpreted as
subsequent heir (§ 2101).
persons are unable to
a i* *s registered. However,
3 legaCy (§2178> or the appointment of a
§85
Constitution of foundation
The constitution of a foundation, to the
extent that it is not based on federal or Land
legislation, is determined by the endowment
transaction.
c § 85
Stiftungsverfassung
sie ni‘=hterautSSBundeser ^tiftung "'ird' soweit
ruht, durch das Stift °der Landcs?esetz b,f-
“S St,ttungsgeschatt bestimmt.
102
Beurskens
Application of law on associations
§86
A. Function
The constitution covers all rules governing the foundation. To ensure freedom of contract, 1
property and the right to inheritance (Art. 2, 14 GG) the will of the founder is given priority.
Furthermore, § 85 ensures that the Liinder may create rules relating to foundations even
though civil law in general is subject to federal legislation (Art. 74 No. 1 GG).
B. Explanation
I. Endowment transaction
The endowment transaction is not limited to the formal charter, but covers the founding 2
transaction as a whole. It is especially not limited to a single document. Interpretation is
subject to full legal review1 and based on the will of the founder if it is at least implied in the
written transaction (§ 81(1) 1st St.).2 Circumstances not part of the endowment process may
not be taken into account. It is unclear whether the founder may grant the foundations’
board the power to interpret the charter without any review, as that would hinder the
necessary state supervision.
IL Modification of the constitution
Although the foundation’s board is limited by the endowment act and applicable legislation, 3
it may amend and even modify the constitution to ensure performance of the original purpose.
This is well-settled for fundamental changes in circumstances (cf. § 313), but also applies on a
lower level. Only fundamental objectives are subject to the more restrictive requirements of
§ 87. Reasons, scope and procedure for modification may be determined in the charter.
III. Organisation
The law only provides rules for a board (§ 86) but otherwise leaves the internal organisa- 4
tion to the charter. Often, advisory and/or supervisory boards are required. Their powers and
procedures are exclusively governed by the charter. The public authority only has limited
powers after the initial recognition (see § 87). Without special provisions, the beneficiaries
have no direct entitlement and no claims against the foundation.
§86
Application of law on associations
’The provisions of §§ 26 and 27(3) and of
§§ 28 to 31a and 42 apply with the necessary
modifications to foundations; but the provi¬
sions of § 26(2) sentence 1, of § 27(3) and of
§ 28 apply only to the extent that the consti¬
tution, in particular the administration of the
foundation by a public authority, does not
lead to a different conclusion. 2The provi¬
sions of § 26(2) sentence 2 and of § 29 do
not apply to foundations whose administra¬
tion is conducted by a public authority.
§86
Anwendung des Vereinsrechts
’Die Vorschriften der §§ 26 und 27 Absatz 3
und der §§ 28 bis 31a und 42 finden auf Stif¬
tungen entsprechende Anwendung, die Vor¬
schriften des § 26 Absatz 2 Salz 1, des § 27
Absatz 3 und des § 28 jedoch nur insoweit, als
sich nicht aus der Verfassung, insbesondere
daraus, dass die Verwaltung der Stiftung von
einer öffentlichen Behörde geführt wird, ein
anderes ergibt. 2Die Vorschriften des § 26
Absatz 2 Satz 2 und des § 29 finden auf Stif¬
tungen, deren Verwaltung von einer öffentli¬
chen Behörde geführt wird, keine Anwendung.
1 BGH 16.1.1957 - IV ZR 221/56, NJW 1957, 708.
2 BGH 22.1.1987 - HI ZR 26/85, NJW 1987, 2364.
Beurskens
103
§ 86 1-5
Division 1. Persons
A. Function
1 A foundation may be subject to private or public administration. In both cases the rules on
the board of an association apply mutatis mutandis; with some reservations specific to public
administration. The Länder must fill gaps left by the BGB in their legislation.
B. Explanation
I. Board
2 Every foundation needs a board to represent it vis-ä-vis third parties and in court (§ 26
(1)). The charter may limit their powers of representation. Furthermore, it is widely accepted
that the purpose of the foundation constitutes a limitation enforceable against third parties
(ultra vires doctrine). It may also provide for special representatives (§ 30). Internal
management is subject to the law of mandate (§§ 27(3), 664 et seq.). The foundation is liable
for acts of its representatives (§ 31), who may be indemnified under § 31a. Finally, the board
is required to apply for insolvency (§ 42).
IL Private administration
3 In a multi-member board, § 26(2) and § 28 apply, requiring both decision-making (§§ 28,
32, 34) and representation (§ 26(2)) by a majority of board members. Declarations of intent
may be received by any board member (§ 26(2) 1st St.). The court is able to appoint board
members in case of emergency (§ 29).
IIL Public administration
4 The founder may determine that the foundation will be managed by a public authority. In
that case, the general rules of public organisation law apply, which would conflict with the
courts’ power of appointment (§ 29) and the binding rule on reception of declarations of
intent (§ 26(2) 2nd St.), which are therefore inapplicable. Public authorities exist perpetuali}’
and may receive declarations as such without recourse to their officers and employees.
Additionally, representation by a majority (§ 26(2) 1st St.) and internal decision-making rules
(§28) are overruled by the applicable public law rules. The acting official will generally not
be personally liable, instead liability will be directed to the treasury (Art. 34 GG).
IV. Beneficiaries
5 There are no statutory provisions providing any legal position to the beneficiaries. Since
§ 86 does not refer to §§ 32 et seq., they are not ‘members’ nor is there a general meeting.
Therefore, their rights are subject to the charter, which may grant an enforceable claim
against the foundation. Such claims may be enforced by civil action; there is no enforceable
right against or liability of public authorities charged with supervision. The founder is not
required to treat all (potential) beneficiaries equally; he may favour specific persons or
groups. Their position is partially protected by the laws of the Länder. which prohibit a
suspension or denial of rights granted by the initial endowment act. The charter mav grant
beneficiaries influence on supervision and management. However, such influence is limited
by the original will of the founder; beneficiaries may neither change the objects (§ 87) nor
hinder the foundations activities.
Beurskens
104
Change of objects; termination
1-4 § 87
§87
Change of objects; termination
(1) If the objects of the foundation have
become impossible to fulfil, or if they endan¬
ger the common good, the competent public
authority may give the foundation another
intended purpose or terminate it.
(2) ’When the objects are altered, the in¬
tention of the founder should be taken into
account, and in particular, it should be en¬
sured that the income of the foundation as¬
sets is maintained for the group of persons
that it was meant to benefit, as intended by
the founder. 2The public authority may
amend the constitution of the foundation to
the extent that the alteration of the objects
requires this.
(3) Before the objects are altered and the
constitution is changed, the board of the
foundation should be heard.
§87
Zweckänderung; Aufhebung
(1) Ist die Erfüllung des Stiftungszwecks
unmöglich geworden oder gefährdet sie das
Gemeinwohl, so kann die zuständige Behörde
der Stiftung eine andere Zweckbestimmung
geben oder sie aufheben.
(2) ’Bei der Umwandlung des Zweckes soll
der Wille des Stifters berücksichtigt werden,
insbesondere soll dafür gesorgt werden, dass
die Erträge des Stiftungsvermögens dem Per¬
sonenkreis, dem sie zustatten kommen soll¬
ten, im Sinne des Stifters erhalten bleiben.
2Die Behörde kann die Verfassung der Stif¬
tung ändern, soweit die Umwandlung des
Zweckes es erfordert.
(3) Vor der Umwandlung des Zweckes und
der Änderung der Verfassung soll der Vor¬
stand der Stiftung gehört werden.
A. Function
There is a public interest to prevent useless or dangerous legal persons from participation 1
in commerce. A foundation therefore remains subject to supervision even after recognition.
To protect the public, competent authorities are able to change the original purpose or even
dissolve the foundation.
B. Explanation
I. Impossibility
The most important case of impossibility is the mere lack of assets - which may have been 2
spent or lost in other transactions - or lack of beneficiaries (due to death). In addition,
illegality of the purpose by laws created after recognition might cause impossibility.
II. Danger to common good
The general reference to a danger to the common good is subject to narrow interpretation 3
to protect the founders’ intent. Only legal limitations (which may give rise for impossibility)
or fundamental public policy considerations (ordre public, cf. § 138(1)) provide cause for a
change in purpose.
III. Alteration and dissolution
Under Sub. 2 P' St. the public authority should take the will of the founder into account. 4
Therefore, dissolution will usually be the ultima ratio, as it would effectively contravene the
founders’ will. The authority may also decide to merge separate foundations to prevent
dissolution.
licurskens
105
§ 88 1-3
Division 1. Persons
IV. Procedure
5 The competent authority is determined by the law of the Land of the seat. That Land also
determines the precise procedure. Sub. 3 ensures that the board will be heard before a
decision is made.
V. Other cause for termination
6 While Sub. 1 only mentions the power of the public authority to terminate the foundation
based on impossibility or danger to the common good, a foundation may also end for other
reasons. Generally, a formal decision by the public authority will be required even then.
However, automatic dissolution will occur, when the real seat is moved outside German
territory. Furthermore, a foundation may be limited to a term specified in the endowment
transaction. It is subject to significant debate1 whether a foundation may be revoked by the
authority, causing it to cease to exist retroactively.
§88
Devolution of property
‘When the foundation ceases to exist, the
property devolves on the persons specified in
the constitution. 2If no persons entitled are
specified, the property devolves on the treas¬
ury of the Land in which the foundation had
its seat, or on another person entitled to
receive under the law of this Land.3The provi¬
sions of §§ 46 to 53 apply with the necessary
modifications.
§88
V ermögensanfall
‘Mit dem Erlöschen der Stiftung fallt das
Vermögen an die in der Verfassung bestimm¬
ten Personen. 2Fehlt es an einer Bestimmung
der Anfallberechtigten, so fallt das Vermögen
an den Fiskus des Landes, in dem die Stiftung
ihren Sitz hatte, oder an einen anderen nach
dem Recht dieses Landes bestimmten Anfall¬
berechtigten. 3Die Vorschriften der §§ 46 bis
53 finden entsprechende Anwendung.
A. Function
1 Termination of a foundation (by any means) ends its existence as a legal person. § 88
determines the fate of any debts incurred and assets remaining at the time of dissolution.
B. Explanation
I. Determination in constitution
2 As part of the foundations’ constitution (§ 85), it is up to the founder to determine the
person or persons to whom assets will be transferred in the endowment transaction.
Determination may not be delegated to a third party, e.g. the board, but must be determined
in the constitution. The determination may be changed under the usual rules on modification
of the constitution.
II. Treasury of the Land
3 Only if persons are not or invalidly determined will assets be transferred to the treasury of
the Land of the seat. The legislation of the Länder generally assigns the assets of a church-
related foundation to the church and of local foundations to the respective municipality. The
treasury may not reject acceptance of the assets (§§ 88, 46, 1942(2)).
i Denied in BVerwG 26.4.1968 - 7 C 103/66, NJW 1969, 339.
106
Beurskens
Liability for organs; insolvency
1-2 § 89
III. Devolution and liquidation
Transfer of assets and debt to the treasury occurs by universal succession (§§88, 46) 4
without any procedure of liquidation. Other recipients will only receive an obligatory claim
against the foundation in liquidation (§§ 88, 47). This also applies to other entities entitled to
receive under the law of the respective Land, since the Länder lack the legislator power to
provide tor universal succession. In case of liquidation, the foundation’s existence as a legal
entity will continue until all assets are distributed (§§ 88, 49(2)).
IV. Insolvency
A foundation is subject to insolvency, which eventually leads to its termination (§§86, 5
42). As all assets are distributed among the creditors, no devolution of property occurs.
Subtitle 3
Legal persons under public law
Untertitel 3
Juristische Personen des
öffentlichen Rechts
§89
Liability for organs; insolvency
(1) The provision of § 31 applies with the
necessary modifications to the treasury and
to corporations, foundations and institutions
under public law
(2) The same applies, to the extent that
insolvency proceedings are admissible with
regard to corporations, foundations and in¬
stitutions under public law, to the provision
of §42(2).
§89
Haftung für Organe; Insolvenz
(1) Die Vorschrift des § 31 findet auf den
Fiskus sowie auf die Körperschaften, Stiftun¬
gen und Anstalten des öffentlichen Rechts
entsprechende Anwendung.
(2) Das Gleiche gilt, soweit bei Körper¬
schaften, Stiftungen und Anstalten des öffent¬
lichen Rechts das Insoivenzverfahren zulässig
ist, von der Vorschrift des § 42 Abs. 2.
A. Function
I. Purpose
In theory, § 89 ensures equal treatment of legal persons organised under private law and 1
legal persons under public law at least in certain core areas. However, in practice, it will only
apply to rare cases: Sub. 1 covers liability of the state and public law legal entities in private
transactions. It is, however, inapplicable to torts law. Similarly, while Sub. 2 seemingly relates
to insolvency of public law legal entities, in general, insolvency law is inapplicable to such
organisations.
II. Scope of application
§ 89 only applies to the treasury, but not to Lander as such. Therefore, through attribution 2
under Sub. 1, § 31 will only apply to private actions (e.g. purchase of paper or pencils), but
not to sovereign activities (e.g. passing of laws, administrative acts). Liability in a sovereign
context is governed by Art. 34 GG and § 839. The distinction is far from clear, e.g.
participation in road traffic may serve either a private (transport of purchased goods) or a
sovereign purpose (transport of a politician to an important council session) and will
therefore be subject to different legal regimes. Similar restrictions apply to other legal persons
organised under public law.
lieurskens
107
§90
Division 2. Things and animals
B. Context
3 The initial draft of the BGB provided general rules covering legal persons under both
private and public law. These plans were abandoned during the debates for the second draft
and only § 89 remained.1 The application of § 31 to public legal persons was subject to
intense debate, leading to its limitation to the treasury and not the state as such. However,
liability of the state for misconduct of its officers is constitutionally provided for by Art. 34
GG. Even the failed reform of state liability in the 1980s would have upheld the distinction
between private transactions (covered by § 89) and activities as a sovereign (covered by § 839
and Art. 34 GG).
C. Explanation
I. No privilege
4 While state liability under tort law is subordinate to liability of any third party, §§ 89, 31
grant no privilege to the treasury. Therefore, § 839 will be inapplicable to all cases where a
public legal person acts in a non-sovereign capacity. In case of a contractual or quasi-
contractual relationship, the respective public legal person will be liable under §§ 280 et
seq.; in those cases, § 278 will overrule §§ 89, 31.
II. Derivative liability
5 § 89 only imposes derivative liability. Like private legal persons, liability will also attach
when a necessary representative does not exist (Organisationsverschulden). In addition, if a
person not considered a formal representative causes a loss in a private context, § 831 will
apply. The acting (natural) person will not be personally liable if they are an official subject to
Art. 34 GG; otherwise they are limited to compensation claims against the public legal
person.
IIL Insolvency
6 In the exceptional case that a public legal person is able to enter insolvency proceedings,
Sub. 2 and § 42 create an obligation to apply for such proceedings. The Länder and Bund are
not subject to insolvency law (§ 12(1) No. 1 InsO). Additionally, the Länder have almost
universally excluded public legal persons under their responsibility from insolvency law (as
allowed for by § 12(1) No. 2 InsO). §§ 89(2), 42 cover e.g. Bar Associations and Chambers of
Industry and Commerce.2
Division 2
Things and animals
Abschnitt 2
Sachen und Tiere
§90
Concept of the thing
Only corporeal objects are things as de¬
fined by law.
§90
Begriff der Sache
Sachen im Sinne des Gesetzes sind nur
körperliche Gegenstände.
1 Prot., Mugdan I, 670 et scq.
2 BVerwG 10.12.1981 - 3 C 1/81, NJW 1983, 59.
108
R. Magnus
Concept of the thing
1-6 § 90
A. Function
I. Purpose and underlying principles
Division 2 (§§ 90-103) provides several definitions in order to establish basic legal terms 1
which can be used as common references and principles, especially in the law of rights in rem.
§ 90 establishes the term thing. Things are only corporeal objects. Accordingly, the general
term is objects which includes corporeal and non-corporeal objects (e.g. claims, intellectual
property rights). Property in terms of the BGB can only be acquired with respect to corporeal
objects (things) and most provisions of the law of property are only applicable to things.
IL Position within the BGB
Division 2 is part of the first Book of the BGB (General Part) and the definitions are of great 2
importance especially for the law of property (Book III). Nevertheless, they are also referred to
in other parts of the BGB e.g. thing is referred to in, inter alia, §§ 562, 598, 701 and 2023.
B. Context
I. Historical
§ 90, as all other provisions in Division 2, with the sole exception of § 90a. was inserted in 3
the BGB with its entry into force on 1 January 1900 and has remained unchanged.
II. Comparative
In the context of the BGB, property is limited to physical objects, whereas the concept of 4
property in English and French law is significantly broader and extends rights in rem to
claims (propriete des creances) and intangible objects.* 1
C. Explanation
I. Objects
Property (§ 903), limited rights in rem (§§ 1018 et seq.), as well as possession (§§ 854 et 5
seq.) exist only in respect of corporeal objects (things), not in intangible or immaterial rights
and assets. Things can be acquired and disposed of and are provided with specific protection
and entitlement with effect erga omnes. The BGB, but not § 90, draws a clear distinction
between movable property (bewegliche Sachen) and immovable objects (Grundstücke). Inter
alia the acquisition of title and the available rights in rem differ between movable and
immovable things.
IL Principle of speciality
A fundamental pillar of the German law of property is the ’principle of speciality’ (Spezia- 6
litätsprinzip).2 According to this principle, rights in rem only exist and can be acquired and
transferred on individual things (Einzelsachen), while it is legally impossible to transfer with
effect in rem in one single transaction the ownership on a group of items closely connected
(Sachgesamtheit) such as a library, a stamp collection or goods stored in a warehouse.
1 Van Erp/Akkermans, Cases, Materials and Text on Property Law: lus Commune Casebooks for the
Common Law of Europe (Bloomsbury 2012), p. 31; Michaels, Property, in: Basedow/Hopt/ZimmermannZ
Stier (eds), Encyclopedia of Europen Private Law, Vol. II (OUP 2012), p. 1372 et seq.
1 Baur/Stürner, Sachenrecht (18,h edn, C.H.Beck 2009), p. 39 et seq. See also -► Introduction mn. 58.
R. Magnus
109
§ 90a 1
Division 2. Things and animals
III. Thing
7 A thing is characterised by a certain physical presence and stability. Sea waves, wind,
sound, electricity and gas are therefore not considered as things in the terms of the BGB.
However, gas or water becomes a possible object of rights in rem when bottled or elsewise
restricted to a secluded and controllable area (e.g. balloon, swimming pool, waterbed).
1. Separate parts
8 One individual thing can include several separate items (e.g. a car, a computer, a book, a
game of cards). Whether these items are essential parts of a single object or unit or are
individual things themselves depends on the customary practice and commercial usage and
expectation. As a rule of thumb, items that are by themselves commercially worthless (one
shoe, one card of a card game) are only parts of a bigger unit.
2. Scope
9 The body of a living human being is not a thing. Objects that have been permanently
inserted in and are tightly connected with the human body, such as gold teeth, pacemakers,
breast implants are parts of the body and therefore no longer things. However, these objects
again acquire the legal status of a thing when they have been removed from the body (e.g. cut
hair, extracted teeth, donated blood or organs). The BGH has ruled that objects permanently
separated from the body without any intention to link them with the body again are things.
By contrast, objects that have been removed from the body only temporarily are still body
parts and not things (e.g. autologous blood donation before an operation, egg cells for an in
vitro fertilisation).3 It is a debated (academic) question whether the body of a deceased is still
the seat of its personality and therefore not a thing or whether it is a thing but has the quality
of a res extra commercium.4 Bodies that are used for medical purposes or are, due to the
passage of time, no longer linked with a personality are things (e.g. mummies or prehistoric
corpses in a museum) and rights in rem apply to them.
§ 90a
Animals
‘Animals are not things. 2They are pro¬
tected by special statutes. 3They are governed
by the provisions that apply to things, with
the necessary modifications, except insofar as
otherwise provided.
§ 90a
Tiere
'Tiere sind keine Sachen. 2Sie werden
durch besondere Gesetze geschützt. 3Auf sie
sind die für Sachen geltenden Vorschriften
entsprechend anzuwenden, soweit nicht etwas
anderes bestimmt ist.
1 This provision was inserted in 1990 in the BGB for reasons of animal welfare. It has no
direct legal consequences and is of a mere symbolic nature. Animals are not things but they
are legally dealt with as if they were. Property rights on animals are thus possible. Animals
are protected in Germany first of all by the Tierschutzgesetz (TierSchG; Protection of Animals
Act). The special provisions of the BGB concerning the purchase of consumer goods (§§ 474
et seq.) also apply to the purchase of animals.1 Somewhat unusual question can therefore
arise e.g. whether an animal is a first or second hand good or which usual quality can be
expected by the buyer of an animal of the same kind.
3 BGH 9.11.1993 - VI ZR 62/93, NJW 1994, 127.
4 cf. Zimmermann, Gesellschaft, Tod und medizinische Erkenntnis - Zur Zulässigkeit von klinischen
Sektionen, NJW 1979, 569, 570; Gottwald, Rechtsprobleme um die Feuerbestattung NJW ^OP 2231
• BGH 15.11.2006 - VIII ZR 3/06, NJW 2007, 674. n8, N|W
110
R. Magnus
Consumable things
§92
§91
Fungible things
Fungible things as defined by law are mo¬
vable things that in business dealings are
customarily specified by number» measure or
weight.
§91
Vertretbare Sachen
Vertretbare Sachen im Sinne des Gesetzes
sind bewegliche Sachen, die im Verkehr nach
Zahl, Maß oder Gewicht bestimmt zu werden
pflegen.
A. Function
§ 91 defines the term fungible thing. This term is referred to in i.a. §§ 607, 651(1) 3rd St., 1
700(1), 706(1) 1st St., 783 and in §§ 592, 884 ZPO.
B. Explanation
I. Definition
Fungible things do not have individualising features which distinguish them from other 2
things of the same kind. They are interchangeable.1 Whether or not a good is seen as fully
interchangeable and consequently as a fungible thing is determined by common opinion,
commercial usages and expectations. Typical examples of fungible things are money, new goods
from mass production,2 food, wine,3 newly produced cars, books, fuel etc. Second hand cars or
machines are, however, in general not interchangeable and therefore not fungible things.
IL Loss or destruction
If fungible things are lost or destroyed, damages will include the possibility to demand the 3
supply of another thing of the same kind and quality as the thing destroyed.4
IIL Obligation in kind
Whether parties agreed on an obligation in kind (see § 243) or on the supply of one single 4
and specifically individualised product is determined in accordance with the parties’ inten¬
tion. An obligation in kind can therefore but need not necessarily relate to fungible things.
§92
Consumable things
(1) Consumable things as defined by law
are movable things whose intended use con¬
sists in consumption or in disposal.
(2) Movable things are also regarded as
consumable if they are part of a warehouse
store or another aggregate of things whose
intended use is the disposal of the individual
things.
§92
Verbrauchbare Sachen
(1) Verbrauchbare Sachen im Sinne des
Gesetzes sind bewegliche Sachen, deren be¬
stimmungsmäßiger Gebrauch in dem Ver¬
brauch oder in der Veräußerung besteht.
(2) Als verbrauchbar gelten auch bewegliche
Sachen, die zu einem Warenlager oder zu
einem sonstigen Sachinbegriff gehören, dessen
bestimmungsmäßiger Gebrauch in der Ver¬
äußerung der einzelnen Sachen besteht.
1 BGH 19.9.1966 - III ZR 92/65, NJW 1966, 2307; BGH 30.6.1971 - VIII ZR 39/70, NJW 1971, 1793, 1794.
2 BGH 16.1.1986 - VII ZR 138/85, NJW 1986, 1176.
3 BGH 24.4.1985 - VIII ZR 88/84, NJW 1985, 2403.
4 BGH 22.5.1985 - VIII ZR 220/84, NJW 1985 2413.
R. Magnus
111
§93 1
Division 2. Things and animals
1
A. Function
q£ this provision is rather limited.
§ 92 defines the term consumable thing. The rel^"ce ° : ht to consume it, but obliges
The right to use a consumable thing generally include t & similar § 706(2) pt St}
the consumer to compensate the owner (see §§ , 1814 2nd 2116(1) 2nd St.,
A reference to the term consumable thing can also be
2325(2) 1st St.
B. Explanation
2
I. Examples
Co—M. good« ™ e.g. pharmaceutical and food p»du®. ^alin« materia! or
cosmetics. Things whose intended use consists in disposal and have no benefit m
money, stocks or bonds.
3
IL Moveable
Under the requirements of Sub. 2 every movable thing can become a consumable good. It
is only necessary that it is stocked in a warehouse, store or a similar place and its intended
use is to sell and deliver it.
4
III. Exceptions
Since the right to use a consumable thing usually includes the right to consume it, the lease
or rent of consumable goods is impossible (cf. §§ 546 and 604).
§93
Essential parts of a thing
Parts of a thing that cannot be separated
without one or the other being destroyed or
undergoing a change of nature (essential
parts) cannot be the subject of separate
rights.
§93
Wesentliche Bestandteile
einer Sache
Bestandteile einer Sache, die voneinander
nicht getrennt werden können, ohne dass der
eine oder der andere zerstört oder in seinem
Wesen verändert wird (wesentliche Bestand¬
teile), können nicht Gegenstand besonderer
Rechte sein.
1
A. Function
§ 93 provides the legal definition of the term essential Darts of a ♦ r ,
to in e.g. §§ 946, 947 and 997. Furthermore, § 93 stipulates AaU1 "fJ . /k u
itself that cannot be separated always share the same legal nature Essenf
the subject of separate rights in rem. Consequently, the econon^ . " v partS CannOt *
functional legal and commercial entity is protected. § 93 is a m/a-T ° t^’n^ aS a
not open for deviating agreements by the parties. n a ru^e an^ therefore
112
R. Magnus
Essential parts of a plot of land or a building
§94
B. Explanation
I. Parts
Parts of a thing are legally not things themselves. When a thing consists of several items 2
(e.g. a card game, shoes) it can be difficult to distinguish whether these items are things
themselves and, hence, available for separate legal rights, or whether they are just essential
parts of a bigger unit. The distinction has to be made in accordance with commercial usage
and expectation.
IL Essential
A part is essential when its separation from the other parts would lead to its destruction or 3
to the destruction of the remaining parts. A fundamental change to character and the
prospective usage of the separated or the remaining parts resulting from separation is
equivalent to destruction. When the separated or remaining parts can - after their separation
- still be used for their original purpose the separated items were most likely not essential
parts,1 e.g. an engine, which can easily be replaced, is not an essential part of a standard
production car as both engine and car can still be used after their separation when they are
once again connected with another car or engine.2 Standardised and easily replaceable spare
parts are therefore in general not essential parts.
IIL Ownership
Since essential parts cannot be the subject of separate rights their ownership is lost when 4
they are inseparably intertwined with other parts or inserted in a thing. The provisions
dealing with such situations are contained in §§ 946 et seq. Even a reservation of title
(Eigentumsvorbehalt) is lost when the reserved good becomes an essential part of another
thing. Nevertheless, § 951 allows the former owner to file a claim under the law of unjust
enrichment (§§ 812 et seq.) and be thus compensated for his loss.
IV. Burden of proof
The burden of proof lies with the party claiming the existence of essential parts. 5
§94
Essential parts of a plot of land or
a building
(1) ’The essential parts of a plot of land
include the things firmly attached to the land,
in particular buildings, and the produce of
the plot of land, as long as it is connected
with the land. 2Seed becomes an essential part
of the plot of land when it is sown, and a
plant when it is planted.
(2) The essential parts of a building include
the things inserted in order to construct the
building.
§94
Wesentliche Bestandteile eines
Grundstücks oder Gebäudes
(1) !Zu den wesentlichen Bestandteilen ei¬
nes Grundstücks gehören die mit dem Grund
und Boden fest verbundenen Sachen, ins¬
besondere Gebäude, sowie die Erzeugnisse
des Grundstücks, solange sie mit dem Boden
Zusammenhängen. 2Samen wird mit dem
Aussäen, eine Pflanze wird mit dem Einpflan¬
zen wesentlicher Bestandteil des Grundstücks.
(2) Zu den wesentlichen Bestandteilen ei¬
nes Gebäudes gehören die zur Herstellung des
Gebäudes eingefügten Sachen.
1 BGH 1.2.1990 - IX ZR 110/89, NJW-RR 1990, 586, 587.
2 BGH 27.6.1973 - VIII ZR 201/72, NJW 1973, 1454.
R, Magnus
113
Division 2. Things and animals
§ 94 1-5
1
A. Function
, . nfa thing established in § 93 for
§ 94 extends and refines the concept ofcan be found in § 946 and
plots of land (Sub. 1) and buildings (Sub. 2) A s.m * ownership of the essential parts
§ 947. According to § 946, the proprietor ot Jana 4 principles than an owner of a
connected with the land due to broader and mor geconomic value of an estate
movable thing (cf. § 947). The idea is, once agai , P when essentiai parts of
as a functioning legal and commercial entity. This value mig
an estate belong to different owners.
B. Explanation
2
3
4
I. Definition
Essential parts of a plot of land include all things firmly attached to the land. Things are
firmly Cached to the land when their separation would be unreasonably expensive or wouW
cause^severe damage to the separated things.1 Express reference is made to buddings and the
produce of the plot of land as long as it is connected with the land. Buildings include houses
but also bridges, tennis courts, swimming pools etc. For example, the concrete foundation of
a wind turbine is firmly attached to the ground and thus an essential part, but not its tower
and rotor blades, which can easily be separated.2 3
II. Plots of land
The special provisions in §§ 912 et seq. apply to buildings that are constructed on more
than one plot of land and are constructed over a border.
III. Produce
The produce of land (see the definition in § 99) includes e.g. an apple on an apple tree,
vegetables in a field or trees in a forest. The produce will be considered an essential part
insofar as it is still attached to the land. Seeds and plants become essential parts of the plot of
land in the moment they are planted or respectively sown.
5
IV. Construction materials
Essential parts of a building are also all materials that are inserted in it for the purpose of
its construction. Things are inserted into the building in order to construct it when, according
to common belief and custom, the building would without them remain under construction.
Such parts are e.g. windows, the roof structure, the heating system and a firmly attached
carpet. Things are only essential parts when they are permanently inserted into the
building An inclusion m the budding for a certain period of time is thus not sufficient
see also § 95). A fittedI kitchen installed by a tenant in his flat is thus not an essential part of
the building and can therefore be the subject of separate rights and of different ownership?
However, a firm attachment is not required as long as the things are installed for a
permanent purpose. A sufficient connection between the essential ® 7 .7 u • j
can also be established after the construction of the buildin "TLT budd*n§
modernisation.4 8 '8' due to renovation or
1 OLG Frankfurt a.M. 7.4.1981 - 14 U 80/80, NJW 1982» 653
2 See Peters, Windkraftanlagen und §§ 93 ff. BGB, WM 2007 2003
3 See OLG Nürnberg 2.4.2002 - 3 U 4158/01, NJW-RR 2002* 14RS
4 BGH 13.3.1970 - V ZR 71/67, NJW 1970, 895 ’
114
R. Magnus
Merely temporary purpose
1-3 § 95
§95
Merely temporary purpose
(1) ’The parts of a plot of land do not
include things that are connected with the
land only for a temporary purpose. * 2The
same applies to a building or other structure
that is connected with a plot of land belong¬
ing to another by a person exercising a right
over that land.
(2) Things that are inserted into a building
for a temporary purpose are not parts of the
building.
§95
Nur vorübergehender Zweck
(1) !Zu den Bestandteilen eines Grund¬
stücks gehören solche Sachen nicht, die nur
zu einem vorübergehenden Zweck mit dem
Grund und Boden verbunden sind. 2Das Glei¬
che gilt von einem Gebäude oder anderen
Werk, das in Ausübung eines Rechts an ei¬
nem fremden Grundstück von dem Berech¬
tigten mit dem Grundstück verbunden wor¬
den ist.
(2) Sachen, die nur zu einem vorüberge¬
henden Zweck in ein Gebäude eingefügt sind,
gehören nicht zu den Bestandteilen des Ge¬
bäudes.
A. Function
§ 95 provides an exception to the concept of essential parts of a thing developed in § 93 1
and § 94. Things that are connected with the land or included into the building only for a
temporary purpose are not essential parts. The same applies to buildings that are connected
with the land by persons exercising rights in rem other than the ownership. In these
circumstances, the loss of ownership, which is in general the legal consequence when a thing
becomes an essential part of another thing (§§ 946 et seq.), is not appropriate. Instead, the
connected things are still viewed as separate legal entities and can thus be the subject of
separate rights. German legal doctrine refers to such things as Scheinbestandteile (‘seemingly
constituent parts’).
B. Explanation
I. Requirement
The decisive requirement for a Scheinbestandteil is that it was connected or inserted only 2
for a temporary purpose. The person connecting the parts must have the intention to
separate them again.1 In general, this intention has to be established at the time the
connection is made. Nevertheless, a change of mind can be respected under certain condi¬
tions e.g. the necessity of a temporary use arises only later as a result of a change in
circumstances.2 Examples of Scheinbestandteile include scaffolding, communication lines,
sheds and lodges for construction workers, fitted kitchens installed by a tenant. There is a
prima facie presumption that things installed by a tenant into the leased or rented object will
be removed at the end of his lease or rental period.3
II. Right over the land
According to Sub. 1 2nd St., a building or other structure that is connected with the plot of 3
land is not an essential part when the connection was established by a person exercising a
right over the land. The rights mentioned in Sub. 1 2nd St. only include rights in rem other
than ownership. Examples are the right of usufruct, an easement or emphyteusis. The 2nd St.
' BGH 16.1.2004 - V ZR 243/03, NJW 2004, 1237.
2 BGH 2.12.2005 - V ZR 35/05, NJW 2006, 990, 992.
3 BGH 22.12.1995 - V ZR 334/94, NJW 1996, 916.
R. Magnus
115
§ 97 1 Division 2. Things and animals
does not apply if the right does not exist, even if the person connecting the building to the
plot of land mistakenly believes himself to be the holder of such a right. However, the legal
status of the thing does not change merely because the right in rem is lost after the
connection has already been made.4
III. Non-essential parts
4 Non-essential parts of a plot of land are still movables and ownership thereof is acquired
according to §§ 929 et seq.
§96
Rights as parts of a plot of land
Rights that are connected with the owner¬
ship of a plot of land are regarded as parts of
the plot of land.
§96
Rechte als Bestandteile eines
Grundstücks
Rechte, die mit dem Eigentum an einem
Grundstück verbunden sind, gelten als Be¬
standteile des Grundstücks.
1 § 96 provides the irrebuttable presumption of law that rights connected with the owner¬
ship of the plot of land are parts of the land. They are thus transferred with the ownership
and included in a mortgage on the land according to §§ 1120 et seq. The rights are essential
parts (cf. § 93) if they cannot be separated from the land. This is the case for rights under
§ 912(2), § 917(2), § 1018, § 1094(2) and § 1105(2), which all belong to the current owner of
the plot of land.
§97
Accessories
(1) ’Accessories are movable things that,
without being parts of the main thing, are
intended to serve the economic purpose of
the main thing and are in a spatial relation¬
ship to it that corresponds to this intention.
2A thing is not an accessory if it is not
regarded as an accessory in business dealings.
(2) ’The temporary use of a thing for the
economic purpose of another thing does not
give it the quality of an accessory. 2The tem¬
porary separation of an accessory from the
main thing does not deprive it of the quality
of an accessory.
§97
Zubehör
(1) ’Zubehör sind bewegliche Sachen, die,
ohne Bestandteile der Hauptsache zu sein,
dem wirtschaftlichen Zwecke der Hauptsache
zu dienen bestimmt sind und zu ihr in einem
dieser Bestimmung entsprechenden räumli¬
chen Verhältnis stehen. 2Eine Sache ist nicht
Zubehör, wenn sie im Verkehr nicht als Zu¬
behör angesehen wird.
(2) ’Die vorübergehende Benutzung einer
Sache für den wirtschaftlichen Zweck einer
anderen begründet nicht die Zubehöreigen¬
schaft. 2Die vorübergehende Trennung eines
Zubehörstücks von der Hauptsache hebt die
Zubehöreigenschaft nicht auf.
A. Function
1 This provision defines the term accessories. Accessories are movable things that are
intended to serve the purpose of the main thing and are in a spatial relationship to it. As a
legal consequence, accessories are in general sold (see § 311c) and transferred (§ 926) with
the main thing. They are also included in a mortgage when the main thing is a plot of land
(§§ 1120 et seq.).
4 BGH 1.2.1994 - VI ZR 229/92, NJW 1994, 999.
116
R, Magnus
Accessories
2-5 § 97
B. Explanation
I. Definition
Only movable objects (§ 90) can be accessories but not a plot of land or parts of a plot of 2
land (§§ 93 et seq.). Scheinbestandteile of a plot of land or a building within the meaning of
§ 95 are not accessories, since a non-permanent connection with the main thing is not
sufficient according to Sub. 2 1st St. However, buildings and other structures connected with
a plot of land under the conditions of Sub. 1 2nd St. are still movables and fall within the
scope of Sub. 1 1st St.
II. Purpose
There must be an intention for the accessories to serve the purpose of the main thing. 3
Accordingly, two things must be connected by the intention of their respective user: a main
thing and an accessory; the latter being subordinate to the former.1 Examples for such a
relationship include the machines and construction material to a factory building,2 a church
bell to a church,3 and a refrigerating system and other equipment to a bar.4 The accessory
must be used with the intention to promote the economic purpose of the main thing. The
term economic purpose is understood broadly and covers almost all purposes the main thing
is meant for (e.g. the organ and the church bell promote the economic purpose of a church).
The link between the accessory and the main thing has to be established for a permanent
purpose, otherwise Sub. 2 1st St. Therefore, goods that are brought to a plot of land only to be
sold there5 and raw materials meant for further fabrication are not accessories.6 The person
using the main thing can determine the purpose of the accessories even if he is lacking legal
capacity (§§ 104 et seq.).
III. Spatial relationship
Furthermore, a spatial relationship between the accessory and the main thing is necessary. 4
This does not mean that the accessories of an immovable thing have to continuously remain
on the plot of land. The spatial relationship is also subject to a broad interpretation. A short
distance between the main thing and the accessory is irrelevant as long as the accessory still
serves the purpose of the main thing e.g. gas, water, power-(pipe)-lines7 or a petrol station in
the immediate neighbourhood of the respective plot of land.8
IV. Customary practice
A thing is not an accessory if, despite satisfying the above criteria, the result would be 5
contrary to customary practice and common opinion (Sub. 1 2nd St.). The burden of proof for
such an opposing customary practice rests on the party claiming it.9
1 BGH 2.11.1982 - VI ZR 131/81, NJW 1983, 746, 747.
2 BGH 17.9.1979 - VIII ZR 339/78, NJW 1979, 2514.
3 BGH 25.5.1984 - V ZR 149/83 NJW 1984, 2277, 2278.
4 OLG Hamm 26.11.1985 - 27 U 144/84, NJW-RR 1986, 376.
5 RG 27.4.1907 - Rep. V. 459/06.
6 RG 17.3.1915 - Rep. V. 487/14.
7 BGH 19.9.1979 - V ZR 41/77, NJW 1980, 771.
8 BGH 19.3.1965 - V ZR 270/62, MDR 1965, 561.
9 BGH 20.11.2008 - IX ZR 180/07, NJW 2009, 1078, 1079.
R. Magnus
117
§ 98 1-3
Division 2, Things and animals
V. Legal status
6 The legal status as an accessory is lost as soon as one of the above-mentioned requirements
are no longer fulfilled. However, a temporary separation of the accessory from the main thing
does not change its legal quality (Sub. 2 2nd St.).
§98
Commercial and
agricultural inventory
The following are intended to serve the
economic purpose of the main thing:
1. in the case of a building that is perma¬
nently equipped for commercial operations,
in particular a mill, a smithy, a brewery or a
factory, the machinery and other equipment
intended for the business,
2. in the case of a farm, the equipment and
livestock intended for the commercial opera¬
tions, the agricultural produce, to the extent
that it is necessary to continue the farming
until the time when it is expected that the
same or similar produce will be obtained, and
manure produced on the farm.
§98
Gewerbliches und
landwirtschaftliches Inventar
Dem wirtschaftlichen Zwecke der Haupt¬
sache sind zu dienen bestimmt:
1. bei einem Gebäude, das für einen ge¬
werblichen Betrieb dauernd eingerichtet ist,
insbesondere bei einer Mühle, einer Schmie¬
de, einem Brauhaus, einer Fabrik, die zu dem
Betrieb bestimmten Maschinen und sonstigen
Gerätschaften,
2. bei einem Landgut das zum Wirtschafts¬
betrieb bestimmte Gerät und Vieh, die land¬
wirtschaftlichen Erzeugnisse, soweit sie zur
Fortführung der Wirtschaft bis zu der Zeit
erforderlich sind, zu welcher gleiche oder
ähnliche Erzeugnisse voraussichtlich gewon¬
nen werden, sowie der vorhandene, auf dem
Gut gewonnene Dünger.
A. Function
1 § 98 clarifies the definition of accessories given in § 97 by providing a non-exhaustive list
of examples for accessories of commercially used buildings and farms.
B. Explanation
I. Economic purpose
2 A mill, a smithy, a brewery, a factory and the machinery and other equipment intended for
the business are explicitly mentioned as things serving the economic purpose of a commer¬
cially used building. This requirement was also affirmed for an inn,1 and a brick factory’,2
but not for shops that can be used by very different lines of business.3
IL Farm
3 Livestock and equipment, the manure produced on the farm and the agricultural produce,
as long as it is used for the operation of the farm itself, are accessories. The farm eijuipment
includes e.g. a tractor, a plough, a combine harvester or a milking machine. Parts of the
livestock are generally all breeding animals, but not animals especially designated for sale.4
1 RG 22.5.1901 - Rep. V. 92/01.
2 BGH 23.10.1968 - VIII ZR 228/66, NJW 1969, 36.
3 RG JW 1909, 485.
4 MiiKo BGB/Strescmann, § 98 BGB mn. 19.
118
R. Magnus
Fruits
1-4 § 99
§99
Fruits
§99
Früchte
(1) Fruits of a thing are the products of the
thing and the other yield obtained from the
thing in accordance with its intended use.
(2) Fruits of a right are the proceeds that
the right produces in accordance with its
intended use, in particular, in the case of a
right to extract component parts of the soil,
the parts extracted.
(3) Fruits are also the proceeds supplied by
a thing or a right by virtue of a legal relation¬
ship.
(1) Früchte einer Sache sind die Erzeug¬
nisse der Sache und die sonstige Ausbeute,
welche aus der Sache ihrer Bestimmung ge¬
mäß gewonnen wird.
(2) Früchte eines Rechts sind die Erträge,
welche das Recht seiner Bestimmung gemäß
gewährt, insbesondere bei einem Recht auf
Gewinnung von Bodenbestandteilen die ge¬
wonnenen Bestandteile.
(3) Früchte sind auch die Erträge, welche
eine Sache oder ein Recht vermöge eines
Rechtsverhältnisses gewährt.
A. Function
§ 99 provides the definition of the term fruits. This term is referred to e.g. in §§ 217, 596a, 1
743, 911, 923 et seq., 953 et seq., 993, 998, 1039, 1120 et seq., 2020, 2038, 2133, 2184. § 99
distinguishes between fruits of a thing (Sub. 1) and fruits of a right (Sub. 2). Furthermore, it
introduces a second distinction between fruits directly obtained as proceeds of a thing or a
right, on the one hand, and fruits obtained only by virtue of another legal relationship, on the
other (Sub. 3).
B. Explanation
I. Fruits of a thing
The fruits of a thing are the products and other yields obtained from it in accordance with 2
its intended use e. g. the apple from a tree, the corn from a wheat field, but also the calf or the
milk from a cow, the wool from a sheep or the egg from a chicken. The meat of an animal is
not a fruit as the quality of a fruit requires that the substance of the main thing is preserved
and not destroyed.1 The yield obtained in accordance with the intended use is e.g. the gravel
from a gravel pit or the coal from a coal mine.
IL Fruits of a right
Fruits of a right are i.a. the fruits of a thing obtained in accordance with a right of usufruct 3
or wild animals killed in accordance with a hunting right? A fruit of a right are also the
interest rates earned by an investor?
III. Legal relationship
Fruits of a thing obtained only by virtue of a legal relationship (mittelbare Sachfrüchte) are 4
e.g. the rent paid by a tenant or leaseholder or a periodical payment for encroachment
(§ 912). Fruits of a right generated only by virtue of a legal relationship are e.g. royalties or
the rent for a temporary transfer of a right of usufruct.
1 Knütel, Von befreiten Vögeln, schönen Schläferinnen und hüpfenden Hunden oder - Exempla
docent, JuS 2001, 209, 210.
2 BGH 8.11.1990 - III ZR 251/89, NJW 1991, 1421.
3 BGH 3.6.1981 - IVa ZR 195/80, NJW 1981, 2350, 2351.
R. Magnus
119
Division 2. Things and animals
§101
IV. Ownership
j bv R 99, but rather by §§ 953 et
5 The ques.ion of own.rdfip »f the f™''sJ’ “"'a ,„e or a bush Ml on the other side
seq. § 911 deals with the specific case whereby fruits
of a border between two plots of land.
§100
Emoluments
Emoluments are the fruits of a thing or of
a right and the benefits that the use of the
thing or the right affords.
§100
Nutzungen
Nutzungen sind die Früchte einer Sache
oder eines Rechts sowie die Vorteile, welche
der Gebrauch der Sache oder des Rechts ge¬
währt.
A. Function
1
The term emoluments, established in § 100, includes fruits (§ 99) and the benefit afforded
by that use of a thing (Gebrauchsvorteile). Several provisions of the BGB allow a person to
claim emoluments. For this reason §§ 346(1), 818(1), 987 et seq., 2020 et seq refer to § 00.
Furthermore, the term is referred to in several other provisions, including $$ 256, 292, 302,
379, 446, 503, 584b, 745, 820, 1030, 1039, 1213 et seq.
B. Explanation
2 The benefit gained by the use of a thing is e.g. the accommodation and shelter given by a
house, the mobility and transport options given by a car or the price money won by a race
horse.1 An emolument of money is the interest rate given for it by a bank.2 The value of the
benefit is calculated according to the amount it would cost to rent a similar object for a
similar period of time. However, this does not include the consumption of the thing or the
money received upon sale. As with fruits (§ 99), a benefit gained by the use requires that the
substance of the thing remains intact. The benefit of the use of a right is e.g. the right to vote
at a shareholder meeting due to the ownership of shares of a company.
§101
Division of fruits
If a person is entitled to receive the fruits
of a thing or of a right until a particular time
or from a particular time on, he is entitled to
the following, unless otherwise provided:
1. the products and parts stated in § 99(1),
even if he is to receive them as the fruits of a
right, to the extent that they are separated
from the thing during the period of entitle¬
ment,
§ 101
Verteilung der Früchte
Ist jemand berechtigt, die Früchte einer
f.aC ? er e*nes Rechts bis zu einer bestimm-
ten zeit oder von einer bestimmten Zeit an zu
nnd*6 e*k. S° gebühren ihm, sofern nicht ein
anderes bestimmt ist:
nisse^nd111^ " Abs’1 bezeichneten Erzeug-
Früchte • es*andteüe, auch wenn er sie als
"eit, als sieeS -keClltS ZU beziehen hat, inso-
gung von d Wc ren<* der Dauer der Berechti¬
gung von der Sache getrennt werden,
1 BGH 31.3.2006 - V ZR 51/05, NJW 2006, 1582 1583 —
2 BGH 6.3.1998 - V ZR 244/96, NJW 1998, 2354’ 2355
120
R. Magnus
Reimbursement of costs of production
1 § 102
2. other fruits to the extent that they are
due during the period of entitlement; how¬
ever, if the fruits consist in remuneration for
permission of use or of enjoyment of fruits
and benefits, in interest, in profit shares or
other periodically paid income, the person
entitled has a right to a share corresponding
to the duration of his entitlement.
2. andere Früchte insoweit, als sie während
der Dauer der Berechtigung fällig werden;
bestehen jedoch die Früchte in der Vergütung
für die Überlassung des Gebrauchs oder des
Fruchtgenusses, in Zinsen, Gewinnanteilen
oder anderen regelmäßig wiederkehrenden
Erträgen, so gebührt dem Berechtigten ein
der Dauer seiner Berechtigung entsprechen¬
der Teil.
A. Function
§ 101 determines how the fruits of a thing or a right are divided between persons entitled 1
to the fruits for different periods of time. § 101 only applies if the parties concerned do not
agree on a different mode of distribution and other provisions of the BGB dealing with the
distribution of fruits (e.g. §§ 987 et seq., 1039, 1214, 2111, 2133) do not apply. Furthermore,
§ 101 does not relate to the question of ownership of the fruit, which is primarily dealt with
in §§ 953 et seq. This provision thus has a rather limited scope of application.
B. Explanation
A person is entitled to the fruits of a thing or a right when these fruits were separated from 2
the main thing during the period of his entitlement. However, fruits obtained by virtue of a
legal relationship belong to him when they were due and the relationship still existed.
§102
Reimbursement of
costs of production
A person who has a duty to hand over
fruits may claim reimbursement of the costs
of producing the fruits to the extent that they
reflect proper business practices and do not
exceed the value of the fruits.
§ 102
Ersatz der Gewinnungskosten
Wer zur Herausgabe von Früchten ver¬
pflichtet ist, kann Ersatz der auf die Gewin¬
nung der Früchte verwendeten Kosten inso¬
weit verlangen, als sie einer ordnungsmäßigen
Wirtschaft entsprechen und den Wert der
Früchte nicht übersteigen.
A person who has the duty to restore fruits (e.g. §§ 346(1), 818(1), 987 et seq.) can under 1
certain conditions claim reimbursement of the costs for the production of the fruits. Fruits
are often gained only due to a considerable amount of work, skill and time. The person
having nurtured the fruits is, therefore, at least allowed to claim his production costs if he
cannot keep the fruits for himself but has to give them back to another person. Production
costs are, for example, the payment for the workers on a corn field and the rent for the
machines employed. However, production costs are not reimbursed if they exceed the value
of the fruits themselves or are not in line with proper business practice.
R. Magnus
121
§ 103 1-5
Division 3. Legal transactions
§103
Allocation of charges
A person who has a duty to bear the
charges on a thing or a right until a specified
time or from a specified time on must, unless
otherwise provided, bear the periodically re¬
curring charges in the proportion of the per¬
iod of time of his duty, and bear other
charges to the extent that they are payable
during the period of time in which he has the
duty.
§103
Verteilung der Lasten
Wer verpflichtet ist, die Lasten einer Sache
oder eines Rechts bis zu einer bestimmten
Zeit oder von einer bestimmten Zeit an zu
tragen, hat, sofern nicht ein anderes be¬
stimmt ist, die regelmäßig wiederkehrenden
Lasten nach dem Verhältnis der Dauer seiner
Verpflichtung, andere Lasten insoweit zu tra¬
gen, als sie während der Dauer seiner Ver¬
pflichtung zu entrichten sind.
1 § 103 determines who has to bear the charges of a thing or a right in the case of a change of
ownership. Charges according to § 103 are not rights in rem but costs related to the ownership
of a thing or right (e.g. mortgage rates, property taxes, insurance costs). If the parties
concerned do not come to a different agreement the costs are divided between them pro rata
temporis: every party has to bear the charges incurred during the period of his ownership. If,
for example, the ownership of a car is transferred on 1 July the taxes due for a year for the car
are in accordance with § 103 separated in equal parts between the former and the new owner.
Division 3
Legal transactions
Abschnitt 3
Rechtsgeschäfte
Introduction to §§ 104-185
1 §§ 104-185 contain general rules that govern legal transactions (Rechtsgeschäfte).1 The
law does not provide a definition of the term legal transaction. It refers to all legal acts by
which a party, or the parties, may create certain legal consequences by virtue of their free will
Every legal transaction is constituted by one or several declarations of intent (Willenserklä¬
rung). A declaration of intent is a declaration by which the declaring party expresses his
intention to create a certain legal consequence. Where a legal transaction consists of one
declaration of intent only, it is referred to as a unilateral legal transaction (e. g. rescission of a
contract). To this extent, the terms declaration of intent and legal transaction are often used
interchangeably. A legal transaction that requires an agreement between the parties involved
is a bilateral (or multilateral) legal transaction. The bilateral legal transaction is referred to by
the law as a contract.
2 §§104-113 regulate the personal requirements a person must meet in order to conclude a
legal transaction that is effective; in particular, the conditions under which a person lacks the
capacity to contract or has only limited capacity to contract and the consequences thereof.
3 §§ 116-144 govern the material effectiveness of a declaration of intent, in particular the
effects of certain mental defects or mistakes in the sphere of the declaring party, as well as
requirements of form that legal transactions may be subjected to, and the role of public
policy and certain prohibitions.
4 §§ 145-157 provide rules that govern the conclusion of a contract, in particular the
effectiveness and interplay of offer and acceptance, and its interpretation.
5 §§ 158-163 concern the effects where the effectiveness or voidness of a legal transaction is
subjected to a condition or a specification of time.
1 See -► Introduction to §§ 116-144 mn. 1-8.
122
R. Magnus
Incapacity to contract
1-2 § 104
§§ 164-181 concern the requirements and effects of agency and the consequences where 6
the agent acts without the principal’s authority.
Finally, §§ 182-185 concern the approval of a third party where the effectiveness of a legal 7
transaction depends on such an approval.
Title 1
Capacity to contract
Titel 1
Geschäftsfähigkeit
§104
Incapacity to contract
A person is incapable of contracting if
1. he is not yet seven years old,
2. he is in a state of pathological mental
disturbance, which prevents the free exercise
of will, unless the state by its nature is a
temporary one.
§104
Geschäftsunfähigkeit
Geschäftsunfähig ist:
1. wer nicht das siebente Lebensjahr vollen¬
det hat,
2. wer sich in einem die freie Willens¬
bestimmung ausschließenden Zustand krank¬
hafter Störung der Geistestätigkeit befindet,
sofern nicht der Zustand seiner Natur nach
ein vorübergehender ist.
A. Function
L Purpose
The term capacity to contract refers to the capacity of a person to undertake a legal 1
transaction (Rechtsgeschäft)' that is effective. The BGB regulates in § 1 that the legal capacity
of a human being begins with the completion of birth but it does not provide rules that
positively address the requirements of capacity to contract. While title 1 of division 3 of the
BGB is called capacity to contract, the provisions contained therein in fact only regulate
under which circumstances a person has no capacity to contract (§ 104), or restricted
capacity to contract (§ 106; § 112, § 113), and the consequences thereof (e.g. § 105; §§ 107
et seq.). Conceptually, capacity to contract is therefore the rule, incapacity the exception.
IL Scope of application
§§ 104 et seq. are mandatory provisions. Generally, they are applicable to all declarations of 2
intent, irrespective of the legal field in which they are made, but specific provisions apply to
marriage (§§ 1303, 1304, 1314(2) No. 1) and wills (§§ 2064, 2229, 2247). §§ 104 et seq. also
apply to employment contracts (§ 611) and partnership agreements (e.g. § 705) but uncer¬
tainty surrounds the question whether exceptions are due where the obligations under the
contract or agreement have been partly or fully performed.1 2 The consequences of lack or
limitations of capacity attach not to the legal transaction directly but to the person’s declaration
of intent3 that is made in order to undertake a legal transaction. However, since the declaration
of intent is a constituent element of any legal transaction, indirectly the consequences that
attach to the declaration of intent affect the legal transaction, too. Further, where due to §§ 104
et seq. a person cannot act for himself, legal representatives act on his behalf. The legal
representatives of children that are incapable of contracting, as well as of minors with limited
capacity to contract, are their parents (§§ 1626, 1629) or guardians (§ 1773). Other persons
1 See -* Introduction to §§ 116-144 mn. 1-8.
2 Palandt BGB/Ellenberger, Einf v § 104 BGB mn. 5.
3 See Introduction to §§ 116-144 mn. 1-8.
Wais
123
§ 104 3-6 Division 3. Legal transactions
that lack capacity to contract are represented by a
be held liable for torts or breach of an obligation is not regulate y S
within the scope of §§ 827 et seq. and § 276(1) 2n St., respective y.
B. Explanation
I. Children
3 Pursuant to No. 1, children below the age of seven are incapable of contracti"8’ i^*sPectlve <7
their mental development. Incapacity under No. 1 ends on their birthday at 00:00 a.m. (§ 187
(2)). However, capacity to contract under No. 1 does not preclude incapacity pursuant to No. 2.
IL Pathological mental disturbance
4 The term used in No. 2 refers to both mental illness and mental weakness that preclude a
person from exercising his will freely and unaffected by the mental disturbance.4 No. 2
requires that the state of pathological mental disturbance is a permanent condition. It does
not apply to a condition that is merely temporary. The mere fact that a mental illness can be
cured does, however, not per se make it temporary.5 Rather, the duration of the treatment is
decisive. Disturbances such as unconsciousness or intoxication that are temporary do not fall
within the scope of § 104, but a declaration of intent made in this state may still be void
under § 105(2). No. 2 applies where a person remains unconscious for a longer period of
time. The same holds true where addiction to alcohol has led to an organic alteration of the
brain structure that caused permanent mental disturbances.6 It is argued that a person who
generally is incapable of contracting under No. 2 may still have capacity to contract during
transient ‘clear moments’ in which the person is not affected mentally.7
5 A person is prevented from freely exercising his will if, due to his mental disturbance, he
is not able to make reasonable decisions and act accordingly.8 The mere fact that a person
can be influenced easily does not mean that he is prevented from freely exercising his will,
but where a third party is able to take total control of him because of his mental disturbance,
No. 2 may be applicable.9 Dementia does not per se prevent free exercise of will,10 nor does
the inability to fully understand the consequences of one’s actions.11 It is argued that an IQ
below 60 indicates that will cannot be exercised freely.12
III. Specific application
6 Incapacity to contract can be limited to legal transactions of a certain kind.13 Declarations
that do not relate to these transactions are valid. For example, specific incapacity to contract
limited to marriage-related transactions has been accepted in a case of pathological
jealousy.14 Vice versa it is also possible that a person is incapable of contracting with regard
to all but specific transaction, e.g. marriage.15 Specific incapacity may also exist where
4 MüKo BGB/Schmitt, § 104 BGB mn. 11.
5 BGH 20.11.2013 - XII ZR 19/11, NJW 2014, 1095, 1097.
6 OLG Naumburg 9.12.2004 - 4 W 43/04, NJW 2005, 2017 2018
BGB^eM^BGTS * S'n"d'"3- B™Klumpp. § 104 BGB
mn. 25; Jauemig
8 BGH 5.12.1995 - XI ZR 70/95, NJW 1996, 918, 919
’ BGH 19.6.1970 - IV ZR 83/69, NJW 1970, 1680, 1681.
10 OLG München 5.6.2009 - 33 Wx 278, 279/08, NJW-RR 2009 1599 1600
BGH 19.10.1960 - V ZR 103/59, NJW 1961, 261.
OLG Düsseldorf 11.7.1995 - 4 U 169/94, BeckRS 2008, 15766.
BGH 19.6.1970 - IV ZR 83/69, NJW 1970, 1680, 1681
BGH 24.9.1955 - IV ZR 162/54, NJW 1955, 1714.
BVerfG 18.12. 2002 - 1 BvL 14/02, NJW 2003, 1382, 1383.
12
13
14
15
124
Wais
Voidness of declaration of intent 1 § IOS
emotional dependence from a third party has become pathological16 or in cases of trauma.17
Specific incapacity does not exist for the sole reason that a transaction is too complex to
understand.18
IV. Legal consequence
The legal consequence of incapacity to contract is regulated by § 105(1). A declaration of 7
intent made by a person incapable of contracting is void. Where such a person is merely the
recipient of a declaration of intent, that declaration of intent only becomes effective when it
reaches the legal representative (§ 131(1)). Different rules apply to transactions that relate to
marriage (§§ 1304, 1314) or wills (§ 2229). A person, however, always has capacity to
contract with regards to all judicial or administrative proceedings and other measures that
have that person’s capacity as their object.19
V. Burden of proof
The burden of proof lies with the party who seeks to rely on the incapacity.20 If incapacity 8
(No. 2) is uncontested, the burden lies with the party who claims transient capacity (‘dear
moment’).21
§105
Voidness of declaration of intent
(1) The declaration of intent of a person
incapable of contracting is void.
(2) Also void is a declaration of intent that
is made in a state of unconsciousness or
temporary mental disturbance.
§ 105
Nichtigkeit der Willenserklärung
(1) Die Willenserklärung eines Geschäfts¬
unfähigen ist nichtig.
(2) Nichtig ist auch eine Willenserklärung,
die im Zustand der Bewusstlosigkeit oder
vorübergehender Störung der Geistestätigkeit
abgegeben wird.
A. Function
Sub. 1 applies to all declarations of intent1 made by a person incapable of contracting. 1
The declaration is void even if it proves sensible or advantageous for the declaring person.
Under the conditions stipulated by § 105a, however, an everyday transaction may none¬
theless be valid. Under Sub. 1, it is further irrelevant if the recipient of the declaration acted
in good faith.2 Sub. 1 also applies to a declaration of intent made by a representative on
behalf of another person, legal entity or corporate body if the representative (or agent) lacks
capacity to contract.3 Where joint representation by several representatives is required, the
incapacity to contract of one representative is sufficient to render void any such joint
representation.4 However, a declaration of intend delivered by a person incapable of
contracting who merely acted as a messenger (Bote) is not void under Sub. I.5 Sub. 2 applies
16 BGH 13.6.2002 - III ZR 156/01, NJW-RR 2002, 1424.
17 BGH 4.11.1999 - HI ZR 306/98, NJW 2000, 289.
18 BGH 14.7.1953 - V ZR 97/52, NJW 1953, 1342.
19 BGH 25.1.1978 - IV ZB 9/76, NJW 1978, 992.
20 BGH 20.11.2013 - XII ZR 19/11, NJW 2014, 1095, 1097.
21 BGH 11.3.1988 - V ZR 27/87, NJW 1988, 3011.
1 See -> Introduction to §§ 116-144 mn. 1-8.
2 BGH 12.10.1976 - VI ZR 172/75, NJW 1977, 622, 623.
’ BGH 1.7.1991 - II ZR 292/90, NJW 1991, 2566, 2567.
4 BGH 9.2.1970 - II ZR 137/69, NJW 1970, 806, 808.
5 MüKo BGB/Schmitt, § 105 BGB mn. 44; Staudinger BGB/Klumpp, § 105 BGB mn. 9. On messengers
see -» § 176 mn. 2.
Wais
125
8 105a 1 Division 1 Legal transacti°nS
S 1U3a f sciousness or temporary mental
to declarations of intent that are made in a state■ is the intention to act,*
disturbance. Since a constituent element of a declara consciousness (fainting). Instead,
unconsciousness under Sub. 2 cannot refer to a_total cognitive ability is reduced
a person is unconscious for the purpose of Sub. med in cases of hypnosis, febrile
drastically or excluded. Unconsciousness may °e qualify as unconsciousness
delirium, epilephc seizures, manic depress»" "«'7 J ‘
if the blood alcohol concentration is significantly higher ma
2
B. Explanation
I. Temporary mental disturbance
The term .Ml düturkance comp»^ •" *»«• f“ '>Ck
p J™„ U do not Ml »Ihm § 104 No. 2. Further, Sub. 2 has a broader scope. It does not
™“e the disturbance to be pathological, but, despite the different vtordtng, the Durban«
must also pre.em the free excise of will.’ As is the case with § 104 No. 2, the dtsnrrbance
may be limited to specific areas of legal transactions.10 Drugs, narcotics and alcohol may
cause temporary mental disturbances.11 The specific rule of § 1314(2) applies with regard to
entry into marriage.
3
II. Burden of proof
The burden of proof lies with the party that seeks to rely on the voidness of the declaration
of intent.
§ 105a
Everyday transactions
’If a person of full age incapable of con¬
tracting enters into an everyday transaction
that can be effected with funds of low value,
the contract he enters into is regarded as
effective with regard to performance and, if
agreed, consideration, as soon as perfor¬
mance has been effected and consideration
rendered. Sentence 1 above does not apply
in the case of considerable danger to the
person or the property of the person incap¬
able of contracting.
§ 105a
Geschäfte des täglichen Lebens
’Tätigt ein volljähriger Geschäftsunfähiger
ein Geschäft des täglichen Lebens, das mit
geringwertigen Mitteln bewirkt werden kann,
so gilt der von ihm geschlossene Vertrag in
Ansehung von Leistung und, soweit verein¬
bart, Gegenleistung als wirksam, sobald Leis¬
tung und Gegenleistung bewirkt sind. 2Satz 1
gilt nicht bei einer erheblichen Gefahr für die
Person oder das Vermögen des Geschäfts¬
unfähigen.
A. Function
1
§ 105a only applies to legal transactions1 undertaken by persons that alth« k cc. n
incapable of contracting. Children that lack capacity to contort alth°“8h of a§e> are
fall within the scope of § 105a. Minors are subject to the specific^r^^1l° V°4 N°’ 1 d°
) me specific provisions of §§ 106 et seq.
6 See -♦ Introduction to §§ 116-144 mn. 6. ’
7 MüKo BGB/Schmitt, § 105 BGB mn. 37; Staudinger BGR/VI.
’ BGH 22.11.1990 - 4 StR 117/90, NJW 1991, 852 853 mpp’ $ 105 BGB mn- 25.
’ BGH 2.10.1970 - V ZR 125/68, BeckRS 1970, 31’123543
10 See -► § 104 mn. 6.
" MüKo BGB/Schmitt, § 105 BGB mn. 37; Staudinger BGB/KIn
See -* Introduction to §§ 116-144 mn. 1-8.
™PP.§105 BGB mn. 25.
126
Wais
Everyday transactions
2-7 § 105a
B. Explanation
I. Definition
The term everyday transaction in the 1st St. refers to legal transactions that are commonly 2
perceived as transactions of everyday life, e.g. the acquisition of food or beverages for
personal consumption; cosmetic products for personal use; the use of public transport and
other simple services.2 It must not exceed the usual quantitative limits.3 The mutual
obligations created by any such contract must be proportionate. Further, the 1st St. may also
apply to a small donation made for reasons of decency. It is argued that § 105a does not
apply in cases of distance contracts or doorstep selling.4
II. Funds of low value
The transaction has to be effected with funds of low value. Whether this is the case 3
depends on the perspective of an average person and not the personal wealth of the person
incapable to contract. The prospect of a personal bargain is equally irrelevant.
III. Performance
In order for the contract to be effective, the performance and, as the case may be, the 4
consideration must have been effected. § 105a also provides the capacity to effectively
undertake legal transactions which form part of the performance owed under the contract
(in particular dispositions, e.g. transfer of ownership under § 929).5 Since performance must
be effected in full, a loan contract can only be effective if all rates are paid.
IV. Considerable danger
Legal transactions that pose considerable danger to the person incapable of contracting 5
are, however, excluded by virtue of the 2nd St., e.g. the sale of sweets to a diabetic or of
alcohol to an alcoholic; the acquisition of numerous products of the same kind from various
sellers when only one such product is needed.6 The 2nd St. applies regardless of whether or
not the other party is aware of the circumstances that give rise to the danger.
V. Legal consequence
It is unclear whether § 105a 1st St. creates the legal assumption of a valid contract7 or merely 6
excludes claims for restitution under § 812(1 ).8 In order to afford the person incapable of
contracting secondary rights such as cure where a purchased good is defective (§§ 439, 437
No. 1), the former understanding is preferable. In court, legal representation (§ 1896) is required.
VI. Burden of proof
The burden of proof lies with the party who claims that a contract is regarded as effective 7
pursuant to the 1st St. The provision of the 2nd St. must be proved by the party claiming the
ineffectiveness of the contract.
2 Palandt BGB/Ellenberger, § 105a BGB mn. 3; Staudinger BGB/Klumpp, § 105a BGB mn. 25; Jauernig
BGB/Mansel, § 105a BGB mn. 4.
3 Jauernig BGB/Mansel, § 105a BGB mn. 6.
4 Palandt BGB/Ellenberger, § 105a BGB mn. 3; MüKo BGB/Schmitt, § 105a BGB mn. 6.
5 MüKo BGB/Schmitt, § 105a BGB mn. 11; cf. Jauernig BGB/Mansel, § 105a BGB mn. 6.
6 Palandt BGB/Ellenberger, § 105a BGB mn. 5.
7 Palandt BGB/Ellenberger, § 105a BGB mn. 6.
8 Jauernig BGB/Mansel, § 105a BGB mn. 7; Staudinger BGB/Klumpp, § 105a BGB mn. 41.
Wais
127
§ 106 1-3
Division 3. Legal transactions
§ 106
Limited capacity for
minors to contract
A minor who has reached the age of seven
has limited capacity to contract under §§ 107
to 113.
§ 106
Beschränkte Geschäftsfähigkeit
Minderjähriger
Ein Minderjähriger, der das siebente Le¬
bensjahr vollendet hat, ist nach Maßgabe der
§§ 107 bis 113 in der Geschaftsfah.gkeit be-
schränkt.
A. Explanation
I. Limited capacity
1 A person that is at least seven years of age (§ 187(2)) and younger than 18 (§ 2) enjoys
limited capacity to contract under §§ 106 et seq. Besides §§ 106 et seq, sever ®Pecl c
provisions apply to minors with limited capacity to contract. § 8(2) provides a specific rule
regarding the establishment and termination of residence. Whether a minor can effectively
receive a declaration of intent1 is regulated by § 131(2). A minor with limited capacity to
contract is not excluded from acting as an agent on behalf of the principle but his liability for
unauthorised agency may be limited (§ 179(3)). Limitations of liability also apply with
regards to tort claims (§ 828(2), (3)) and agency without specific authorisation (§ 682). In
addition, different limitation periods apply (§ 210). Specific provisions also apply with
regards to marriage (§§ 1303, 1314 et seq.) and other questions of family law (§ 1411(1),
§ 1516(2), § 1596, § 1673(2), § 1781) and to inheritance law (§ 2201, §§ 2229, 2233, 2247(4),
§§ 2275, 2296(1) and § 2347(2)). §§ 52, 53 ZPO concern his capacity to make procedural
declarations in a court proceeding.
IL Incapacity
2 Despite the fact that a person enjoys limited capacity under § 106, incapacity may
nonetheless be inferred from § 104 No. 2 and § 105(2).
3
III. Further provisions
§ 107 provides for the general rule that a declaration of intent that is not exclusively legally
beneficial requires the consent of the minor’s legal representative. Pursuant to § 108(1),
su^equent ratification is also possible. The contract can, under certain conditions, be
revoked by the other party (§109(1)) However, different rules generally apply where the
anable o? male 7 (§ P’ St)’ Pursuant t0 § 52 ZPO a minor is not
capable of making a declaration in court proceedings except where these proceedings
concern the independent operation of the minor’s business nr proceeding
§§H2. 113. »th regard to which the “ S?" ’ *
performance was rendered to a minor as part of a legal tran^rf ° COntractinS- Where
minor owes restitution pursuant to §§ 812 et seq. 10n ^at 1S lnettective»
1 See -► Introduction to §§ 116-144 mn. 1-8,
128
Wais
Consent of legal representative
1-3 § 107
§107
Consent of legal representative
For a declaration of intent as a result of
which he does not receive only a legal benefit,
a minor requires the consent of his legal
representative.
§107
Einwilligung des
gesetzlichen Vertreters
Der Minderjährige bedarf zu einer Willens¬
erklärung, durch die er nicht lediglich einen
rechtlichen Vorteil erlangt, der Einwilligung
seines gesetzlichen Vertreters.
A. Explanation
L Declaration of intent
Pursuant to § 107, declarations of intent1 of a minor generally require the consent of his 1
legal representative in order to be effective. No such requirement exists where the legal
consequences of that declaration are purely legally beneficial to the minor. Declarations of
intent in the latter sense are effective without consent of the minor’s legal representative. This
does not mean, however, that the legal representative would be excluded from acting on
behalf of the minor in these cases.2 Despite the wording of § 107, no consent is further
required where the legal transaction, albeit not beneficial, is neutral - e. g. a minor entering
into a contract as an agent on behalf of the principal (§ 165).3
IL Legal benefit
In order to determine whether, within the meaning of § 107, the minor receives only a 2
legal benefit from his declaration of intent, one must examine the legal consequences of the
declaration of intent, not the economic consequences.4 A declaration of intent requires
consent if, as a legal consequence, the minor is under an obligation or loses a right, even if
from an economic point of view the advantages prevail. For example, the minor’s acceptance
of an offer to a sales contract that would afford him a significant profit would still require
consent of the legal representative since the contract would bind him to pay the agreed price.
Importantly however, transfer of ownership of the good to the minor under § 929 does not
require the representative’s consent.
IIL Obligations
As a general rule, consent to the minor’s declaration of intent will be required whenever the 3
minor enters into a contractual relationship of obligation except for the promise of a donation
(§ 516) in favour of the minor. The exception is due because by accepting the offer to be given
a donation no obligations are incurred by the minor. Further, it is argued that consent is
required when entering into a contractual relationship from which only ancillary obligations
pursuant to § 242 are derived.5 The same applies where the minor receives something for free
but upon the termination of the contract will be under an obligation to return a thing or refund
money, etc. For this reason the minor cannot even enter into a gratuitous loan agreement
(§ 598) without the consent of the legal representative. However, the mere risk that the minor,
should the legal transaction be void for other reasons, may be under an obligation to make
restitution pursuant to § 812 does not pose sufficient grounds for the requirement of consent
to apply, otherwise consent would in fact never be dispensable.
1 See -► Introduction to §§ 116-144 mn. 1-8.
2 Palandt BGB/Ellenberger, § 107 BGB mn. 1.
3 Staudinger BGB/Klumpp, § 107 BGB mn. 77; Jauernig BGB/Mansel, § 107 BGB mn. 6.
4 BGH 25.11.2004 - V ZB 13/04, NJW 2005, 415, 417.
5 Palandt BGB/Ellenberger, § 107 BGB mn. 2.
Wais
129
Division 3. Legal transactions
§ 107 4-8
4
5
IV. Loss
V a declaration of intent that results in
Further, the minor may not without consent ma e obligation, e.g. voidance
,h. Ioss of. r.ghi, »r .be >»ss of . - - « 323), « 355>'
(§§ 119, 123), termination, set-off (§§ 387, 3ööj,
V. Disposition
A legal transaction by which the mi no '^favour of’the mi^rX
declarafion'of’inten^^^ a8rees t0 the disPosition does not requife “nSent'
agrXg Ö becoming the new owner under § 929. However the acquistt.on of a shar m
a partnership requires consent because obligations are incurred« The minor may enter mto a
contract by virtue of which he is forgiven a debt (§ 397) without consent.
VI. Legal transactions
6 It follows from the above that under § 107 it is again important to distinguish between the
different legal transactions that are involved when a contract (constituting a contractual
relationship of obligations, e.g. a sales contract) is concluded and the obligations arising
thereunder are performed. For example, while the conclusion of a sales contract requires
consent of the legal representative, the declaration of intent by which the minor, pursuant to
§ 929, agrees that ownership of the good is transferred onto him does not, since the
acquisition of the right of ownership is purely beneficial. In contrast, the declaration of
intent by which the minor agrees to transfer ownership of the money onto the seller requires
consent of the legal representative because he would lose ownership of the money.
VII. Performance
7 A different question arises with regard to the effect of performance of the obligation to the
minor. As performance extinguishes the obligation (§ 362(1)), the minor would lose his
claim arising from the obligation of the other party. It is argued that the minor, for this
reason, may not accept performance without consent of the legal representative;7 as a result,
the minor acquires ownership of the bought good upon transfer but the seller’s obligation
under the sales contract (§ 433(2)) persists if the legal representative does not consent to the
performance.
8
VIII. Consent
The consent of the legal representative within the meaning nf 8 i nv , .
to .be legal .mnsac.lon (§ 1 S3). Howev„, consen, o be given f T” T"
the declaration ofta.en. of the minor ia made.- Censent I,"eh is a dZ , e "Z
in order to become effec.ive, must be received b, .he reXZl T'°? !
other party to the minor's legal transaction (§ 182(1». Pursumt
revocable until the legal transaction is entered into. The legal renrp S 83 1 ’ consent 1S
consent to the minor’s legal transactions in general but inP e®entatlve can 3150 g?ye his
protection for the minor it must be possible to concretisp th» °F ?° Prov*de sufficient
the legal representative provides the minor with money for SC°pe.of the consent.9 Where
consent to transactions for which the money would Veral use’ usually a general
y typically be used is implied, but
6 BGH 10.2.1977 - II ZR 120/75, NJW 1977, 1339, 1341
’ Palandt BGB/Ellenberger, § 107 BGB mn. 2; MüKo BGB/Srhm, .. „
Palandt BGB/Ellenberger, § 107 BGB mn. 8; Staudinger BCB/Ri*’ °7.BGB mn- 55-
MüKo BGB/Schmitt, § 107 BGB mn. 18; Jauernig BGB/Mansel §"107 BGB^ ^GB mn' ^7
130
Wais
Entry into a contract without consent
1-2 § 108
according to § 110 the contracts entered into will only become effective upon performance
owed by the minor. The minor does not have a right to the legal representative’s consent.
§108
Entry into a contract
without consent
(1) If the minor enters into a contract
without the necessary consent of the legal
representative, the effectiveness of the con¬
tract is subject to the ratification of the legal
representative.
(2) !If the other party requests the repre¬
sentative to declare his ratification, the de¬
claration can only be made to the other party;
a declaration or refusal of ratification made
to the minor before the request of the other
party is ineffective. 2The ratification may only
be declared before the expiry of two weeks
after receipt of the demand; if ratification is
not declared, it is considered to have been
refused.
(3) If the minor has become fully capable
of contracting, the ratification of the minor
takes the place of the ratification of the re¬
presentative.
§108
Vertragsschluss ohne Einwilligung
(1) Schließt der Minderjährige einen Ver¬
trag ohne die erforderliche Einwilligung des
gesetzlichen Vertreters, so hängt die Wirk¬
samkeit des Vertrags von der Genehmigung
des Vertreters ab.
(2) fordert der andere Teil den Vertreter
zur Erklärung über die Genehmigung auf, so
kann die Erklärung nur ihm gegenüber erfol¬
gen; eine vor der Aufforderung dem Minder¬
jährigen gegenüber erklärte Genehmigung
oder Verweigerung der Genehmigung wird
unwirksam. 2Die Genehmigung kann nur bis
zum Ablauf von zwei Wochen nach dem
Empfang der Aufforderung erklärt werden;
wird sie nicht erklärt, so gilt sie als verwei¬
gert.
(3) Ist der Minderjährige unbeschränkt ge¬
schäftsfähig geworden, so tritt seine Geneh¬
migung an die Stelle der Genehmigung des
Vertreters.
A. Function
It is important to note that under the BGB the term contract refers to any bilateral legal 1
transaction1 2 - i.e. legal transactions that consist of two declarations of intent. It comprises
not only contracts by which a relationship of obligations is established (e.g. a sales contract,
§ 433) but also contracts that constitute dispositions (e.g. the agreement to transfer owner¬
ship, § 929). It follows from the clear wording that § 108 generally is not applicable to
unilateral legal transactions.2
B. Explanation
I. Effect
A contract entered into without the required consent (§ 107) is ineffective pending 2
ratification - it is in a state of suspense (schwebend unwirksam): both the minor and the
other party are bound by the contract but cannot, for the time being, derive any rights from
it. Under § 109, however, the other party may revoke the contract prior to ratification. The
legal representative has no obligation toward the minor to ratify the contract. The state of
suspense ends when the legal representative either ratifies the contract or refuses the
ratification. If the contract is ratified, it is deemed to be effective ab initio (§ 184(1)). The
retroactive effect of ratification of a disposition does not render another disposition
ineffective that was made during the state of suspense (§ 184(2)).
1 See -* Introduction to §§ 116-144 mn. 1-8.
2 See though exceptions -*§111 mn. 2.
Wais
131
Division 3. Legal transactions
§ 109
II. Ratification
3 Ratification is a declaration of intent that, in order to be effective, must be received by the
receiving party. It is unilateral, i. e. their effectiveness does not depend on the consent of the
receiving party. It can be express or implied. Silence, however, does not generally constitute
ratification.3
1. Recipient
4 Further, ratification can be made toward the minor or the other party. Pursuant to Sub. 2
1st St., however, the other party may demand that the legal representative declares ratification
to him. As a legal consequence of that request, a ratification previously declared to the minor
becomes void - the state of suspense is thus restored. Importantly, if ratification is not declared
within two weeks after the request has been received by the legal representative, it is deemed to
have been refused (Sub. 2 2nd St.). Where the minor has gained full capacity to contract
(Sub. 3), the request under Sub. 1 1st St. must be made to him. It is generally assumed that
Sub. 2 does not, by way of analogy, apply to consent under § 107.4
2. Capacity
5 Pursuant to Sub. 3, the minor must himself ratify any contract that is ineffective pending
ratification under § 107. The contract does not become effective automatically upon the
minor’s 18th birthday. Sub. 3 excludes the legal representative’s right to ratify the contract
even in cases falling within Sub. 2.
3. Refusal
6 If the legal representative refuses ratification, the ineffectiveness of the contract becomes
final. Except for cases falling under Sub. 2 2nd St. which provides for constructive refusal, the
declaration of refusal is subject to the same requirements as ratification. Where ratification of
a contractual relationship of obligation is refused, both parties may be entitled to restitution
under § 812, if performance under the contract was rendered. Where ratification of a
disposition over ownership is refused, the transferor has not effectively transferred ownership
to the transferee and, as the owner, may claim restitution also under § 985.
4. Burden of proof
7 The party that seeks to rely on the effectiveness of the contract must prove ratification and,
where applicable, its timelines under Sub. 2 2nd St. The other party must prove a request
under Sub. 2 1st St. and the refusal.
§ 109
Right of revocation of the
other party
(1) 'Until the contract is ratified, the other
party is entitled to revoke it. declaration of
revocation may also be made to the minor.
§ 109
Widerrufsrecht des anderen Teils
(1) ’Bis zur Genehmigung des Vertrags ist
der andere Teil zum Widerruf berechtigt.
2Der Widerruf kann auch dem Minderjähri¬
gen gegenüber erklärt werden.
3 Palandt BGB/Ellenberger, § 108 BGB mn. 2; Staudinger BGB/Klumpp, § 108 BGB mn. 25; Jauernig
BGB/Mansel, § 108 BGB mn. 1.
< HK-BGB/Dörner, § 108 mn. 5.
132
Wais
Payment by minor with own means
i§no
(2) If the other party realised that he was
dealing with a minor, he may revoke the
contract only if the minor untruthfully stated
that the legal representative had given con¬
sent; he may not revoke in this case either if,
when the contract was entered into, he had
notice of the lack of consent.
(2) Hat der andere Teil die Minderjährigkeit
gekannt, so kann er nur widerrufen, wenn der
Minderjährige der Wahrheit zuwider die Ein¬
willigung des Vertreters behauptet hat; er
kann auch in diesem Falle nicht widerrufen,
wenn ihm das Fehlen der Einwilligung bei dem
Abschluss des Vertrags bekannt war.
A. Explanation
I. Right of revocation
A contract entered into by a minor without prior consent or subsequent ratification is 1
ineffective pending ratification. The contract is in a state of suspense. Both the minor and the
other party are bound by the contract but cannot, for the time being, demand performance.
Pursuant to Sub. 1, the other party may revoke the contract prior to ratification, affording
him the opportunity to end the uncertainty that stems from the state of suspense. The
revocation is a declaration of intent1 that in order to be effective must be received by the
receiving party. The recipient may be either the legal representative or the minor. The right
of revocation ceases to exist once the contract is ratified. Importantly, however, a request
under Sub. 2 does not exclude the right of revocation but rather restores that right where
ratification had previously been declared only to the minor.2
IL Preclusion
Pursuant to Sub. 2, the other party is precluded from revoking the contract if he knew that 2
he was contracting with a minor. Notwithstanding that knowledge, however, he may still
revoke the contract if the minor pretended that his legal representative consented to the
contract. The fact that the other party merely ought to have known of the minority does not
provide sufficient grounds for Sub. 2 to apply.
§110
Payment by minor with
own means
A contract entered into by the minor with¬
out the approval of the legal representative is
deemed effective from the beginning if the
minor effects performance under the contract
with means that were given to him for this
purpose or for free disposal by the legal
representative or by a third party with the
ratification of the representative.
§110
Bewirken der Leistung mit
eigenen Mitteln
Ein von dem Minderjährigen ohne Zustim¬
mung des gesetzlichen Vertreters geschlosse¬
ner Vertrag gilt als von Anfang an wirksam,
wenn der Minderjährige die vertragsmäßige
Leistung mit Mitteln bewirkt, die ihm zu
diesem Zweck oder zu freier Verfügung von
dem Vertreter oder mit dessen Zustimmung
von einem Dritten überlassen worden sind.
A. Function
I. Purpose
§ 110 modifies the rule set forth in § 107 with respect to a particular case: if the legal 1
representative provides the minor with means in order to afford him to acquire certain tilings
1 See -+ Introduction to §§ 116-144 mn. 1-8.
2 Palandt BGB/Ellenberger, § 109 BGB mn. 3; MüKo BGB/Schmitt, § 109 BGB mn. 9.
Wais
133
2
c 111 Division 3. Legal transactions
8 . implied consent to contracts
or things at his free disposal, this conduct constitu es without express
concluded for this purpose (for this reason it is gJ . under §§ 107, 182. However,
approval1). Normally, these contracts would be ette condition that the obligations
§110 adds that the implied consent is only given
incurred by the minor are already performed.
II. Scope of application
§ does „« Wly iee.l
such a condition. Besides the hmits drawn by t pf to the (presumed) intention
consent does not comprise legal transactions that Wprovidedto the minor not by
of the representative.3 § 110 also applies if the means that.werep
the legal representative but - with his consent - by a third party. Generally, to a larg > extent,
the scope of application of § 110 depends on the interpretation of the declaration or conduct
of the representative.
B. Explanation
L Own means
3 The term own means within the meaning of § 110 comprises (typically) pocket money;
arguably, it also comprises the employed minors salary, but only to the extent that the legal
representative left it at the minor’s own disposal.4 5
II. Legal consequences
4 Where performance is effected under § 110, the contract concluded by the minor becomes
effective and also - where applicable - dispositions made in order to effect the performance;3
e.g. under § 110 both the sales contract (§ 433) as well as contract by which the parties
agreed on the transfer of ownership (§ 929) are effective. As long as performance is not
effected, the other party may revoke the contract by way of analogous application of § 109.
III. Burden of proof
5 The burden of proof lies with the party who seeks to rely on the effectiveness of the
contract under § 110.
§111
Unilateral legal transactions
unilateral legal transaction that a minor
undertakes without the necessary consent of
the legal representative is ineffective. 2If the
minor undertakes such a legal transaction
with regard to another person with this con¬
sent, the legal transaction is ineffective if the
minor does not present the consent in writing
and the other person rejects the legal transac-
§111
Einseitige Rechtsgeschäfte
lEin einseitiges Rechtsgeschäft, das der Min¬
erjährige ohne die erforderliche Einwilligung
es gesetzlichen Vertreters vornimmt, ist un-
wir sam. Nimmt der Minderjährige mit dieser
inw igung ein solches Rechtsgeschäft einem
an 8e8eniiber vor, so ist das Rechts-
dipCR* y”wir*csam» wenn der Minderjährige
ln *gung nicht in schriftlicher Form
1 Palandt BGB/Ellenberger, § 110 BGB mn. 1.
2 See -► Introduction to §§ 116-144 mn. 1-8.
3 MüKo BGB/Schmitt, § 110 BGB mn. 27.
4 MuKo BGB/Schmitt, § 110 BGB mn. 21.
5 Palandt BGB/Ellenberger, § 110 BGB mn. 4.
134
Wais
Unilateral legal transactions
1-4 § 111
tion for this reason without undue delay.
Rejection is not possible if the representative
had given the other person notice of the
consent.
vorlegt und der andere das Rechtsgeschäft aus
diesem Grunde unverzüglich zurückweist. 3Die
Zurückweisung ist ausgeschlossen, wenn der
Vertreter den anderen von der Einwilligung in
Kenntnis gesetzt hatte.
A. Function
In contrast to bilateral legal transactions, unilateral legal transactions1 generally cannot be 1
undertaken by the minor without prior consent of the legal representative (1st St.). The
purpose of this provision is to protect others from the uncertainty that is implied where
ratification is possible. The 1st St. applies to declarations of intent that, in order to become
effective, require receipt by the receiving party (e.g. declaration of withdrawal), as well as to
those that do not require receipt (e.g. the declaration of abandonment of ownership, § 959).
Despite the fact that the legal representative has in fact given his consent to the unilateral
legal transaction, the transaction may nonetheless be ineffective (2nd St.). This may be the
case if the receiving party is not presented with the consent in writing (§ 126) and for that
reason rejects the legal transaction without undue delay. Importantly, the 2nd St. only applies
to such declarations of intent that are to be made to another person, i.e. that require a
recipient.
B. Explanation
I. Exceptions
Exceptions are due with regard to such declarations of intent that must be received in 2
order to become effective: whilst ineffectiveness is the general rule under § 111, ratification
pursuant to §§ 108, 109 is considered possible if the receiving party does not object to the
fact that the unilateral legal transaction is conducted without prior consent.2
IL Rejection
Rejection is not possible if the representative informed the receiving party of the existing 3
consent (3rd St.). The rejection may be declared to the representative or the minor. However, it
must become apparent from the rejection that the transaction is rejected for the lack of form.3
III. Burden of proof
The party who seeks to rely on the effectiveness of the legal transaction must prove the 4
legal representative’s consent; it is for the other party to prove that the transaction was
rejected in due time. The party relying on the effectiveness must prove that consent was
presented in the required form.4
1 See -► Introduction to §§ 116-144 mn. 1-2.
2 BGH 9.3.1990 - V ZR 244/88, NJW 1990, 1721, 1723.
3 Palandt BGB/Ellenberger, § 111 BGB mn. 5; Staudinger BGB/Klumpp, § 111 BGB mn. 31.
4 MüKo BGB/Schmitt, § 111 BGB mn. 21; Staudinger BGB/Klumpp, § 111 BGB mn. 36.
Wais
135
§ 112 1-4
Division 3. Legal transactions
§112
Independent operation of a trade
or business
(1) 'If the legal representative, with the
ratification of the family court, authorises
the minor to operate a trade or business
independently, the minor has unlimited capa¬
city to contract for such transactions as the
business operations entail. 1 2Legal transac¬
tions are excluded for which the representa¬
tive needs the ratification of the family court.
(2) The authorisation may be revoked by
the legal representative only with the ratifica¬
tion of the family court.
§112
Selbständiger Betrieb eines
Erwerbsgeschäfts
(1) 'Ermächtigt der gesetzliche Vertreter
mit Genehmigung des Familiengerichts den
Minderjährigen zum selbständigen Betrieb
eines Erwerbsgeschäfts, so ist der Minderjäh¬
rige für solche Rechtsgeschäfte unbeschränkt
geschäftsfähig, welche der Geschäftsbetrieb
mit sich bringt. Ausgenommen sind Rechts¬
geschäfte, zu denen der Vertreter der Geneh¬
migung des Familiengerichts bedarf.
(2) Die Ermächtigung kann von dem Ver¬
treter nur mit Genehmigung des Familien¬
gerichts zurückgenommen werden.
A. Function
1 § 112 serves to extend the capacity to contract of a minor who, with the authorisation of
his legal representative, operates his own business.
B. Explanation
I. Trade or business
2 The expression trade or business under Sub. 1 1st St. comprises any type of self-employed
professional activity for profit that is not illegal; artistic and scientific activities are not excluded.1
II. Scope of capacity
3 The capacity to contract under § 112 extends to all legal transactions2 that are related to the
operation of the minor’s business. It comprises also the capacity to be party to court proceedings
pursuant to § 52 ZPO. Whether a transaction is related must be determined with regard to the
specific business. The mere fact that a transaction is related to a certain type of business in
general is not decisive.3 § 112 comprises not only transactions that are typically related to the
business but also transactions that are an exception, rather than the rule.4 The extension of the
minor’s capacity to contract is, however, limited by Sub. 1 2nd St. (see in this regard §§ 1643 et
seq. and §§ 1821 et seq.). Any transaction falling outside the scope of § 112 is subject to § 107.
III. Authorisation
4 Authorisation, as well as its revocation, consists of a declaration of intent that requires to
be received by the minor. Both are only effective if ratified by the family court. Authorisation
under Sub. 1 does not have retroactive effect. Legal transactions falling under § 112 that were
undertaken prior to authorisation may, however, be ratified by the minor by way of
analogous application of § 108(3).5 Importantly, if, and to the extent that § 112 is applicable,
the legal representative cannot act on behalf the minor.
1 HK-BGB/Dörner, § 112 BGB mn. 2; MüKo BGB/Schmitt, § 112 BGB mn. 6.
2 See -► Introduction to §§ 116-144 mn. 1-8.
3 Palandt BGB/Ellcnberger, § 112 BGB mn. 4.
4 BGH 4.2.1982 - IX ZR 96/80, NJW 1982, 1810, 1811.
5 MüKo BGB/Schmitt, § 112 BGB mn. 14.
136
Wais
Service or employment relationship
1-2 § 113
§113
Service or employment
relationship
(1) lIf the legal representative authorises
the minor to enter service or employment,
the minor has unlimited capacity to enter
into transactions that relate to entering or
leaving service or employment of the per¬
mitted nature or performing the duties aris¬
ing from such a relationship. 2Contracts are
excluded for which the legal representative
needs the ratification of the family court.
(2) The authorisation may be revoked or
restricted by the legal representative.
(3) lIf the legal representative is a guar¬
dian, the authorisation, if he refuses it, may,
on the application of the minor, be replaced
by the family court. 2The family court must
give substitute authorisation if it is in the
interest of the ward.
(4) The authorisation given for an indivi¬
dual case is in the case of doubt deemed to be
general authorisation to enter into relation¬
ships of the same kind.
§113
Dienst- oder Arbeitsverhältnis
(1) Ermächtigt der gesetzliche Vertreter
den Minderjährigen, in Dienst oder in Arbeit
zu treten, so ist der Minderjährige für solche
Rechtsgeschäfte unbeschränkt geschäftsfähig,
welche die Eingehung oder Aufhebung eines
Dienst- oder Arbeitsverhältnisses der gestat¬
teten Art oder die Erfüllung der sich aus
einem solchen Verhältnis ergebenden Ver¬
pflichtungen betreffen. Ausgenommen sind
Verträge, zu denen der Vertreter der Geneh¬
migung des Familiengerichts bedarf.
(2) Die Ermächtigung kann von dem Ver¬
treter zurückgenommen oder eingeschränkt
werden.
(3) !Ist der gesetzliche Vertreter ein Vor¬
mund, so kann die Ermächtigung, wenn sie
von ihm verweigert wird, auf Antrag des
Minderjährigen durch das Familiengericht er¬
setzt werden. 2Das Familiengericht hat die
Ermächtigung zu ersetzen, wenn sie im Inte¬
resse des Mündels liegt.
(4) Die für einen einzelnen Fall erteilte
Ermächtigung gilt im Zweifel als allgemeine
Ermächtigung zur Eingehung von Verhältnis¬
sen derselben Art.
A. Function
§ 113 serves to extend the capacity to contract of a minor who is authorised by his legal 1
representative to enter into employment. In contrast to § 112(1), Sub. 1 does not require
ratification by the family court. An implied authorisation is possible. Pursuant to Sub. 2, the
legal representative may also revoke or restrict the authorisation. Authorisation, as well as its
revocation or restriction, consists of a declaration of intent1 that must be received by the
minor in order to be effective.
B. Explanation
I. Service or employment
§ 113 only concerns the authorisation to enter into service or employment. These terms must 2
be given a broad meaning. A contract by which the minor incurs the obligation to work as a
self-employed commercial agent for the principal will fall under Sub. 1. In this case, both § 112
and § 113 apply.2 § 113 does not apply to training contracts and apprenticeship contracts.3
1 See -► Introduction to §§ 116—144 mn. 1-8.
2 BAG 20.4.1964 - 5 AZR 278/63, NJW 1964, 1641, 1642.
3 Palandt BGB/Ellenberger, § 113 BGB mn. 2; Staudinger BGB/Klumpp, § 113 BGB mn. 15.
Wais
137
§§ 114 and 115 1-2 Division 3. Legal transactions
II. Scope of capacity
nl comprises legal transactions that
3 The capacity to contract provided under Sub. ony Hrformance of the obligations
relate to the entry or exit of service or emPloy™ terminate such contracts, sign non¬
arising thereunder. The minor can e.g. conc‘u, t receive his salary. However, the
compete clauses, agree to a settlement, open a transactions that are uncommon
capacity to contract under Sub. 1 does not extend to legal trans
and put the minor at a disadvantage.4
III. Guardian
4
Sub. 3 uoucurn, c.s« «her, ,he legal repr.se„Mlvu of the m.nor is norJ»“]
but his guardian. If the guardian refuses to authorise the minor the authorisation required
under Sub. 1 may be substituted with an authorisation by the fam’ y court pursuan
Importantly, the parent’s authorisation cannot be substituted.
§§ 114 and 115
(repealed)
Title 2
Declaration of intent
§§ 114 und 115
(weggefallen)
Titel 2
Willenserklärung
Introduction to §§ 116-144
1
2
Under the BGB, all legal acts by which a party, or the parties, can create certain legal
consequences by virtue of their free will are referred to as legal transactions
(Rechtsgeschäfte). For example, the conclusion of a sales contract, the agreement by which a
mortgage is created, the agreement on the transfer of ownership, the authorisation of an
agent, the termination of a lease contract, the voidance of a declaration of intent, etc. are all
referred to as a legal transaction. In terms of terminology, the only difference the law makes
is whether the transaction is unilateral,* 1 i. e. its effectiveness only depending on the intention
and actions of the declaring party, or bilateral, i. e. involving an agreement. Termination, for
example, is thus a unilateral legal transaction, as is the declaration of avoidance under § 143;
withdrawal under § 355; the offer of an award to the public pursuant to § 657 or the
abandonment of ownership under § 959. On the other hand, the conclusion of a contract is
a bilateral legal transaction. Further, bilateral legal transactions are generally referred to as a
contract (Vertrag), irrespective of whether they create obligations, e.g. a sales contract (§ 433)
or not, e. g. the agreement on the transfer of property (§§ 873, 925 or § 929)
In the eyes of the legislator, the common constituent element of every legal transaction is
that a certain intention is outwardly expressed. A unilateral legal transaction requires merely
one such expression of a certain intention, a bilateral legal transaction on the other hand
requires two that form the agreement. That outward expression of a certain intention - be it to
cancel a lease or to conclude a sales contract - is called a declaration of intent (Wil¬
lenserklärung). Importantly, the meamng of the term declaration of intent in the BGB denates
significantly from its meaning in non-technical language where it may be perceived rather to
refer to some statement of what a person hopes to do or achieve without bemg legally biding.
4 Palandt BGB/Ellenberger, § 113 BGB mn. 4; MüKo BGB/Schmitt S 11 Dro
1 See in particular 111, 143, 174, 180. ‘ $ 3 "GB mn. 22.
138
Wais
Introduction to §§ 116-144
3-7 §§ 116-144
Given that the declaration of intent is the cornerstone of all legal transactions in private 3
law» the legislator stipulated general rules regarding said declaration and the legal transaction
so formed, which hold true irrespective of the concrete legal field or transaction. This rather
universal approach necessitates the use of very abstract terms: one cannot simply speak of
offer and acceptance (instead of declaration of intent), because these terms seem unfit for
unilateral legal transactions, e.g. the cancellation of a lease. For the same reason, the term
promise would prove unfit for use for it might connote incurring a liability in some way
which, however, is not involved where the legal transaction constitutes a disposition, e. g. the
transfer of ownership under § 929.
Further, as the person making a declaration of intent will not always be an offeror, 4
acceptor, or even a promisor, again, a more abstract term is required. The German term
used to refer to the person that is making a declaration of intent is der Erklärende which best
translates to declaring party in English.
It follows from this general and all-comprising approach that two types of declaration of 5
intent exist under German private law. The first category comprises declarations of intent
underlying bilateral legal transactions as well as those unilateral legal transactions that have
immediate legal effects for someone else. These declarations of intent will only become effective
upon receipt by the intended receiving party and are thus referred to as declarations of intent
requiring receipt (empfangsbedürftige Willenserklärungen). Again, the termination of a lease
or offer and acceptance of a sales contract may serve as examples. The second category
comprises unilateral legal transactions that have no immediate legal effects on others, such as
the abandonment of ownership pursuant to § 959. For these declarations of intent to become
effective, receipt by a receiving party is not required. They are thus referred to as declarations
of intent not requiring receipt (nicht empfangsbedürftige Willenserklärungen).
The elements of a declaration of intent are objective and subjective in nature. The 6
objective element requires a certain human behaviour by which the declaring party expresses
his intention to create certain legal effects. This first criteria is purely objective; whether or
not it is fulfilled is a matter of interpretation pursuant to §§ 133, 157.2 Secondly, there are
several subjective elements: the intention to act (Handlungswille), the awareness of the legal
relevance (Eklärungsbewusstsein), and the intention to create certain legal consequences
(Rechtsfolgewille).3 The intention to act requires that the declaring party acts consciously
and wilfully. No intention to act can be established, e.g., where a third person forcefully
raises the hand of the declaring party at an auction, thereby creating the impression that an
offer was made. Awareness of legal relevance requires that the declaring party knows that the
law attaches legal significance to his act. A person may lack the awareness of legal relevance
e.g. where he waves at an auction to greet a friend, thereby objectively making a bid. The
intention to create certain legal consequences is defective where the objective content of the
declaration does not reflect the subjective intention with regard to a certain legal conse¬
quence, e.g. a person wants to offer to pay 15 but mistakenly offers 50.
Not all of these subjective elements are however indispensable. In fact, only the intention 7
to act is an entirely indispensable subjective element of a declaration of intent. The awareness
of legal significance on the other hand is only indispensable where the declaring party is
unculpably unaware of the fact that his acting may objectively be interpreted as a declaration
of intent. If the unawareness is due to negligence, the courts consider the declaration of
intent to be effective.4 The intention to create certain legal consequences is dispensable. A
declaration of intent that lacks dispensable subjective elements is effective. It may however be
may be avoided under the conditions set forth in §§ 119, 123.5
2 See -► § 133 mn. 1.
3 MüKo BGB/Armbrüster, Vorbemerkung vor § 116 BGB mn. 20-30; Jauernig BGB/Mansel, Vorbe¬
merkungen vor § 116 BGB mn. 4-6.
4 BGH 3.3.1956 - IV ZR 314/55, NJW 1956, 869.
5 See —>§119 mn. 2 et seq.; § 123 mn. 4 et seq.
Wais
139
§ 116 1-3 Division 3. Legal transactions
8 Acts similar to legal transactions (geschäftsähnliche Handlungen): not all acts of legal
relevance are (unilateral) legal transactions or form part of a (bilateral) legal transaction. In
several situations, the immediate effects of a declaration may be only factual in nature; e.g. a
warning notice (§ 286(1)), setting a deadline (§§ 281(1), 323(1), issuing an invoice (§ 286(3)),
requests for ratification (§§ 108(2), 177(2)), for damages (§ 286(4)), refusal (e.g. §179(1)),
notifications (e.g. §§ 149(1), 171, 409(1)). However, since the law attributes legal consequences
to these acts, they are, for the most part, treated as if they were legal transactions. The majority
of the provisions that deal with the requirements and effects of legal transactions are applicable,
in particular §§ 104 et seq., §§ 116 et seq., §§ 130 et seq., §§ 133, 157; §§ 164 et seq., and §§ 182
et seq., unless the interests involved and the specifics of the individual case suggest otherwise.6
§116
Mental reservation
’A declaration of intent is not void by
virtue of the fact that the person declaring
has made a mental reservation that he does
not want the declaration made. 2The declara¬
tion is void if it is to be made to another
person who knows of the reservation.
§116
Geheimer Vorbehalt
’Eine Willenserklärung ist nicht deshalb
nichtig, weil sich der Erklärende insgeheim
vorbehält, das Erklärte nicht zu wollen. 2Die
Erklärung ist nichtig, wenn sie einem anderen
gegenüber abzugeben ist und dieser den Vor¬
behalt kennt.
A. Function
I. Purpose
1 The law deems irrelevant a person’s mental reservation with regard to his declaration of
intent save for the case that the receiving party knows of that mental reservation. The
receiving party in the latter case does not require protection and the declaration is hence
regarded as void.
IL Scope of application
2 The 1st St. applies to all declarations of intent, i.e. both implied and express, to
declarations that are only valid if received by a receiving party and those which do not
require receipt. Acts that technically do not qualify as declaration of intent but have similar
effects (geschäftsähnliche Handlungen)' may also fall under the 1st St.2 The 2nd St., on the
other hand, only applies to declarations of intent that must be received by a receiving party.
B. Explanation
I. Mental reservation
3 It follows from the German term geheimer Vorbehalt, but not necessarily so from the English
translation mental reservation, that the 1st St. only applies where the mental reservation is
secretly made. It is sufficient if the secrecy of the reservation exists only in relation to the
person for whom the declaration is intended, which is usually, but not necessarily, the receiving
party. Further, the requirement of secrecy sets apart § 116 from § 118. The latter provision
only applies where the declaring person assumes that the receiving party of his declaration will
recognise the lack of seriousness, whereas under § 116 the person making the declaration of
intent does not want the receiving party to know of his diverging actual intent.
6 Palandt BGB/Ellenberger, Überblick vor § 104 mn. 6-7.
1 See -* Introduction to §§ 116-144 mn. 8.
2 HK-BGB/Dörner, § 116 BGB mn. 2; MüKo BGB/Armbrüster, § 116 BGB mn. 2.
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140
Sham transaction
1-2 § 117
IL Legal consequence
The 2nd St. stipulates that a declaration is void where the receiving party knows that the 4
person making the declaration does not actually mean what he objectively declares. A
different provision applies where neither the person making the declaration nor the receiving
party want it to have effect; this situation is governed by § 117. Further, § 123 - not § 116 -
applies if the mental reservation stems from the fact that a person is forced or put under
threat to make the declaration of intent. In this case, the declaration is voidable pursuant to
§§ 142, 123.
III. Burden of proof
The burden of proof lies with the person invoking § 116; i. e. the party who argues that the 5
declaration of intent is void must prove the mental reservation and the receiving party’s
knowledge thereof.
§117
Sham transaction
(1) If a declaration of intent that is to be
made to another person is, with his consent,
only made for the sake of appearance, it is
void.
(2) If a sham transaction hides another
legal transaction, the provisions applicable to
the hidden transaction apply.
§117
Scheingeschäft
(1) Wird eine Willenserklärung, die einem
anderen gegenüber abzugeben ist, mit dessen
Einverständnis nur zum Schein abgegeben, so
ist sie nichtig.
(2) Wird durch ein Scheingeschäft ein an¬
deres Rechtsgeschäft verdeckt, so finden die
für das verdeckte Rechtsgeschäft geltenden
Vorschriften Anwendung.
A. Function
I. Purpose
The law may consider effective a declaration of intent1 which lacks a corresponding 1
underlying of the declaring party if the protection of others who may rely on its effectiveness
so requires. Where the lack of intention is known and the declaration of intent not taken to
be effective, there is no reason for the law to intervene. Sub. 1 thus regards these transactions
as ineffective. Third parties with an interest in the effectiveness of the agreement are
protected primarily by §§ 171, 409, 892, 932 et seq., which, for the most part, concern
dispositions over real rights.
IL Scope of application
As is pointed out by the phrase be made to another person, Sub. 1 only applies to 2
declarations of intent that in order to be effective must be received by a receiving party
(empfangsbedürftige Willenserklärungen). Marriages concluded in pretence do not fall under
§117 but are dealt with by the specific provisions of §§ 1314(2) No. 5 and 1353(1). In
contrast to § 116, the provision of Sub. 1 only applies where the parties mutually agree that
the declaration of intent should be made in pretence only, i.e. that it should not have the
effects which it would normally entail.2
1 See Introduction to §§ 116-144 mn. 1-8.
2 BGH 24.1.1980 - HI ZR 169/78, NJW 1980, 1572, 1573.
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141
§ 117 3-7
Division 3. Legal transactions
B. Explanation
I. Lack of intention
3 The distinctive feature of the sham transaction is the lack of intention to be legally bound
by the declaration of intent. Where the declaration of intent is made to several receiving
parties, all must have consented to its ineffectiveness.3
IL Objective
4 Where the objective pursued by the transaction requires that the contract be effective,
there is no room for a sham transaction.4 Therefore, it does not per se follow from the
unusual composition of a contract alone that it is a sham transaction falling under Sub. 1.
Transactions that are aimed at avoiding certain legal effects generally do not qualify as a
sham but may be void for other reasons, e.g. illegality (§ 134).5
5 A contract that is entered into by one party solely for the benefit of someone else who, for
whatever reason, does not want to appear as a contracting party, is not a sham transaction,
even if the other party is aware of the person pulling the strings behind the scenes. It may
only be regarded a sham transaction where no binding effect between the contracting parties
is intended.6
III. Hidden legal transaction
6 Pursuant to Sub. 2, an agreement which the parties impliedly made by entering into the
sham transaction is not ineffective for the sole reason that it is the by-product of that sham
transaction. However, depending on the specific nature of the sham transaction, it may still
be void for illegality under § 134 or for being contrary to public policy pursuant to § 138. The
implied - or hidden - legal transaction may further be ineffective for lack of form (§ 125) or
other requirements. The standard case falling under Sub. 2 is where the parties conclude, and
have notarially recorded, a sales contract over a plot of land which provides for a lower sales
price than actually agreed. Pursuant to Sub. 1, the recorded contract is ineffective for being a
sham transaction, whilst the implied agreement on the higher price is ineffective for lack of
notarial recording pursuant to §§ 125, 31 lb(l) 1st St.7
IV. Burden of proof
7 The party relying on the ineffectiveness of the sham transaction under Sub. 1 must prove
that the parties consented on the declarations being made in pretence only.8 The party
invoking Sub. 2 must prove that the parties in fact entered into a different agreement which
was covered by the sham transaction.
3 Palandt BGB/Ellenberger, § 117 BGB mn. 3; Staudinger BGB/Singer, § 117 BGB mn. 8.
4 BGH 5.7.1993 - II ZR 114/92, NJW 1993, 2609, 2610.
5 HK-BGB/Dörner, § 117 BGB mn. 4.
6 Palandt BGB/Ellenberger, § 117 BGB mn. 6.
7 HK-BGB/Dörner, § 117 BGB mn. 7.
8 BGH 9.7.1999 - V ZR 12-98, NJW 1999, 3481, 3482.
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142
Voidability for mistake
§119
§118
Lack of seriousness
A declaration of intent not seriously in¬
tended which is made in the expectation that
its lack of serious intention will not be mis¬
understood is void.
§118
Mangel der Ernstlichkeit
Eine nicht ernstlich gemeinte Willenserklä¬
rung, die in der Erwartung abgegeben wird,
der Mangel der Ernstlichkeit werde nicht ver¬
kannt werden, ist nichtig.
§ 118 applies where a person does not mean what he says and concurrently assumes that 1
the receiving party of his declaration of intent1 will recognise the lack of seriousness. This is
the case where a person either makes a joke with good intentions or believes to enter into a
sham transaction under § 117 while failing to realise that the other person takes the
declaration seriously. From the perspective of the law, the only decisive element is the
expectation of the person making the declaration. The perception of the other person is
irrelevant. Accordingly, it is also entirely irrelevant whether the lack of seriousness was
recognisable by the other person.2 The declaring person may be held liable (§ 122(1)) unless
the receiving party ought to have recognised the lack of seriousness (§ 122(2)).3 However,
where it is obvious to the person making the declaration that it is taken seriously by the other
person, he is required to disclose the lack of seriousness. Failure to disclose will preempt him
from relying on § 118 and the declaration is regarded to be valid.4
§119
Voidability for mistake
(1) A person who, when making a declara¬
tion of intent, was mistaken about its con¬
tents or had no intention whatsoever of mak¬
ing a declaration with this content, may avoid
the declaration if it is to be assumed that he
would not have made the declaration with
knowledge of the factual position and with a
sensible understanding of the case.
(2) A mistake about such characteristics of
a person or a thing as are customarily re¬
garded as essential is also regarded as a mis¬
take about the content of the declaration.
§119
Anfechtbarkeit wegen Irrtums
(1) Wer bei der Abgabe einer Willenserklä¬
rung über deren Inhalt im Irrtum war oder
eine Erklärung dieses Inhalts überhaupt nicht
abgeben wollte, kann die Erklärung anfech¬
ten, wenn anzunehmen ist, dass er sie bei
Kenntnis der Sachlage und bei verständiger
Würdigung des Falles nicht abgegeben haben
würde.
(2) Als Irrtum über den Inhalt der Erklä¬
rung gilt auch der Irrtum über solche Eigen¬
schaften der Person oder der Sache, die im
Verkehr als wesentlich angesehen werden.
Contents
mn.
A. Function 1
B. Explanation 2
I. Requirements 2
II. Mistake as to contents 3
III. Miscalculation 4
IV. Mistake in declaration 5
V. Mistake as to legal relevance 6
VI. Mistake as to essential characteristics 7
1. Characteristics 8
1 See Introduction to §§ 116-144 mn. 1-8.
2 MüKo BGB/Armbrüster, § 118 BGB mn. 6; Jauernig BGB/Mansel, § 118 BGB mn. 2.
3 HK BGB/Dörner, § 118 BGB mn. 4.
4 Palandt BGB/Ellenberger, § 118 BGB mn. 2; MüKo BGB/Armbrüster, § 118 BGB mn. 10.
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143
§ 119 1-3
Division 3. Legal transactions
2. Essential 9
3. Person
4. Thing 1 *
VII. Causation
VIII. Legal consequences
A. Function
1 § 119 regulates the conditions under which a declaration of intent1 is voidable for mistake.
The provision applies to both declaration of intent and to actions that are similar to
declarations of intent (geschäftsähnliche Handlungen2).
B. Explanation
I. Requirements
2 A mistake within the meaning of § 119 is generally understood to refer to a discrepancy
between the intention and the declaration.3 The mistake must be made unknowingly,4 but it
is not required that the mistake be made inculpably. Hence, § 119 may also apply to a
mistake that was due to gross negligence. Both the intention and the objective content of the
declaration must be examined in order to establish such discrepancy. The content and
meaning of a declaration of intent is determined from the perspective of an objective third
party by asking how that person, were he in the position of the receiving party, ought to
understand the declaration in question. It is not a requirement of § 119 that the mistake be
recognisable to the receiving party of the declaration of intent. In this regard, § 119 differs
significantly from rules in other jurisdictions that govern mistake as they often require the
mistake to be recognisable. Reference must be made to both the principle of good faith and
the customs of the relevant branch of business (§§ 133, 157).5 Where a declaration of intent
is to be construed as having a different meaning than what is intended by the person making
that declaration, a mistake is established. However, not every mistake falls under § 119. It is
only under specific conditions that the person who made a declaration not objectively
reflecting his true intention is given the right to void the declaration. Pursuant to § 119, a
declaration of intent can be voided only where the person making the declaration erred with
regards to either the meaning of the declaration (Sub. 1 1st Alt.), the action that constitutes
the declaration (Sub. 1 2nd Alt.), or the essential qualities or characteristics of a person or the
object of contract (Sub. 2). Further, an error in the transmission of the declaration will
provide the same grounds for avoidance (§ 120). Other mistakes, in particular concerning the
motivation underlying the declaration of intent, do not render the declaration voidable.
IL Mistake as to contents
3 A mistake under Sub. 1 1st Alt. arises where the person making the declaration is aware of
what he says but is unaware of what this means objectively. The mistake happens during the
formation of his intention. He uses the signal he ultimately wanted to use, but the signal does
not reflect his initial intention. Such a mistake may be established where an incorrect word or
sign is used, e.g. where an art dealer sells Work #2 from his catalogue, mistakenly assuming
that #2 depicts work X whilst work X is in fact pictured as #3. Other examples of a mistake
1 See -► Introduction to 116-144 mn. 1-8.
2 See -> Introduction to 116-144 mn. 8.
3 HK-BGB/Dörner, § 119 BGB mn. 4; Jauernig BGB/Mansel, § 119 BGB mn 1
4 BGH 15.6.1951 - I ZR 121/50, NJW 1951, 705.
5 See -> § 133 mn. 5-9.
144
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Voidability for mistake 4-5 § 119
within the meaning of Sub. 1 1st Alt. may include mistakenly confusing seller A with seller B
and contracting with B;6 where a customer who wants insured shipping (standard plus) buys
standard shipping which, in the company’s terms, is uninsured shipping; where a client
mandates a lawyer bearing the same name as the lawyer he actually wanted to mandate, or
where a janitor orders 25 gross of toilet paper rolls (3,600 rolls) assuming that 25 gross means
25 big rolls.7 Sub. 1 1st Alt. may also apply to mistakes that pertain to the legal consequences
of a transaction. However, it has been held that the actual legal consequences must deviate
significantly from the expected consequences.8 Where the unwanted legal consequences do
not replace but merely add to the desired consequences, Sub. 1 1st Alt. has been held
inapplicable.9 It may be difficult in the individual case to establish whether a deviation from
the intended legal consequences is essential. For instance, the BGH found for mistake where
a party was not aware that a previous agreement between the parties would be altered
significantly when entering into a new contract.10 On the other hand, a mistake within the
meaning of Sub. 1 1st Alt. was denied where a landlord was unaware of the strict liability
under § 53611 or where a seller mistakenly assumed he had an unconditional right to revoke
the sales contract.12
III. Miscalculation
Uncertainty surrounds the question of whether a miscalculation may qualify as a mistake 4
under Sub. 1 1st Alt. It is generally accepted that a calculation that has not been disclosed to the
other party does not qualify as mistake. The courts consider an undisclosed miscalculation
irrelevant for it merely concerns the motives of the declaration of intent.13 Where the
calculation itself was disclosed, the RG took the view that in this case a mistake within the
meaning of Sub. 1 1st Alt. may be established.14 This view of the RG was heavily criticised in
academic literature where it is generally held that both a disclosed and an undisclosed
miscalculation are irrelevant mistakes and do not fall under § 119.15 As this suggests, in cases
of disclosed miscalculation, determination of what the parties agreed on must be made by way
of interpretation pursuant to §§ 133, 157. Where it cannot be concluded that the parties wanted
to contract on the same terms, the contract may be void for lack of agreement on essential
elements of the contract. In some cases, the courts may even resort to the principle of good faith
(§ 242) barring the other party from relying on the lack of agreement.16
IV. Mistake in declaration
A mistake under Sub. 1 2nd Alt., on the other hand, may be established where a person 5
mistakenly uses a different signal than what he had ultimately decided. Typically, the person
would say something that he, even in that moment, did not want to say. For example, where
a buyer wants to buy 19 units of X but mistakenly says or writes 91, this mistake falls under
Sub. 1 2nd Alt. The BGH has held that Sub. 1 2nd Alt. would also apply where, due to a
software bug, the prices for a product are stated incorrectly on an automated selling platform
6 Palandt BGB/Ellenberger, § 119 BGB mn. 11; MüKo BGB/Armbrüster, § 119 BGB mn. 76.
7 LG Hanau 30.6.1978 - 1 O 175/78, NJW 1979, 721.
8 Palandt BGB/Ellenberger, § 119 BGB mn. 15.
9 BGH 29.6.2016 - IV ZR 387/15, NJW 2016, 2955, 2956; BGH 8.5.2008 - VII ZR 106/07, JW 2008,
2427.
10 BGH 5.4.1973 - II ZR 45/71, NJW 1973, 1278.
11 OLG Karlsruhe 6.5.1988 - 14 U 269/85, NJW 1989, 907, 908.
12 BGH 10.7.2002 - VIII ZR 199/01, NJW 2002, 3100, 3103.
13 BGH 28.2.2002 - I ZR 318/99, NJW 2002, 2312.
14 RG 9.11.1906 - Il 173/06, RGZ 64, 266, 268; RG 22.12.1905 - Rep. II. 395/05, RGZ 62, 201.
15 See HK-BGB/Dörner, § 119 BGB mn. 14; Palandt BGB/Ellenberger, § 119 BGB mn. 19; Jauernig
BGB/Mansel, § 119 BGB mn. 10.
16 See Palandt BGB/Ellenberger, § 119 BGB mn. 21.
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145
§ 119 6-10 Division 3. Legal transactions
and during the sales process.17 18 However, the declaration cannot be voided if the software
functions properly but uses wrong data that was uploaded by mistake.
V. Mistake as to legal relevance
6 Sub. 1 is also applicable by way of analogy in cases in which the declaring party lacks not
only the intention to create a specific legal consequence by his conduct, but already the
awareness that his conduct may be objectively construed as legally relevant (fehlendes
Erklärungsbewusstsein). However, the declaration of intent in this case is not voidable if his
unawareness is due to negligence.19
VI. Mistake as to essential characteristics
7 Sub. 2 applies where the person who made the declaration erred with regard to the
essential qualities or characteristics of the person or the object of contract. Sub. 2 is an
exception to the rule that mistakes concerning the motives underlying the declaration of
intent are irrelevant.
1. Characteristics
8 Characteristics within the meaning of Sub. 2 refers not only to characteristics that can be
found in a person or object but also to their relationship with third parties or the public, to
the extent that the relationship is customarily regarded to be of importance for their
appreciation or usability.20 However, in order for such a relationship to be relevant in the
latter sense, it must be founded in, or characterise, the person or thing.21 The characteristics
must not be temporary or transient.22
2. Essential
9 In order to determine whether characteristics are customarily regarded as essential within
the meaning of Sub. 2, one must first look at the individual transaction. Where the specific
circumstances do not allow for conclusions to be drawn, one must turn to general customs
and ask how the importance of said characteristics is generally perceived.
3. Person
10 A person’s characteristic may fall under Sub. 2 primarily where that person is a contracting
party, but third parties are not generally excluded. The courts have held, e.g., that the
involvement of a licensed football player in a bribery scandal that would resdt in the
termination of the license qualifies as an essential characteristic.23 Further examples of what
is considered an essential characteristic include: the Scientology membership of a personnel
consultant;24 reliability and trustworthiness where they are particularly important for the
specific contract;25 age; specific knowledge and skills;26 solvency with regard to credit
contracts.27 On the other hand, a person’s characteristic has been considered irrelevant
17 BGH 26.1.2005 - VIH ZR 79/04, NJW 2005, 976, 977.
18 Palandt BGB/Ellenberger, § 119 BGB mn. 10.
19 BGH 3.3.1956 - IV ZR 314/55, NJW 1956, 869.
20 BGH 22.9.1983 - VII ZR 43/83, NJW 1984, 230, 231.
21 BGH 18.11.1977 - V ZR 172/76, NJW 1978, 370.
22 Palandt BGB/Ellenberger, § 119 BGB mn. 24.
23 BGH 13.11.1975 - III ZR 106/72, NJW 1976, 565, 566.
24 LG Darmstadt 18.12.1996 - 2 0 114-96, NJW 1999, 365, 366
25 BGH 19.12.1968 - II ZR 138/67, BeckRS 1968, 31172770.
26 Palandt BGB/Ellenberger, § 119 BGB mn. 26.
27 RG 18.10.1907 - Rep. II. 194/07, RGZ 66, 386, 387.
146
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Voidability for incorrect transmission § 120
where an unlearned worker was not particularly veracious with respect to qualifications.
Further, it is generally accepted that pregnancy may not fall under Sub. 2 as it is only a
temporary state and even if it were considered a relevant characteristic, Sub. 2 would not
apply as it would violate the principle of equality.28 29
4. Thing
With regard to the essential characteristics of a thing, it must first be noted that the term 11
thing used in Sub. 2 denotes not only material but also immaterial objects as the subject¬
matter of the contract. The value of a thing is not in itself a characteristic under Sub. 2 but
merely the result of such characteristics. Again, the characteristic may stem from the
relationship of the thing to third parties or the public, provided that relationship is rooted
in the thing itself. The permissibility to build on a plot of land is an essential characteristic, so
is the mileage of a car, the provenance of a work of art,30 the profitability of a business, the
amount of a claim, the size or quantity of a thing.31 Circumstances that affect the thing only
indirectly, such as the solvency of the tenants, do not qualify as essential characteristics.32
However, where the circumstances leading to a mistake would also constitute a defect of that
thing (e.g. under §§ 434 or 635), the more special rules governing the legal consequences of
defect apply exclusively.33
VII. Causation
There must be a causal link between the mistake and the declaration which the sender 12
seeks to void. The burden of proof lies with the person relying on § 119.
VIII. Legal consequences
§ 119 does not deal with the legal consequences that follow from exercising the right to void 13
a declaration of intent for mistake. This matter is regulated by § 142. The latter provision
stipulates that a declaration that is voided is ineffective with retroactive effect (ex tunc/ab
initio), meaning that is to be regarded to have never been in existence. However, exceptions
may apply with regards to employment contracts,34 partnership agreements (§ 705) and
company statutes where voidance may be assumed to have future effect (ex nunc/de futuro)
only. Further, it follows from § 122 that the person who voids his declaration must compensate
the other party for the damages incurred by relying on the validity of the declaration.
§120
Voidability for incorrect
transmission
A declaration of intent that has been in¬
correctly transmitted by the person or facil¬
ities used for its transmission may be avoided
subject to the same condition as a declaration
of intent made by mistake may be avoided
under § 119.
§120
Anfechtbarkeit wegen falscher
Übermittlung
Eine Willenserklärung, welche durch die
zur Übermittlung verwendete Person oder
Einrichtung unrichtig übermittelt worden
ist, kann unter der gleichen Voraussetzung
angefochten werden wie nach § 119 eine irr¬
tümlich abgegebene Willenserklärung.
28 BAG 6.2.1992 - 2 AZR 408/91, NJW 1992, 2173.
29 cjEU C-421/92 Habermann-Beltermann ECLI:EU:C:1994:187.
30 BGH 8.6.1988 - VIII ZR 135/87, NJW 1988, 2597, 2598.
31 HK-BGB/Dörner, § 119 BGB mn. 16.
32 Palandt BGB/Ellenberger, § 119 BGB mn. 27.
33 BGH 18 10 2007 - V ZB 44/07, NJW-RR 2008, 222, 223.
34 BAG 16.9.1982 - 2 AZR 228/80, NJW 1984, 446, 447.
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147
§ 121 1-3 Division 3. Legal transactions
1 By virtue of § 120, the incorrect transmission of a declaration of intent1 is subject to the
same legal consequences as a mistake that stems from using the wrong signal to commu¬
nicate one’s intention pursuant to § 119(1) 2nd Alt.2 § 120 requires that the declaring person
uses a transmitter of some kind. The transmitter may be another person, such as an
interpreter or a messenger, or a technical device offered by a third party. § 120 applies only
where the transmission itself was incorrect. This may be the case where an interpreter
accidentally mistranslates or where a defective email service causes the content of the email
to change during transmission, but not where an agent mistakenly makes a declaration of
intent on behalf of his agent (§ 164(1)). § 120 does not apply where the transmitter
deliberately delivers the message incorrectly. Such a message is held to have no binding
effect and thus does not need to be voidable.3 If the declaring party exercises his right to void
the declaration pursuant to § 120, the legal transaction is void ab initio under § 142(1). He
may be liable to the receiving party for compensation under § 122.
§121
Period for avoidance
(1) Avoidance must be effected, in the
cases set out in §§ 119 and 120, without
culpable delay (without undue delay) after
the person entitled to avoid obtains knowl¬
edge of the ground for avoidance. 2Avoidance
made to an absent person is regarded as
effected in good time if the declaration of
avoidance is forwarded without undue delay.
(2) Avoidance is excluded if ten years have
passed since the declaration of intent was
made.
§121
Anfechtungsfrist
(1) ’Die Anfechtung muss in den Fällen der
§§ 119, 120 ohne schuldhaftes Zögern (unver¬
züglich) erfolgen, nachdem der Anfechtungs¬
berechtigte von dem Anfechtungsgrund
Kenntnis erlangt hat. 2Die einem Abwesenden
gegenüber erfolgte Anfechtung gilt als recht¬
zeitig erfolgt, wenn die Anfechtungserklärung
unverzüglich abgesendet worden ist.
(2) Die Anfechtung ist ausgeschlossen,
wenn seit der Abgabe der Willenserklärung
zehn Jahre verstrichen sind.
A. Function
I. Purpose
1 A person who may void his declaration of intent1 under §§ 119, 120 is generally free to
decide whether or not to exercise his right but must do so in a timely manner. The receiving
party should not be left with the uncertainty stemming from a voidable declaration for too
long, as such the declaration may no longer be avoided if there has been a culpable delay.
IL Definition of undue delay
2 The definition of undue delay (culpable delay) provided by Sub. 1 holds true for the
entirety of German private law wherever the term undue delay is used.
B. Explanation
3 A delay is generally regarded to be culpable if more time has elapsed than what was
necessary to examine and evaluate whether or not to make the declaration void.2 The time
1 See -* Introduction to §§ 116-144 mn. 1-8.
2 See -* § 119 mn. 5.
3 HK-BGB/Dörner, § 120 BGB mn. 4.
1 See -* Introduction to §§ 116-144 mn. 1-8.
2 BGH 22.6.2004 - X ZR 171/03, NJW 2004, 3178, 3180.
148
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Liability in damages of the avoiding party 1-2 § 122
limit starts when the person entitled to avoidance becomes aware of the circumstances which
make the declaration voidable. Whether the subsequent delay was culpable must be
examined with regard to the individual case in question and may vary significantly in
different situations. In particular, it must be possible to seek legal advice to fully understand
whether it would be advisable to void the declaration of intent in light of the ensuing
implications.3 However, it has been held, generally, that the time limit should not be longer
than two weeks.4 Finally, under Sub. 2, the declaration cannot be made void if 10 years have
passed since it was made. The latter provision is only of relevance where the person entitled
to void the declaration has, for most of the time, been unaware of the voidability.
§122
Liability in damages of the person
declaring avoidance
(1) If a declaration of intent is void under
§ 118, or avoided under §§ 119 and 120, the
person declaring must, if the declaration was
to be made to another person, pay damages
to this person, or failing this to any third
party, for the damage that the other or the
third party suffers as a result of his relying on
the validity of the declaration; but not in
excess of the total amount of the interest
which the other or the third party has in the
validity of the declaration.
(2) A duty to pay damages does not arise if
the injured person knew the reason for the
voidness or the voidability or did not know it
as a result of his negligence (ought to have
known it).
§122
Schadensersatzpflicht des
Anfechtenden
(1) Ist eine Willenserklärung nach §118
nichtig oder auf Grund der §§ 119, 120 ange¬
fochten, so hat der Erklärende, wenn die
Erklärung einem anderen gegenüber abzuge¬
ben war, diesem, andernfalls jedem Dritten
den Schaden zu ersetzen, den der andere oder
der Dritte dadurch erleidet, dass er auf die
Gültigkeit der Erklärung vertraut, jedoch
nicht über den Betrag des Interesses hinaus,
welches der andere oder der Dritte an der
Gültigkeit der Erklärung hat.
(2) Die Schadensersatzpflicht tritt nicht
ein, wenn der Beschädigte den Grund der
Nichtigkeit oder der Anfechtbarkeit kannte
oder infolge von Fahrlässigkeit nicht kannte
(kennen musste).
A. Function
§ 122 serves the protection of the party to whom the declaration of intent1 was made and 1
who, unaware of the mistake, relied on the declaration of intent being effective. The provision
establishes a strict liability, i.e. the person who makes void his declaration of intent is liable
even if he made the mistake falling under §§ 119, 120 inculpably. As such, § 122 corresponds
with the fact that, pursuant to §§ 119, 120, a right to void a declaration of intent exists even
where the mistake was made negligently and irrespective of the receiving party’s incapacity to
recognise the mistake. No liability exists, however, where the transaction is void on other
legal grounds as well.
B. Explanation
The person avoiding the contract is liable to compensate the damages that the receiving 2
party incurred by relying on the validity of the transaction. In particular, if, as a result, the
receiving party missed out on another transaction, the lost profits stemming from that
transaction not entered into may also be compensated under Sub. 1. However, the compen¬
sation may not exceed the profits that the void transaction would have yielded. Pursuant to
3 HK-BGB/Dörner, § 121 BGB mn. 3.
4 Palandt BGB/Ellenberger, § 121 BGB mn. 3.
* See -* Introduction to §§ 116-144 mn. 1-8.
Wais
149
e 123 Division 3. Legal transactions
8 • • « nartv was negligently unaware of the
Sub. 2, no compensation is due where the receiving P or cu]pably unaware of the
voidability. Importantly, however, if the receiving paity cQntent of a declaration of intent,
discrepancy between the express content and t e in 157, die intended and the
a case of § 119(1) cannot be ascertained, as, P1“’5“®" exf of § 119, Sub. 2 regularly plays
actual content objectively do not differ. Hence, 1 d onl after the conclusion of the
a role only where such knowledge or negligenceus mistake without acting culpably,
contract? Where the receiving party has contributed o the mistake P,
his claim for compensation under Sub. 1 may nonetheless
extent of his causation.3
§123
Voidability on the grounds of
deceit or duress
(1) A person who has been induced to
make a declaration of intent by deceit or
unlawfully by duress may avoid his declara¬
tion.
(2) *If a third party committed this deceit,
a declaration that had to be made to another
may be avoided only if the latter knew of the
deceit or ought to have known it. 2If a person
other than the person to whom the declara¬
tion was to be made acquired a right as a
direct result of the declaration, the declara¬
tion made to him may be avoided if he knew
or ought to have known of the deceit.
§ 123
Anfechtbarkeit wegen Täuschung
oder Drohung
(1) Wer zur Abgabe einer Willenserklärung
durch arglistige Täuschung oder widerrecht¬
lich durch Drohung bestimmt worden ist,
kann die Erklärung anfechten.
(2) {Hat ein Dritter die Täuschung verübt,
so ist eine Erklärung, die einem anderen ge¬
genüber abzugeben war, nur dann anfecht¬
bar, wenn dieser die Täuschung kannte oder
kennen musste. 2Soweit ein anderer als derje¬
nige, welchem gegenüber die Erklärung abzu¬
geben war, aus der Erklärung unmittelbar ein
Recht erworben hat, ist die Erklärung ihm
gegenüber anfechtbar, wenn er die Täuschung
kannte oder kennen musste.
Contents
A. Function
I. Purpose and underlying principle.
II. Scope of application
B. Context
C. Explanation
I. Deceit
1. Unlawful
2. Fact
3. Silence 6
4. Third party ?
II. Duress 8
III. Intention 9
IV. Causation 11
V. Culpa in contrahendo 12
VI. Burden of proof 13
14
2 MüKo BGB/Armbrüster, § 119 BGB mn. 62.
3 BGH 14.3.1969 - V ZR 8/65, NJW 1969, 1380.
150
Wais
Voidability on the grounds of deceit or duress
1-4 § 123
A. Function
I. Purpose and underlying principle
In order to protect the freedom of decision-making in legal transactions, Sub. 1 stipulates 1
that a declaration of intent1 is voidable if it is the result of deceit or duress. This means that a
declaration of intent made under such circumstances is valid. It is void only upon the
exercise of the right to avoidance within the time-limits set forth by § 124. However, the
person entitled to avoid his declaration of intent is free to not exercise that right. In
particular, he may choose not to where - notwithstanding the undue influence of his freedom
of decision-making - the validity of the contract is still advantageous for him.
II. Scope of application
In principle, § 123 is applicable to all declarations of intent, i.e. to those that must be 2
received by the receiving party in order to become effective as well as those that do not
require receipt, to declarations that are made impliedly as well as to those that are express.2 3
However, more specific provisions apply with regard to marriage (§ 1314(2) Nos 3, 4),
contestation of paternity (§§ 1599 et seq.) and wills (§§ 2078 et seq., 2281 et seq.). Unlike
§119? § 123 is applicable where the mistake caused by the deceit coincides with a thing
being materially or legally defective. § 123 and the more specific rights derived from the
defect (e.g. §§437 et seq., §§ 536 et seq.) may be invoked simultaneously.4 Further,
avoidance may be based on § 119 and § 123 at the same time.5
B. Context
A deception to which § 123 applies may often also qualify as fraud punishable under § 263 3
StGB. Where this is the case, a right to damages usually also exists under § 823(2) in
conjunction with § 263 StGB. Further, § 826 may apply. The deceived may request to be put
in the position that would exist had he not been deceived.6 Where the time period for
avoidance pursuant to § 124 has expired, the courts generally assume that this does not affect
claims for damages. It is thus possible that a contract may be rescinded due to deception
notwithstanding the fact that it can no longer be avoided under §§ 123, 124.
C. Explanation
I. Deceit
Sub. 1 requires that the purpose of deceit be the causation or perpetuation of a mistake in 4
the person making the declaration of intent. Sub. 1 does not apply where the deceiver does
not know of the possibly deceptive nature of his statement.7 It does apply, however, where a
person claims a fact even though he is knowingly unaware of it being true or false (Angaben
1 See -»Introduction to §§ 116-144 mn. 1-8.
2 Palandt BGB/Ellenberger, § 123 BGB mn. 1.
3 See -+§119 mn. 7 et seq.
4 BGH 6.8.2008 - XII ZR 67/06, NJW 2009, 1266, 1267.
5 HK-BGB/Dörner, § 123 BGB mn. 14.
6 BGH 26.9.1997 - V ZR 29/96, NJW 1998, 302, 303; BGH 3.2.1998 - X ZR 18-96, NJW-RR 1998,
904, 906.
7 BGH 13.6.2007 - VIII ZR 236/06, NJW 2007, 3057, 3059.
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151
§ 123 5-8 Division 3. Legal transactions
ins Blaue hinein).6 Unlike under criminal law (§ 263 StGB), it is not required that the
deceiver intends to enrich himself or damage the deceived person s assets.
1. Unlawful
5 The deceit must be unlawful. Unlawfulness usually follows from the deceit itself. The
deceit may be lawful, however, where it is merely a response to a question that was
unlawfully asked, e. g. where an employer unjustifiably inquires after criminal convictions of
the prospective employee during a job interview.8 9
2. Fact
6 A deceit may be committed actively or by refraining from preventing the misapprehen¬
sion. It requires a misrepresentation of facts, i. e. some aspect or circumstance that is either
right or wrong. Importantly though, where a statement appears to be a purely subjective
expression, it may nonetheless, at its core, contain some statement of fact.10
3. Silence
7 Silence with regard to facts may be considered deceit only where there is an obligation to
disclose. Whilst it is generally for the other party to inform himself,11 a disclosure obligation
usually exists where, on the basis of good faith (§ 242), disclosure is expected.12 This is the
case where a (legitimate) question is asked.13 However, facts that are of paramount
importance for the other party to form his intentions must be disclosed without asking; in
particular, facts that may undermine the purpose of the contract or cause severe harm,14 e.g.
impending insolvency.15 Disclosure is also expected where trust is of special importance, e.g.
family bonds or a long-term contractual relationship.16 A person that finds himself in a
special position due to his superior knowledge17 (such as a provider of financial services18 or
a used-car salesman19) may also be expected to disclose that knowledge, in particular where
the other party is inexperienced.20
4. Third party
8 Sub. 2 applies where the deceit was not perpetrated by the party to whom the deceived party
made his declaration of intent but instead by a third party. In this case, the deceived party may
void his declaration only if the receiving party is not worthy of protection; i. e. where he knew
or was negligently unaware of the deceit. However, a person that is involved in the conclusion
of the contract on the side of the receiving party does not qualify as a third party under Sub. 2.
For example, where an employee of the seller deceives the buyer, only Sub. 1 applies. In the
same way, an agent cannot be regarded as a third party in relation to the principal.21 However,
if in doubt, another person should be regarded a third party under Sub. 2.22
8 BGH 7.6.2006 - VIII ZR 209/05, NJW 2006, 2839, 2840; BGH 6.11. 2007 - XI ZR 322/03, NJW 2008,
644, 648.
9 BAG 6.9.2012 - 2 AZR 270/11, NJW 2013, 1115, 1117.
10 Palandt BGB/Ellenberger, § 123 BGB mn. 3.
>’ BGH 11.8.2010 - XII ZR 192/08, NJW 2010, 3362.
12 BGH 1.2.2013 - V ZR 72/11, NJW 2013, 1807, 1808.
13 BGH 29.6.1977 - VIII ZR 43/76, NJW 1977, 1914, 1915.
BGH 2.3.1979 - V ZR 157/77, NJW 1979, 2243; BGH 11.8.2010 - XII ZR 192/08 NJW 2010, 3362.
15 BGH 21.6.1974 - V ZR 15/73, NJW 1974, 1505, 1506.
16 Palandt BGB/Ellenberger, § 123 BGB mn. 5c.
17 HK-BGB/Dörner, § 123 BGB mn. 2.
18 BGH 6.11.2007 - XI ZR 322/03, NJW 2008, 644, 646.
19 BGH 7.6.2006 - VIII ZR 209/05, NJW 2006, 2839, 2840.
20 BGH 7.10.1991 - II ZR 194/90, NJW 1992, 300, 302.
21 BGH 21.6.1974 - V ZR 15/73, NJW 1974, 1505; BGH 8.12.1989 - V ZR 259/87, NJW 1990, 1661, 1662.
22 Palandt BGB/Ellenberger, § 123 BGB mn. 13.
152
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Voidability on the grounds of deceit or duress
9-10 § 123
II. Duress
Sub. 1 applies where a person was induced to make a declaration of intent by unlawful 9
duress. In order for an action to qualify as duress, it is required that the perpetrator holds out
the prospect of harm to the other or a third party.23 Since Sub. 1 presupposes the existence
of a declaration of intent, it does not apply where the perpetrator applies irresistible force
(e.g. making another person sign a document by forcefully moving his hand) because a
declaration of intent does not exist where there was no intention to act.24 Further, the cause
of harm must appear to depend on the power of the perpetrator. It is sufficient that, from the
perspective of the other person, he has such control.25 Sub. 1 does not require that the
receiving party of the declaration of intent is also the perpetrator of the duress.
However, duress only constitutes a right to avoid the declaration of intent if the duress is 10
unlawfid. The unlawfulness may either stem from the means through which duress is
exercised, from the purpose of the duress, or from the inadequacy of the relation between
the chosen means and the purpose of the duress. Where, for example, a person threatens to
do something that is punishable under criminal law, the unlawfulness of duress stems from
its means. Further, threatening to breach a contract is also an unlawful means.26 The purpose
of duress alone, on the other hand, will only make the duress unlawful if the ends pursued by
the duress itself are unlawful. The mere fact that a person exercising duress has no right to
the declaration of intent of the other person does not make the purpose of the duress
unlawful.27 Where unlawfulness stems from neither the means nor the purpose of the duress
alone, the relation between the two (i.e. using the specific means for the specific purpose28)
may still render the duress unlawful where that interrelation would infringe the standards of
fairness and equity.29 No unlawfulness in the latter sense can be established where the
person has a legitimate interest in the ends pursued by the duress provided that the means
applied can still be regarded as compatible with the principle of good faith.30 For example,
threatening to report an offence committed by another person in order to induce him to an
acknowledgement of debt has not been regarded an unlawful interrelation of means and
purpose.31 Similarly, no unlawful interrelation was ascertained in a case where a customer
threatened an estate agent that he would only enter into the brokered contract if the agent
contributed to the sales prices.32 Further, threatening to inform the press of a certain matter
in order to make another person abide by a contract was not considered unlawful where the
respective media coverage would have been protected by freedom of press.33 In contrast,
threatening to refuse to defend a client in criminal proceedings in order to reach an
agreement of the legal fees has been considered unlawful duress if the threat was made
immediately before the main proceedings.34
23 BGH 7.6.1988 - IX ZR 245/86, NJW 1988, 2599, 2601.
24 Palandt BGB/Ellenberger, § 123 BGB mn. 15; Jauernig BGB/Mansel, Vorbemerkungen vor § 116
BGB mn. 4.
25 BGH 6.5.1982 - VII ZR 208/81, NJW 1982, 2301, 2302.
26 BGH 12.7.1995 - XII ZR 95/93, NJW 1995, 3052, 3053.
27 BGH 16.1.1997 - IX ZR 250/95, NJW 1997, 1980.
28 Jauernig BGB/Mansel, § 123 BGB mn. 14; HK-BGB/Dörner, § 123 BGB mn. 10.
29 BGH 4.11.1982 - VII ZR 11/82, NJW 1983, 384, 385; BGH 19.4.2005 - X ZR 15/04, NJW 2005, 2766,
2768.
30 BGH 4.11.1982 -VII ZR 11/82, NJW 1983, 384, 385; BGH 7.2.2013 - IX ZR 138/1, NJW 2013, 1591,
1592.
31 BAG 22.10.1998 - 8 AZR 457-97, NJW 1999, 2059.
32 BGH 5.6.1983 - IVa ZR 10/82, NJW 1983, 2494, 2495.
33 BGH 19.4.2005 - X ZR 15/04, NJW 2005, 2766, 2768.
34 BGH 7.2.2013 - IX ZR 138/11, NJW 2013, 1591.
Wais
153
§124
Division 3. Legal transactions
11
12
13
14
III. Intention
, actual intention to induce the other
Moreover, it is necessary that the perpetrator as action may have that desired
person to make a declaration of intent and is aware that his action y
effect.35
IV. Causation
«i a nr Anress and the declaration of intent in
There must be a causal link between the deceit or du the other
the very moment it was made by the other person, o su . irresPective of the
person would have made the declaration on the basis of his own r a g>
deceit or duress.36 37 38 39 Contributory causation, however, is sufficient ground for Sub. 1 to apply.
V. Culpa in contrahendo
In addition, where § 123 applies, the person who is deceived or threatened may also be
entitled to damages on the grounds of culpa in contrahendo.™ As part of the damages owed,
the creditor may request rescission of the contract he entered into (§ 249). Importantly,
while § 123 requires that the deception or duress was intentional, the creditor may rely on
culpa in contrahendo even where the deception or duress was only due to negligence.
VI. Burden of proof
The burden of proof with regard to all requirements set forth by § 123 lies with the person
who wishes to make void his declaration of intent.40
§124
Period for avoidance
(1) The avoidance of a declaration of intent
voidable under § 123 may be effected only
within one year.
(2) ]In the case of deceit, the period com¬
mences at the time when the person entitled
to avoid discovers the deceit, and in case of
duress, from the time when the duress stops.
2The provisions in §§206, 210 and 211 ap¬
plicable to limitation apply with the necessary
modifications to the running of the period.
(3) Avoidance is barred, if ten years have
passed since the declaration of intent was
made.
§124
Anfechtungsfrist
(1) Die Anfechtung einer nach § 123 an¬
fechtbaren Willenserklärung kann nur bin¬
nen Jahresfrist erfolgen.
(2) 'Die Frist beginnt im Falle der arglisti¬
gen Täuschung mit dem Zeitpunkt, in wel¬
chem der Anfechtungsberechtigte die Täu¬
schung entdeckt, im Falle der Drohung mit
dem Zeitpunkt, in welchem die Zwangslage
aufhört. 2Auf den Lauf der Frist finden die
für die Verjährung geltenden Vorschriften
er §§ 206, 210 und 211 entsprechende An¬
wendung.
(3) Die Anfechtung ist ausgeschlossen, wenn
seit er Abgabe der Willenserklärung zehn
Jahre verstrichen sind.
35 Palandt BGB/Ellenberger, § 123 BGB mn. 23; cf. Jauernie BGR/lcü T777
36 BAG 23.11.2006 - 6 AZR 394/06. NJW 2007, 1831, 1832 1 Se ’ $ 123 BGB mn- 12.
37 BGH 22.2.1991 - V ZR 299/89, NJW 1991, 1673, 1674
38 BGH 4.7.2002 - IX ZR 153/01, NJW 2002, 2774, 2775
39 BGH 25.4.2006 - XI ZR 106/05, NJW 2006, 1955 1957. Rru ,
2007,3057,3059. ’ ’ M *3-6.2007 - VIII ZR 236/06, NJW
40 BGH 13.5.1957 - II ZR 56/56, NJW 1957, 988, 989.
154
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Voidness resulting from a defect of form
1 § 125
A. Explanation
I. Other rights
§ 124 stipulates a time limit for the avoidance of a declaration of intent1 that was made in 1
a situation falling under § 123. The fact that avoidance is no longer possible pursuant to
§124 does not, however, affect other rights stemming from the deceit or duress. In particular,
the victim may claim damages under §§ 280(1), 311(2) - and may require the resolution of
the contract as part of the damages owed - notwithstanding the expiry of the avoidance
period under § 124?
II. Starting point
In the case of deceit, the period in which the avoidance must be declared commences 2
when the mistake and the deceit become apparent to the deceived person. Actual knowledge
of all details is required. The mere fact that the deceived person ought to have known of the
deceit does not affect the commencement of the avoidance period. In the case of unlawful
duress, the avoidance period commences as soon as, from the viewpoint of the victim, the
duress stops; in particular, when the victim no longer feels coerced. §§ 186 et seq. apply with
regard to the computation of the period. The expiration of the avoidance period may be
temporarily barred for the reasons set forth in §§ 206 et seq.
III. Maximum period
Similar to § 121(2), Sub. 3 stipulates that in any case, avoidance is no longer possible 3
10 years after the declaration of intent was made.
IV. Burden of proof
The burden of proof for all requirements set forth in § 124 lies with the person seeking to 4
rely on the expiration of the avoidance period?
§125
Voidness resulting from a defect
of form
’A legal transaction that lacks the form
prescribed by statute is void. 2 3In case of
doubt, lack of the form specified by legal
transaction also results in voidness.
§125
Nichtigkeit wegen Formmangels
’Ein Rechtsgeschäft, welches der durch Ge¬
setz vorgeschriebenen Form ermangelt, ist
nichtig. 2Der Mangel der durch Rechts¬
geschäft bestimmten Form hat im Zweifel
gleichfalls Nichtigkeit zur Folge.
A. Function
I. Purpose and underlying principle
Form requirements generally serve different purposes. Typically, their purpose is to warn 1
the parties of the risks of a specific legal transaction* and to make sure that the parties do not
1 See -» Introduction to §§ 116-144 mn. 1-8.
2 HK-BGB/Dörner, § 124 BGB mn. 4.
3 BGH 11.3.1992 - VIII ZR 291/90, NJW 1992, 2346, 2347.
1 See -»Introduction to §§ 116-144 mn. 1-8.
Wais
155
2
5 125 2-5 Division 3. Legal transactions
.. j Jnntlv where a form requirement is complied
rush into such a transaction hastily and imprud y> content, of a certain legal
with, the form may provide proof of the cone usio> , t ,js0 be to inform the
transaction;2 in some cases, the aim of the orm q * prescribed; further, notarial
parties of their rights, in particular where a ce of legal counselling. As a general
recording may ensure that the parties enjoy a cert g 8 t0 be effectj
principle, legal transactions do not require a speaficj form §§ &
However, certain legal transactions are subject to manda J * but rather what
sea do not stipulate when these form requirements mus P ru
ta require end h»» they may be substituted. In general, rhe law makes use of the foltamg
form Requirements: «ri.Jn form WW. e.g. § 623 § 766; text form , eg.
6 477(2), § 558a(l); notarial recording (notarielle Beurkundung), e.g. § ( )> §
official certification (beglaubigte Erklärung), e.g. § 77, § 403. Besides these more common
form requirements, the law in §§ 925, 2231, 1310 and § 1 LPartG provides for specific form
requirements that are unique to these provisions.
IL Scope of application
Where a form requirement applies, it generally applies to all parts of the declaration of
intent that form the basis of the legal transaction.3 Hence, subsidiary agreements and
subsequent extensions or limitations of a declaration must also respect the prescribed form.4
If the parties combine several legal transactions of which one is subject to a form requirement,
these legal transactions in their entirety must comply with that form requirement5
B. Explanation
3
4
I. Compliance
Form requirements must be complied with irrespective of whether or not their purpose
may have already been achieved by other means. For instance, the promise of a guarantee
given orally may be void under §§ 125 1st St., 766, despite the fact that, as the case may be,
the guarantee is fully aware of the risks that are involved. However, in some cases, the law
also provides that voidness for lack of form may be averted if the obligation that would result
from the legal transaction is fulfilled, e.g. §§ 311b(l) 2nd St., 518(2), 766 3rd St
II. Parties
The form requirements also extend to the designation of the parties; it his hence not
sufficient if a contract complies with the prescribed form only with regard to the content
while being silent with regard to the identity of the parties 6 iT
. contract snbjec, tan „quimmemsju, “Z' i I’"
apparent from the text or document.7 8 °f a must become
5
III. Party agreement
Where the parties agreed on a certain form, it is a matter . .
transaction that lacks the agreed form must be considered void r ,™CtlOn whedler a legal
between declaratory form and constitutive form 8 Wk„ .l enera*v> a distinction is made
’ here the Purpose is to merely avoid
2 Palandt BGB/Ellenberger, § 125 BGB mn. 3.
3 MüKo BGB/Einsele, § 125 BGB mn. 32.
4 BGH 28.6.2016 - X ZR 65/14, NIW 2017, 885
5 BGH 29.6.1982 - KZR 19/81, N)W 1982, 2872
6 BGH 11.9.2002 - XII ZR 187/00. NJW 2002, 3389, 3391
7 Palandt BGB/Ellcnberger, § 125 BGB mn. 9.
8 MüKo BGB/Einsele, § 125 BGB mn. 69.
156
Wais
Written form 1 § 126
difficulties concerning the proof of a legal transaction, a lack of form does not result in
voidness.9 In a case where it was agreed that a termination had to be in written form and sent
by registered mail, only the written form was held to be constitutive, i.e. the lack thereof
resulted in the termination being void, whilst the sending requirement was considered to merely
serve the purpose of facilitating proof.10 Further, a form requirement the parties individually
agreed on may also be repealed.11 It is not required that this repeal is in the agreed form,12
unless the parties have agreed that the form requirement applies to its repeal as well.13
IV. Good faith
The principle of good faith (§ 242) may estop a party from relying on the voidness for lack of 6
form.14 The BGH regularly holds that in this context, § 242 can only be relied upon where the
voidness would have consequences that are not only severe but, rather, outright unbearable.15
§126
Written form
(1) If written form is prescribed by statute,
the document must be signed by the issuer
with his name in his own hand, or by his
notarially certified initials.
(2) !In the case of a contract, the signature
of the parties must be made on the same
document. 2If more than one counterpart of
the contract is drawn up, it suffices if each
party signs the document intended for the
other party.
(3) Written form may be replaced by elec¬
tronic form, unless the statute leads to a
different conclusion.
(4) Notarial recording replaces the written
form.
§126
Schriftform
(1) Ist durch Gesetz schriftliche Form vor¬
geschrieben, so muss die Urkunde von dem
Aussteller eigenhändig durch Namensunter¬
schrift oder mittels notariell beglaubigten
Handzeichens unterzeichnet werden.
(2) !Bei einem Vertrag muss die Unter¬
zeichnung der Parteien auf derselben Ur¬
kunde erfolgen. 2Werden über den Vertrag
mehrere gleichlautende Urkunden aufgenom¬
men, so genügt es, wenn jede Partei die für
die andere Partei bestimmte Urkunde unter¬
zeichnet.
(3) Die schriftliche Form kann durch die
elektronische Form ersetzt werden, wenn sich
nicht aus dem Gesetz ein anderes ergibt.
(4) Die schriftliche Form wird durch die
notarielle Beurkundung ersetzt.
A. Function
§ 126 does not stipulate when written form is required but rather defines what suffices to 1
constitute it. The requirement that a legal transaction must be in written form is stipulated
elsewhere; in particular in the following §§ 32(2); 37(1); 81(1); 111 2nd St.; 368; 409; 410; 416
(2); 484; 492; 505(2), 550; 557a; 557b; 568; 574b; 577; 585a; 594 f; 623; 655b; 761; 766; 780;
781; 793 (with modifications); 1154; 1904(2); 1906(5). However, provisions that mandate
written form can also be found outside of the BGB, e.g. § 31(1) AktG. In standard contract
terms § 309 No. 13 prohibits the stipulation of form requirements vis-ä-vis a consumer that
go beyond written form.
9 Jauernig BGB/Mansel, § 125 BGB mn. 11; HK-BGB/Dörner, § 125 BGB mn. 18.
10 BGH 3.11.1999 - I ZR 145/97, NJW-RR 2000, 1560, 1561.
11 BGH 2.6.1976 - VIII ZR 97/74, NJW 1976, 1395.
12 Palandt BGB/Ellenberger, § 125 BGB mn. 19.
13 BGH 2.6.1976 - VIII ZR 97/74, NJW 1976, 1395.
14 See -♦ § 242 mn. 20.
15 BGH 25.11.2015 - XII ZR 114/14, NJW 2016, 311, 312; BGH 24.4.1998 - V ZR 197/97, NJW 1998,
2350 2351.
Wais
157
§ 126 2-5
Division 3. Legal transactions
B. Explanation
I. Initials
2 Pursuant to Sub. 1, the signatory may also use notarially certified initials to sign the
document. Unlike the translation of Handzeichen as initials suggests,1 the signatory may also
use other marks (e.g. lines, circles, crosses),2 which a notary must certify.
IL Document
3 A document within the meaning of Sub. 1 is a physical document; any piece of writing on
any kind of material that is suitable for perpetuating the writing qualifies as a document
under Sub. I.3 The document may be handwritten, typewritten, printed, copied; it may come
in any language, even an extinct language.4 Unless provided otherwise, the entire legal
transaction that is subject to the written form must be embodied in the document, including
all subsidiary agreements. Where the document consists of several pages, these pages must
be connected together. It is not required that the connection be physical provided that it can
be concluded from the different parts that they are intended to form a single document, e.g.
page numbering or even the use of a distinctive layout5 or a express and clear-cut reference to
another document.6 In order for an amendment contract to comply with the written form, it
is not required that the entire (amended) contract is included in a new document, provided
that the persisting parts of the pre-existing contract document are clearly integrated by way
of reference.7
III. Signature
4 The purpose of the signature is to identify the issuer and to enable the other party to
review the authenticity of the document. The signature must contain the signatory’s
surname. A signature that consists merely of the designation of a position or a family
relation - e.g. ‘director’, ‘manager’, ‘your uncle’ - does not satisfy the signature requirement
under § 126.8 Whilst the signature must indicate the use of actual letters, legibility is not
necessary.9 The BGH generally requires a unique writing that has characteristic features and
allows for the signatory to be sufficiently individualised.10
1. Positioning
5 As it generally serves to indicate the end of a declaration, it must be placed below the
written text. Where text was subsequently added to the written document, a new signature is
generally required. However, subsequent additions that are inserted above the existing
signature are held to comply with § 126 without a new signature if the parties intended that
the existing signature apply to the additions.11 Further, it is not necessary that the signature is
1 Translation note: in this respect, handwritten marks would be a more suitable translation of
Handzeichen.
2 HK-BGB/Dörner, § 126 BGB mn. 10.
3 HK-BGB/Dörner, § 126 BGB mn. 3.
4 Palandt BGB/Ellenberger, § 126 BGB mn. 2.
5 BGH 21.1.2004 - VIII ZR 99/03, NJW-RR 2004, 586; BGH 24.9.1997 - XII ZR 234/95 NJW 1998, 58,59.
6 BGH 25.7.2007 - XII ZR 143/05, NJW 2007, 3202, 3203.
7 BGH 14.4.1999 - XII ZR 60-97, NJW 1999, 2517, 2519.
8 HK-BGB/Dörner, § 126 BGB mn. 6.
9 BGH 27.9.2005 - VIII ZB 105/04, NJW 2005, 3775; BGH 29.10.1986 - IV a ZB 13/86, NJW 1987,
1333, 1334.
10 BGH 10.7.1997 - IX ZR 24/97, NJW 1997, 3380, 3381.
11 BGH 27.6.1994 - III ZR 117/93, NJW 1994, 2300, 2301.
158
Wais
Written form 6-9 § 126
added subsequently to the written text after the document is drawn up. On the contrary, the
parties may provide their signatures first and add the text at a later point. However, in some
cases, such as declaration of suretyship (§ 766), the permission to unilaterally fill in the
signed document - i. e. adding the text after the signature - may itself require written form.12
Importantly though, these restrictions do not apply to filling in a blank cheque or bill of
exchange.13
2. Document
Pursuant to Sub. 2, a contract is in written form where both parties signed the same 6
document. A signed offer, subsequently amended and signed by the other party, does thus
not qualify as a contract in written from. Both signatures must refer to one and the same
content. However, where identical documents exist, it is sufficient for each party to merely
sign the document that is intended for the respective other party.
IV. Signatory
The signatory must sign in person. It is generally permissible that a third party assist the 7
signatory provided that it is still the signatory who ultimately controls the motion of his
hand.14 To the extent that legal representation is admissible, active assistance exceeding the
mere support of the signatory’s hand may equally be permitted if it can be concluded that the
signatory authorised the assistance.15 However, where an agent signs in his own name, it
must become apparent from the document that the signatory is acting on behalf of another
person.16 A similar requirement may arise in cases of representation of a partnership (§§ 706
et seq.): if the statutes provide for joint representation, the document must indicate if a
partner is acting on behalf of the other partners.17 No indication is required where it is
apparent from an official register that such authorisation exists - especially with regard to the
representation of a body corporate.18
V. Receipt
Where receipt of the declaration of intent is a prerequisite for the declaration’s effectiveness 8
(which is mostly the case), it is in written form only if the document itself reaches the receiving
party. A fax will therefore generally not satisfy § 126;19 neither will a scan or a copy.20
VI. Substitution
Pursuant to Sub. 3, electronic form may generally be substituted for written form. 9
However, as an exception to this general rule, in some specific cases, the law may prohibit
such a substitution. Within the BGB, provisions that rule out a substitution are §§ 484(1)
2nd St., 492(1) 2nd St., 623, 630, 761, 766, 780, 781. Importantly, notarial recording is always
a substitute for written form, as expressed in Sub. 4.
12 BGH 20.3.1997 - IX ZR 83/96, NJW 1997, 1779, 1780.
13 Palandt BGB/Ellenberger, § 126 BGB mn. 7.
14 BGH 12.3.1981 - IVa ZR 111/80, NJW 1981, 1900, 1901.
15 Palandt BGB/Ellenberger, § 126 BGB mn. 8; Jauernig BGB/Mansel, § 126 BGB mn. 4.
16 BGH 7.5.2008 - XII ZR 69/06, NJW 2008, 2178.
17 BGH 16.7.2003 - XII ZR 65/02, NJW 2003, 3053, 3054.
18 BGH 6.4.2005 - XII ZR 132/03, NJW 2005, 2225, 2227.
19 BGH 30.7.1997 - VIII ZR 244/96, NJW 1997, 3169, 3170.
20 MüKo BGB/Einsele, § 126 BGB mn. 15.
Wais
159
§ 126a 1-3
Division 3. Legal transactions
§ 126a
Electronic form
(1) If electronic form is to replace the
written form prescribed by statute, the issuer
of the declaration must add his name to it
and provide the electronic document with a
qualified electronic signature.
(2) In the case of a contract, the parties
must each provide a counterpart with an
electronic signature as described in
subsection (1).
§ 126a
Elektronische Form
(1) Soll die gesetzlich vorgeschriebene
schriftliche Form durch die elektronische
Form ersetzt werden, so muss der Aussteller
der Erklärung dieser seinen Namen hinzufu¬
gen und das elektronische Dokument mit
einer qualifizierten elektronischen Signatur
versehen.
(2) Bei einem Vertrag müssen die Parteien
jeweils ein gleichlautendes Dokument in der
in Absatz 1 bezeichneten Weise elektronisch
signieren.
A. Context
1 § 126a serves to implement certain requirements stipulated by the EU E-Commerce
Directive and the EU elDAS Regulation. Pursuant to Ait. 3(10) elDAS, electronic signature
means data in electronic form which is attached to or logically associated with other data in
electronic form and which is used by the signatory to sign. According to Art. 3(12) elDAS,
qualified electronic signature is an advanced electronic signature that is created by a qualified
electronic signature creation device, and which is based on a qualified certificate for
electronic signatures. The elDAS Regulation also provides for a detailed framework on the
technical specifics of the electronic form.
B. Explanation
I. Substitution
2 Written form may generally be substituted with electronic form, but only where the other
party agrees.1 There are cases, however, where the law does not allow for such a substitution,
e.g. in the BGB §§ 484(1) 2nd St., 492(1) 2nd St., 766 2nd St., 780 2nd St., 781 2nd St. Further, it
follows from an analogous application of § 126(4) that electronic form, on the other hand,
may always be substituted with notarial recording.2
IL Document
3 If electronic form is agreed upon, the electronic document must contain the entire legal
transaction that is subject to the electronic form, but external documents may also be
included by way of reference. It is further necessary that the legal transaction is contained
in one and the same electronic document.3 Moreover, whilst the issuer’s name must be added
to the document, it does not necessarily have to be inserted at the end of the document.4 The
required qualified electronic signature may also be added by a third party who is authorised
by the issuer. In order for a contract to comply with the electronic form, it is not sufficient if
the parties each electronically sign individual documents containing their respective declara¬
tion of intent5 (offer or acceptance, where such a clear division is possible). On the contrary,
1 Palandt BGB/Ellenberger, § 126a BGB mn. 6.
2 MüKo BGB/Einsele § 126 BGB mn. 36.
3 Palandt BGB/Ellenberger, § 126a BGB mn. 7.
4 MüKo BGB/Einsele. § 126a BGB mn. 26; Jauernig BGB/Mansel, § 126a BGB mn. 4.
5 See -► Introduction to §§ 116-144 mn. 1-8.
160
Text form 1-2 § 126b
each of the parties must electronically sign the contract as a whole.6 Pursuant to Sub. 2,
however, it is not necessary that both parties’ electronic signatures are contained in one and
the same electronic document. The parties may also each sign their own exemplar of the
electronic document and then exchange these.
III. Qualified electronic signature
Generally, electronic documents that are signed with a qualified electronic signature are 4
equally suitable to serve as a means of proof as physical documents. A prima facie-
presumtion of authenticity is established if, following the verification procedure provided by
the el DAS Regulation, it appears that the declaration was made by the person associated with
the qualified electronic signature.7
§ 126b
Text form
!If text form is prescribed by statute, a
readable declaration, in which the person
making the declaration is named, must be
made on a durable medium. * 1 2A durable med¬
ium is any medium that
1. enables the receiving party to retain or
store a declaration included on the medium
that is addressed to him personally such that
it is accessible to him for a period of time
adequate to its purpose, and
2. that allows the unchanged reproduction
of such declaration.
§ 126b
Textform
'1st durch Gesetz Textform vorgeschrieben,
so muss eine lesbare Erklärung, in der die
Person des Erklärenden genannt ist, auf ei¬
nem dauerhaften Datenträger abgegeben wer¬
den. 2Ein dauerhafter Datenträger ist jedes
Medium, das
1. es dem Empfänger ermöglicht, eine auf
dem Datenträger befindliche, an ihn persön¬
lich gerichtete Erklärung so aufzubewahren
oder zu speichern, dass sie ihm während eines
für ihren Zweck angemessenen Zeitraums zu¬
gänglich ist, und
2. geeignet ist, die Erklärung unverändert
wiederzugeben.
A. Function
Unlike written form, text form does not require a signature. Its mere purpose is to provide 1
the other party with sufficient information of the content of a certain legal transaction.
Within the BGB, reference is made to text form mostly in the field of consumer law, e.g.
§§ 312h, 477(2), 482(1), 482a, 484(2), 486a(l), 505(1), 510(1), 630e(2), 655b(l); and
residential leases, e.g. §§ 555c(l), 555d(3), (4), 556a(2), 556b(2), 556c(2). The text form is
also made use of in the field of commercial law, e.g. 410(1) HGB, and in particular in the
field of insurance law (Versicherungsvertragsgesetz; VVG).
B. Explanation
I. Relationship to written form
A legal transaction1 that is in written form will always comply with the text form because a 2
document within the meaning of § 126(1) will meet all the requirements set forth in § 126b.
It also follows from an analogous application of § 126(4) that text form may always be
substituted with notarial recording.2
6 MüKo BGB/Einsele, § 126a BGB mn. 26.
7 Jauernig BGB/Mansel, § 126a BGB mn. 8; Palandt BGB/Ellenberger, § 126b BGB mn. 11.
1 See -> Introduction to §§ 116-144 mn. 1-8.
2 Palandt BGB/Ellenberger, § 126b BGB mn. 4.
Wais
161
§127
Division 3. Legal transactions
IL Durable medium
3 The term durable medium within the meaning of § 126b is defined in accordance with
Art. 2(10) EU Consumer Rights Directive. Paper is a durable medium, as is a USB-stick, a
hard-drive, a CD-ROM, an SD-card, or an email.3 A text that is merely accessible online is
not taken to be on a durable medium. In this case, § 126b is only complied with if the text is
downloaded or printed on a durable medium.4
III. Readable
4 A declaration is readable within the meaning of § 126b if it can be read by the receiving
party either directly or through an electronic programme or other device. § 126b also
requires that the name of the person making the declaration is contained in said declaration.
Where an agent acts on behalf of a principal, the agent is the person making the declaration
and thus it is him who must be named.5 It is not required, however, that the actual name is
used. The issuer may also use his nickname or other name, provided that the receiving party
can identify the issuer on this basis.6 Further, it is argued that the issuer must also in some
way indicate the end of the declaration; a signature, however, is not deemed necessary.7
IV. Legal consequences
5 The legal consequences of a legal transaction that is not in the required text form may
vary. Whilst the transaction generally is void under § 125, this may not be the case where
specific provisions apply (e.g. § 355(2) or § 477(3)).
V. Burden of proof
6 The burden of proof lies with the party claiming that § 126b has been complied with.
§127
Agreed form
(1) The provisions under §§ 126, 126a or
126b also apply, in case of doubt, to the form
specified by legal transaction.
(2) ‘For compliance with the written form
required by legal transaction, unless a differ¬
ent intention is to be assumed, it suffices if
the message is transmitted by way of telecom¬
munications and, in the case of a contract, by
the exchange of letters. 2If such a form is
chosen, notarial recording in accordance
with § 126 may be demanded subsequently.
(3) ‘For compliance with the electronic
form required by legal transaction, unless a
different intention is to be assumed, an elec¬
tronic signature other than provided for in
§ 126a also suffices and, in the case of a
§127
Vereinbarte Form
(1) Die Vorschriften des § 126, des § 126a
oder des § 126b gelten im Zweifel auch fur
die durch Rechtsgeschäft bestimmte Form.
(2) ‘Zur Wahrung der durch Rechts¬
geschäft bestimmten schriftlichen Form ge¬
nügt, soweit nicht ein anderer Wille anzuneh¬
men ist, die telekommunikative Übermittlung
und bei einem Vertrag der Briefwechsel.
2Wird eine solche Form gewählt, so kann
nachträglich eine dem § 126 entsprechende
Beurkundung verlangt werden.
(3) ‘Zur Wahrung der durch Rechts¬
geschäft bestimmten elektronischen Form g®-
nügt, soweit nicht ein anderer Wille anzuneh¬
men ist, auch eine andere als die in § 126a
bestimmte elektronische Signatur und bei ei-
J HK-BGB/Dörner, § 126b BGB mn. 4; Jauernig BGB/Mansel, § 126b BGB mn. 2.
4 BGH 29.4.2010 - I ZR 66/08, NJW 2010, 3566, 3568.
5 See also § 126 mn. 7.
6 Palandt BGB/Ellenberger, § 126b BGB mn. 4; Jauernig BGB/Mansel, § 126b BGB mn 2
7 Palandt BGB/Ellenberger, § 126b BGB mn. 5; Jauernig BGB/Mansel, § 126b BGB mn* Z
Wais
162
Agreed form
1-3 § 127
contract, the exchange of a declaration of an
offer and of acceptance which are each pro¬
vided with an electronic signature. 1 2If such a
form is chosen» an electronic signature in
accordance with § 126a may be demanded
subsequently, or if this is not possible for
one of the parties, notarial recording in com¬
pliance with § 126.
nem Vertrag der Austausch von Angebots¬
und Annahmeerklärung, die jeweils mit einer
elektronischen Signatur versehen sind. 2Wird
eine solche Form gewählt, so kann nachträg¬
lich eine dem § 126a entsprechende elektroni¬
sche Signierung oder, wenn diese einer der
Parteien nicht möglich ist, eine dem § 126
entsprechende Beurkundung verlangt wer¬
den.
A. Explanation
I. Agreed form
§ 127 only applies to an agreed form requirement. It is thus only applicable where, and to 1
the extent that, a specific form is not already prescribed by law. The parties are generally free
to stipulate a form and the requirements that must be complied with. However, if the parties
agreed without specifying further requirements that a legal transaction must be in written
from, electronic form, or text form, it is assumed that the parties intended to subject the legal
transaction to the requirements set forth in §§ 126, 126a or 126b. But no such assumption
exists where it is clear that the parties intended to set up form requirements that differ from
these provisions. The rather broad assumption provided in Sub. 1 is, however, limited by
Sub. 2 1st St. in two respects; first, with regards to written form in general: it is assumed that
an agreed written form will also allow for a text in writing to be transmitted by means of
electronic communication, such as email or fax, and that a signature is not required. Oral
transmission, albeit made by way of telecommunication, is not sufficient. Secondly, where the
parties agreed to subject a contract to written form, it is assumed that - unlike under § 126
(2) - offer and acceptance may be made in two separate letters. Sub. 2 1st St. is also being
complied with where only one party sends a letter while the other responds in writing using
means of electronic communication.1
II. Notarial recording
Furthermore, it is important to note that, unlike what the above translation of Sub. 2 2
2nd St. suggests, parties cannot demand notarial recording but merely that the declaration is
subsequently converted into a document which meets the requirements set forth in § 126
(written form). As the documentation only serves evidentiary purposes, the lack thereof does
not affect the effectiveness of the legal transaction.2
IIL Electronic form
In a similar way, Sub. 3 provides for less strict requirements where the parties agreed on 3
electronic form. The qualified electronic signature may be substituted with certain other
electronic signatures. A contract also complies with the agreed electronic form where each
declaration of intent is contained in a separate electronic document. Further, for evidentiary
purposes, any party may subsequently request that the legal transaction be brought in a form
that complies with either § 126a or § 126.
1 See Palandt BGB/Ellenberger, § 127 BGB mn. 3.
2 MüKo BGB/Einsele, § 127 BGB mn. 15.
Wais
163
§129
Division 3. Legal transactions
IV. Burden of proof
4 With respect to the existence of an agreed form, the burden of proof lies with the person
who claims that such an agreement was made.3 It is then for the other party to prove that the
legal transaction in question complies with these requirements.
§128
Notarial recording
If the notarial recording of a contract is
prescribed by statute, it suffices if first the
offer and then the acceptance of the offer is
recorded by a notary.
§128
Notarielle Beurkundung
Ist durch Gesetz notarielle Beurkundung
eines Vertrags vorgeschrieben, so genügt es,
wenn zunächst der Antrag und sodann die
Annahme des Antrags von einem Notar beur¬
kundet wird.
A. Function
I. Purpose
1 The notarially recorded document furnishes proof of the fact that such declarations were
made by the respective parties. The procedure of notarial recording is not regulated by § 128
but by the Beurkundungsgesetz (Notarisation Act; in particular, §§ 8, 9, 13 BeurkG). § 128
merely provides that the declarations of intent which form the contract may be notarially
recorded consecutively and by different notaries.
II. Scope of application
2 § 128 does not apply where notarial recording is required only with regard to one party’s
declaration of intent* 1 but not for the whole contract (e.g. § 518(2)).
B. Explanation
3 Unless otherwise agreed, a notarially recorded contract becomes effective when the
acceptance of the offer is recorded, irrespective of whether or not the acceptance is received
by the other party (§ 152). Further, offer and acceptance need not be recorded by the same
notary, nor is the simultaneous presence of the receiving party of each declaration required.2
§129
Official certification
(1) ’If the official certification of a de¬
claration is prescribed by law, the declara¬
tion must be put in writing and the signa¬
ture of the person declaring be certified by a
notary. 2If the declaration is signed by the
issuer making his mark, the certification of
§ 129
Öffentliche Beglaubigung
(1) ’Ist durch Gesetz fur eine Erklärung
öffentliche Beglaubigung vorgeschrieben, so
muss die Erklärung schriftlich abgefasst und
die Unterschrift des Erklärenden von eine®
Notar beglaubigt werden. 2Wird die Erklärung
von dem Aussteller mittels Handzeichens un-
3 HK-BGB/Dörner, § 127 BGB mn. 8.
1 See Introduction to §§ 116-144 mn. 1-8.
2 Jauernig BGB/Mansel, § 128 BGB mn. 2.
Wais
164
Declaration of intent to absent parties
§130
the initials provided for in § 126(1) is neces¬
sary and sufficient,
(2) The notarial recording of the declara¬
tion replaces the official certification.
terzeichnet, so ist die im § 126 Abs. 1 vor-
geschriebene Beglaubigung des Handzeichens
erforderlich und genügend.
(2) Die öffentliche Beglaubigung wird
durch die notarielle Beurkundung der Erklä¬
rung ersetzt.
Official certification bears testimony of the fact that a signature - or initials or another 1
handwritten mark - was provided (i) before the notary and (ii) by the person mentioned in
the certification document. Official certification does not refer to the content of the
declaration but merely to the authenticity of the signature. Official certification is required,
e.g., in §§ 77, 371, 403, 411. The procedure of official certification is dealt with by §§ 39, 40
BeurkG. Importantly, official certification cannot generally be provided by public authorities.
The official certification of a declaration of intent1 may be substituted with notarial recording
(§ 128) or court settlement (§ 127a).
§130
Effectiveness of a declaration of
intent to absent parties
(1) ’A declaration of intent that is to be
made to another becomes effective, if made in
his absence, at the point of time when this
declaration reaches him. 2It does not become
effective if a revocation reaches the other
previously or at the same time.
(2) The effectiveness of a declaration of
intent is not affected if the person declaring
dies or loses capacity to contract after making
a declaration.
(3) These provisions apply even if the de¬
claration of intent is to be made to a public
authority.
§130
Wirksamwerden der
Willenserklärung gegenüber
Abwesenden
(1) ’Eine Willenserklärung, die einem ande¬
ren gegenüber abzugeben ist, wird, wenn sie in
dessen Abwesenheit abgegeben wird, in dem
Zeitpunkt wirksam, in welchem sie ihm zugeht.
2Sie wird nicht wirksam, wenn dem anderen
vorher oder gleichzeitig ein Widerruf zugeht.
(2) Auf die Wirksamkeit der Willenserklä¬
rung ist es ohne Einfluss, wenn der Erklä¬
rende nach der Abgabe stirbt oder geschäfts¬
unfähig wird.
(3) Diese Vorschriften finden auch dann
Anwendung, wenn die Willenserklärung einer
Behörde gegenüber abzugeben ist.
Contents
mn.
A. Explanation 1
I. Absent 1
II. Made 2
III. Sphere of influence 3
IV. Post 4
V. Agent; messenger 5
VI. Revocation 6
VII. Death; incapacity 7
VIII. Presence 8
IX. Refusal of receipt 9
X. Good faith 10
XI. Burden of proof 11
1 See “* Introduction to §§ 116-144 mn. 1-8.
Wais
165
§ 130 1-4
Division 3. Legal transactions
A. Explanation
I. Absent
1 The purpose of § 130 is to stipulate the conditions under which a declaration of intent1
requiring receipt becomes effective if it is made in relation to a receiving party that is absent.
The term absent generally denotes a situation where no real time communication takes
place. A receiving party is not taken to be absent when the declaration of intent is made over
the telephone.
IL Made
2 § 130 requires that the declaration is made and reaches the receiving party. The word to
make is used to describe an act of expression. Despite the silence of the BGB in this regard, it
is accepted that also a declaration not requiring receipt must be made in order to be
effective.2 A declaration may be considered made within the meaning of Sub. 1 1st St when
it has been expressed in a way leaving no room for doubt as to the definitive character of the
intention to do so. With regard to a declaration of intent requiring receipt, it is further
required that the declaration was deliberately directed towards the receiving party.3 That does
not imply that a declaration of intent made only negligently (e.g. sending an email by
mistake) would necessarily be void. Rather, the difference is that, in the case of negligence,
the sender has a right to avoid the declaration pursuant to § 119(1). However, he may be held
liable by the receiving party under § 122 and pursuant to the principles of culpa in contra¬
hendo.4 If an unauthorised third party made the declaration, it may have a binding effect
where the third party’s act can be construed as a type of agency (authority by toleration/by
appearance5). Again, the apparent issuer may also be held liable for culpa in contrahendo. If
the issuer merely informs a third party of the declaration of intent, without expecting that it
would reach the receiving party, the declaration cannot be considered properly made in the
sense of Sub. 1, even if it eventually reaches the receiving party.6
III. Sphere of influence
3 A declaration made in relation to an absent receiving party is considered to have reached
the receiving party when it has become available in his sphere of influence so that he, under
normal circumstances, can be expected to have taken note of its content.7 The receiving
party’s sphere of influence is generally understood to comprise i.a. his mailboxes, both
material and electronic, his answering machine, and his telefax. An email has only entered
the receiving party’s sphere once it is first (automatically) saved in his email account, a telefax
must be printed out by the receiving party’s device.
IV. Post
4 A letter that is dropped off in the mailbox before noon is held to have reached the
receiving party on that day because it is generally presumed that under normal circumstances
this would allow the receiving party to take note of its content on that day. More recently,
however, courts were ready to accept that even where the letter was delivered prior to 6 p.m.,
1 See -► Introduction to §§ 116-144 mn. 1-8.
2 Palandt BGB/Ellenberger, § 130 BGB mn. 1.
3 BGH 18.12.2002 - IV ZR 39/02, NJW-RR 2003, 384.
4 HK-BGB/Dörner, § 130 BGB mn. 2. See ► § 311 mn. 5.
5 See -► § 172 mn. 10-11.
6 BGH 11,5.1979 - V ZR 177/77, NJW 1979, 2032, 2033.
7 BGH 13.2.1980 - VIII ZR 5/79, NJW 1980, 990; BGH 21.1.2004 - XII ZR 214/00, NJW 2004, 1320.
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166
Declaration of intent to absent parties 5-8 § 130
it reached the receiving party on the same day.8 A letter that has not properly reached the
receiving party on the day of delivery will be considered to have reached him on the next
business day. The receiving party of a telefax is presumed to take note of its content at the
time when it was printed but exceptions must be made where the telefax was printed out only
at an unduly late or early hour. Where the receiving party is a business, he is expected to take
note only within business hours.
V. Agent; messenger
Where the declaration of intent reaches the agent of the receiving party, it is considered to 5
have reached the receiving party provided that in relation to the agent all the requirements
set forth in Sub. 1 1st St. are fulfilled, irrespective of whether or not the agent eventually
forwards the declaration to his principal. Where the declaration of intent is directed towards
a messenger (Bote) of the receiving party, on the other hand, it is presumed to have reached
the receiving party only when, under normal circumstances, the messenger can be expected
to have forwarded the declaration to the receiving party. Whether or not the declaration has
in fact reached the receiving party is again irrelevant. A third party may be a messenger of
the receiving party because he was so authorised or because circumstances objectively suggest
that he is. The latter case may hold true for the spouse,9 members of the receiving party’s
household,10 or - under certain conditions - the employees of the receiving party,11 at least in
matters relating to the business and during business hours. Where the third party was neither
authorised nor by virtue of circumstances a messenger of the receiving party, he is instead
considered a messenger of the person making the declaration. It follows that the declaration
will only reach the receiving party once it has in fact been forwarded to him.12
VI. Revocation
Sub. 1 2nd St. further provides that a declaration of intent may be revoked at any time 6
provided the revocation reaches the receiving party no later than the revoked declaration. It
is not required that the receiving party takes actual note of the revocation.
VII. Death; incapacity
Pursuant to Sub. 2, a declaration of intent will remain effective if the declaring party dies 7
or loses his capacity to contract after the declaration was made. Hence, e.g. the prospective
buyer may accept the offer of a seller who - before the offer reached the buyer - passed away.
Instead of the original offeror, his legal successor will be bound, unless his revocation of the
offer reached the seller no later than the offer. Importantly, however, the authority to dispose
of a thing (especially the transfer of ownership) does not fall under Sub. 2. For example, the
transfer of ownership of a movable thing (§ 929) requires the owner to have authority when
the transfer becomes effective.13
VIII. Presence
The law is silent with regards to declarations of intent that are made towards a receiving 8
party who is present; i.e. when he and the declaring party are in the same room or, albeit the
lack of physical presence, when the declaration is made over the telephone. It is generally
8 See Palandt BGB/Ellenberger, § 130 BGB mn. 6.
9 BGH 17.3.1994 - X ZR 80/92, NJW 1994, 2613, 2614.
10 BSG 7.10.2004 - B 3 KR 14/04, NJW 2005, 1303, 1304.
11 BGH 12.12. 2001 - X ZR 192/00, NJW 2002, 1565, 1566.
12 RG 29.3.1905 - Rep. V. 445/04, RGZ 60, 334, 337.
13 BGH 30.5.1958 - V ZR 295/56, NJW 1958, 1286, 1288; BGH 11.10.2005 - XI ZR 85/04, NJW 2006,
294.
Wais
167
9
8 131 Division 3. Legal transactions
ec • hpn it is recognised by the receiving
accepted that such a declaration becomes effective w take notice of it. However,
party. It is not effective if the receiving party fails to recog be deemed effective
uncertainty surrounds the question of whether a declaring party.14 15
nonetheless where any such impediment was not notic
IX. Refusal of receipt
The declaration has not reached the receiving party where receipt is
example, receipt of a letter sent with insufficient postage may e ngh ,
receipt would require the receiving party to cover the remainder o t e ee . PP
to a telephone call made on terms of a reverse charge, which - save for special circumstances
- the receiving party need not accept. Where, on the other hand, receipt was unjus a y
denied, the declaration of intent is deemed to have reached the receiving party none e ess.
X. Good faith
10 In addition, a receiving party who reasonably expects to receive declarations of intent must
provide sufficient means to ensure that such declarations can in fact reach him. Under these
conditions, it may follow from § 242 that the receiving party will be held to have received a
declaration which - due to his non-compliance - he did not in fact receive. As there is no
general rule that a person must always reasonably expect to receive such declarations, the
reasonableness of an expectation in this regard highly depends on the specifics of the
individual case. For example, it has been held that parties to a lease contract that have had
negotiations in the previous six weeks must expect declarations of intent from their counter¬
parts,16 and also a party that has granted the other party a right to rescind from a contract17
It may be assumed that where exercising a right which is established by a legal transaction
involves a declaration of intent (e.g. a contractually agreed right to terminate or unilaterally
extend a contract) the counterparty must generally expect that said declaration is made.
However, in order for § 242 to apply, additional circumstances are required, e.g. that the
receiving party acts in bad faith.18
XI. Burden of proof
11 The burden of proof lies with the party relying on the declaration having reached the
receiving party. He must also prove that a revocation reached the receiving party in due time.
Uncertainty surrounds the question whether the use of certain means of communication may
allow tor pnma facie evidence.19 1
§131
Effectiveness in relation to persons
without full capacity to contract
(1) If a declaration of intent is made to a
person incapable of contracting, it does not
become effective until it has reached his legal
representative.
§131
Wirksamwerden gegenüber nicht
voll Geschäftsfähigen
schäftJ^'p*? Willenserklärung einem Ge-
wird sie*n- 8e8enü^er abgegeben, so
14 See Palandt BGB/Ellenberger, § 130 BGB mn 14
15 BGH 26.11.1997 - VIII ZR 22/97, NJW 1998. 976 977. rch ,, ,
929, 930. • b(jH 27.10.1982
16 BGH 3.11.1976 - VIII ZR 140/75, NJW 1977 194 195
17 BGH 27.10.1982 - V ZR 24/82, NJW 1983, 929, 930 ‘
BGH 17.4.1996 - IV ZR 202/95, NJW 1996, 1967 1968
19 See Palandt BGB/Ellenberger, § 130 BGB mn. 21;’jauernig BCB/M
- V ZR 24/82, NJW 1983,
§ 130 BGB mn. 19.
168
Wais
Substitution of service for receipt
§132
(2) ’The same applies if the declaration of
intent is made to a person with limited capa¬
city to contract. 1 2If, however, the declaration
merely provides a legal advantage to the per¬
son with limited capacity to contract, or if the
legal representative has given his consent, the
declaration becomes effective at the time
when it reaches the person with limited capa¬
city.
(2) ’Das Gleiche gilt, wenn die Willenser¬
klärung einer in der Geschäftsfähigkeit be¬
schränkten Person gegenüber abgegeben
wird. 2Bringt die Erklärung jedoch der in der
Geschäftsfähigkeit beschränkten Person ledig¬
lich einen rechtlichen Vorteil oder hat der
gesetzliche Vertreter seine Einwilligung er¬
teilt, so wird die Erklärung in dem Zeitpunkt
wirksam, in welchem sie ihr zugeht.
A. Explanation
I. Lack of capacity
Sub. 1 provides that where the receiving party of a declaration of intent1 is a person who 1
lacks the capacity to contract, the declaration will only become effective when it has reached
his legal representative. The provision complements the protection of persons who are
incapable to contract pursuant to § 105(1). These persons can neither make nor receive
declarations of intent. In order for a declaration of intent requiring receipt by a person falling
under § 104 to be effective, it is necessary that this declaration be directed towards the legal
representative and not the incapable person himself.2 The legal representative’s coincidental
taking notice of the declaration does not suffice.
II. Limited capacity
The law is less strict with regard to persons whose capacity to contract is not precluded but 2
merely limited. As a general rule, the declaration must again reach the legal representative.
However, a person with limited capacity to contract may himself receive declarations of
intent that, from a legal point of view, are purely beneficial to him.3 For example, a landlord
who wants to terminate a lease contract with the minor must make his declaration of intent
towards the legal representative. In contrast, a seller who wants to make the minor an offer to
conclude a contract can make this declaration of intent toward the minor because the offer as
such is beneficial. If, and to the extent that, the legal representative gave his consent,4
declarations of intent may generally be made towards, and received by, the person with
limited capacity to contract.
§ 132
Substitution of service for receipt
(1) 1A declaration of intent is also deemed
to have been received if it is served through a
bailiff as intermediary. 2The service is effected
in accordance with the provisions of the Code
of Civil Procedure [Zivilprozessordnung].
(2) ’If the person declaring is unaware,
through no negligence on his part, of the
identity of the person to whom the declaration
is to be made, or if the whereabouts of this
§132
Ersatz des Zugehens durch
Zustellung
(1) ’Eine Willenserklärung gilt auch dann
als zugegangen, wenn sie durch Vermittlung
eines Gerichtsvollziehers zugestellt worden
ist. 2Die Zustellung erfolgt nach den Vor¬
schriften der Zivilprozeßordnung.
(2) ’Befindet sich der Erklärende über die
Person desjenigen, welchem gegenüber die
Erklärung abzugeben ist, in einer nicht auf
Fahrlässigkeit beruhenden Unkenntnis oder
1 See -> Introduction to §§ 116-144 mn. 1-8.
2 MüKo BGB/Einsele, § 131 BGB mn. 3; Jauernig BGB/Mansel, § 131 BGB mn. 1.
3 See § 107 mn. 2.
4 See -> § 182 mn. 1.
Wais
169
§133
Division 3. Legal transactions
person are unknown, service may be effected
in accordance with the provisions of the Code
of Civil Procedure [Zivilprozessordnung] re¬
lating to service by publication. * 2In the former
case, the local court [Amtsgericht] competent
for the approval is the one in whose district
the person declaring has his residence, or in
the absence of a residence within the country,
his abode; in the latter case, the local court
[Amtsgericht] competent for the approval is
the one in the district of which the person to
whom service is required to be effected had his
last residence, or, in the absence of a residence
within the country, his last abode.
ist der Aufenthalt dieser Person unbekannt,
so kann die Zustellung nach den für die
öffentliche Zustellung geltenden Vorschriften
der Zivilprozeßordnung erfolgen. Zuständig
für die Bewilligung ist im ersteren Fall das
Amtsgericht, in dessen Bezirk der Erklärende
seinen Wohnsitz oder in Ermangelung eines
inländischen Wohnsitzes seinen Aufenthalt
hat, im letzteren Falle das Amtsgericht, in
dessen Bezirk die Person, welcher zuzustellen
ist, den letzten Wohnsitz oder in Erman¬
gelung eines inländischen Wohnsitzes den
letzten Aufenthalt hatte.
A. Explanation
L Service
1 Pursuant to § 132, a declaration of intent1 is deemed to have reached the receiving party
where the latter has been served with the document pursuant to §§192 et seq. ZPO.
Importantly, service within the meaning of Sub. 1 can only be rendered by a bailiff, not by
a party or his legal counsel.2 § 131 applies where the receiving party of the declaration is a
person with limited capacity to contract. In this case it is thus the legal representative that
must be served with the declaration.
IL Service by publication
2 Service by publication (or constructive service) may be rendered in accordance with §§ 185
et seq. ZPO. It is only an option where the person applying for service by publication is
inculpably unaware of the identity or the whereabouts of the receiving party of the
declaration of intent.3 Once the service is effected, it is generally effective even if the applicant
made false allegations; it is only void if the inadmissability was obvious.4 Further, the
receiving party may also invoke § 242 to estop the person who applied for senice by
publication from relying on the legal consequences created.
§133
Interpretation of a
declaration of intent
When a declaration of intent is interpreted,
it is necessary to ascertain the true intention
rather than adhering to the literal meaning of
the declaration.
§133
Auslegung einer Willenserklärung
Bei der Auslegung einer Willenserklärung
ist der wirkliche Wille zu erforschen und
nicht an dem buchstäblichen Sinne des Aus¬
drucks zu haften.
‘ See Introduction to §§ 116-144 mn. 1-8.
2 BGH 3.11.1976 - VIII ZR 140/75, NJW 1977, 194, 195.
3 Palandt BGB/Ellenberger, § 132 BGB, mn. 3
4 BGH 8.12.2016 - III ZR 89/15, NJW 2017, 1735, 1736; BGH 19.12.2001 - VIII ZR 282/00, NJW 2002.
827.
170
Wais
Interpretation of a declaration of intent
1-3 § 133
Contents
mn.
A. Function 1
B. Explanation 2
I. Relevant factors 2
II. Subjective and objective intention 3
1. Subjective intention 4
2. Objective intention 6
a) Approach 8
b) Application 9
III. Multiple recipients 10
IV. Interpretation 11
1. Surrounding circumstances 12
2. Interests 13
3. Good faith 14
4. General principles 15
5. Court 16
A. Function
Under the BGB, the interpretation of legal transactions1 is governed by two provisions, 1
§ 133 and § 157. Based on its wording, § 133 applies only to the interpretation of declara¬
tions of intent, whilst § 157 appears to apply only to contracts. However, it is generally
accepted that both provisions apply to the interpretation of declarations of intent and of
contracts alike.2 Further, § 133 applies to any declaration of intent in any area of private law
and even in procedural law. § 133 also applies to conduct that, while not technically being a
declaration of intent, has comparable effects (geschäftsähnliche Handlung).3 Further, the
question whether a particular conduct may be qualified as a declaration of intent in the first
place is itself subject to interpretation under § 133.4
B. Explanation
I. Relevant factors
The factors that are relevant for the interpretation must be established in order for the 2
interpretation to take place. This is of particular importance as §§ 133 and 157 apply side-by-
side, the latter requiring to determine how the other party reasonably ought to have
understood the declaration of intent. Relevant factors are generally the circumstances under
which the declaration was made and other aspects found not within the declaration itself that
provide indication as to the intention expressed. The relevant point in time is when the
declaration was made. Subsequent circumstances or developments must not be regarded.5
However, subsequent behaviour may be regarded to the extent that it allows for conclusions
as to the actual will or understanding at the time when the declaration was made.6
II. Subjective and objective intention
The wording of § 133 suggests that the aim of the interpretation is to ascertain solely the 3
true intention of the declaring party. However, this holds true only in two cases: (i) where no
1 See Introduction to §§ 116-144 mn. 1-8.
2 See MüKo BGB/Busche, § 133 BGB mn. 17; Jauernig BGB/Mansel, § 133 BGB mn. 7.
3 See -» Introduction to §§ 116-144 mn. 8.
4 BGH 14.11.1991 - HI ZR 4/91, NJW 1992, 498.
5 BGH 24.6.1988 - V ZR 49/87, NJW 1988, 2878, 2879,
6 Palandt BGB/Ellenberger, § 133 BGB mn. 6b; Jauernig BGB/Mansel, § 133 BGB mn. 9.
Wais
171
§ 133 4-9 Division 3. Legal transactions
interests of a receiving party must be considered, and (ii) where the declaration objectively
does not reflect the declaring party’s true intention but the receiving party identified the true
intention nonetheless (falsa demonstration non nocet).7
1. Subjective intention
4 The relevance of the protection of interests of the other party suggests a distinction
between declarations of intent requiring receipt (i.e. declarations that will not become
effective unless received by the receiving party) and declarations that do not require receipt
5 Where the law considers a declaration effective without requiring that it be recognised by
another person it is irrelevant, generally, how another party has or ought to have understood the
declaration. Here the aim of the interpretation is generally solely the identification of the
declaring person’s true intention.8 This is particularly important for the interpretation of wills.9
If the true intention of the deceased cannot be established, his hypothetical intention is decisive.
The interpretation of a will is further governed by § 2084 according to which, in case of doubt,
preference must be given to the interpretation that would render the will effective.
2. Objective intention
6 The existence of § 119(1) suggests that § 133 cannot be the only guiding principle for
interpretation. § 119(1) allows for a declaration to be avoided on the grounds of mistake.
Mistake under § 119(1) is a discrepancy between the declared and the declaring party’s true
intention.10 If the declaration of intent were always to be interpreted as resembling the
declaring party’s true intention, a discrepancy in the former sense could never be established.
7 This exception from § 133, as suggested by the aforementioned, concerns the interpreta¬
tion of declarations requiring receipt. In this context, the guiding principle is not the
relevance of the true intention but rather how the receiving party, paying due regard to the
principle of good faith and customary practice, ought to have understood the declaration of
intent.11 Importantly, this objective approach and its prevalence are stipulated neither
directly in § 133 nor § 157. They are, however, necessitated by the protection of legitimate
expectations and are generally accepted.
8 a) Approach. In order to determine the objective intention, it may seem helpful to pose
the question of how an objective third party that has all the specific knowledge the receiving
party has would have reasonably understood the particular declaration of intent Impor¬
tantly however, the receiving party may not simply construe the declaration in the way most
favourable to him. Rather it follows from the principle of good faith that he must also inquire
into the interests pursued by the declaring party.12 All relevant circumstances must be taken
into account. The same criteria also apply to the interpretation of a declaration of intent that,
rather than being express, was made impliedly. It is generally required that the declaring
party was aware or, at least, ought to have known of the fact that his conduct may be
construed as a declaration of intent.13
9 b) Application. The objective approach generally also applies when it is already unclear
whether a party’s conduct amounts to a declaration of intent at all. If, when construed
objectively, the conduct appears to be a declaration of intent, the declaring person will be
7 BGH 7.12.2001 - V ZR 65/01, NJW 2002, 1038, 1039.
8 HK-BGB/Dörner, § 133 BGB mn. 7.
9 BGH 8.12.1982 - IV a ZR 94/81, NJW 1983, 672, 673.
10 See ►§119mn. 2.
11 BGH 5.7.1990 - IX ZR 10/90, NJW 1990, 3206, 3207.
12 BGH 12.2.1981 - IVa ZR 103/80, NIW 1981, 2295, 2296.
•’ BGH 29.11.1994 - XI ZR 175/93, NJW 1995, 953.
172
Wais
Interpretation of a declaration of intent 10-13 § 133
held to have made that declaration of intent;14 e.g, where a visitor at an auction raises his
hand to greet a friend when the hammer falls. However, he may avoid the declaration by way
of an analogous application of § 119(1),15 No declaration may be ascertained where the
declaring party was inculpably unaware of the fact that his conduct could reasonably be
construed as a declaration of intent.
III. Multiple recipients
Where a declaration is to be made to a greater or undefined number of receiving parties 10
(e. g. the articles of association or a binding promise of reward pursuant to § 657) it must be
interpreted uniformly and with regard to the understanding of the typical receiving party,16
IV. Interpretation
Although § 133 suggests the contrary, the interpretation must begin with the literal mean- 11
ing of the declaration.17 Where in doubt, the natural and ordinary meaning of the word must
be given preference, but where expert jargon is used between experts, the understanding that
predominates in the respective field is decisive.18 Moreover, if an expression has a particular
meaning to the declaring part)' of which the receiving party is aware, that specific usage of the
expression is decisive. Similar to the interpretation of legal provisions, grammar and position of
a sentence within the text and the general context must be taken into account.19
1. Surrounding circumstances
Once the meaning of the words has been established, it must be set against the circum- 12
stances surrounding the declaration that do not already become apparent from the declaration
itself.20 How’ever, with regard to the interpretation of a declaration of intent that requires
receipt, these surrounding circumstances can only be relevant to the extent that they are
known to the receiving party. In particular, the background to the declaration, prior business
conduct and the preceding negotiations are important factors. Moreover, the courts accept that
subsequent behaviour of the parties may indicate a particular interpretation.21 In principle, the
same applies also to the interpretation of declarations that are subject to form requirements.22
However, such circumstances may only be taken into account if they have found some
expression in the document; i.e. the document must indicate or insinuate these circumstances
(Andeutungstheorie).23 These principles do not apply where the parties by mistake drew up a
document that does not reflect what the parties in fact agreed. Here the actual intent of the
parties prevails irrespective of any indication or absence thereof in the document.24
2. Interests
Further, the interests of the parties and the purpose that the legal transaction served are 13
relevant factors for the interpretation.25 It is necessary to take into account the interests of both
14 BGH 14.6.2004 - II ZR 393/02, NJW 2004, 2736.
15 BGH 7.6.1984 - IX ZR 66/83, NJW 1984, 2279.
16 BGH 6.3.1967 - II ZR 231/64, NJW 1967, 1268, 1269.
17 BGH 14.12.2005 - XII ZR 241/03, NJW-RR 2006, 337, 338.
18 Palandt BGB/Ellenberger, § 133 BGB mn. 14.
19 BGH 19.3.1956 - VIII ZR 74/56, NJW 1957, 873.
20 BGH 19.1.2000 - VIII ZR 275/98, N|W-RR 2000, 1002, 1003.
21 BGH 24.6.1988 - V ZR 49/87, NJW 1988, 2878, 2879.
22 BGH 11.2.2010 - VII ZR 218/08, NJW-RR 2010, 821.
25 BGH 12.7.1996 - V ZR 202/95, NJW 1996, 2792, 2793.
24 Palandt BGB/Ellenberger, § 133 BGB mn. 19.
25 BGH 13.6.2007 - IV ZR 330/05, NJW 2007, 2320, 2322.
Wais
173
g ! 34 Division 3. Legal transactions
s i f intent that does not require receipt,
parties, unless the interpretation concerns a declaration o st$ of both must prevail?
In case of doubt an interpretation that reflects t e rea
14
3. Good faith
♦ intproreted in accordance with the
Declarations of intent as well as contracts mus practice.27 No interpretation is
principle of good faith and must pay due regar to cus objectively differs from the
necessary where a declaration of intent has a g receiving party. The law
declaring party’s true intention but is understood correey yd 28 this principle is
does not intervene where the true intentions of the parties corr p F
commonly referred to under the term falsa demonstratio non nocet.
4. General principles
15 Although the law provides specific rules that govern the interpretation of certain legal
transactions, e.g. § 328(2), there are several principles of general application. In case of doubt
it may be presumed that that the parties intended to pursue lawful"* 9 and reasonable ends30
and to conclude a non-contradictory agreement.31 Furthermore, it is argued that such
declarations that limit substantial rights of a party must be interpreted narrowly.32 A rule
according to which ambiguous clause must be interpreted to the disadvantage of the
declaring party (contra proferentem) exists in the context of standard contract terms
(§ 305c(2)). However, this rule does not apply to declarations of intent and contracts in
general.33
5. Court
16 Interpretation is made by the courts ex officio. It is part of the legal reasoning and is itself
not subject to proof. The facts of which the interpretation is based, on the other hand, require
proof. The burden of proof lies with the party that argues for an interpretation favourable to
him. In an appeal in points of law (Revision) the appellate court mav only review the
interpretation. However, it only checks whether the accepted principles of interpretation,
rules of logic, general experience, or procedural provisions have been infringed-54 In
particular, the appellate court will inquire whether the court of first instance has°comPre-
hensibly taken into consideration all the facts relevant for the interpretation 55
§ 134
Statutory prohibition
A legal transaction that violates a statutory
prohibition is void, unless the statute leads to
a different conclusion.
§134
Gesetzliches Verbot
,E'n Rechtsgeschäft, das gegen ein gesetzli-
ches \crbot verstößt, ist nichtig, wenn sich
nicht aus dem Gesetz ein anderes ergibt.
“ BGH 14.12.2005 - XII ZR 241/03, NJW-RR 2006. 337 339
11 See ► § 157 mn. 2. ' ’ " ‘
“ BGH 29.3.1996 - II ZR 263/94, N|W 1996, 1678 1679
BGH 3.12.2003 -VIII ZR 86/03, NJW 2004 1240
30 BGH 5.4.1993 - 11 ZR 238/91, NJW 1993. 1976, 1978- Rt'U 1Q ,
2508, 2509. ’ 1 /S’ W,H -^.3.2000
VIII ZR 297'98, NJW 2000,
J' BGH 14.3.2003 - V ZR 278/01, NJW-RR 2003. 1136
Palandt BGB/Ellenberger, § 133 BGB mn. 24.
33 Palandt BGB/Ellenberger, § 133 BGB mn 23
33 BGH 26.10.2009 - II ZR 222/08, NJW 2010, 64 65
BGH 29.3.2000 - VIII ZR 297/98, NJW 2000, 2508, 2509.
174
Wais
Statutory prohibition
1-5 § 134
A. Function
I. Purpose
§ 134 poses a limit to party autonomy. The parties are generally free to conclude legal 1
transactions1 but their freedom is limited where doing so would violate the law. Under § 134, the
violation will carry' with it the sanction of nullity of the transaction unless the law requires a
ditlerent conclusion. § 134 is thus a rule that governs the interpretation of statutory prohibitions.
II. Scope of application
Statutory’ prohibitions within the meaning of § 134 are provisions that prohibit legal 2
transactions for the conclusion of which, in principle, the parties have the necessary capacity.
In contrast, § 134 does not apply where the parties already by virtue of the law cannot
conclude a transaction, e.g. because they lack the required capacity to contract pursuant to
§ 104, or cannot dispose of certain rights such as under § 399, or due to the numerus clausus
of property' rights.2 * Further, the prohibition - with only relative effect - of dispositions is
dealt with under the more specific provisions of §§ 135 and 136. § 134 is a mandatory
provision which the parties cannot exclude or deviate from.
B. Explanation
I. Source
Statutory prohibitions within the meaning of § 134 can stem from both national and 3
international law. Foreign law does not qualify as a statutory prohibition under § 134; under
certain conditions, however, its violation may be contrary' to public policy under § 138?
1. National law
National law implies federal law (Bundesrecht) but also the laws of the Länder (Lan- 4
desrecht)4 * * and customary' law (Gewohnheitsrecht)? The articles of the Grundgesetz are not
considered statutory prohibitions, but they exert influence on the relationship between
private persons by virtue of §§ 138, 242 and 826?
2. International law
Where international law is concerned, it must be of direct effect in order to fall within 5
§ 134. International law that has a binding effect only on states is of no relevance under
§ 134.7 8 Statutory prohibitions may further stem from EU law. For example, prohibitions
under Arts 107, 101, 34, 45 TFEU qualify as statutory prohibitions under § 134?
1 See ■* Introduction to 116-144 mn. 1-8.
2 See * Introduction to 1018-1093 mn. 2.
1 BGH 20.11.1990 - VI ZR 6/90, NJW 1991,634, 635.
4 BGH 25.1.2012 - 1 StR 45/11, NJW 2012, 1377, 1380; BGH 22.1.1986 - VIII ZR 10/85, N|W 1986,
2361.
s BGH 28.4.2015 - XI ZR 378/13, NJW 2015, 2248, 2255; BGH 27.2.2007 - XI ZR 195/05, N|W 2007,
2106.
'• Palandt BGB/Ellenberger, § 134 BGB mn. 4.
7 BGH 21.2.1980 - HI ZR 185/77, NJW 1980, 1574, 1575; BGH 29.9.1977 - III ZR 164/7.5, N|W 1977,
2356.
8 Palandt BGB/Ellenberger, § 134 BGB mn. 3.
Wais
175
§ 134 6-9
Division 3. Legal transactions
IL Consequences of violation
6 As § 134 is merely a rule of interpretation, the courts must first try to conclude what the
consequences of its violation are.9 No problems arise where the sanction is expressly
regulated in the provision. However, words such as ‘cannot’ (kann nicht) or is not permitted'
(ist unzulässig) suggest that § 134 does not apply, since already in this case the capacity of the
parties is restricted or a right is excluded from the disposition of the parties.10 The words
‘may not’ (darf nicht) are not considered meaningful as they are used by the legislator rather
indifferently.11 ‘Should not’ (soll nicht) also suggests that a violation does not void the
transaction. The purpose of the provision (ratio legis) may be decisive where the wording is
inconclusive.12
III. Official permission
7 Some legal transactions require official permission. If the transaction is concluded without
the required permission, it is not void but merely void pending permission and as such in a
state of suspended invalidity (schwebend unwirksam). The transaction will become fully
effective if permission is subsequently granted, though it will become definitively void if the
permission is denied.13 However, the legal transaction may be void where the parties collude
in order to circumvent the permission requirement.14
IV. Void
8 Where the prohibition addresses both parties of the legal transaction, the courts generally
accept that the transaction will be void;15 in particular where the violation is also punish¬
able.16 In contrast, where the legal transaction is prohibited only for one part)’, the courts
generally assume that the sanction does not apply.17 *
9 Due to the key principles of separation and abstraction (Trennungs- and Abstraktions¬
prinzip13), a void transaction intending to establish an obligation (the so-called Verpflich¬
tungsgeschäft. e.g. sales contract, § 433) generally does not affect the effectiveness of the legal
transaction by which the obligation is fulfilled (the so-called Verfügungsgeschäft. e.g. transfer
of ownership, § 929). However, where the legal transaction by which the obligation is fulfilled
is void under § 134, the transaction establishing the obligation is generally also void,19 though
exceptions may apply.20
9 BGH 12.5.2016 - IX ZR 241/14, NJW 2016, 2561.
10 MüKo BGB/Armbrüster, § 134 BGB inn. 44; Palandt BGB/Ellenberger $ IM BGB mn 6a
11 BGH 30.4.1992 - III ZR 151/91, NJW 1992, 2021, 2022.
12 BGH 12.5.2016 - IX ZR 241/14, NJW 2016, 2561, 2562; BGH 5.5.1992 - X ZR IM/90 NJW 1992,
2257, 2558.
11 Palandt BGB/Ellenberger, § 134 BGB mn. Ha.
14 BGH 28.6.1968 - V ZR 77/65, NJW 1968, 1928.
15 BGH 5.5.1992 - X ZR 134/90, NJW 1992, 2557, 2559; BGH 14.12.1999 - X ZR 34/98, NJW 2000'
1186,1187.
BGH 12.1.1970 - VII ZR 48/68, NJW 1970. 609; BGH 5.5.1992 - X ZR 134/90, NJW 1992, 255'
2559.
17 BGH 14.12.1999 - X ZR 34/98, NJW 2000, 1186.
u* See ► Introduction mn. 40-42.
'9 BGH 11.12.1991 - VIII ZR 4/91, NJW 1992, 737,740.
See Palandt BGB/Ellenberger, § 134 BGB mn. 13.
Wais
176
Official prohibition of disposal
1-2 § 136
§135
Statutory prohibition of disposal
(1) ’If the disposition of a thing violates a
statutory prohibition against disposal in¬
tended solely for the protection of particular
persons, the disposition is ineffective only in
relation to these persons. 1 2 3A disposition by
legal transaction is equivalent to a disposition
which is effected by means of execution or
attachment.
(2) The provisions in favour of those who
derive rights from an unauthorised person
apply with the necessary modifications.
§135
Gesetzliches Veräußerungsverbot
(1) ’Verstößt die Verfügung über einen Ge¬
genstand gegen ein gesetzliches Veräußerungs¬
verbot, das nur den Schutz bestimmter Per¬
sonen bezweckt, so ist sie nur diesen Personen
gegenüber unwirksam. 2Der rcchtsgeschäftli-
chen Verfügung steht eine Verfügung gleich,
die im Wege der Zwangsvollstreckung oder
der Arrestvollziehung erfolgt.
(2) Die Vorschriften zugunsten derjenigen,
welche Rechte von einem Nichtberechtigten
herleiten, finden entsprechende Anwendung.
§ 136
Official prohibition of disposal
A prohibition of disposal w'hich is issued
by a court or by any other public authority
within the limits of its competence is equiva¬
lent to a statutory prohibition of disposal of
the kind described in § 135.
§ 136
Behördliches Veräußerungsverbot
Ein Veräußerungsverbot, das von einem
Gericht oder von einer anderen Behörde in¬
nerhalb ihrer Zuständigkeit erlassen wird,
steht einem gesetzlichen Veräußerungsverbot
der in § 135 bezeichneten Art gleich.
A. Function
§§ 135 and 136 concern, respectively, statutory prohibitions of disposal as well as prohibi- 1
tions of disposal issued by courts and public authorities. Their purpose is the protection not
of the general public but of individual persons. It is generally accepted that these provisions
apply to the disposals of rights of all kinds, not only to the disposition over a thing.1
Importantly, §§135 and 136 only deal with prohibitions that have a relative effect, i.e. the
disposition is rendered ineffective only in relation to specific persons. A prohibition of
disposal with absolute effect will fall within the scope of § 134. Where a person is by law
excluded from the disposition over a right (e. g. the disposition of a spouse over the property
without consent of the other spouse under § 1365(1); but also § 399 or § 717), §§ 135, 136
are not applicable.
B. Context
Statutory prohibitions of disposal that serve the protection of individuals, rather than the 2
general public, are scarce. The only example for such a prohibition can be found in § 473?
Prohibitions of disposal issued by courts and public authorities are thus of far greater
practical relevance. The most important cases are prohibitions issued under §§ 829, 857
ZPO that form part of the attachment of claims and rights;5 the attachment of a plot of land
under §§ 20, 23, 146 ZVG (ZwangsVersteigerungsgesetz - Act on Enforced Auction and
Receivership4); and the attachment in the context of criminal law and its procedure.
1 HK-BGB/Dörner, § 136 BGB mn. 2.
2 Palandt BGB/Ellenbegcr § 136 BGB mn. 3.
3 BGH 20.11.1997 - IX ZR 152/96, NJW 199H, 746.
4 An English translation of the ZVG is available under www.gesctze-im-internel.de.
Wais
177
§137
Division 3. Legal transactions
C. Explanation
I. Persons
3 Due to the relative effect of the prohibition it is necessary to ascertain in relation to whom
the disposition is void. In relation to persons who are not protected by the prohibition, the
transfer of ownership or another right is effective. Hence the acquirer is the new owner or
holder of the respective right in relation to everyone except the protected person. In relation
to the latter, the person that is subject to the prohibition is still the owner or, respectively,
holder of the right. He can thus still make the disposition in relation to the protected person.
IL Moveable things
4 Where movable things are concerned, the protected person may also demand that the
person that is subject to the prohibition assign him the right to claim restitution from a third
party. The protected person may claim restitution from the third party once the assignment
is made.5
III. Land
5 Where ownership of, or another right in, a plot of land is concerned, the protected person
may demand from the party that is subject to the prohibition that he be transferred
ownership or, respectively, the right and registered in the Land Register as the owner or
right holder. The protected person may, pursuant to § 888(2), also claim from the third-party
approval of the correction of the Land Register which, due to relative effect of the prohibition
of disposal, is incorrect in relation to him.
IV. Effective
6 The disposition relatively void becomes effective when it is ratified (§ 185(2)) by the
protected person; when the prohibition is repealed; or when the protected risht no longer
exists.6 7 Notwithstanding the existence of the prohibition, the disposition is fully effective
where the third party toward whom the disposition is made acts in good faith pursuant to
§ 135(2) and the respective provision applicable to the acquisition in good faith of the right
in question, e.g. §§ 932 et seq., 1032, 1207, and §§ 892 et seq. Importantly, no acquisition of
a right in a plot of land is possible when the prohibition is registered in the Land Register.
Where acquisition in good faith is generally impossible - in particular of claims - the
prohibition of disposal can neither be overcome by virtue of good faith.’
§137
Prohibition of dispositions in a
legal transaction
*The power to dispose of an alienable right
may not be excluded or restricted by a legal
transaction. 2This effectiveness of an obliga¬
tion not to dispose of such a right is not
affected by this provision.
§ 137
Rechtsgeschäftliches
V erfiigungsverbot
Die Befugnis zur Verfügung über ein ver-
äußerliches Recht kann nicht durch Rechts¬
geschäft ausgeschlossen oder beschränkt wer
den. 2Die Wirksamkeit einer Verpflichtung,
über ein solches Recht nicht zu verfügen,
wird durch diese Vorschrift nicht berührt.
5 BGH 7.6.1990 - IX ZK 237/89, NJW 1990, 2459, 2460.
'■ BGH 20.2.1997 - Hl ZR 208/95, NJW 1997, 1582; Palandt BGB/Ellenberger. § 1<6 BGB mn 8.
7 Palandt BGB/Ellenberger, § 136 BGB mn. 9.
178
Legal transaction contrary to public policy; usury § 138
A. Function
L Purpose
The purposes of § 137 are twofold. First and foremost, it serves to protect the autonomy of 1
the right holder to dispose ot his rights. Second, it fosters ease and reliability of transactions
by alloxring third parties to trust in the disposability of rights as provided by the law,1
Nothing in § 137 prevents the parties from creating obligations not to make dispositions.
Such agreements do not affect the actual power to dispose.
II. Scope of application
§ 137 applies to all prohibitions of dispositions that are stipulated in a legal transaction. It 2
is also applicable to prohibitions that are contained in a will or in a court settlement.2 3 A
prohibition will be ineffective (i.e. void) if it violates the 1st St. It therefore has no effect on a
disposition (Verfügung).
B. Explanation
I. Agreements
Pursuant to the 2nd St., the ineffectiveness of a prohibition under the 1st St. does not affect 3
the possibility of the parties to merely agree on an obligation not to dispose of a right. These
agreements are generally effective save for certain cases concerning mortgages or wills that
fall within § 1136 and § 2302, respectively. They do not necessitate a certain form; in
particular, § 31 lb(l) 1st St. is inapplicable exren if the agreement comprises the obligation
not to dispose of a plot of land.
IL Legal consequences
A violation of such an obligation carries with it a liability for damages under § 280(1). In 4
this case, the liable party must reverse the disposition pursuant to § 249(1). Further, the
obligation not to dispose corresponds with a claim that the obliged party refrain from such a
disposition. Uncertainty surrounds the question whether this claim may be effectuated by a
court-ordered prohibition of disposition pursuant to § 136?
§138
Legal transaction contrary to
public policy; usury
(1) A legal transaction which is contrary to
public policy is void.
(2) In particular, a legal transaction is void
by which a person, by exploiting the predica¬
ment, inexperience, lack of sound judgement
or considerable weakness of will of another,
causes himself or a third party, in exchange
for an act of performance, to be promised or
granted pecuniary advantages which are
dearly disproportionate to the performance.
§138
Sittenwidriges Rechtsgeschäft;
Wucher
(1) Ein Rechtsgeschäft, das gegen die guten
Sitten verstößt, ist nichtig.
(2) Nichtig ist insbesondere ein Rechts¬
geschäft, durch das jemand unter Ausbeutung
der Zwangslage, der Unerfahrenheit, des Man¬
gels an Urteilsvermögen oder der erheblichen
Willensschwäche eines anderen sich oder ei¬
nem Dritten für eine Leistung Vermögensvor¬
teile versprechen oder gewähren lässt, die in
einem auffälligen Missverhältnis zu der Leis¬
tung stehen.
1 BGH 5.12.1996 - V ZB 27/96, NJW 1997, K6I, H62.
2 Palandt BGB/EJIcnberger, § 137 BGB mn. 3.
3 BGH 5.12.1996 - V ZB 27/96, NJW 1997, 861.
Wais
179
§ 138 1-2 Division 3. Legal transactions
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Definition 4
II. Violation 5
III. Point in time 6
IV. Categories 7
1. Marriage; family 7
2. Sexual morality 8
3. Abuse of economic power 9
4. Interest rates 10
5. Commercialisation 11
6. Other examples 12
V. Usury — 13
VI. Legal consequences 14
VII. Application; reliance 15
VIII. Burden of proof 16
A. Function
I. Purpose and underlying principles
1 The law recognises the autonomy of the parties to freely structure their private relations
according to their own needs by means of legal transactions.1 An important limit to this
freedom is posed by Sub. 1 pursuant to which a legal transaction is void if it is contrary’ to
public policy. The purpose of Sub. 2 is to concretise usury as a particular conduct that is
against public policy. § 138 gives effect to basic principles and values of the legal order and
society. By sanctioning a violation with nullity of the legal transaction, § 138 serves as a
corrective to ensure that legal transactions are in conformity with these values and principles.
Importantly, the term public policy was chosen as a translation of the German term gute
Sitten. In some respects good morals also would have been appropriate. It may generally be
helpful to think of gute Sitten as referring to both public policy’ and good morals. However,
for reasons of uniformity, in the following the term public policy’ will be used exclusively.
II. Scope of application
2 § 138 is applicable to legal transactions in general, irrespective of the legal field in which
they are made. Importantly, the term legal transaction comprises not only contracts but also
unilateral transactions that consist of solely one declaration of intent.2 § 138 is thus generally
applicable whenever a declaration of intent is involved. The sole fact that a legal transaction
by which an obligation is created (Verpflichtungsgeschäft, e.g. a sales contract. § 433) is
contrary to public policy does not automatically imply that the legal transaction by which
that obligation is performed (Verfügungsgeschäft, e.g. the transfer ofownership, § 929) is also
contrary to public policy.3 However, the latter transaction may nonetheless be contrary’ to
public policy for other reasons.
1 See ► Introduction to 116-144 mn. 1-8.
2 With regard to the very broad concept, Introduction to §§ 130-163 mn 2
3 BGH 3.10.1989 - XI ZR 154/88, NJW 1990, 384, 385.
180
Wais
Legal transaction contrary to public policy; usury
3-6 § 138
B. Context
Conceptually speaking, § 138 is also considered to provide a loophole through which the 3
German constitution (Grundgesetz) exerts influence onto the relationship between private
parties. The guiding principles of EU law also have a bearing on these relationships by virtue
of § 138.
C. Explanation
L Definition
It is impossible to provide a concrete definition of public policy. Definitions of this term 4
are generally characterised by the use of substitute terms that are no less obscure. Public
policy under § 138 is often defined as ‘the sense of decency of all who think equitably and
justly’ (Anstandsgefiihl aller billig und gerecht Denkenden).4 An approach more fruitful and
apt for establishing the content of public policy is the development of categories which are
considered contrary to public policy.
II. Violation
A violation may stem from either the legal transaction’s content or its overall character.5 5
Where the content as such already appears to be contrary to public policy, an additional
evaluation of the circumstances of the transaction is not required in order for Sub. 1 to render
the transaction void.6 In contrast, establishing whether a legal transaction is contrary to public
policy because of its overall character requires a more comprehensive analysis that may
involve the content, motivation, and purpose of the transaction.7 However, subjective aspects
such as the awareness of the violation of public policy or the intention to cause harm are not
constituent requirements.8 It may suffice if the acting party knows, or is grossly negligently
unaware, of the facts because of which the legal transaction is contrary to public policy.9
IIL Point in time
The content of public policy is subject to change. Conduct that was regarded contrary to 6
public policy in the past may have become socially accepted (e.g. premarital intercourse) and
vice versa. § 138 requires that a legal transaction must be measured against the then-current
state of public policy,10 but the decisive point in time is not when the legal effects of the
transaction set in, but when the transaction is concluded.11 According to the BGH, this holds
true also with regard to wills.12 Others argue that the relevant point in time should be when
the succession takes place.13 In general, a legal transaction that was not contrary to public
4 BGH 26.4.2017 - IV ZR 126/16, NJW 2017, 2191, 2196; BGH 6.5.1999 - VII ZR 132/97, NJW 1999,
2266, 2267.
5 HK-BGB/Dörner, § 138 BGB mn. 4; Jauernig BGB/Mansel, § 138 BGB mn. 8.
6 Palandt BGB/Ellenberger, § 138 BGB mn. 7.
7 BGH 19.12.2017 - XI ZR 152/17, NJW 2018, 848, 850.
* Palandt BGB/Ellenberger, § 138 BGB mn. 8; Jauernig BGB/Mansel, § 138 BGB mn. 10.
9 BGH 29.6.2005 - VIII ZR 299/04, NJW 2005, 2991, 2992; BGH 9.10.2009 - V ZR 178/08, N|W 2010,
363, 364.
16 BGH 30.6.1983 - III ZR 114/82, NJW 1983, 2692.
" BGH 19.12.2017 - XI ZR 152/17, NJW 2018, 848, 850; BGH 28.2.1989 - IX ZR 130/88, N|W 1989,
1276, 1277.
12 BGH 15.2.1956 - IV ZR 294/55, NJW 1956, 865; addressed but left unanswered in BGH 2.12,1998 -
IV ZB 19/97, NJW 1999, 566, 568.
13 See Palandt BGB/Ellenberger, § 138 BGB mn. 9 10.
Wais
181
§ 138 7-9 Division 3, Legal transactions
policy when it was concluded may, however, be unenforceable under § 242 if, at present, its
conclusion would in fact be against public policy.14
IV. Categories
1. Marriage; family
7 Transactions that disregard the ethical foundations of marriage and family may be against
public policy.15 The contractual exclusion of the right to divorce, either directly16 or by
stipulating an excessive contractual penalty,17 is against public policy. The same applies to a
contractual obligation to conclude a marriage in pretence.18 An agreement according to
which one parent waives their visitation rights and, in return, the other parent waives
maintenance rights is also against public policy.19 Contracts on surrogate motherhood fail
within Sub. I.20 A will in favour of an extramarital partner is considered contrary to public
policy where its sole purpose is remuneration for sexual intercourse.21 Marriage contracts
that contain excessive maintenance obligations of one party or a unilateral waiver of
maintenance rights may be void under § 138 where the contract is characterised by a stark
imbalance of power between the contracting parties.22 An imbalance may, for example, stem
from the weaker position of the pregnant mother who is dependent on the help and support
of others, or the financial situation; the test is highly fact specific and depends on the
circumstances of the individual case.23 The exclusion of the right to equalisation of accrued
gains (§ 1365(2) 2nd St.) in case of divorce does not regularly violate public policy.24
2. Sexual morality
8 § 138 may also apply where a legal transaction is contrary to sexual morality. Due to the
fact that prostitution is legalised under German law, uncertainty surrounds the question
whether contracts for the performance of sexual intercourse against remuneration are against
public policy.25 So-called ‘phone sex’ on the other hand is considered to be compatible with
public policy.26 27 The same may apply to contracts regarding public pornographic perfor¬
mances. A lease contract for a building used as a brothel is not void under Sub. 1 2"
3. Abuse of economic power
9 Generally, a transaction may be void under § 138 if it is concluded in a situation
characterised by the abuse of economic power of one party. This may be the case where,
due to the stark imbalance of power, the weaker party cannot realistically decide freely.
14 HK-BGB/Dörner, § 138 BGB mn. 5.
15 HK-BGB/Dörner, § 138 BGB mn. 7.
16 BGH 9.4.1986 - IVb ZR 32/85, NJW 1986, 2046, 2047.
17 BGH 19.12.1989 - IV b ZR 91/88. NJW 1990, 703, 704.
18 Palandt BGB/Ellenberger, § 138 BGB mn. 46; HK-BGB/Dömer. § 138 BGB mn 7
•9 BGH 23.5.1984 - IVb ZR 9/83, NJW 1984, 1951, 1952, BGH 15.1.1986 - IVb ZR 6,85. NJW 1986.
1167,1168.
20 Palandt BGB/Ellenberger, § 138 BGB mn. 48; HK-BGB/Dörner. § 138 BGB mn 4
21 BGH 12.1.1984 - III ZR 69/83, NJW 1984, 2150, 2151; BGH 28.9.1990 - V ZR 109/89, NJW 1991.
830,831.
22 BGH 5.11.2008 - XII ZR 157/06, NJW 2009, 842, 845; BGH 31.10.2012 - XII ZR 129/10. NJW 2013.
380,381.
2J BGH 31.10.2012 - XII ZR 129/10, NJW 2013, 380, 381; BVerfG 29.3.2001 - 1 BvR 1766'92. NlW
2001, 2248.
24 BGH 17.10.2007 - XII ZR 96/05, NJW 2008, 1076, 1078.
r’HK-BGB/Dörner, § 138 BGB mn. 9 (compatible); Palandt BGB/Ellenberger, § 138 BGB mn. 52
(incompatible).
26 BGH 8.11.2007 - III ZR 102/07, NJW 2008, 140.
27 BGH 16.5.1988 - II ZR 316/87, NJW-RR 1988, 1379.
182
Wais
Legal transaction contrary to public policy; usury 10-11 § 138
Where a monopoly uses its superior market power to implement excessive prices28 or to
conclude contracts that inappropriately limit the other party’s freedom to act,29 a violation of
§ 138 is likely. The same may apply to excessive non-compcte-clauscs.30 § 138 is also
relevant with regards to suretyship (§ 765) given by a close relative of the debtor, for
instance his wife or daughter. The courts accept that a suretyship is against public policy if
the person bound is excessively burdened by the suretyship and entered into it exclusively
because of his inferior position. Such inferiority may stem from a lack of experience or the
emotional attachment to the debtor.3’ Similar reasoning is in order where an employee enters
into a suretyship contract undertaken for his employer.32 Contracts that allow one party to
make arbitrary decisions that bind the other may be against public policy, e.g. provisions in
a partnership agreement allowing for an arbitrary exclusion of particular partners.33
4. Interest rates
Credit contracts may be void under Sub. 1 where they provide for an excessively high 10
interest rate. These contracts often do not fall within Sub. 2 because the latter requires the
creditor to exploit the predicament of the debtor, which is not always the case where
excessive interest rates are agreed. The courts are prepared to accept a violation of Sub. 1
on the basis of an obvious disproportionality when the interest rate exceeds the normal
standard by 100 percent (e.g. 20 percent instead of 10 percent) or 12 percentage points (e.g.
27 percent instead of 15 percent).34 If, at the time, interest rates have generally been low,
110 percent may be required.35 However, the court may also consider the overall circum¬
stances if these thresholds are not reached.36 If these requirements are met, the creditor is
presumed to have ignored the weaker position of the debtor;37 but not where the disadvan¬
taged party' is a business owner.38 Similar reasoning has been applied, but is not limited, to
legal transactions relating to a plot of land39 or to the commission agreement with a broker.40
5. Commercialisation
Furthermore, a legal transaction may be contrary to public policy if its purpose is to 11
commercialise conduct or decisions which are not intended to be the subject of exchange or
contractually exerted influence. This applies where an academic degree is provided in exchange
for remuneration.41 The BGH held that an agreement according to which a sum is paid in
return for not filing, or revoking, a criminal report is not automatically void pursuant to
Sub. I.42 Contracts that stipulate obligations with regard to the change of religious beliefs may
be void. Further, contracts regarding medically assisted suicide are void under Sub. I.43 Trade
in human organs is prohibited by law; any contract relating thereto is void under § 134.
“ BGH 30.10.1975 - KZR 2/75, NJW 1976, 710, 711.
29 BGH 17.10.2008 - V ZR 14/08, NJW 2009, 1135.
50 BGH 25.10.2012 - VIJ ZR 56/11, NJW 2013, 2027, 2030.
51 BVerfG 19.10.1993 - 1 BvR 567/89, 1 BvR 1044/89, NJW 1994, 36; BGH 19.2.2013 - XI ZR 82/11,
NJW 2013, 1534, 1535.
i2 HK-BGB/Dörner, § 138 BGB mn. 11.
33 BGH 7.5.2007 - II ZR 281/05, NJW-RR 2007, 1256, 1258; BGH 19.9.2005 - Il ZR 173/04, NJW 2005,
3641.
34 BGH 13.3.1990 - XI ZR 252/89, NJW 1990, 1595, 1596.
35 BGH 11.12.1990 - XI ZR 69/90, NJW 1991, 834, 835.
36 BGH 8.7.1982 - III ZR 60/81, NJW 1982, 2432, 2433.
37 BGH 11.1.1995 - VIII ZR 82/94, NJW 1995, 1019, 1022.
}s BGH 6.5.2003 - XI ZR 226/02, N|W 2003, 2230; BGH 11.1.1995 - VIII ZR 82/94, NJW 1995, 1019, 1022.
39 BGH 24.1.2014 - V ZR 249/12, NJW 2014, 1652; BGH 21.2.2014 - V ZR 176/12, N|W 2014, 2177, 2178.
*' BGH 8.3.2012 - IX ZR 51/11 NJW 20)2, 2099, 2100.
41 BGH 5.10.1993 - XI ZR 200/92, NJW 1994, 187, 188; OI.G Koblenz 16.12.1998 -7U 124-98, NJW
1999, 2904.
42 BGH 22.1.1991 - VI ZR 107/90, NJW 1991, 1016.
43 Palandt BGB/Ellenberger, § 138 BGB mn. 56.
Wais
183
§ 138 12-14
Division 3. Legal transactions
6. Other examples
12 Legal transactions that are detrimental to third parties or the general public may pose a
violation of public policy. The promise of a payment of bribes is against public policy.44
Inducing another party to breach of contract may also violate public policy;45 the same applies
to collusive conduct between an agent and a third party to the detriment of the principal.46 The
sale of a radar warning receiver was held to be contrary to public policy.47 It is further
generally accepted that legal transactions that are comparable to usury but do not fall within
Sub. 2 may nonetheless constitute a violation of public policy under Sub. 1. In this regard, the
requirements under Sub. 1 are twofold: there must be an obvious disproportionality between
performance and consideration, and there must be further circumstances which suggest that
the transaction is against public policy, such as, e.g., an immoral intention.
V. Usury
13 Pursuant to Sub. 2, a legal transaction that qualifies as usury is void An obvious
disproportionality in a bilateral legal transaction is necessary in order for Sub. 2 to apply.
Whether or not an obvious disproportionality exists depends on the facts of the individual
case. Importantly, the distribution of risk must also be considered.48 49 Further, the superior
party must have purposefully taken advantage of the inferior position of the other party.
Again, whether the other party was in an inferior position depend on the individual case; it
may be due to, for example, an economic or personal predicament which creates the need for
a particular good or service. The inferior position may be the result of a significant lack of
experience or judgement.411 Importantly, even if the requirements of Sub. 2 are not met - in
particular because the superior party did not purposefully exploit the other party’s inferior
situation - the legal transaction may still be void under Sub. I.50
VI. Legal consequences
14 A legal transaction will be void if it satisfies the requirements of § 138. The transaction
cannot be cured. However, the parties may under certain conditions confirm the transaction
pursuant to § 141, in particular if, due to a change in public policy, the transaction would no
longer constitute a violation thereof.51 Exceptionally, the courts are ready to apply § 139 to
uphold a part of the legal transaction that can be clearly separated from the rest and is not
contrary to public policy, provided that a partial validity corresponds with the hypothetical
intention of the parties.52 * 54 Where a legal transaction is contrary to public policy due to the
excessiveness of the remuneration owed, the courts are generally not prepared to accept a partial
effectiveness of the transaction to the extent that the remuneration is not excessive.55 Where the
violation of public policy stems from the conduct of one party, the counterparty* mav be entitled
to damages under § 826 and pursuant to the principles of culpa in contrahendo.^4
44 BGH 14.12.1972 - II ZR 141/71, NJW 1973, 363; BGH 26.3.1962 - II ZR IM/60, NIW 1962, lO*^-
45 BGH 14.7.2004 - XII ZR 257/01, NJW 2005, 1192, 1193; BGH 10.2.1988 ~ IVa ZR 2b8'86,
1988, 1716.
46 Palandt BGB/Ellenberger, § 138 BGB mn. 62; Jauernig BGB/Mansel, § 138 BGB mn 18
47 BGH 25.11.2009 - VIII ZR 318/08, NJW 2010, 610, bl I; BGH 23.2.2005 - Vlll ZR 129'04, NIW
2005, 1490.
48 BGH 8.7.1982 - III ZR 1/81, NJW 1982, 2767.
49 HK-BGB/Dörner, § 138 BGB mn. 16.
M BGH 19.2.2003 - XII ZR 142/00, NJW 2003, 1860, 18bl.
51 See § 141 mn. I.
52 See ► §139mn. 6.
» BGH 14.11.2000 - XI ZR 248/99, NJW 2001, 815, 817; BGH 21.3.1977 - 11 ZR 96/75, NIW W-
1233.
54 BGH 12.11.1986 - VIII ZR 280/85, NJW 1987, 639, 640.
Wdis
184
Partial invalidity
1-2 § 139
VII. Application; reliance
Where its requirements are met, the courts must apply § 138 ex officio. Both parties may 15
rely on the tact that the transaction is void under § 138, even the party who, as the case may
be, is exclusively responsible for the violation of public policy.55 However, if in case of a
unilateral violation ot public policy the void state would put the other party at a disadvan¬
tage, relying on § 138 may constitute an abuse of right.56
VIII. Burden of proof
The burden ot proot is with the party that seeks to rely on the legal transaction being void 16
under § 138.
§139
Partial invalidity
If a part of a legal transaction is void, then
the entire legal transaction is void, unless it is
to be assumed that it would have been under¬
taken even without the void part.
§ 139
Teilnichtigkeit
Ist ein Teil eines Rechtsgeschäfts nichtig, so
ist das ganze Rechtsgeschäft nichtig, wenn
nicht anzunehmen ist, dass es auch ohne den
nichtigen Teil vorgenommen sein würde.
A. Function
I. Purpose
§ 139 stipulates a presumption: a legal transaction* 1 that is partially void is considered void 1
in its entirety unless the intention of the party (in a unilateral legal transaction) or the parties
(in a bilateral legal transaction) suggests otherwise. Its purpose is to protect party autonomy
by preventing a transaction with unintended content being forced upon the parties.
IL Scope of application
§ 139 applies not only to legal transactions that are partially void, but also to those that 2
are partially ineffective. No distinction is made between the various grounds for rendering
the legal transaction void or ineffective. Partial ineffectiveness that is pending approval also
falls within § 139.2 The parties may agree to exclude the application of § 139. However,
‘severability clauses’ (salvatorische Klausel) commonly found in contracts do not preclude
the courts from applying § 139, but are held to merely place the burden of proof upon the
party who seeks to assert the overall invalidity of the transaction.3 § 139 may further be
inapplicable where legal provisions prevail that provide for a different legal consequence
(e.g. § 306).
55 BAG 1.4.1976 - 4 AZR 96/75, NJW 1976, 195«, 1959.
56 Palandt BGB/Ellenberger, § 138 BGB mn. 21.
1 See » Introduction to §§ 116-144 mn. 1-8.
2 BGH 18.9.1974 - VIII ZR 63/73, N|W 1974, 2233, 2234.
’ BGH 25.7.2007 - XII ZR 143/05, N|W 2007, 3202.
Wais
185
Division 3. Legal transactions
§ 139 3-5
B. Explanation
I. Single legal transaction
3 „ is .ha. .he (unilateral or
transaction and not merely a conglomera e o a(-P on form one single transaction
not the void part and the remaining par isintention suggests that the different parts
depends on the intention of the parties. Where this intenti gg established even if
were intended to ‘stand and fall’ together,- a single transacuon a m
objectively the relevant parts appear separate. In this reg , P nt
required. It may also suffice if, in a contract, only one party in
fXrt-ned/f.rnuog one single transaction. »hüe .he ».her puny merely tolerated
intention.6 Objective (actors may be used as an indication of party intention, e.g. Una)
certification in one document may suggest one single transaction/ separate notarial certifica¬
tions may suggest the contrary,8 but the specifics of the individual case may nevertheless lead
to a different conclusion.9
1. Separation
4 The different transactions must be separable. This requirement is satisfied if after isolating
the void part, the remaining part of the transaction can exist on its own.10 Otherwise, the
entire legal transaction will be rendered void (technically speaking, the transaction is void
already from the outset). Further, no separation is possible if separate counter-performance
cannot be allocated to the different performances due, e.g. if the parties agreed on a sales
contract and a service contract but only stipulated one overall price. For the same reason, a
legal transaction that is void under § 138(1) due to a gross disproportionality’ of performance
and counter-performance cannot be upheld to the extent that performance and counter¬
performance are not disproportionate. It is not for the courts to positively establish what
performance and counter-performance would be proportionate.11
5
2. Principle of abstraction
Importantly courts tend to accept that the parties may also intertwine the contract which
?! Ä (e’8' §i } the P°ntraCt Which is re<lu*red for performing that
obligation (§ 929) m one single transaction.12 This intertwining □ \ *
abstraction (Abstraktionsprinzip) according to which thT n SUSpends the pnnciple ot
mtrttelateJ.13 In light of the default rule provided bv^hiTgeneral<pritirv‘,|S T
intention of the parties may only be established on the E? P ’ T™'
economic interdependence is insufficient.14 °T LOIKrete indication; mere
< BGH 10.10.2006 - XI ZR 265/05, NJW 2007, ~ ~
3481 351 ' K ' ZR 144 86. NJW-RR I«'-
5 BGH 9.2.1990 - V ZR 274/88, N)W 1990. 1473 14-4
6 BGH 9.7.1992 - IX ZR 209/91, N|W 1992, 3>37 3’38
7 BGH 22.5.1970 - V ZR 130/67. NJW 1970. 1414 14'i\
• BGH 24.10.2006 - XI ZR 216/05. NJW-RR 2007’ 395' W(i
BGH 9.2.1990 - V ZR 274/««, N|W 1990, 1473 14-‘ 6
10 BGH 14.2.1962 - V ZR 92/60, N|W 1962, 91’ 91» '
11 Palandt BGB/Ellenberger, § 1,39 BGB tnn 10 *"
in?mn14-3'2005 ’ V ZR 3W/°2’N,W RR 2t«’3. 'W 735- nr., ,
llzo, 11 JU. '‘ '"’‘‘I 2.2.19k-* ii,
13 Sec ► Introduction inn. 40-42.
•- Palandt BGB/Ellenberger. § 139 BGB mn. 8; Jauermg BCB/\,
186
Reinterpretation
1-2 § 140
II. Legal consequence
The legal consequence stipulated by § 139 is a presumption that the entire legal transac- 6
tion is void. This presumption may be rebutted if it is clear that the parties had contrary
intentions. Save tor express declaration, these intentions must be identified by construction
paying due regard to the principle ot good faith and commercial practice.15 The decisive
question to ask is how the parties would have decided if they had known of the partial
voidness when concluding the transaction. It can regularly be assumed that the parties
intended what would seem reasonable trom an objective point of view. However, where the
parties were aware ot the partial voidness when they concluded the transaction, it is clear that
they intended the remaining part to be effective.16
§140
Reinterpretation
If a void legal transaction fulfils the re-
quirements of another legal transaction, then
the latter is deemed to have been entered
into, if it may be assumed that its validity
would be intended if there were knowledge of
the invalidity.
§ 140
Umdeutung
Entspricht ein nichtiges Rechtsgeschäft den
Erfordernissen eines anderen Rechtsgeschäfts,
so gilt das letztere, wenn anzunehmen ist,
dass dessen Geltung bei Kenntnis der Nich¬
tigkeit gewollt sein würde.
A. Function
I. Purpose
§ 140 serves to give effect to the parties’ intention if a legal transaction* 1 is void. However, it 1
is necessary’ that the same or very similar results can be reached by another legal transaction
that would be effective. As re-interpretation takes place by law pursuant to § 140, it is not to
be considered an act of the court.2
II. Scope of application
§ 139 applies to unilateral and bilateral legal transactions. Legal transactions in the 2
context of family law and inheritance law also fall within the scope of § 139. Conceptually,
however, § 140 can apply only where the transaction is void not by reason of the intended
results but merely because of the measures chosen by the parties to achieve them. Im¬
portantly, the term void legal transaction also comprises legal transactions that are inetlec-
tive by virtue of a declared avoidance pursuant to § 142 and legal transactions that require
ratification (e.g. § 108(1) or § 177(1)) where that ratification was refused or not timely (e.g.
§ 108(2) 2nd St. or § 177(2) 2nd St.). It does not apply to legal transactions that are subject to a
right of avoidance under 119 et seq. but have not been avoided (yet). § 140 may also be
inapplicable where re-interpretation would result in a circumvention of the legal purpose ot
the provision under which the legal transaction is rendered void.
15 MüKo BGB/Busche, § 139 BGB mn. 29.
16 13.1 JJ998 - V ZR 379 97, NJW 1999, 351.
1 See ' Introduction to 116 -144 mn. 1- 8.
2 Palandt BGB/Ellenberger, § 140 BGB mn. 1; Jauernig BGB/Mansel, § 140 BGB mn. 1.
Wais
187
§141
Division 3. Legal transactions
B. Explanation
I. Construction
3 Re-interpretation is not to be confused with construction. Prior to entering into re¬
interpretation the court must first construe the legal transaction. The void legal transaction
is subject to re-interpretation only where the legal transaction cannot be construed in a way
which would allow it to be effective.3 § 140 is inapplicable where the parties objectively
agreed on something different than what they both univocally intended (falsa demonstration
non nocet4 5).
IL Requirements of another legal transaction
4 In order for re-interpretation to take place, the void transaction must fulfil the requirements
of another legal transaction. § 140 does not allow for missing requirements to be constructed.
It is not necessary that the other legal transaction is in its effects equivalent to the void
transaction in every' aspect, but in any case its effects must not reach further/ For this reason it
is commonly argued that a declaration of avoidance (effective ex tunc) may be re-interpreted as
a declaration by which a contract is terminated (effective ex nunc) but not vice versa.6
III. Party intention
5 Re-interpretation may only take place where it is in line with the intention of the parties
(or, where it concerns a unilateral transaction, the declaring party). Since construction has
priority over re-interpretation, the parties’ intention in the case of § 140 is purely hypothe¬
tical. Its purpose is not to answer what the parties have agreed but rather what they would
have agreed under certain conditions had they been present at the time when the transaction
was concluded; the decisive question is whether the parties could reasonably be expected to
have entered into the alternative legal transaction.7 Re-interpretation may not take place
where both parties were aware of the ineffectiveness of their legal transaction; the awareness
of just one party does however not rule out the application of § 14O.s
§141
Confirmation of a void
legal transaction
(1) If a void legal transaction is confirmed
by the person who undertook it, the confir¬
mation is to be seen as a renewed undertak¬
ing.
(2) If a void contract is confirmed by the
parties, then in case of doubt they are obliged
to grant to each other what they would have
granted if the contract had been valid from
the beginning.
§ 141
Bestätigung des nichtigen
Rechtsgeschäfts
(1) Wird ein nichtiges Rechtsgeschäft von
demjenigen, welcher es vorgenommen hat,
bestätigt, so ist die Bestätigung als erneute
Vornahme zu beurteilen.
(2) W ird ein nichtiger Vertrag von den
Parteien bestätigt, so sind diese im Zweifel
verpflichtet, einander zu gewähren, was sie
haben würden, wenn der Vertrag von Anfang
an gültig gewesen wäre.
5 HK-BGB/Dörner, § 140 BGB mn. 2.
4 See -► § 133 mn. 13.
5 BGH 30.3.1994 - XII ZR 30/92, NJW 1994, 1785.
A Palandt BGB/Ellenberger, § 141 BGB mn. 8.
7 HK-BGB/Dörner, § 140 BGB mn. 6; Jauernig BGB/Mansel, § 140 BGB mn. 5.
« Palandt BGB/Ellenberger. § 141 BGB mn. 8.
188
Wilts'
Confirmation of a void legal transaction
1-5 § 141
A. Function
A legal transaction1 that is void will remain void even if the grounds for its voidness 1
subsequently cease to exist. In this case the parties may either conclude the transaction ex
novo or, as is stipulated by Sub. 1, may confirm the transaction. While confirmation is
considered a conclusion ex novo, it does not require declarations of intent that amount to, or
resemble, the original legal transaction. Rather, it is sufficient that confirmation is made with
regard to the original transaction to be confirmed.
B. Explanation
I. Scope of confirmation
§ 141 is applicable to all types of legal transactions, unilateral and bilateral. The legal 2
transaction must be void and the grounds for voidness must not be present anymore. A
transaction that was originally void due to a violation of a statutory prohibition (§ 134) can
be confirmed if the prohibition is no longer effective or no longer applies to the transaction
in question.2 3 4 5 In the same way, where the transaction was at some point void for being against
public policy (§ 138(1), the circumstances leading to the infringement must have ceased to
exist or morals must have changed? Confirmation does not require that all the specifics of
the transaction are addressed again? Where the transaction is subject to a form requirement,
the confirmation itself must satisfy these requirements; it is however possible to include the
original document by way of reference?
II. Distinction
Confirmation within the meaning of § 141 must not be confused with confirmation of a 3
legal transaction that is merely voidable but not void (§ 144); approval of a legal transaction
pursuant to §§ 182 et seq. which usually involves a third parties; and the curing of a defect of
form through performance under §§ 31 lb(l) 2nd St., 518(2), 766 2nd St. and § 492(2) 2nd St.
III. Exercise
Confirmation can be made expressly as well as impliedly. However, the parties’ conduct 4
may only be construed as implied confirmation where from the viewpoint of all parties
involved it is to be interpreted as such.6
IV. Effect
The confirmation of a contract does not have retroactive effect. However, pursuant to 5
Sub. 2 the parties of a confirmed contract are presumed to have agreed to afford each other
the position they would be in had the contract not been void. Where an express agreement or
the interpretation thereof suggests that the parties intended otherwise, the latter prevails.
* See » Introduction to 116-144 mn. 1-8.
2 BGH i2.4.196i - VIII ZR 66/60, NJW 1961, 1204.
3 BGH 10.2.2012 - V ZR 51/11, NJW 2012, 1570, 1571.
4 HK-BGB/Schulze, § 141 BGB mn. 5.
5 BGH 1.10.1999 - V ZR 168/9«, NJW 1999, 3704.
6 BGH 1.7.1971 - V ZR 224/69, NJW 1971, 1795, 1800.
Wais
189
Division 3. Legal transactions
§ 142 1-4
§ 142
Effect of avoidance
(1) if a voidable legal transaction is
avoided, it is to be regarded as having been
void from the outset.
(2) A person who knew or ought to have
known of the possibility of avoidance .^trea¬
ted, in case of avoidance, as if he ha
or ought to have known of the invalidity of
the legal transaction.
§ 142
Wirkung der Anfechtung
,n Wird ein anfechtbares Rechtsgeschäft
angefochten, so ist es als von Anfang an
niC(2)i8WerUdi^CAnfechtbarkeit kannte oder
Ä'Ä18el“n- """ °d"
hätte kennen müssen.
A. Function
1
Whilst the grounds for voidability of legal transaCt'°"* a”jb^concems^e effectTof
Sub. 1 regulates the effect of the declarat.on of Javoidance. SuK
knowledge or negligent unawareness of the grounds for avoidance.
B. Explanation
I. Scope
2 The rather obvious effect of avoidance is for the legal transaction to be void. Importantly,
only the legal transaction avoided is void. For instance, if a sales contract (§ 433) is avoided
for mistake pursuant to § 119(1), the legal transaction by which ownership is transferred
(§ 929) generally remains effective. It may be void if individual grounds for avoidance in that
transaction can be established and avoidance is declared.
II. Retroactive effect
3 Pursuant to Sub. 1, the avoidance has retroactive effect, i.e. it is to be treated as if it had
never been effective at all (ex tunc/ab initio). As the retroactive effect generally leads to a right
to restitution of the performances made (§§ 812 et seq.), exceptions to this general principle
of avoidance ab initio exist where the unwinding of the transaction would prove inoperable.
For this reason, the courts hold that where the parties have performed their obligations under
an employment contract (§ 611), the avoidance of that contract will onlv havZeffect for the
future (ex nunc/de futuro)2 unless the contract was voidable for deceit (§ 123).’ Restrictions
may also apply to the avoidance of a partnership agreement.4
4
III. Disposition
Due to the ab initio effect of the avoidance, a person who i , . . . k ,
legal transaction (Verfügung - disposition) which subsequent^ is avY f 1 'r
have had the authority to dispose of that right. Thus Zt avoided ts held to ne «.
made before avoidance is declared, will generally onlv be ot acquirer, even if
ways to overcome the ineffectiveness for lack of authoritv Th— ProvideS **
disposition is ratified by the person entitled (8 hssi ’’ 'S e,ther the case where the
possible (e.g. §§ 929,932). However, a good faith 1 \ °r "here taith acquisition is
> acquisition is generally excluded in relation
1 See ► Introduction to 116-144 nm. 1-8,
2 BGH 16.9.1982 - 2 AZR 228/80, N)W 1984 440 44-
’ BAG 20.5.1999 - 2 AZR 320-98. NJW 1999, 4J3
’ HK-BGB/Dörner, § 142 BGB mn. 6.
190
iVuis
Declaration of avoidance 1 § 143
to the assignment of claims. Thus in a chain of consecutive assignments of a claim, e.g. A
assigns to B, B assigns to C and so forth, any subsequent assignment following the assign¬
ment that is avoided will be void.
IV. Knowledge; negligent ignorance
Sub. 2 stipulates that knowledge or negligent ignorance of the voidability of a legal 5
transaction is tantamount to knowledge or negligent ignorance of the legal transaction being
void. This provision serves to narrow down the possibilities of acquisition in good faith such
as, for example, under § 932, and the scope of other privileges that presuppose good faith
such as, e.g. § 818(3). Further, Sub. 2 provides that knowledge or negligent ignorance of the
facts that pose the grounds for voidability is sufficient.5 It is not required that a party drew
the correct legal conclusion from these facts.
§ 143
Declaration of avoidance
(1) Avoidance is effected by declaration to
the opponent.
(2) The opponent is, in the case of a con¬
tract, the other party7 to the contract and, in
the case of § 123(2) sentence 2, the person
who has acquired a right directly under the
contract.
(3) ’In the case of a unilateral legal transac¬
tion which was to be undertaken in relation to
another person, the other person is the oppo¬
nent 2The same applies to a legal transaction
that is required to be undertaken in relation to
another person or to a public authority, even
if the legal transaction has already been under¬
taken in relation to the authority.
(4) ’In the case of any other kind of uni¬
lateral legal transaction, the person who has
received a legal advantage directly on the
basis of the legal transaction is the opponent.
2The avoidance may, however, if the declara¬
tion of intent was to be made to a public
authority, be made by declaration to the
authority; the authority should inform the
person who was directly affected by the legal
transaction of the avoidance.
§143
Anfechtungserklärung
(1) Die Anfechtung erfolgt durch Erklä¬
rung gegenüber dem Anfechtungsgegner.
(2) Anfechtungsgegner ist bei einem Ver¬
trag der andere Teil, im Falle des § 123 Abs. 2
Satz 2 derjenige, welcher aus dem Vertrag
unmittelbar ein Recht erworben hat.
(3) ’Bei einem einseitigen Rechtsgeschäft,
das einem anderen gegenüber vorzunehmen
war, ist der andere der Anfechtungsgegner.
2Das Gleiche gilt bei einem Rechtsgeschäft,
das einem anderen oder einer Behörde gegen¬
über vorzunehmen war, auch dann, wenn das
Rechtsgeschäft der Behörde gegenüber vorge¬
nommen worden ist.
(4) ’Bei einem einseitigen Rechtsgeschäft
anderer Art ist Anfechtungsgegner jeder, der
auf Grund des Rechtsgeschäfts unmittelbar
einen rechtlichen Vorteil erlangt hat. 2Die An¬
fechtung kann jedoch, wenn die Willenserklä¬
rung einer Behörde gegenüber abzugeben war,
durch Erklärung gegenüber der Behörde erfol¬
gen; die Behörde soll die Anfechtung dem¬
jenigen mitteilen, welcher durch das Rechts¬
geschäft unmittelbar betroffen worden ist.
A. Explanation
I. Declaration of avoidance
The declaration of avoidance falls within the category ol declarations of intent which 1
require receipt.* 1 The declaration of avoidance allows the declaring party to render a legal
transaction ineffective unilaterally as its effectiveness does not depend on the receiving
party’s (opponent’s) consent. It is thought that under these circumstances the receiving party
must be protected from any uncertainty with regards to the effects of that declaration. A
5 BGH 1.7.1987 - VIII ZR 331/86, NJW RR 1987, 1456, 1457.
1 See » Introduction to 116-144 mn. 1 8.
Wais
191
§ 143 2-4 Division 3. Legal transactions
declaration of intent thus cannot be made conditionally2 3 or revoked? However, a legal
transaction may be partially avoided where the transaction is separable within the meaning
of § 139 so that upholding the remaining part of the transaction would correspond with the
parties’ actual or presumed intention.4 5 6 7 *
II. Requirements
2 In order for the declaration of avoidance to be effective it is not necessary that the
declaring part uses the word avoidance or related terms? It is sufficient that he demands
the unwinding of the contract or denies the existence of an obligation? A declaration of
intent may be construed as a declaration of voidance even where the declaring party
objectively expressed his intention to withdraw from a contract. Where the declaring party
bases his right to avoidance on a mistake under § 119, the declaration may also comprise an
avoidance on the grounds of deceit pursuant to § 123(1) and vice versa/ The party declaring
avoidance is not required to state the legal grounds forming the basis of the avoidance, but
the factual grounds must be indicated.
III. Entitled party
3 The person entitled to declare avoidance is the person who made the declaration of intent
However, where an agent acts on behalf of the principal one must refer to the agent in order
to determine whether a right of avoidance exists, but it is the principal who may be entitled
to declare avoidance?
IV. Recipient
4 Pursuant to Sub. 2, in bilateral legal transactions the opponent towards whom avoidance
must be declared is the other party. An exception is made where a person fell victim to deceit
and subsequently entered into a contract with immediate benefits for a third part}'.9 Under
the conditions set forth in § 123(2) 2nd St. the deceived person may declare avoidance
towards that third party. Where the legal transaction subject to avoidance is unilateral, the
person in relation to whom avoidance must be declared depends on the question of whether
the initial declaration of intent (forming the unilateral legal transaction) requires receipt, i.e.
had to be made towards another person. If it requires receipt, such as withdrawal, the
receiving party is the opponent. If it does not, such as the declaration to relinquish ownership
(§ 959), the person deriving immediate advantages from that transaction (e.g. in the latter
example the person acquiring ownership) is the right opponent. If the opponent is unknown,
avoidance may also be declared through service by publication (§ 132).
2 BGH 15.2.2017 - VIII ZR 59/16, NJW 2017, 1660, 1663; BGH 28.9.2006 - 1 ZR 198/03. NJW-RR
2007, 1282, 1284.
3 Palandt BGB/Griincberg, § 143 BGB mn. 2.
4 BGH 14.11.2001 - IV ZR 181/00. NJW-RR 2002, 380, 381.
5 BGH 14.11.2001 - IV ZR 181/00, NJW-RR 2002, 380, 381; BGH 22.2.1995 - IV ZR 5$ 94, NJW RR
1995, 859.
6 BGH 15.2.2017 - VIII ZR 59/16, NJW 2017, 1660, 1663.
7 Palandt BGB/Ellenberger, § 143 BGB mn. 2.
B Palandt BGB/Ellenberger, § 143 BGB mn. 4.
9 HK-BGB/Dörncr, § 143 BGB mn. 4.
192
Wdis
Introduction to 145-157
1 § 144
§144
Confirmation of a voidable
legal transaction
(1) Avoidance is excluded, if the voidable
legal transaction is confirmed by the person
entitled to avoid.
(2) The confirmation does not require the
form prescribed for the legal transaction.
§144
Bestätigung des anfechtbaren
Rechtsgeschäfts
(1) Die Anfechtung ist ausgeschlossen,
wenn das anfechtbare Rechtsgeschäft von
dem Anfechtungsberechtigten bestätigt wird.
(2) Die Bestätigung bedarf nicht der für
das Rechtsgeschäft bestimmten Form.
A. Function
A legal transaction1 that is subject to avoidance is valid unless avoidance is declared. 1
Hence, in contrast to confirmation under § 141, confirmation under § 144 does not have the
effect of rendering a transaction effective that would otherwise be void. The purpose of the
confirmation ot a voidable legal transaction rather is to create certainty as to its effectiveness
for the future.
B. Explanation
Confirmation under Sub. 1 only excludes the right to avoid the transactions. Other rights 2
that stem from the same circumstances which also posed the grounds for avoidability, in
particular claims for damages, remain unaffected.2 3 Confirmation of a voidable legal transaction
is a declaration of intent which does not require receipt? Avoidance is therefore excluded
even if the confirmation has not reached the receiving party. An implied confirmation is
possible. It requires a conduct which can only be construed as the intention to uphold the legal
transaction despite its voidability.4 However, such interpretation is excluded where the person
that would be held to have confirmed the transaction was neither aware of, nor expecting to
have, a right to avoid the legal transaction.5 In particular, a disposition over the subject of the
legal transaction, the performance of an obligation thereof, or the acceptance of consideration
have been considered an implied confirmation falling within Sub. I.6 Sub. 2 further stipulates
that confirmation does not require the form underlying the legal transaction.
Title 3
Contract
Titel 3
Vertrag
Introduction to §§ 145-157
The term contract refers to legal transactions1 that are bilateral (or multilateral), i.e. that 1
require an agreement between at least two parties. A bilateral legal transaction need not
establish obligations in order to qualify as a contract; e.g. the disposition of a real right, such
1 See » Introduction to 116-144 mn. 1-8.
2 BGH 4.12.2015 - V ZR 142/14. BeckRS 2016, 2862.
3 HK-BGB/Dörner, § 144 BGB mn. 2; Jauernig BGB/Mansel, § 144 BGB mn. 2.
4 BGH 11.8.2010 - XII ZR 192/08, NJW 2010, 3362, 3363; H(.I I 1.4.1992 - XII ZR 20/91. N|W RR
1992, 779, 780.
5 BGH 21.9.2011 - IV ZR 38/09, NJW 2012, 296, 298.
6 Palandt BGB/Ellenberger, § 144 BGB mn. 2.
1 See * Introduction to §§ 116-144 mn. 1 8.
Wais
193
§ 145 1-2 Division 3. Legal transactions
as transfer of ownership of a moveable thing, is a bilateral legal transaction as it requires an
agreement between the previous and the new owner (§ 929). While it does not create
obligations between the parties, it does qualify as a contract under §§ 145 et seq. The parties
may also conclude contracts in the area of family law (e.g. § 1408) and succession law (e.g,
§§ 1941, 2346). Under German law it is further possible to enter into a so-called Vorvertrag
i.e. a contract that creates the obligation to enter into a future contract that again creates
obligations.2
2 The contract is considered the single most important legal instrument for the parties to
give effect to their party autonomy.3 While freedom of contract is the general rule, an
obligation to enter into a contract may be imposed by law on suppliers of goods that are of
fundmental importance, e.g. electricity, gas, insurance. Whether also monopolies are gen¬
erally under an obligation to enter into contracts is unclear.4 A party may also be under an
obligation to enter into a contract with another party where the refusal would constitute an
intentional damage contrary to public policy pursuant to § 826. The freedom of the parties to
stipulate the content of their contracts is significantly limited by the provisions governing the
judicial control of standard contract terms (§§ 305-310); outside the scope of these provi¬
sions, the principles of good faith (§ 242) and public policy (§ 138) may also restrict this
freedom. The law also provides specific limitations elsewhere, in particular in the various
areas of consumer law and the law governing the leases for residential space (§§ 549 et seq).
§145
Binding effect of an offer
Any person who offers to another to enter
into a contract is bound by the offer, unless
he has excluded being bound by it.
§ 145
Bindung an den Antrag
Wer einem anderen die Schließung eines
Vertrags anträgt, ist an den Antrag gebun¬
den, es sei denn, dass er die Gebundenheit
ausgeschlossen hat.
A. Function
I. Underlying principles and purpose
1 In essence, conclusion of contract under German law requires two corresponding declara¬
tions of intent;5 commonly referred to as offer (Antrag; Angebot) and acceptance (Annahme).
§ 145 regulates that the offeror is bound by his offer unless he has excluded the binding effect
of his offer. However, he is not bound indefinitely. Pursuant to § 146, the otter will expire if it
is not accepted in due time.
IL Scope of application
2 The traditional conception that a contract consists of an offer and a subsequent acceptance
may prove difficult to uphold in certain situations, e.g. where negotiations take place and the
declarations of intent that form the agreement are made simultaneously. §§ 145 et seq. may
however be applied by way of analogy.6
2 BGH 30.4.1992 - VII ZR 159/91, NJW RR 1992, 977.
3 BVerfG 26.7.2005 - 1 BvR 782/94 u. 1 BvR 957/96, NIW 2005. 2363, 2365.
4 See Jauernig BGB/Mansel, Vorbemerkung zu 145-157 BGB mn. 10.
5 See Introduction to 116-144 mn. 1-8.
6 MüKo BGB/Busche, § 145 BGB mn. 4.
194
Wilis
Binding effect of an offer
3-7 § 145
B. Explanation
I. Offer
The offer is a declaration of intent that, in order to become effective, must be received by 3
the receiving party. It is not a unilateral legal transaction in itself. The offer must be so
precise that a contract can be concluded by a simple affirmative declaration of intent (yes) as
acceptance. It must hence contain the so-called essentialia negotii, i. e. typically the parties
and the main contractual obligations. Unless the offer is made to the public, no offer is to be
assumed where the counterparty is yet to be determined. It may suffice, however, if the
ofteror leaves the stipulation of certain contract elements to the offeree.7 Whether or not a
declaration qualifies as an offer is subject to interpretation which, pursuant to §§ 133, 157,
must be based on the objective perception of the receiving party.
IL Offeror
The offeror must intend to be bound by the offer. Where the offeror lacks this intention, 4
his declaration is not an offer. In particular, this may be the case where the offeror merely
wants to induce the other party to make an offer (invitatio ad offerendam/invitation to treat).
Again, the true intention of the offeror is irrelevant: where his conduct, when construed
pursuant to §§ 133, 157, appears as a proper offer, he is held to have made that offer and is
bound by it. Depending on the circumstances, the offeror may, however, have a right to
avoidance pursuant to § 119(1). In order to establish the required intention it is helpful to ask
whether in fact the offeror could be expected to have wanted a contract with anyone
addressed by the presumed offer. Usually the offeror wants to reserve the right to decide
whom he contracts with, be it for reasons of limited stock or diligence. Thus, under normal
circumstances, pricelists, menus, catalogues, price tags in shopping windows8 etc. are not
considered offers.9
III. Binding effect
Under § 145, generally, the effective offer is binding and cannot be revoked by the offeror. 5
As the offer must be received by the offeree in order to be effective, the offer will exert its
binding effect only upon receipt. Prior to receipt, the offeror can still revoke his offer
pursuant to § 130(1) 2nd St. Once effective, the offer will only cease to be binding once it
has expired. The binding effect also creates a pre-contractual duty of care which, if violated,
may lead to a liability pursuant to §§ 280(1), 241(2), 311(2).
The offeror may exclude the binding effect of the offer thus rendering the offer revoc- 6
able.10 Whether the offer is revocable after the contract was concluded is a matter of
interpretation.11 However, a declaration containing a non-binding clause may also be
interpreted to pose merely an invitation for the other party to make an offer.12
IV. Self service; vending machine
Uncertainty surrounds the question whether in a self-service store the owner makes an 7
offer by making available the goods to prospective buyers or whether the buyer makes an
offer by presenting them at the checkout (usually by placing the goods on the conveyor
7 MuKo BGB/Buschc § 145 BGB mn. 3.
« BGH 16.1.1980 - 1 ZR 25/78, NJW 1980, 1388.
9 MuKo BGB/Buschc, § 145 BGB mn. 11; Jauernig BGB/Mansel, § 145 IK JH mn. 3.
10 HK BGB/Oörner, § 145 BGB mn. 7.
11 Palandt BGB/Ellcnhcrgcr, § 145 BCrB mn. 4.
12 BGH 2.11.1995 - X ZR 135/93, NJW 1996, 919, 920.
195
Wa Is
§ 147 1 Division 3. Legal transactions
belt).13 Where a vending machine is used, its availability is considered to be an offer to
anyone who is willing to accept. The offer is accepted upon insertion of the required amount
of money. The vendor may exclude certain persons from using the vending machine; it i$
argued that no contract is concluded if an excluded person uses the vending machine.14
V. Burden of proof
8 The burden of proof lies with the party claiming that a declaration constitutes a binding
offer, or, respectively, with the party claiming that the binding effect was excluded.
§146
Expiry of an offer
An offer expires if a refusal is made to the
offeror, or if no acceptance is made to this
person in good time in accordance with
§§ 147 to 149.
§ 146
Erlöschen des Antrags
Der Antrag erlischt, wenn er dem Antra¬
genden gegenüber abgelehnt oder wenn er
nicht diesem gegenüber nach den §§ 147 bis
149 rechtzeitig angenommen wird.
1 The offer, whether binding or not, expires if the offeree refuses or does not accept the offer
in good time. In addition, a revocable (non-binding) offer also expires if it is revoked. The
refusal is a declaration of intent that, similar to the offer, requires receipt in order to be
effective; the same applies to the acceptance of the offer. Whether acceptance was made in
good time primarily depends on §§ 147-149. According to § 150(1), an acceptance not made
in good time is considered a new offer. The same applies to an acceptance that does not
conform to the offer (§ 150(2)). Pursuant to § 153, an offer does not expire if the offeror dies
or loses capacity before it is accepted, unless the offeror intended otherwise. In an auction,
the offer made by a bidder expires if a higher offer is made by another bidder or when the
auction is ended without a winning bid (§ 156).
§147
Period for acceptance
(1) ’An offer made to a person who is
present may only be accepted immediately.
2This also applies to an offer made by one
person to another using a telephone or an¬
other technical facility.
(2) An offer made to a person who is
absent may be accepted only until the time
when the offeror may expect to receive the
answer under ordinary circumstances.
§ 147
Annahmefrist
(1) ’Der einem Anwesenden gemachte An¬
trag kann nur sofort angenommen werden.
2Dies gilt auch von einem mittels Fernspre¬
chers oder einer sonstigen technischen Ein¬
richtung von Person zu Person gemachten
Antrag.
(2) Der einem Abwesenden gemachte An¬
trag kann nur bis zu dem Zeitpunkt ange¬
nommen werden, in welchem der Antragende
den Eingang der Antwort unter regelmäßigen
Umständen erwarten darf.
A. Explanation
I. Acceptance
1 Similar to the offer, the acceptance is not a legal transaction in itself, but a constituent part of
the bilateral legal transaction posed by the contract so formed. Generally, the acceptance is *
l A Palandt BGB/Ellenberger, § 145 BGB mn. 8; Jauernig BGB/Mansel, § 145 BGB mn. 3.
H Palandt BGB/Ellenberger, § 145 BGB mn. 7.
196
Wais
Period for acceptance 2-4 § 147
declaration of intent1 that, in order to become effective, must be received by the offeror.2
Exceptionally, however, the acceptance may become effective without receipt. These exceptions
are provided for by §§ 151, 152: no receipt is required where it is customarily not expected,
where the otteror has waived this requirement, or where the contract is notarially recorded. In
these cases the contract is concluded already when the acceptance is declared, in all other cases
when the acceptance has reached the offeror. Further, § 151(2) regulates that an acceptance
that denates from the offer is a refusal. In an auction, the fall of the hammer is the acceptance.
II. Declaration
Except for contracts that must be in a certain form, acceptance may be declared impliedly. 2
For example, rendering the performance owed under the contract may be considered as the
acceptance ot an offer.3 A party that accepts the other party’s performance may also be held to
impliedly have declared acceptance.4 There is, however, no general rule. Rather, the decision is
based on the specifics of the individual case.5 Importantly, where § 241a applies, the use or
consumption of unsolicited goods or services cannot be construed as implied acceptance
because the law provides that no obligations may be derived from the offeree’s conduct.6
III. Silence
In contrast, silence may be construed as acceptance only under very limited circumstances. 3
The general rule is that silence neither constitute acceptance nor does it generally constitute a
declaration of intent. However, there are exceptions to this general rule. First, the parties can
mutually agree that silence constitutes acceptance. Normally such an agreement provides that an
offer is to be regarded as accepted if it is not rejected within a certain deadline. Importantly, such
a deadline may not be imposed unilaterally by the offeree. Second, the law provides that silence
constitutes acceptance under specific circumstances, e.g. § 516(2) and § 362 HGB. Pursuant to
customary’ law, silence in response to a commercial letter of confirmation may constitute
acceptance. Third, the offeree may be held to have accepted the offer if, under the principle of
good faith, he was required to notify the offeror of an objection;7 such an obligation has been
found to exist, e.g. in a case where the parties, after extensive negotiations, had already agreed on
all major issues;8 or where both parties were firmly expecting the conclusion of the contract.9
IV. Presence
Under Sub. 1 1st St., an offer made to an offeree who is present must be accepted 4
immediately unless the offeror stipulated a deadline for the acceptance (§ 148). Sub. 1 2nd St.
clarifies that presence is not to be understood literally but comprises the use of devices that
allow for real time communication, e.g. a video conference; it is argued that the same holds
true for online chat.10 However, an offer made via email is an offer made in absence of the
offeree and thus falls within Sub. 2. Importantly, an offer made to an agent is not an offer
made in absence of the offeree (the principal) but falls within Sub. I11 as it is effective already
when it reaches the agent.
1 See * Introduction to tjt? 116-144 mn. 1-8.
2 HK-BGB/Oorner, § 147 BGB mn. 2.
3 BGH 11.6.2010 - V ZR 85/09, NJW 2010. 2873, 2875; BGH 18.6.1980 - VIII ZR 119/79, NJW 1980,
2245, 2246.
4 BGH 14.3.1963 - VII ZR 257/61, NJW 1963, 1248.
5 Palandt BGB/Ellenberger, § 147 BGB mn. 2.
6 See ♦ § 241a mn. 6.
7 HK BGB/Oörner, § 147 BGB mn. 3.
» BGH 14.2.1995 - XI ZR 65/94, NJW 1995, 1281.
9 BGH 2.11.1995 - X ZR 135/93, NJW 1996, 919, 920.
10 Palandt BGB/Ellenberger. § 147 BGB mn. 5.
" BGH 14.12.1995 - IX ZR 242/94, NJW 1996, 1062, 1064.
197
Wais
§ 148 1
Division 3. Legal transactions
V. Absence
5 Sub. 2 regulates offers made in absence of the offeree. In order to be effective, the offer
made in absence must nonetheless be received by the offeree. The offeree must accept within
a deadline within which acceptance can be expected under ordinary circumstances. The
deadline begins when the offer is made, e.g. when the letter is sent; the time of receipt is
irrelevant.12 The deadline must be long enough to account for the transmission process and
the time for the offeree’s deliberation and the acceptance.13 However, the deadline will extend
accordingly if the offeror knows or ought to have known of circumstances that cause a
delay.14 However, an unpredictable delay is at the risk of the offeree. Acceptance will not be
timely if it does not reach the offeror within the deadline.1’
VI. Commercial transactions
6 The so-caUed commercial letter of confirmation (kaufmännisches Bestätigungsschreiben)
plays an important role in commercial transactions.16 In brief, the purpose of the latter is to
confirm the results of prior contractual negotiations. The content of a commercial letter of
confirmation will bind the recipient if he does not object immediately except where the
content of the agreement is deliberately misrepresented in the letter1' or deviated from to
such an extent that the sender cannot reasonably expect the recipient to agree.18 The silence
has the effect of either modifying or, where in fact no agreement previously existed,
constructing an agreement. These effects are based on customary law.19
7 Importantly, these principles only apply in a commercial context. They originally devel¬
oped as a custom between merchants but are nowadays applicable to all persons that engage
in business of a certain scope.20 In order for the commercial letter of confirmation to have
the effects outlined above, the confirmation must be sent immediately after negotiations
have taken place21 and refer to an (alleged) agreement between the parties.22 A letter by
which the sender merely intends to accept an offer only subject to modifications does not
constitute a commercial letter of confirmation23 but is considered a new offer under § 150(2).
§148
Fixing a period for acceptance
If the offeror has determined a period of
time for the acceptance of an offer, the accep¬
tance may only take place within this period.
§ 148
Bestimmung einer Annahmefrist
Hat der Antragende für die Annahme des
Antrags eine Frist bestimmt, so kann die
Annahme nur innerhalb der Frist erfolgen.
1 Fixing of a period of time for acceptance is a unilateral transaction by the offeror. thus it
does require the consent of the offeree. The offeror can extend the time period at any time:
12 BGH 17.9.2009 - I ZR 217/07, NJW-RR 2010. 1127, 1128.
13 BGH 26.2.2016 - V ZR 208/14, NJW 2016, 2173, 2175; BGH 11.6.2010 - V ZR 85,09. NJW 201k
2873, 2875.
h BGH 19.12.2007 - XII ZR 13/06. NJW 2008, 1148, 1149.
HK-BGB/Dörner, § 147 BGB mn. 4.
16 See MüKo BGB/Busche, § 147 BGB mn. 9 et seq.
17 BGH 31.1.1994 - II ZR 83/93, NJW 1994, 1288; BGH 26.6.1963 - VIII ZR 61/62. NJW 1963. W22,
1923.
i« BGH 25.2.1987 - VIII ZR 341/86. NJW 1987, 1940, 1942.
19 Palandt BGB/Ellenberger, § 147 BGB mn. 8.
20 Palandt BGB/Ellenberger, § 147 BGB mn. 9; cf. Jauernig BGB/Mansel, $ 147 BGB mn. 5.
21 BGH 19.2.1964 - I b ZR 203/62. NJW 1964. 1223.
22 BGH 27 9.1989 - VIII ZR 245/88, NIW 1990, 386.
23 BGH 26.9.1973 - VIII ZR 106/72. NJW 1973. 2106; BGH 29.9.1955 - Il ZR 210/54. NJW 1955. 1"^
IVii/s
19«
Late and altered acceptance § 150
he may do so even impliedly. However, he cannot unilaterally reduce the period. The offeror
may fix a period ot acceptance that is shorter than the default period under § 147 but must
do so prior to, or jointly with, the offer. § 308 No. 1, which provides certain limits, is to be
considered where the period is fixed in standard contract terms. The expiry date of the
period fixed is to be established in accordance with §§ 186 et seq. The principle of good faith
(§ 242) will apply if the offeror prevents the receipt of acceptance within the fixed period. As
a result, the ofteror will be deemed to have received the acceptance in good time.
§149
Late receipt of a declaration of
acceptance
*If a declaration of acceptance received late
by the offeror was sent in such a way that it
would have reached him in time if it had been
forwarded in the usual way, and if the offeror
ought to have recognised this, he must notify
the acceptor of the delay after receipt of the
declaration without undue delay, unless this
has already been done. 1 2lf he delays the send¬
ing of the notification, the acceptance is
deemed not to be late.
§149
Verspätet zugegangene
Annahmeerklärung
'1st eine dem Antragenden verspätet zuge-
gangene Annahmeerklärung dergestalt abge¬
sendet worden, dass sie bei regelmäßiger Be¬
förderung ihm rechtzeitig zugegangen sein
würde, und musste der Antragende dies er¬
kennen, so hat er die Verspätung dem Anneh¬
menden unverzüglich nach dem Empfang der
Erklärung anzuzeigen, sofern es nicht schon
vorher geschehen ist. 2Verzögert er die Ab¬
sendung der Anzeige, so gilt die Annahme als
nicht verspätet.
As, pursuant to § 147, an offer expires if acceptance has not reached the offeror in good 1
time or within a fixed period of time, a delayed acceptance does not by itself lead to the
conclusion of a contract. In order to avoid that in this case the offeree erroneously assumes a
contract was concluded, the 1st St. requires that the offeror give notice to the offeree of a
delayed acceptance if he, the offeror, knows or ought to have known that the acceptance
would normally have reached him in good time. Notice must be given without undue delay
upon receipt of the delayed acceptance but it is not necessary that the notice reaches the
offeree.1 A delayed notification will result in a constructive timeliness of the acceptance and
hence in a valid contract. The offeree must prove that he sent his acceptance in such a way
that it would normally reach the offeror in time and the offeror could have recognised the
reasons for the delay. The offeror must prove that he notified the offeree immediately.2
§150
Late and altered acceptance
(1) The late acceptance of an offer is con-
sidered to be a new offer.
(2) An acceptance with expansions, restric¬
tions or other alterations is deemed to be a
rejection combined with a new offer.
§150
Verspätete und abändernde
Annahme
(1) Die verspätete Annahme eines Antrags
gilt als neuer Antrag.
(2) Eine Annahme unter Erweiterungen,
Einschränkungen oder sonstigen Änderungen
gilt als Ablehnung verbunden mit einem
neuen Antrag.
1 Palandt BGB/Ellenbcrger, § 149 BGB mn. 3.
2 HK BGB/Dorner, § 149 BGB mn. 4.
Wais
199
§151
Division 3. Legal transactions
1
A. Explanation
I. New offer
Pursuant to Sub. 1. an acceptance that is not declared in good
§§ 147-148 constitutes a new offer. The original offer is expired pu accents
can no longer be accepted. Sub. 1 does not apply where pursuant to § *e’ate ’^nce
is deemed not to be late. According to Sub. 2, a timely acceptance with expansions, restrictions
or other alterations is also considered a new offer. Important y, it is so const ere a
rejection of the original offer which means that, pursuant to § 146, t e ongi o er expires.
The offeree therefore cannot first declare acceptance with expansions, restrictions or other
alterations of the original offer and, if that is rejected by the offeror, accept his original offer.
In order for Sub. 2 to apply, it is not necessary that the modifications are significant. The
content of the acceptance is determined by way of interpretation pursuant to §§ 133, 157. It
is irrelevant whether the offeree is aware of the modifications contained in his acceptance.*
The mere request for a better offer, however, will not fall within Sub. 2 if the offeree makes
clear that he is also willing to accept the original offer? In this case, the exceeding part of the
request may constitute an offer to conclude a separate contract.4
IL Acceptance
2 The new offer within the meaning of § 150 can be accepted just like any other offer. In
particular, acceptance may be declared impliedly under § 151. This will be the case, e.g.
where the original offeror renders the performance as requested by the offeree in his new
offer. It has been held that silence may constitute acceptance where the modifications within
the meaning Sub. 2 are only minor.5 However, if the offeree refers to his terms and
conditions only in his acceptance, it depends on the circumstances of the individual rase
whether silence, or performance of the obligations under of the contract, may constitute
acceptance of this new offer.
§151
Acceptance without declaration to
the offeror
’A contract comes into existence through
the acceptance of the offer without the of¬
feror needing to be notified of acceptance, if
such a declaration is not to be expected ac¬
cording to customary practice, or if the of¬
feror has waived it. 2The point of time when
the offer expires is determined in accordance
with the intention of the offeror, which is to
be inferred from the offer or the circum¬
stances.
§ 151
Annahme ohne Erklärung
gegenüber dem Antragenden
Der Vertrag kommt durch die Annahme
es Antrags zustande, ohne dass die An¬
nahme dem Antragenden gegenüber erklärt
zu werden braucht, wenn eine solche Erklä¬
rung nac der Verkehrssitte nicht zu erwar¬
ten ist oder der Antragende auf sie verzichtet
*n welcbcrn der Antrag
Antr ' linunt sich nach dem aus dem
den W-n den ^Tmständen zu entnehmen¬
den Willen des Antragenden.
* BGH 18.10.2000 - XII ZR 179/98, N|W 2001, 221 2^
2 Palandt BGB/Ellenberger. § 150 BGB nm. 2
3 OLG Gelle 11.2.2009 - 3 U 204/08. NIVV-RR 2009 11 sn
4 HK-BGB/Dörner, § 150 BGB nm. 3. '
’ BGH 31.1.1951 - II ZR 46/50, N)W 1951, 313.
200
Acceptance without declaration to the offeror
1-3 § 151
A. Function
A contract is a bilateral legal transaction that is formed by two corresponding declarations of 1
intent» otter and acceptance.1 Both declarations generally require receipt» i.e. they must each
reach the other party in order to be effective. However, the 1st St. provides that under certain
circumstances acceptance does not require receipt. Importantly, the 1st St. does not waive the
requirement that acceptance must be declared.2 A declaration of acceptance is required, only its
receipt is not. The 1st St. does not provide the legal grounds for silence as acceptance.
B. Explanation
I. Waiver
Acceptance does not require receipt by the offeror if the offeror has waived this require- 2
ment. He may do so even where the acceptance must be declared in a certain form.3 The
requirement of receipt may also be waived impliedly. This may be the case, in particular,
where a request is urgent, e.g. urgent delivery4 or where a person books a hotel room for
immediate use or where a seller sends unsolicited goods.5 6 7 Receipt may also be dispensable
due to customary’ practice, e.g. with regard to legal transactions that are purely advantageous
for the offeree? Such a customary practice was held to exist with regard to, e.g., confirmation
of debt? the offer to undertake a suretyship (§ 765),8 forgiveness of debt (§ 397( 1 )).9
IL Declaration
Importantly, the declaration of acceptance itself is indispensable under § 151. It requires 3
an outward expression of the intention to accept the offer.10 In the case of § 151 this
declaration is usually made impliedly, e.g. through performance of the contractual obligation,
use of delivered goods. The offer to assign a claim is impliedly accepted if the offeree seeks
enforcement of the assigned claim.11 A seller impliedly accepts the buyer’s offer when he
sends the goods.12 The question of implied acceptance is particularly difficult where a debtor
sends his creditor a cheque, stipulating that (i) by cashing in the cheque the creditor agrees to
forgive the debtor the remainder of his debt and (ii) that he waives the requirement of receipt
of the creditor’s acceptance. The BGH held that cashing in the cheque may indeed constitute
an implied acceptance.13 However, acceptance cannot be assumed where the cheque amounts
to only a fraction of the debt, e.g. 20 percent.14
1 See Introduction to 145-157 mn. 1-2.
2 HKBGB/Dörner, § 151 BGB mn. 2.
3 BGH 27.5.1986 - KZR 38/85, NJW-RR 1986, 1300, 1301.
4 HK-BGB/Dorner, § 151 BGB mn. 2.
5 Palandt BGB/Ellenberger, § 151 BGB mn. 3.
6 BGH 12.10.1999 - XJ ZR 24/99, NJW 2000, 276, 277.
7 BAG 10.12.1992 - 8 AZR 20/92, NJW 1993, 2553, 2554.
8 BGH 10.2.2000 - IX ZR 397/98, NJW 2000, 1563; BGH 6.5.1997 - IX ZR 136/96, NJW 1997. 2233.
9 OLG Brandenburg 16.3.2006 - 5 U 75/05, NJW RR 2007, 270.
10 BGH 5.10.2006 - III ZR 166/05, NJW 2006, 3777, 3778; BGH 14.10.2003 - XI ZR 101/02, N|W 2004.
287
" BGH 14.4.1999 - VIII ZR 370/97, NJW 1999, 2179,
12 Palandt BGB/Ellenberger, § 151 BGB mn. 2; Jauernig BGB/Mansel, § 151 BGB mn. 1.
13 BGH 6.2.1990 - X ZR 39/K9, NJW 1990, 1656, 1657.
>1OLG Koblenz 21.11.2002 - 5 U 10.35/02, NJW 2003, 75«, 759.
Wais
201
Division 3. Legal transactions
§153 1
4
III. Time frame
. j gf time provided for in the 2n St. The
Acceptance must be declared within the pen offer js si|ent> the period must be
offeror may stipulate this period in his offer. ]5 it js argued that unlike a
determined on the basis of his hypothetica m en _ acceptance under § 151 is not
regular acceptance that requires receipt in order
revocable pursuant to § 130(2).16
§152
Acceptance by notarial recording
■If a contract is notarially recorded without
both parties being present at the same time,
the contract comes into existence, unless
otherwise provided, on the recording of ac¬
ceptance effected in accordance with § 128.
2The provision of § 151 sentence 2 applies.
§152
Annahme bei notarieller
Beurkundung
lyVird ein Vertrag notariell beurkundet,
ohne dass beide Teile gleichzeitig anwesend
sind, so kommt der Vertrag mit der nach § 128
erfolgten Beurkundung der Annahme zustan¬
de, wenn nicht ein anderes bestimmt ist * 1 2Die
Vorschrift des § 151 Satz 2 findet Anwendung.
1 § 152 contains an exception to the general rule according to which the declaration of
acceptance must be received by the offeror in order to be effective. Where a contract is
notarially recorded, the contract is formed already upon the recording of acceptance. It is
irrelevant whether the declaration of intent containing acceptance subsequently reaches the
offeror. § 152 applies not only to notarial recording prescribed by statute (e.g. § 31 lb(l)
1st St.) but also to contracts which the parties agreed to subject to notarial recording. § 152
does not apply to other form requirements.1 The 2nd St. refers to § 151 with respect to the
determination of the expiry of an offer that is notarially recorded. The expiry date may either
be fixed by the offeror or inferred from his hypothetical intention. The offeror may also
exclude § 152, also by implication, e.g. his request for certainty in setting a deadline for the
offer to be accepted may suggest that § 152 shall be excluded.2
§153
Death or incapacity to contract of
the offeror
The coming into existence of the contract
is not prevented by the offeror dying or los¬
ing capacity to contract before acceptance,
unless a different intention of the offeror is
to be presumed.
§ 153
Tod oder Geschäftsunfähigkeit des
Antragenden
Das Zustandekommen des Vertrags wird
nicht dadurch gehindert, dass der Antragende
vor der Annahme stirbt oder geschäftsunfä¬
hig wird, es sei denn, dass ein anderer Wille
des Antragenden anzunehmen ist.
A. Function
1 Pursuant to § 130(2) a declaration of intent» that must u u n
become effective upon receipt even if, prior to recpint J » the receiving wlU
_ the declaring party passes away or
15 BGH 14.4.1999 - VIII ZR 370/97, NJW 1999, 21797l7
16 Palandt BGB/Ellenberger, § 150 BGB mn. 6
1 HK-BGB/Dörner, § 152 BGB mn. 2.
2 BGH 16.9.1988 - V ZR 77/87, NJW-RR 1989, 198, 199
1 See Introduction to §§ 116-144 mn. 1-8.
202
Wais
Overt lack of agreement; lack of notarial recording 1§154
loses his capacity to contract. § 153, in contrast, only concerns the question whether a valid
offer - even one that is effective only by virtue of § 130(2) - can be accepted despite the fact
that the offeror is no longer capable of receiving the declaration of acceptance. § 153
stipulates a presumption that acceptance is possible but this presumption is rebuttable
where, by way of interpretation, it can be concluded that the offeror intended differently; in
particular where personal need or supply is concerned.2
B. Explanation
Acceptance must be declared towards the offeror’s successors or legal representative. 2
Under the conditions set forth in § 151, receipt of acceptance may be dispensable.3 § 153
does not concern the question whether the successor or legal representative of the offeree can
accept an offer where the offeree (not the offeror) has passed away or lost his capacity to
contract. Subject to the condition that the offer is not expired pursuant to §§ 146 et seq.,
acceptance is possible in this case if the interpretation of the offer provides that the offeror
intended to be bound also in relation to the successor or legal representative of the offeree.
§154
Overt lack of agreement; lack of
notarial recording
(1) !As long as the parties have not yet
agreed on all points of a contract on which
an agreement was required to be reached
according to the declaration even of only one
party, the contract is, in case of doubt, not
entered into. 2An agreement on individual
points is not legally binding even if they
have been recorded.
(2) If notarial recording of the contract
contemplated has been arranged, the contract
is, in case of doubt, not entered into until the
recording has taken place.
§154
Offener Einigungsmangel;
fehlende Beurkundung
(1) Solange nicht die Parteien sich über
alle Punkte eines Vertrags geeinigt haben,
über die nach der Erklärung auch nur einer
Partei eine Vereinbarung getroffen werden
soll, ist im Zweifel der Vertrag nicht geschlos¬
sen. 2Die Verständigung über einzelne
Punkte ist auch dann nicht bindend, wenn
eine Aufzeichnung stattgefunden hat.
(2) Ist eine Beurkundung des beabsichtig¬
ten Vertrags verabredet worden, so ist im
Zweifel der Vertrag nicht geschlossen, bis die
Beurkundung erfolgt ist.
A. Explanation
I. Presumption
Sub. 1 contains the presumption that a contract is not concluded if the parties have not 1
agreed on every aspect which one or both parties considered it necessary to agree on and,
further, are aware of the lack of agreement. Sub. 1 does not require that the aspect not agreed
on is to be regarded important from an objective point of view. In particular, § 154 does not
refer to the lack of agreement concerning the so-called essentialia negotii, for in this case the
conclusion of a contract is already technically impossible, thus leaving no room for a
presumption.1 The presumption of the non-existence of the contract under Sub. 1 is rebuttable
if the parties, despite the fact that certain aspects have not been agreed, already intended a
binding contract. This may be the case, e.g., where the parties deliver the performances due
under the contract already. However, it is further necessary that the gap in the agreement can
2 HK-BGB/Dörner, § 153 BGB mn. 4.
3 BGH 30.10.1974 - IV ZR 172/73, NJW 1975, 382, 383.
1 MüKo BGB/Busche, § 154 BGB mn. 3.
Wais
203
§ 155 Division 3. Legal transactions
be closed,2 either by application of supplementing legal provisions3 or by completive inter¬
pretation of contract’ (ergänzende Vertragsauslegung).4 The way in which performances due
under the contract are rendered may provide an indication of the parties intention.5
IL Effect
2 The mere fact that one party declared - expressly or impliedly6 - that he wanted to reach
an agreement on an aspect that, in fact, has not been agreed on provides sufficient grounds
for Sub. 1 to apply. Sub. 1 does not render the contract void. Rather, no contract is concluded
in the first place.
III. Notarial recording
3 Pursuant to Sub. 2, it is presumed that where notarial recording is agreed, the parties
intended the notarial recording to be a constituent requirement of the conclusion of the
contract. The existence of an agreement alone thus does not provide sufficient grounds to
infer that a contract is concluded. Despite the wording of Sub. 2 (in particular in its rather
narrow English translation), this presumption applies to other types of autonomously agreed
forms such as in writing under §§ 126, 127( 1 ).7 Again, however, the presumption is rebutted
if it is clear that the parties intended differently. This may be the case where the purpose of
the form requirement merely was to provide means of proof readily available,8 and, in
particular, if the parties agreed on the form requirement only after the contract was
concluded.9
IV. Burden of proof
4 It is for the party who wants to rely on the existence of a contract to prove that
presumption in Sub. 1 is rebutted. Under Sub. 2, the burden of proof lies with the party
who claims that the parties agreed to subject the contract to a form requirement. In turn, the
party who claims that the presumption in Sub. 2 is rebutted must prove the respective facts.
§155
Hidden lack of agreement
If the parties to a contract which they
consider to have been entered into have, in
fact, not agreed on a point on which an
agreement was required to be reached, what¬
ever is agreed is applicable if it is to be
assumed that the contract would have been
entered into even without a provision con¬
cerning this point.
§155
Versteckter Einigungsmangel
Haben sich die Parteien bei einem Vertrag,
den sie als geschlossen ansehen, über einen
Punkt, über den eine Vereinbarung getroffen
werden sollte, in Wirklichkeit nicht geeinigt,
so gilt das Vereinbarte, sofern anzunehmen
ist, dass der Vertrag auch ohne eine Bestim¬
mung über diesen Punkt geschlossen sein
würde.
2 BGH 20.6.1997 - V ZR 39/96, NJW 1997, 2671, 2672.
3 BGH 2.4.1964 - KZR 10/62, NJW 1964, 1617, 1619.
4 BGH 11.5.2009 - VII ZR 11/08» NJW 2009, 2443, 2444. See -> § 157 mn. 4
5 HK-BGB/Dörner, § 154 BGB mn. 5.
6 Palandt BGB/Ellenberger, § 154 BGB mn. 1.
7 HK-BGB/Dörner, § 154 BGB mn. 6.
8 BGH 8.10.2008 - XII ZR 66/06, NJW 2009, 433, 434.
9 BGH 27.4.1994 - VIII ZR 34/93, NJW 1994, 2025, 2026.
204
Wais
Hidden lack of agreement
1-6 § 155
A. Function
Unlike § 154, which requires knowledge of the lack of agreement, § 155 applies where the 1
parties are unaware of the fact that they have not agreed on every aspect one or both parties
wanted to agree on. The provision establishes the presumption that, under certain condi¬
tions, the contract is valid nonetheless.
B. Explanation
I. Essential elements
§ 155 is generally inapplicable where the so-called essentialia negotii (the essential elements 2
of the contract) are concerned because the conclusion of a contract necessarily presupposes
an agreement thereon. For example, no contract is concluded if the parties unknowingly
agreed that both are the seller.1
II. Corresponding declarations of intent
§ 155 applies only if the parties’ declarations of intent2 - offer and acceptance - do not 3
correspond. Whether this is the case must be established by way of interpretation pursuant to
§§ 133, 157. Thus, the parties’ declarations may correspond objectively despite the fact that
the parties’ true (subjective) intentions do not. Where this is the case, § 155 is inapplicable3
but §§ 116 et seq. may apply; in particular the contract may be avoided under § 119. § 155
does not apply if the parties’ declarations of intent do not correspond objectively while their
true intentions match, be it because both unknowingly attributed the same wrong meaning to
a term used or because one party recognised the mistake and the true intention of the other.4
III. Examples
The following situations normally fall within the scope of § 155: the parties forget to agree 4
on a point or an aspect of the contract that one or both parties wanted to agree on; the
parties use an ambiguous term that each party understands differently, the parties use
different terms of which each party assumes that they mean the same, while each party
attributes a different meaning to them.5
IV. Legal consequences
A contract that, under the conditions provided for in § 155, lacks an agreement on a 5
certain aspect is only valid if it can be assumed that the parties would have concluded the
contract also without that agreement. This assumption must be based on the hypothetical
intention of the parties. Gaps in the contract may be filled by application of supplementing
legal provisions and ‘completive interpretation of contract’ (ergänzende Vertragsauslegung).6
V. Burden of proof
The party who claims that despite the lack of agreement the contract is valid must prove 6
the facts that support this interpretation.
' RG 5.4.1922 - I 307/21, RGZ 104, 265, 266.
2 See -»Introduction to §§ 116-144 mn. 1-8.
3 BGH 10.6.2016 - V ZR 295/14, NJW 2017, 175, 177; BGH 5.12.2002 - VII ZR 342/01, NJW 2003, 743.
4 Palandt BGB/Ellenberger, § 155 BGB mn. 3.
5 Palandt BGB/Ellenberger, § 155 BGB mn. 4.
6 RG 27.6.1916 - Rep. II. 174/16, RGZ 88, 377, 379; -► see § 157 mn. 4.
Wais
205
§ 156 1-4
Division 3. Legal transactions
§ 156
Entry into contracts at auctions
!At an auction, a contract is not entered
into until the fall of the hammer. * 2A bid
lapses if a higher bid is made, or if the
auction is closed without the fall of the ham¬
mer.
§156
Vertragsschluss bei Versteigerung
tßei einer Versteigerung kommt der Ver¬
trag erst durch den Zuschlag zustande. 2Ein
Gebot erlischt, wenn ein Übergebot abge¬
geben oder die Versteigerung ohne Erteilung
des Zuschlags geschlossen wird.
A. Function
I. Underlying principles
1 § 156 concerns the conclusion of a contract in an auction. The bid constitutes the offer to
conclude the contract. The 1st St. therefore serves to clarify the legal relevance of the fall of
the hammer for the offer, whereas the 2nd St. determines the effects of other aspects of the
auction relevant to the offer.
II. Scope of application
2 § 156 applies to auctions that are set up voluntarily as well as to auctions that are required
under private law (§§ 382, 753, 966, 970, 983, 1219, 1215; and §§ 373, 376 HGB).1 § 156 also
applies to the enforcement of judgments by way of compulsory auctions (§817 ZPO). Online
auctions (especially eBay auctions) generally do not qualify as auctions within the meaning
of § 156 but are contracts concluded by offer and acceptance.2
B. Explanation
I. Fall of the hammer
3 The fall of the hammer constitutes the acceptance of the offer (1st St.).3 Whilst under
normal circumstances, an offer expires under the conditions provided for in §§ 146 et seq.
(mostly if it is rejected or not accepted in good time), a bid expires if a higher bid is placed or,
if the bid is the highest bid, if the auction is ended without the fall of the hammer (2nd St.).
Since the bid is only an offer, no contract is concluded prior to the fall of the hammer and, in
particular, the bidder has no right to the fall of the hammer under § 156.4 The fell of the
hammer is a declaration of intent that does not requires to be received by another party in
order to be effective (nicht empfangsbedürftige Willenserklärung).
IL Parties to the contract
4 Usually, the auctioneer will conclude the contract with the highest bidder on behalf of the
consignor. The contract is thus formed between the winning bidder and the consignor, but
not the auctioneer.
‘ Palandt BGB/Ellenberger, § 156 BGB mn. 2; Jauernig BGB/Mansel, § 151 BGB mn 1.
2 BGH 24.8.2016 - VIII ZR 100/15, NJW 2017, 468; BGH 3. 11. 2004 - VIII ZR 375/03, NJW 2005, 53.54
3 BGH 3.11 2004 - VIII ZR 375/03, NJW 2005, 53; BGH 24.4.1998 - V ZR 197/97.NJW 1998» 2350.
4 Palandt BGB/Ellenberger, § 156 BGB mn. 1.
206
Wais
Interpretation of contracts
1-3 § 157
III. Ownership; land
Regularly, the contract does not concern the transfer of ownership under §§ 929 et seq. 5
Where a plot of land is auctioned, the contract is only valid if the winning bid and the fall of
the hammer are notarially recorded (§ 31 lb(l) 1st St.).5
§ 157
Interpretation of contracts
Contracts are to be interpreted as required
by good faith, taking customary practice into
consideration.
§ 157
Auslegung von Verträgen
Verträge sind so auszulegen, wie Treu und
Glauben mit Rücksicht auf die Verkehrssitte
es erfordern.
A. Function
Despite its clear wording, and similar to § 133, the provision of § 157 applies to the 1
interpretation both of contracts and of declarations of intent.1 In fact, both provisions
have the same scope of application.2 The process of interpretation is thus governed by § 133
and § 157 simultaneously.3
B. Explanation
I. Good faith
§ 157 stipulates that the principle of good faith is the guiding principle of interpretation. 2
Declarations of intent as well as contracts must be interpreted in accordance with this
principle, paying due regard to customary practice. It follows from the principle of good faith
that the recipient may not simply construe the declaration in the way most favourable to him
and that such an understanding may not be decisive. Rather the interests pursued by the
declaring party - to the extent that they were noticeable to the other party - must also be
considered.4 All relevant circumstances must be taken into account. The same criteria also
apply to the interpretation of a declaration of intent that, rather than being express, was
made impliedly. However, the courts require that the declaring party was aware or ought to
have known of the fact that his conduct may be construed as an interpretation of intent.5
IL Exclusion
No interpretation is necessary where a declaration of intent has a meaning that, while 3
objectively differing from the declaring party’s true intention, is understood correctly by the
receiving party. Where the true intentions of the parties correspond, these intentions prevail.6
This principle is commonly referred to under the term falsa demonstratio non nocet.7 Given
5 BGH 24.4.1998 - V ZR 197/97, NJW 1998, 2350.
1 See * Introduction to §§ 116-144 mn. 1-8.
2 Palandt BGB/Ellenberger, § 157 BGB mn. 1.
3 BGH 23.6.1988 - VII ZR 117/87, NJW 1988, 2536.
4 BGH 25.4.1996 - VII ZR 157/94, NJW-RR 1996, 1044, 1045; BGH 12.2.1981 - IVa ZR 103/80, NJW
1981, 2295, 2296.
5 BGH 30.10.2013 - V ZB 9/13, NJW 2014, 1242, 1243; BGH 29.11.1994 - XI ZR 175/93, NJW 1995, 953.
6 BGH 18.1.2008 - V ZR 174/06, NJW 2008, 1658, 1659; BGH 29.3.1996 - II ZR 263/94, NJW 1996,
1678, 1679.
7§ 133 mn. 13.
Wais
207
§ 157 4-7 Division 3. Legal transactions
the correct understanding of the other party, such a legal transaction generally is effective
even where it is subject to a form requirement; exceptions apply where both parties
knowingly used a different term (in particular a lower price).8
IIL Completive interpretation of contract
4 § 157 also allows for ‘completive interpretation of a contract (ergänzende Vertragsausle¬
gung).9 In contrast to regular interpretation, the purpose of which is to establish how the
recipient ought to have understood a declaration of intent, completive interpretation is used
to close gaps in a contract. Completive interpretation infers from the regulatory regime
within the contract and the principle of good faith specific rules for those aspects that
mistakenly were left unaddressed by the parties.10
1. Application
5 Since contract law provides rules that govern the relationship of the parties except where
they contractually agreed otherwise, completive interpretation may only take place if non¬
mandatory rules do not appropriately supplement the contractual regulatory regime. This
may be the case if the relevant legal provisions are contrary to the hypothetical intention of
the parties, e. g. the parties during the negotiations unanimously wanted termination dead¬
lines to be longer than provided for by law.11
2. Regulatory gap
6 Completive interpretation requires a regulatory gap within the contract.12 A gap may only be
assumed where the contract in its current state is insufficient to put into effect its underlying
purpose (Regelungsplan) and does not allow the conflicting interests to be resolved.13 In
particular, this may be the case where the parties forget to address a relevant aspect in their
contract.14 A gap may also develop after the conclusion of the contract, e.g. due to a change of
circumstances15 or if the parties deliberately left certain aspects unaddressed on which they
wanted to find an agreement later.16 However, there is no gap where the parties were aware of a
missing rule but intended the regulatory regime of the contract to be conclusive nonetheless.17
Further, it is held that a gap which allows for completive interpretation may also stem from the
ineffectiveness of a term of the contract.18
3. Hypothetical intention
7 The decisive element for completive interpretation is the hypothetical intention of the
parties.19 The court must thus inquire how the parties would have regulated, at the time of
the conclusion of the contract,20 a certain issue had they been aware of the regulatory gap in
• MüKo BGB/Armbrüster, § 117 BGB mn. 28.
9 BGH 11.5.2009 - VII ZR 11/08, NJW 2009, 2443, 2444.
10 BGH 14.10.1977 - V ZR 253/74, NJW 1978, 695.
11 Palandt BGB/Ellenberger, § 157 BGB mn. 5.
12 BGH 15.11.2012 - VII ZR 99/10, NJW 2013, 678, 679; BGH 20.7.2005 - VIII ZR 397/03. NJW-RR
2005,1619,1621.
u BGH 14.10.1977 - V ZR 253/74, NJW 2007, 2987.
19 BGH 15.11.2012 - VII ZR 99/10, NJW 2013, 678, 679; BGH 10.10.1990 - VIII ZR 370/89, NJW-RR
1991, 176, 177.
15 BGH 25.11.2004 - I ZR 49/02, NJW-RR 2005, 687, 690.
16 BGH 20.7.2005 - VIII ZR 397/03, NJW-RR 2005, 1619, 1621; BGH 19.3 1975 - VIII ZR 262/7’.
NJW 1975, 1116.
17 Palandt BGB/Ellenberger, § 157 BGB mn. 3.
18 BGH 13.11.1997 - IX ZR 289/96, NJW 1998, 450, 451.
19 BGH 17.4.2002 - VIII ZR 297/01, NJW 2002, 2310, 2311; BGH 4.5.1990 - V ZR 21/89, NJW 1990.
2620,2621.
28 BGH 20.9.1993 - II ZR 104/92, NJW 1993, 3193.
208
Wais
Conditions precedent and subsequent 1 § 158
their contract.21 In order to determine the parties’ hypothetical intention, regard must be had
to the contract and the terms and principles contained therein,22 as well as to the principle of
good faith and to customary commercial practice.23 However, the court must respect party
autonomy; it may not simply substitute its own opinion of a term most suitable for the
parties’ interest for the parties’ intention.24 Completive interpretation must neither be
contrary to the parties’ intention nor extend the scope of the contract.25 It is excluded where
without any indication of preference two or more interpretations are equally possible.26
Title 4
Conditions and
specification of time
Titel 4
Bedingung und Zeitbestimmung
§158
Conditions precedent and
subsequent
(1) If a legal transaction is entered into sub¬
ject to a condition precedent, the legal transac¬
tion that is subject to the condition comes into
effect when the condition is satisfied.
(2) If a legal transaction is entered into
subject to a condition subsequent, the effect
of the legal transaction ends when the condi¬
tion is satisfied; at this moment the previous
legal situation is restored.
§158
Aufschiebende und auflösende
Bedingung
(1) Wird ein Rechtsgeschäft unter einer auf¬
schiebenden Bedingung vorgenommen, so tritt
die von der Bedingung abhängig gemachte
Wirkung mit dem Eintritt der Bedingung ein.
(2) Wird ein Rechtsgeschäft unter einer auf¬
lösenden Bedingung vorgenommen, so endigt
mit dem Eintritt der Bedingung die Wirkung
des Rechtsgeschäfts; mit diesem Zeitpunkt tritt
der frühere Rechtszustand wieder ein.
A. Function
Under the BGB, the parties may subject most of their legal transactions1 to a condition. 1
Depending on the condition, the legal transaction will then be effective either upon or until
satisfaction of the condition. Whilst the possibility of conditional legal transactions is the
general rule, exceptions apply where conditions are prohibited by law, e. g. the agreement to
transfer a plot of land (§ 925(2)), marriage (§ 1311), acknowledgement of paternity (§ 1594
(3)). Further, conditions are generally excluded in the case of unilateral legal transactions
that allow the declaring party to unilaterally modify or extinguish a legal relationship
(Gestaltungsrechte).2 For example, set-off (§ 388) cannot be declared subject to a condition,
nor can voidance (§§ 119, 123), revocation (§ 323), withdrawal (§ 355), termination (e.g.
§ 542(1)), or consent to an unauthorised disposition (§ 185).3 The rationale behind this
exception is that the other party must not be burdened with the legal uncertainty that the
21 BGH 15.11.2012 - VII ZR 99/10, NJW 2013, 678, 679; BGH 20.7.2005 - VIII ZR 397/03, NJW-RR
2005, 1619, 1621.
22 BGH 1.6.2005 - VIII ZR 234/04, NJW-RR 2005, 1421; BGH 17.4.2002 - VIII ZR 297/01, NJW 2002,
2310, 2311.
23 BGH 15.11.2012 - VII ZR 99/10, NJW 2013, 678, 679; BGH 1.2.1984 - VIII ZR 54/83, NJW 1984,
1177, 1171.
24 BGH 10.7.1963 - VIII ZR 204/61, NJW 1963, 2071.
25 See Palandt BGB/Ellenberger, § 157 BGB mn. 8-9; HK-BGB/Dörner, § 157 BGB mn. 5.
26 BGH 20.7.2005 - VIII ZR 397/03, NJW-RR 2005, 1619, 1621.
1 See -* Introduction to §§ 116-144 mn. 1-8.
2 Jauernig BGB/Mansel, § 185 BGB mn. 11; HK-BGB/Dörner, § 158 BGB mn. 4.
3 Palandt BGB/Ellenberger, Einführung vor § 185 BGB mn. 13.
Wais
209
§ 158 2-6 Division 3. Legal transactions
condition creates. However, as an exception to the exception, conditions are again permitted
in unilateral legal transaction where they do not create uncertainty for the receiving party,4
particular where the satisfaction of the condition is in his hands.5
B. Explanation
I. Condition
2 The term condition only refers to a (stipulated) dependence of a legal consequence from an
uncertain future event. Where it is stipulated that the effectiveness or ineffectiveness of a legal
consequence shall depend on a future event which will certainly take place, no condition is
involved but, rather, a specification of time within the meaning of § 163. In particular, it
follows that the passing away of a person is not a condition under § 158. Not all provisions that
apply to conditions within the meaning of § 158 are also applicable to specifications of time.6
IL Future
3 Since the uncertain event that is constituent for a condition within the meaning of § 158
must be a future event, the stipulation that the effectiveness or ineffectiveness of a legal
transaction shall depend on an event of the past does not constitute a condition. The
uncertainty whether an event of the past proves false or true is only subjective in nature,
§§ 158 et seq. do not apply.7
III. Event
4 No specific requirements apply with regard to the future event itself. It may even be a
mere declaration of a third party, and, in particular, any declaration of intent of a party
involved - purely discretionary conditions are not prohibited under German law.8
IV. Rights and duties
5 Regularly, the conditions of a contract that regulate the rights and duties under the
contract are not conditions within the meaning of § 158. In most cases the parties merely
want to stipulate the circumstances under which the performance will fall due. However,
nothing prevents the parties from stipulating that e.g. the performance of a contractual
obligation shall in fact be a condition falling under § 158.9
V. Conditions precedent; conditions subsequent
6 § 158 requires a distinction between conditions precedent and conditions subsequent. A
legal transaction that is concluded under a condition precedent will only become effective
upon the satisfaction of the condition, e.g. where the transfer of ownership is agreed under
the condition precedent of full payment, the transfer is ineffective before, and will only
become effective upon, full payment. A legal transaction that is concluded under a condition
subsequent will be effective from the outset but will become ineffective upon the satisfaction
of the condition, e.g. ownership that is agreed to be transferred as security under the
condition subsequent of repayment of a debt: the transfer is effective but ownership will tall
back to the transferor automatically upon full repayment of the debt.
4 BGH 11.11.2003 - VI ZR 13/03, NJW 2004, 951, 952.
5 Palandt BGB/Ellenberger, Einführung vor § 158 BGB mn. 13.
6 -► See § 163 mn. 1
7 Palandt BGB/Ellenberger, Einführung vor § 158 BGB mn. 6.
8 BGH 24.6.2009 - IV ZR 202/07, NJW-RR 2009, 1455, 1456; BGH 21.4.1967 - V ZR 75/65, NJW 1967,
1605, 1606.
9 Palandt BGB/Ellenberger, Einführung vor § 158 BGB mn. 3.
210
Wais
Retroactive effect
§159
VI. Impossibility
Where satisfaction of the condition is not or no longer possible, the opposite of the legal 7
consequence of the transaction subject to the condition becomes final: the impossibility of a
condition precedent leads to the final effectiveness of the legal transaction, the impossibility
of a condition subsequent to its final ineffectiveness. A condition may become impossible, for
example, upon expiry of a deadline that was stipulated for the satisfaction of the condition or
upon denial of a declaration of a third party where an affirmative declaration was the
condition or upon destruction of a specific thing where the transfer of the ownership thereof
was the condition.
VII. Validity
Whether a legal transaction subject to a condition is valid or void (for other reasons than 8
the suspended effectiveness or ineffectiveness that stems from the condition) depends on
whether all the remaining requirements (e.g. capacity to contract (§§ 104 et seq.), conformity
with public policy (§ 138) etc.) were satisfied at the time when it was made;10 subsequent
changes of circumstances or the law at the time of satisfaction of the condition are hence
generally irrelevant.11 Further, a contract establishing obligations (e.g. a sales contract, § 433)
that is concluded under a condition precedent or subsequent also creates an obligation of
loyalty between the parties already when it is concluded.12 The other party may be entitled to
damages under §§ 280 et seq. if these obligations of loyalty are violated.13
VIII. Right of expectancy
If the position of the party that benefits from the satisfaction of the condition is sufficiently 9
secure (i. e. if the other party cannot unilaterally preclude the satisfaction of the condition) that
position is a right in itself that the beneficiary can dispose of, that can be inherited, and attached
(Anwartschaftsrecht - ‘right of expectancy’14).15 For example, a seller who has transferred
ownership onto the buyer under the condition precedent of full payment (§§ 929, 158(1))
cannot unilaterally preclude the transfer from becoming effective and the prospect of ownership
on the buyer’s side is a right that he can dispose of pursuant to the same rules that would govern
the disposition if the condition had already been satisfied and the buyer acquired ownership.16
§159
Retroactive effect
If, under the terms of a legal transaction,
the consequences linked to the satisfaction of
the condition are to become effective from an
earlier time, then when the condition is satis¬
fied the parties are under a duty to render
each other the performance that they would
have rendered if the consequences had oc¬
curred at the earlier time.
§159
Rückbeziehung
Sollen nach dem Inhalt des Rechtsgeschäfts
die an den Eintritt der Bedingung geknüpften
Folgen auf einen früheren Zeitpunkt zurück¬
bezogen werden, so sind im Falle des Eintritts
der Bedingung die Beteiligten verpflichtet,
einander zu gewähren, was sie haben würden,
wenn die Folgen in dem früheren Zeitpunkt
eingetreten wären.
10 BGH 21.9.1959 - III ZR 103/58, NJW 1960, 34, 35.
11 HK-BGB/Dörner, § 158 BGB mn. 8.
12 BGH 29.9.1989 - V ZR 1/88, NJW 1990, 508, 509.
13 Palandt BGB/Ellenberger, Einführung vor § 158 BGB mn. 8.
14 See -* § 925 mn. 14.
15 BGH 24.3.1994 - X ZR 108/91, NJW 1994, 3099, 3101; BGH 21.3.1996 - III ZR 106/95, NJW 1996,
1740, 1741.
16 Palandt BGB/Ellenberger, Einführung vor § 158 BGB mn. 9, Jauernig BGB/Mansel, § 158 BGB mn. 7.
Wais
211
§ 160 1-3 Division 3. Legal transactions
1 The legal consequences of the satisfaction of a condition only exert their effects ex nunc,
i. e. only from the time of the satisfaction. Where the parties agree that the legal consequences
shall exert their effects retroactively, such an agreement only creates the obligation between
the parties to provide each other what they would have if the legal consequences had
retroactive effect.
§ 160
Liability in the period of suspense
(1) Any person who has a right subject to a
condition precedent may, in the case of the
satisfaction of the condition, demand da¬
mages from the other party if the latter,
during the period of suspense, is at fault for
defeating or adversely affecting the right de¬
pendent on the condition.
(2) In the case of a legal transaction en¬
tered into subject to a condition subsequent,
the person to whose advantage the former
legal situation is restored has the same claim
on the same conditions.
§ 160
Haftung während der Schwebezeit
(1) Wer unter einer aufschiebenden Bedin¬
gung berechtigt ist, kann im Falle des Ein¬
tritts der Bedingung Schadensersatz von dem
anderen Teil verlangen, wenn dieser während
der Schwebezeit das von der Bedingung ab¬
hängige Recht durch sein Verschulden ver¬
eitelt oder beeinträchtigt.
(2) Den gleichen Anspruch hat unter den¬
selben Voraussetzungen bei einem unter ei¬
ner auflösenden Bedingung vorgenommenen
Rechtsgeschäft derjenige, zu dessen Gunsten
der frühere Rechtszustand wieder eintritt
A. Function
I. Purpose
1 § 160 protects a party from conduct of the other party that adversely affects the rights that
depend on the satisfaction of the condition. For example, where ownership of a thing was
agreed to be transferred under a condition precedent, the transferee may be entitled to
damages under Sub. 1 if the transferor damaged the thing after the legal transaction was
entered into but before the condition was satisfied. Vice versa, where ownership was agreed
to be transferred under a condition subsequent, the transferor may be entitled to damages
under Sub. 2 if the transferee damaged the thing before the condition was satisfied.
IL Scope of application
2 § 160 is only required as the legal basis of a claim for damages where the legal transaction
made under a condition is a legal transaction that does not constitute a relationship of
obligations, e.g. the agreement to transfer ownership (§ 929). In contrast, where the contract
concluded under a condition is one by which the parties establish legal obligations (e.g. a
sales contract), obligations of loyalty exist already, the violation of which may entitle the
other party to damages.1 2
B. Explanation
3 A claim under § 160 requires that the condition is satisfied and, further, that the liable
person violated his obligation under § 160 during the period of suspense (i.e. after creation
and before satisfaction of the condition) culpably pursuant to §§ 276, 278, 282?
1 § 158 mn. 8.
2 HK-BGB/Dörner, § 160 BGB mn. 3.
212
Wais
Ineffectiveness of dispositions in the period of suspense
1-3 § 161
§161
Ineffectiveness of dispositions in
the period of suspense
(1) lIf a person has disposed of a thing, and
the disposition is subject to a condition pre¬
cedent, any further disposition which he
makes as regards the thing in the period of
suspense is ineffective on the satisfaction of
the condition to the extent that it would
defeat or adversely affect the effect subject to
the condition. 2Such a disposition is equiva¬
lent to a disposition which is effected during
the period of suspense by execution or attach¬
ment or by the administrator in insolvency
proceedings.
(2) In the case of a condition subsequent,
the same applies to the dispositions of a
person whose right expires on the fulfilment
of the condition.
(3) The provisions in favour of those who
derive rights from an unauthorised person
apply with the necessary modifications.
§161
Unwirksamkeit von Verfügungen
während der Schwebezeit
(1) ’Hat jemand unter einer aufschiebenden
Bedingung über einen Gegenstand verfugt, so
ist jede weitere Verfügung, die er während der
Schwebezeit über den Gegenstand trifft, im
Falle des Eintritts der Bedingung insoweit un¬
wirksam, als sie die von der Bedingung abhän¬
gige Wirkung vereiteln oder beeinträchtigen
würde. 2Einer solchen Verfügung steht eine
Verfügung gleich, die während der Schwebe¬
zeit im Wege der Zwangsvollstreckung oder
der Arrestvollziehung oder durch den Insol¬
venzverwalter erfolgt.
(2) Dasselbe gilt bei einer auflösenden Be¬
dingung von den Verfügungen desjenigen,
dessen Recht mit dem Eintritt der Bedingung
endigt.
(3) Die Vorschriften zugunsten derjenigen,
welche Rechte von einem Nichtberechtigten
herleiten, finden entsprechende Anwendung.
A. Function
I. Purpose
§ 161 serves to protect the party that will benefit from the satisfaction of the condition, e. g. 1
the transferee where a right is transferred under a condition precedent (who upon satisfac¬
tion will become the right holder), or the transferor in case of a condition subsequent (to
whom the right will fall back to).
II. Scope of application
§ 161 only applies to legal transactions1 which constitute a disposition, e.g. the assign- 2
ment of a claim pursuant to § 398 or the transfer of ownership of a movable thing pursuant
to § 929. § 161 is of no relevance for legal transactions that create obligations between the
parties such as, e.g., a sales contract under § 433.
B. Explanation
I. Disposition
The right holder who has disposed of his right under a condition precedent is effectively 3
the right holder until the condition is satisfied. Sub. 1 1st St. regulates that notwithstanding
his position he can no longer effectively dispose of the right once he has made a disposition
under that condition where, and to the extent that, this subsequent disposition would hinder
the previous conditional disposition from becoming effective upon satisfaction. Pursuant to
Sub. 2, the same limits apply to a right holder to whom a right has been transferred on a
condition subsequent, i.e. who will lose his right upon satisfaction of the condition.
1 See -> Introduction to §§ 116-144 mn. 1-8.
Wais
213
§ 162 1-2
Division 3. Legal transactions
IL Beneficiary
4 The party that benefits from satisfaction of the condition is protected not only from
dispositions made by the other party but, pursuant to Sub. 1 1st St., Sub. 2, also from
dispositions that form part of execution, attachment or insolvency proceedings.
III. Effects on obligations
5 § 161 does not in any way affect the effectiveness of legal transactions by which obligations
are established (Verpflichtungsgeschäft). For example, the transferor, after having disposed of
the ownership of a thing under a condition precedent, is free to sell the thing to another
person since the sales contract does not affect the ownership of the thing but merely creates
the obligation to dispose of the ownership in favour of the buyer (§ 433(1)). However, Sub. 1
1st St. applies with regard to the disposition (§ 929) owed. It may thus be impossible for the
seller to perform his obligation under the sales contract. The buyer, in turn, may hold the
seller liable under §§ 280(1), (3), 283.
IV. Third party
6 Under Sub. 3, a third party may nonetheless effectively acquire the right the disposition of
which is in principle ineffective under Sub. 1 1st St., Sub. 2 if he can rely on provisions that
allow for an acquisition in good faith. The most important provisions are §§ 892, 893, 932,
936, 1032, 1207 and, outside the BGB, § 366 HGB.
§162
Prevention of or bringing about
the satisfaction of the condition
(1) If the satisfaction of a condition is
prevented in bad faith by the party to whose
disadvantage it would be, the condition is
deemed to have been satisfied.
(2) If the satisfaction of a condition is
brought about in bad faith by the party to
whose advantage it would be, the condition is
deemed not to have been satisfied.
§ 162
Verhinderung oder Herbeiführung
des Bedingungseintritts
(1) Wird der Eintritt der Bedingung von
der Partei, zu deren Nachteil er gereichen
würde, wider Treu und Glauben verhindert,
so gilt die Bedingung als eingetreten.
(2) Wird der Eintritt der Bedingung von
der Partei, zu deren Vorteil er gereicht, wider
Treu und Glauben herbeigefuhrt, so gilt der
Eintritt als nicht erfolgt.
A. Function
1 §162 gives effect to the legal principle that benefits or advantages may not be derived from
conduct in bad faith. § 162 does not apply where a legal transaction is subject to a condition
that is purely discretionary.1 However, it is argued that in these cases the prejudiced party
may, exceptionally, rely on § 242.2
B. Explanation
2 In order for § 162 to apply, the party that would be disfavoured by the satisfaction of the
condition, or the lack thereof, must have avoided or, in the latter case, effected the
satisfaction of the condition in bad faith. For example, if ownership is transferred under a
1 BGH 25.9.1996 - VIII ZR 172/95, NJW 1996, 3338, 3340.
2 Palandt BGB/Ellenberger, § 162 BGB mn. 1.
214
Wais
Introduction to ££ 164-181
1 § 163
condition precedent (§ 158(1)), the condition is deemed to have been satisfied if the
transferee avoids the satisfaction in bad faith. Conversely, it is deemed not to have been
satisfied if the transferor satisfies the condition in bad faith. The conduct of the disfavoured
party must be against good faith; this may be the case, e.g. if ownership was transferred
under the condition precedent of full payment and the seller refuses to accept the last
payment.3 Reference may be made to subjective as well as objective circumstances. It is,
however, not necessary that the party acted intentionally.4 It is argued that culpable conduct
is not required either.5 The legal fiction established by § 162 is effective not only in relation
to the other party but also to third parties. It is argued that the relevant point in time is when
the satisfaction was avoided or effected.6
§ 163
Specification of time
If, when a legal transaction is undertaken,
a time has been specified for the beginning or
the end of its effect, then in the former case
the provisions in §§ 158, 160 and 161 applic¬
able to conditions precedent and in the latter
case the conditions in §§ 158, 160 and 161
applicable to conditions subsequent apply
with the necessary modifications.
§163
Zeitbestimmung
Ist für die Wirkung eines Rechtsgeschäfts
bei dessen Vornahme ein Anfangs- oder ein
Endtermin bestimmt worden, so finden im
ersteren Falle die für die aufschiebende, im
letzteren Falle die für die auflösende Bedin¬
gung geltenden Vorschriften der §§ 158, 160,
161 entsprechende Anwendung.
Pursuant to § 163» the specification of time when the effects of a legal transaction shall 1
begin is subject to the same rules as a condition precedent, the specification of time when the
effect of a legal transaction shall cease is subject to the same rules as a condition subsequent,
except for § 159 and § 162. The difference between a condition within the meaning of § 158
and a specification of time generally is whether, according to the understanding of the
parties, it is certain that the event on which the effectiveness or ineffectiveness of a legal
transaction shall depend will eventually take place.1 § 163 applies where it is only uncertain
when (not: if) the event will take place.
Title 5 Titel 5
Agency and authority Vertretung und Vollmacht
Introduction to §§ 164-181
§§ 164-181 regulate the requirements and effects of agency. The key provision is § 164 1
that provides that the agent may bind the principal where he acts on his behalf and with his
authorisation. § 165 concerns agents whose capacity to contract is limited (but not excluded).
§ 166 concerns the question to which extent a mistake in the declaration of intent or the
better knowledge of agent and principal are relevant with regards to the effectiveness of the
legal transaction. The different ways in which authority may be conferred or revoked and the
effects of which are dealt with by §§ 167-176. §§ 177-180 regulate the consequences of
3 HK-BGB/Dörner, § 162 BGB mn. 3.
4 BGH 13.2.1989 - II ZR 110/88, NJW-RR 1989, 802, 803.
5 Palandt BGB/Ellenberger, § 162 BGB mn. 3; Jauernig BGB/Mansel, § 162 BGB mn. 4; Staudinger
BGB/Bork, § 162 BGB mn. 10.
6 HK-BGB/Dörner, § 162 BGB mn. 4.
1 Palandt BGB/Ellenberger, § 163 BGB mn. 1; Jauernig BGB/Mansel, § 163 BGB mn. 2.
Wais
215
Division 3. Legal transactions
unauthorised representation. § 181 concerns the case where the agent acts on behalf of the
principal on one side and in his own name on the other.
2 The term agency within the meaning of §§ 164 et seq. refers to all forms of representa¬
tion where the representative has the authority to act on behalf of the represented party.
§§ 164 et seq. are also generally applicable to legal representation, e.g. where parents by
virtue of the law act on behalf of their child as the child’s legal representatives, and to
representation of a legal person by their organs or other representatives. The particular rules
on commercial agents are to be found in §§ 84 et seq. HGB.
3 It is important to note that §§ 164 et seq. do not concern or regulate the rights and duties
between the agent (representative) and the principal (represented party) but solely the legal
requirements of agency and the effects in relation to the third party. In contrast, the question
whether, e. g., the agent has a right to remuneration for his acting, or an obligation to act, on
behalf of the principal, is not a matter falling under §§ 164 et seq. but one that is regulated by
the underlying contract or other relationship between the agent and the principal.
4 The rights and duties of agent and principal in relation to each other may stem from, and be
regulated by, a mandate contract (§§ 662 et seq.) or an employment contract (§§ 611 et seq.),
negotiorum gestio (§§ 677 et seq.) or, with regards to the parents representing their child, family
law (§§ 1626 et seq.). In order to determine the rights and duties of agent and principal, one must
thus inquire into their contract or other relationship. The effectiveness of the acts done by the
agent on behalf of the principal, on the other hand, may very well depend on a stipulation of the
principal in relation to the agent and is a matter falling within §§ 164 et seq. Importantly, these
provisions only regulate whether the agent can (as in being capable to) bind the agent in relation
to the third party, not whether he may (as in being allowed to) do so in relation to the agent
5 Where agency is established, the legal transaction1 undertaken on behalf of the principal is a
legal transaction of the agent and not one of the principal. As such, its scope and content are
determined by the agent’s intention. However, the effects of the legal transaction exclusively
affect the principal (unless for some reason the requirements of §§ 164 et seq. are not complied
with). Technically speaking, however, under the rules of agency the agent can bind the
principal because he has the authority to make or receive declarations of intent on behalf of
the principal. The operation of agency under German law thus corresponds with the abstract
concept of the declaration of intent being the cornerstone of any legal transaction.2 3 4
6 If the agent acted without the required power of agency, the principal generally is not
bound, but he may choose to be bound by ratifying the legal transaction. If ratification is
refused, the agent will regularly be liable to the third party under § 179(1).
7 §§ 164 et seq. are generally applicable wherever a declaration of intent is made by one
person on behalf of another person. Agency may be referred to as active or passive, depending
on whether the agent makes or receives a declaration of intent on behalf of the principal (§ 164
(1) and (3)). In most cases where agency is involved it is usually both active and passive, since a
contract is constituted by two declarations of intent; each made by one party and received by
the other. In addition, §§ 164 et seq. apply by way of analogy to conduct that is similar to a
legal transaction (geschäftsähnliche Handlungen). This includes, e. g. setting a deadline pursuant
to § 281(1) 1st St. or a request for approval pursuant to §§ 108(2), 177(2)?
8 §§ 164 et seq. do not apply to acts that are merely factual? Agency may be excluded where
the legal transaction is personal in nature, i.e. one that can only be made bv the person
affected by it, so as to ensure that the legal consequences stem solely from his voluntary’
formation of will and action.5 In such cases, it is provided by law that a legal transaction must
be carried out in person, e.g. marriage (§ 1311 1st St.), contesting paternity (§ 1600a(l)h
1 See -► Introduction to §§ 116-144 mn. 1-8.
2 See -► Introduction to §§ 130-163 mn. 3.
3 Palandt BGB/Ellenberger, Einführung vor § 164 BGB mn. 3.
4 BGH 9.2.1955 - IV ZR 188/54, NJW 1955, 866, 867.
5 HK-BGB/Dörner, § 164 BGB mn. 3; Jauernig BGB/Mansel, § 164 BGB mn. 9.
216
Wais
Effect of a declaration made by the agent
1 § 164
establishment of a will (§ 2064), conclusion of a contract of inheritance (§ 2274). Agency
may, however, also be excluded by agreement.6
§164
Effect of a declaration made
by the agent
(1) 1A declaration of intent which a person
makes within the scope of his own power of
agency in the name of a principal takes effect
directly in favour of and against the princi¬
pal. 2It is irrelevant whether the declaration is
made explicitly in the name of the principal,
or whether it may be gathered from the cir¬
cumstances that it is to be made in his name.
(2) If the intent to act on behalf of another
is not evident, the lack of intent on the part
of the agent to act on his own behalf is not
taken into consideration.
(3) The provisions of subsection (1) apply
with the necessary modifications if a declara¬
tion of intent to be made to another is made
to his agent.
§164
Wirkung der Erklärung
des Vertreters
(1) ’Eine Willenserklärung, die jemand in¬
nerhalb der ihm zustehenden Vertretungs¬
macht im Namen des Vertretenen abgibt,
wirkt unmittelbar für und gegen den Vertre¬
tenen. 2Es macht keinen Unterschied, ob die
Erklärung ausdrücklich im Namen des Ver¬
tretenen erfolgt oder ob die Umstände erge¬
ben, dass sie in dessen Namen erfolgen soll.
(2) Tritt der Wille, in fremdem Namen zu
handeln, nicht erkennbar hervor, so kommt
der Mangel des Willens, im eigenen Namen
zu handeln, nicht in Betracht.
(3) Die Vorschriften des Absatzes 1 finden
entsprechende Anwendung, wenn eine gegen¬
über einem anderen abzugebende Willenser¬
klärung dessen Vertreter gegenüber erfolgt.
Contents
mn.
A. Function 1
B. Explanation 2
I. Declaration of intent 2
1. Mistake 3
2. Passive agency 4
II. On behalf of the principal 5
1. Disclosure 6
2. Non-disclosure 7
III. Power of agency 8
IV. Joint representation 10
V. Under another person’s name 11
VI. Burden of proof 12
A. Function
§ 164 contains the core elements of agency. Pursuant to Sub. 1, it is required that (i) the 1
agent himself makes a declaration of intent7 (ii) on behalf of the principal (iii) that falls
within his power of agency. Where these requirements are met, the agent can effectively
bind the agent. §§ 164 et seq. also apply to cases of legal representation where the authority
to act on behalf of another person is provided by law, e.g. parents representing their child
(§ 1629(1)).
6 BGH 11.11.1986 - V ZB 1/86, NJW 1987, 650.
7 See -» Introduction to §§ 116-144 mn. 1-8.
Wais
217
§ 164 2-5
Division 3. Legal transactions
B. Explanation
I. Declaration of intent
2 Under the rules of agency, the agent must himself make a declaration of intent. This
requirement separates the agent (Vertreter) from a messenger (Bote) who, in contrast,
merely delivers the declaration of someone else. In order for agency to be effective, the agent
thus must not lack capacity to contract, for he cannot make a declaration of intent if he lacks
such capacity (§§ 104, 105(2)).8 However, pursuant to § 165, limited capacity (§ 106) is
sufficient. A messenger, on the other hand, need not to have capacity to contract at all.
1. Mistake
3 Since the agent makes a declaration of intent himself it is also clear that the question
whether the declaration of intent is voidable for mistake (§ 119) depends on the intention
and mindset of the agent, not the principal (§ 166(1)).
2. Passive agency
4 In cases of passive agency (Sub. 3), the decisive reference point for the interpretation of a
declaration of intent made by the third party is the perspective of the agent. Again, the person
of the principal is irrelevant. In contrast, where a messenger is involved, the perspective of the
messenger is irrelevant. If it is unclear whether a person acts as an agent or merely as a
messenger, the third party’s objective perspective is decisive. Hence instructions given by the
principal to the agent or messenger are irrelevant if they are unknown to the third party.9
IL On behalf of the principal
5 Save for a few exceptions, agency generally presupposes that the agent’s acting on behalf of
the principal (Handeln in fremden Namen) becomes recognisable to the third party, since he
must know, or be able to know, who he is contracting with. It is therefore decisive how the
third party ought to have understood the agent’s declaration, or conduct in general, taking
into account good faith and the customs of business (§§ 133, 157).10 Pursuant to Sub. 1
2nd St., it is not necessary that the agent acts on the principal’s behalf expressly. The intention
to act on his behalf may also follow from circumstances, e.g. where the conduct of business
personnel is clearly related to the company. In this case, the company is bound without the
express indication that the employee acts on behalf of the company.11 However, if the agent
appears to be acting in his own name, he himself will be bound.12 Where he has no intention,
but in fact appears, to act on behalf of the principal, he will be held to have acted on behalf of
the principal.13 The agent may, however, also act in his own name and on behalf of the
principal at the same time.14 Both will jointly become contracting partners of the third party.15
» BGH 9.2.1970 - II ZR 137/69, NJW 1970, 806.
9 Palandt BGB/Ellenberger, Einführung vor § 164 BGB mn. 11.
10 Palandt BGB/Ellenberger, § 164 BGB mn. 4.
11 Palandt BGB/Ellenberger, § 164 BGB mn. 2; Jauernig BGB/Mansel, 8 164 BGB mn 3.
12 BGH 27.10.2005 - III ZR 71/05, NJW-RR 2006, 109, 110.
u BGH 5.10.1961 - VII ZR 207/60, NJW 1961, 2251, 2252.
m BGH 23.3.1988 - VIII ZR 175/87, NJW 1988, 1908, 1909.
is BGH 1.3.2013 - V ZR 279/11, NJW 2013, 1873, 1874.
218
Wais
Effect of a declaration made by the agent
6-10 § 164
1. Disclosure
The agent must disclose that he acts on behalf of the principal (Offenkundigkeitsprinzip), but 6
he need not disclose the principal’s identity; it suffices if the third party knows that the agent is
not his contracting partner.16 It is also sufficient if, at the time of the transaction, the principal is
overtly yet to be determined; the third party does not need protection if he deliberately chose to
contract with an unknown person.17 If, however, the performance of the contract fails because
the agent is unable to identify the principal, the agent himself is liable pursuant to § 179(1).18
2. Non-disclosure
Undisclosed agency may be accepted where the third party is not interested in the person 7
he is contracting with; most commonly in cases where the transaction involves a rather
insignificant value and performance is rendered immediately (‘Geschäft für den, den es angeht1).
The textbook example of such a transaction is the conclusion and performance of a
sales contract over bread rolls in a bakery by an undisclosed agent; for the seller it is generally
irrelevant who the buyer is, so long as the rolls are being paid for immediately. Generally,
however, the parties may be interested in their counterpart’s identity also with respect to
secondary rights under the contract, e.g. liability for defective goods. Hence the mere fact
that a contract is performed immediately may not always render disclosure dispensable.
III. Power of agency
In order to bind the principal, the agent’s declaration of intent must fall within the scope 8
of the agent’s power of agency. The power of agency may either be conferred upon the agent
(or representative) by law, e.g. the parents’ power of agency to act on behalf of their child
(§ 1629). However, power of agency may also be established by legal transaction, i.e. by
authorising the agent. In this case, power of agency is referred to as authority (§ 166(2)
1st St.). Finally, under the principles of Tolerated authority’ (Duldungsvollmacht) and
"apparent authority’ (Anscheinsvollmacht) the principal may be bound even if the person
acting on his behalf in fact has no power of agency.19
A legal transaction undertaken by the agent without the required power of agency is in a state 9
of suspense. It is ineffective pending ratification by the principal (§ 177(1)). If the principal
refuses to ratify the legal transaction, its ineffectiveness becomes final. The agent who acted
without the required power of agency (falsus procurator) is generally liable under § 179(1).
IV. Joint representation
The law may provide that agency has effect only if all agents - or perhaps more fitting: 10
representatives - act jointly; this is often the case with regards to the representation of
partnerships and juridical persons (e.g. §§ 714, 709; and § 125(2) 1st St. HGB). Where joint
representation is required, the representatives need not make their declarations simulta¬
neously.20 Where a declaration of intent is not made by all legal representatives, it may also
subsequently be ratified by the remaining representatives. The joint representatives may also
sub-authorise individual representatives to undertake transactions on behalf of the partnership
or body corporate, but the permissibility of these sub-delegations may be subject to exceptions
since it runs counter to the general purpose of joint representation.21 Where the law attaches
16 Jauernig BGB/Mansel, § 164 BGB mn. 4; HK-BGB/Dörner, § 164 BGB mn. 8.
17 BGH 18.9.1997 - III ZR 226/96, NJW 1998, 62, 63.
18 Jauernig BGB/Mansel, § 164 BGB mn. 4; HK-BGB/Dörner, § 164 BGB mn. 8.
19 See — § 172 mn. 7.
20 BGH 10.7.2001 - VI ZR 206/00, NJW 2001, 3183, 3184.
21 BGH 12.12.1960 - II ZR 255/59, NJW 1961, 506.
Wais
219
§ 165 1 Division 3. Legal transactions
legal consequences to certain circumstances, these circumstances need not be present with al]
joint representatives, e.g. a declaration of intent jointly made on behalf of the principal is
voidable for mistake pursuant to § 119(1) already if one agent erred about its meaning.22
Despite joint representation, a declaration of intent of a third party is effective already if it js
received by just one representative; it need not be received jointly by all representatives.23
V. Under another person’s name
11 Where a person does not act on behalf of another person but merely uses his name
(Handeln unter fremden Namen - acting ‘under another person’s name’), the legal con¬
sequences depend on whether the other party considered the identity relevant. If it is of no
relevance for the other party, the contract is concluded between the party using the name and
the other contracting party. This may be the case where a person is renting a hotel room
without revealing his identity. §§ 164 et seq. do not apply here.24 If, on the other hand, the
party’s identity is important to the other party, §§ 164 et seq. apply by way of analogy.25 This
may for example be the case where a person uses another person’s eBay account26 If the
actual name-bearer had authorised the other person to make declarations of intent using his
name, any such declaration binds the name-bearer. The principles of tolerated authority and
apparent authority (Duldungs- und Anscheinsvollmacht) also apply.27 28 Where no authority
exists, the name-bearer may decide to subsequently ratify the contract pursuant to § 177(1).
If ratification is refused, the person using the wTong name is liable pursuant to § 179(1).
VI. Burden of proof
12 The burden of proof for the power of agency lies with the person who is relying on its
existence. Where it is unclear whether the agent acted in his own or in the principal’s name, the
agent must prove that he either expressly or impliedly acted in the name of the principal.23
§165
Agent with limited capacity
to contract
The effectiveness of a declaration of intent
made by or to an agent is not adversely
affected by the agent having limited capacity
to contract.
§165
Beschränkt geschäftsfähiger
Vertreter
Die Wirksamkeit einer von oder gegenüber
einem Vertreter abgegebenen Willenserklä¬
rung wird nicht dadurch beeinträchtigt, dass
der Vertreter in der Geschäftsfähigkeit be¬
schränkt ist.
A. Function
I. Purpose and underlying principle
1 Without consent of his legal representative, a person with limited capacity to contract (a
minor) can only make declarations of intent1 that are beneficial to him (§§ 106, 107). A
22 HK-BGB/Dörner, § 164 BGB mn. 11.
23 BGH 17.9.2001 - II ZR 378/99, BeckRS 2001, 9439; BGH 14.2.1974 - II ZB 6/73, NJW 1974, H94-
24 Palandt BGB/Ellenberger. § 164 BGB mn. 12.
« BGH 11.5.2011 - VIII ZR 289/09, NJW 2011, 2421; BGH 8.12.2005 - IH ZR 99/05, NJW-RR 2006.
701,702.
26 BGH 11.5.2011 - VIII ZR 289/09, NJW 2011, 2421, 2422.
27 BGH 11.5.2011 - VIII ZR 289/09, NJW 2011, 2421, 2422.
28 MüKo BGB/Schubert, § 164 BGB mn. 255.
1 See -► Introduction to §§ 116-144 mn. 1-8.
220
Wais
Absence of intent; imputed knowledge 1 § 166
declaration of intent made by an agent on behalf of the principal qualifies as beneficial in this
sense since, pursuant to § 164(1), it binds only the principal and, pursuant to § 179(3) 2nd St,
the agent who acts without authority cannot be held liable if he is a minor. Accordingly,
§165 reiterates that the effectiveness of a declaration of intent of an agent may not be
affected by the agent’s limited capacity to contract. More specific rules may apply where the
power of agency is conferred upon the agent by law and in the case of statutory presentation
of juridical persons (see e.g. §§ 1673(2) 1st St.; 1781 No. 1, 1915(1) 1st St., also § 76(3) 1st St.
AktG).
II. Scope of application
Importantly, § 165 only applies in relation to the third party. It does not concern the 2
relationship between agent and principal. In this regard, it must be distinguished between the
authorisation of the agent that establishes the power of agency and the underlying contract
that defines the rights and duties of agent and principal. The authorisation itself is beneficial
since it extends the authority of the agent. The contract, on the other hand, is not and cannot
be entered into by a minor without consent of his legal representative (§ 107). It may thus be
the case that the authorisation of the agent is effective whilst the contract, e.g. a mandate
contract, is not. § 165 does not, however, apply to incapacity to contract. A person that is
incapable of contracting (§§ 104, 105(2)) cannot make a valid declaration of intent at all and
hence cannot be an agent either. He may, however, act as a messenger even if he is incapable
of contracting.2
§166
Absence of intent;
imputed knowledge
(1) Insofar as the legal consequences of a
declaration of intent are influenced by an
absence of intent or by knowledge or by
constructive notice of certain circumstances,
it is not the person of the principal, but that
of the agent, that is taken into account.
(2) Hf, in the case of a power of agency
granted by a legal transaction (authority), the
agent has acted in compliance with certain
instructions given by the principal, then the
latter may not invoke the lack of knowledge
of the agent with regard to circumstances of
which the principal himself knew. 2The same
rule applies to circumstances which the prin¬
cipal ought to have known, insofar as con¬
structive notice is equivalent to knowledge.
§166
Willensmängel;
Wissenszurechnung
(1) Soweit die rechtlichen Folgen einer Wil¬
lenserklärung durch Willensmängel oder
durch die Kenntnis oder das Kennenmüssen
gewisser Umstände beeinflusst werden,
kommt nicht die Person des Vertretenen,
sondern die des Vertreters in Betracht.
(2) !Hat im Falle einer durch Rechts¬
geschäft erteilten Vertretungsmacht (Voll¬
macht) der Vertreter nach bestimmten Wei¬
sungen des Vollmachtgebers gehandelt, so
kann sich dieser in Ansehung solcher Um¬
stände, die er selbst kannte, nicht auf die
Unkenntnis des Vertreters berufen. 2Dasselbe
gilt von Umständen, die der Vollmachtgeber
kennen musste, sofern das Kennenmüssen der
Kenntnis gleichsteht.
A. Function
I. Purpose
Despite the fact that the principal acquires rights against, and incurs liabilities to, a third 1
party, the legal transaction* 1 undertaken by the agent on his behalf is in fact one of the agent
and not of the principal. Sub. 1 thus regulates that any such circumstances which may result
2 See -♦ § 164 mn. 1.
1 See -► Introduction to §§ 116-144 mn. 1-8.
Wais
221
§ 166 2-5 Division 3. Legal transactions
in the invalidity, or affect the content, of his legal transaction are only relevant if they are
present with the person of the agent. The person of the principal is generally irrelevant.
Sub. 2 provides a necessary exception: if the agent was specifically instructed by the principal,
the principal may not rely on Sub. 1 in his favour; by way of analogy, Sub. 2 also applies to
cases of legal representation; i.e. where authority is conferred upon the representative by
virtue of the law.2 The purpose of Sub. 2 is thus to prevent that the principal, when in bad
faith, could hide behind an agent who, pursuant to Sub. 1, would be able to conclude a valid
contract on behalf of the principal.3 For example, the principal who knows that the transferor
is not the owner therefore does not acquire ownership if he gives the agent specific
instructions relating to the good to be acquired.
IL Scope of application
2 Sub. 1 applies to all types of agency, to legal representation and joint representation, and
even where an agent without power of agency concludes a contract that is subsequently
ratified by the principal pursuant to § 177(I).4 Further, where the principal refuses to ratify,
the agent may also rely on Sub. 1 in order to avoid liability under § 179(1), e.g. by avoiding
the contract under § 119(I).5
3 § 166 applies by way of analogy to persons who, without having the power of agency, are
responsible for performing certain work within the organisation of the principal’s business as
well as for providing information that are gathered during the course of that work
(WissensVertreter).6 The knowledge of the members of a body corporate is always attributed
to the juridical person itself. Where a person merely performs work for the legal person
without being part of the body corporate, his knowledge is attributed to the legal person if it
is relevant for the future conduct of business so that it ought to be written down or passed on
within the body.7 Further, § 166 may apply analogously to knowledge or constructive notice
that is relevant in other contexts which do not involve declarations of intent. For example, if
the agent was in bad faith when he took possession of a thing, the principal is taken to be in
bad faith as well for the purpose of § 990.
B. Explanation
I. Avoidance
4 The declaration of intent made on behalf of the principal may only be voided pursuant to
§ 119(1) if the agent erred about the content of this declaration. In the same way, provisions
that attach legal consequences to the knowledge of certain circumstances or the negligent
ignorance thereof may render the legal transaction void only if the agent, and not the
principal, knew or was negligently unware of these circumstances. For example, pursuant to
Sub. 1 the principal cannot effectively acquire ownership of a thing in good faith under
§§ 164(1), 929, 932 if the agent knew that the transferor was not in fact the owner.
II. Knowledge
5 Another consequence of Sub. 1 is that, for example, the principal cannot rely on an
exclusion of warranty if the agent who sold a defective good on behalf of the principal knew
that the good was defective (§ 444). Further, it follows from Sub. 1 that for the interpretation
2 BGH 10.10.1962 - VIII ZR 3/62, NJW 1962, 2251.
3 BGH 24.10.1968 - II ZR 214/66, NJW 1969, 925, 927.
•i bgH 8.11.1991 - V ZR 260/90, NJW 1992, 899, 900.
5 HK-BGB/Dörner, § 166 BGB mn. 2.
6 BGH 13.12.2012 - HI ZR 298/11, NJW 2013, 448, 449.
7 BGH 13.10.2000 - V ZR 349/99, NJW 2001, 359, 360; BGH 15.4.1997 - XI ZR 105/96, NJW 1997»
1917.
222
Wais
Conferment of authority 1-2 § 167
of a declaration of intent made by the agent or the other party only the perspective and
knowledge of the agent is relevant, whereas the person of the principal is again of no
relevance.8 Importantly, under Sub. 2 only knowledge and negligent unawareness qualify as
circumstances that, notwithstanding Sub. 1, remain relevant when present only with the
principal. Uncertainty surrounds the question whether it follows that absence or defects of
the principal’s intention are generally irrelevant or Sub. 2 is to be applied by way of analogy.9
III. Certain instructions
The concept of certain instructions in Sub. 2 is given a broad meaning.10 An instruction is 6
given where the represented party has determined the representative’s decision on the
conclusion of the transaction or has directed it in a certain direction, but it may also suffice
if the principal does not prevent a contract that the agent concludes in his presence.11
§167
Conferment of authority
(1) Authority is conferred by declaration to
the person to be granted authority, or to the
third party in relation to whom the authority
is to have effect.
(2) The declaration is not required to be in
the form laid down for the legal transaction
to which the authority relates.
§167
Erteilung der Vollmacht
(1) Die Erteilung der Vollmacht erfolgt
durch Erklärung gegenüber dem zu Bevoll¬
mächtigenden oder dem Dritten, dem gegen¬
über die Vertretung stattfinden soll.
(2) Die Erklärung bedarf nicht der Form,
welche für das Rechtsgeschäft bestimmt ist,
auf das sich die Vollmacht bezieht.
A. Function
Authority within the meaning of § 167 is power of agency conferred upon the agent 1
through a legal transaction* (Vollmachtserteilung). The requirements that must be complied
with for the authorisation to be valid are set forth in § 167. The authority limits neither the
capacity of the principal generally nor when such an effect is specifically desired by the
parties, as such an agreement would be void; i. e. conferral of power of agency onto the agent
does not reduce the principal’s own capacity.2
B. Explanation
I. Key features
Authority pursuant to § 166(1) presupposes a unilateral declaration of the principal; it 2
may be declared either to the agent (Innenvollmacht - ‘internal authorisation’) or the other
party (Außenvollmacht - ‘external authorisation’). In principle, all general provisions that
regulate legal transactions apply, such as, for example, §§ 104 et seq., 116 et seq., 164 et seq.
Pursuant to § 130(1), the authority becomes effective when the declaration of intent
conferring authority has reached its recipient. Authority may also be declared by virtue of a
public declaration. Subject to special provisions that require an express authority (§ 48
HGB), the authority may be implicit.
8 BGH 29.3.2000 - VIII ZR 81/99, NJW 2000, 2272, 2273.
9 Palandt BGB/Ellenberger, § 166 BGB mn. 12.
10 BGH 10.10.1962 - VIII ZR 3/62, NJW 1962, 2251.
11 BGH 24.10.1968 - Il ZR 214/66, NJW 1969, 925, 927.
1 See Introduction to §§ 116-144 mn. 1-8.
2 BGH 10.11.1951 - II ZR 111/50, NJW 1952, 178.
Wais
223
§ 167 3-6
Division 3, Legal transactions
IL Avoidance
3 Authority may be avoidable for mistake, but, if the power of agency conferred upon the
agent has not yet been made use of, it may be easier for the principal to simply revoke the
authority pursuant to § 168 2nd St.3 It is unclear, however, whether the authority that has been
made use of may also be avoidable. The main concern is that pursuant to § 179(2), the agent
would be liable to the third party as if the authority was void due to mistake, he would be
deemed to have acted without the required authority. This may seem inappropriate considering
that had it not been for the principal’s mistake, the agent would have incurred no obligation
from the agency at all. However, most commentators favour of an application of §§ 119 et seq.4
The agent who is liable to the third party may then claim damages from the principal who
voided the authority. Uncertainty also surrounds the question of whether the agent or the third
party is the correct recipient of the declaration of avoidance. Principle suggests that the former
is true with regard to internal authorisation and the latter with regard to external authorisation.
IIL Form requirements
4 Sub. 2 provides that the authorisation is not subject to the form requirements that the legal
transaction must comply with, e.g. the principal may authorise his agent free of form to
conclude a sales contract over a plot of land despite the fact that the sales contract itself is
subject to notarial recording (§ 31 lb(l) 1st St.). However, the law may provide for excep¬
tions, such as § 1945, § 2(2) GmbHG or § 134(2) AktG. In addition, an implied exception to
the rule exists where the authority leads to an immediate obligation of the agent, both
factually and legally.5 The courts did so in order to avoid a circumvention of the regulatory
purposes of form requirements. Accordingly, Sub. 2 is considered inapplicable where the
authority is irrevocable by agreement or due to factual circumstances.6 The courts have
invoked this exception in particular with regards to the sale of immovable property (notarial
recording, § 31 lb( 1) 1st St.) and the declaration of suretyship (in writing, § 766 1st St.).
IV. Sub-authority
5 Authority may also comprise the agent’s authority to sub-authorise a subagent to make the
legal transaction on behalf of the principal; whether or not this is the case is a matter of
interpretation of the principal’s authorisation.7 Both authorities must be effective. Sub¬
authorisation cannot have a broader scope than the initial authorisation.8
V. Contractual relationship
6 A distinction is to be made between the authorisation of the agent and the underlying
contractual relationship between principal and agent. The authorisation is abstract in that a
defect in the contractual relationship does not generally affect the validity of the authorisation.
For example, the agent’s authority may be effective notwithstanding the nullity of the employ¬
ment contract between him and the principal. An exception is to be made where the contractual
relationship and the authorisation are subject to the same defect.9 This may, for example, be the
case if both the authorisation and employment contract are voidable for deceit (§ 123(D).
3 HK-BGB/Dörner, § 167 BGB mn. 3.
4 See Palandt BGB/Ellenberger, § 167 BGB mn. 3.
5 Palandt BGB/Ellenberger, § 167 BGB mn. 2.
6 BGH 29.2.1996 - IX ZR 153/95, NJW 1996, 1467, 1468; 11.11.1983 - V ZR 211/82, NJW 1984, 973.
7 MüKo BGB/Schubert, § 167 BGB mn. 78; HK-BGB/Dörner, § 167 BGB mn. 6.
« BGH 25.10.2012 -V ZB 5/12» NJW 2013» 297, 298.
9 BGH 11.10.2001 - HI ZR 182/00, NJW 2002, 66, 67.
Wais
224
Expiry of authority
1-2 § 168
VI. Limiting authority
From the abstract nature of authority it follows that the agent may have the power to 7
effectively bind the principal while at the same time he is not allowed to do so in relation to
the principal. A contractual agreement on the scope of the permission to act on behalf of the
principal may prove favourable over a limitation of the authority itself. It provides for a
greater amount of flexibility while sufficiently protecting the principal to whom the agent
may be liable under § 280 if he exceeds the contractual agreement. In addition, the third
party may be estopped from relying on the effectiveness of the contract concluded with the
agent if he knew that the agent acted outside of his contractual limits.10
VII. Collusion
Where the third party and the agent colluded in order to compromise the principal, the 8
legal transaction is void pursuant to § 138.11 However, it follows from an analogous
application of § 177(1) that the principal may ratify the transaction should he want it to be
effective despite the collusive intention.12
VIII. Burden of proof
The burden of proof lies with the party who seeks to rely on the existence of the 9
authority.13
§168
Expiry of authority
’The expiry of the authority depends on
the legal relationship on which its conferment
is based. 2The authority is also revocable if
the legal relationship is continued, unless this
relationship leads to a different conclusion.
3The provision under § 167(1) applies with
the necessary modifications to the declaration
of revocation.
§ 168
Erlöschen der Vollmacht
lDas Erlöschen der Vollmacht bestimmt
sich nach dem ihrer Erteilung zugrunde lie¬
genden Rechtsverhältnis. 2Die Vollmacht ist
auch bei dem Fortbestehen des Rechtsverhält¬
nisses widerruflich, sofern sich nicht aus die¬
sem ein anderes ergibt. 3Auf die Erklärung
des Widerrufs findet die Vorschrift des § 167
Abs. 1 entsprechende Anwendung.
A. Function
The provision regulates the expiry of the authority (i) pursuant to the underlying 1
contractual agreement and (ii) by revocation.
B. Explanation
I. Content of authority
It may seem to follow from the 1st St. that the expiration of authority is solely a matter of 2
the underlying contractual agreement. However, the wording is highly inaccurate. In fact,
whether or not the authority is expired is primarily determined by its content. Accordingly, a
10 BGH 30.1.2002 - IV ZR 23/01, NJW 2002, 1497, 1498.
11 BGH 14.6.2016 - XI ZR 483/14, NJW-RR 2016, 1138; BGH 17.5.1988 - VI ZR 233/87, NJW 1989, 26.
12 BGH 6.5.1999 - VII ZR 132-97, NJW 1999, 2266, 2268.
13 HK-BGB/Dörner, § 167 BGB mn. 13.
Wais
225
§ 169 1 Division 3. Legal transactions
time-limited authority will expire upon expiration of the agreed time. An authority that is
granted only until a certain condition is fulfilled (auflösende Bedingung - condition sub-
sequent) will expire when the fulfilling circumstances occur. The 1st St. applies only where
the authority is silent as to its temporal scope. Pursuant to the 1st St., authority expires when
the underlying contractual agreement expires. The provision stands in contrast to the general
principle of abstraction. Where the 1st St. is applicable, authority may, for example, expire
concurrently with the revocation or cancellation of the underlying contractual relationship
(§§ 671,621,346).
IL Duration
3 Pursuant to §§ 673, 675, 168 1st St., a rule of doubt is established providing that authority
granted on the basis of a mandate will expires when the agent has died. In contrast, where the
principal has died, the law provides that, where in doubt, the authority of the agent persists.
Further, it follows from § 672 and § 675 that neither the underlying contract nor the
authority will be affected if the principal subsequently loses his capacity to contract.
III. Exclusion
4 Pursuant to the 2nd St., the principal may at any time revoke the authority unless the
revocability is excluded. An implied exclusion is likely to be assumed where the authority
primarily serves the agent’s own interests while not conflicting with any of the principal’s
interests.1 However, the right to revoke cannot be excluded if the authority is without
limitations.2 Further, revocability for good cause must always be possible.3 The revocation
of authority itself is a declaration of intent that must be received by the receiving party in
order to be effective. The receiving party may be the agent, the third party, or even the public
It is not required that the recipient of the revocation is identical to the recipient of the
declaration of authority. For example, the principal may declare the authorisation to a third
party (external authority) and revoke it by declaration to the agent (and vice versa). Third
parties or the agent relying on the effectiveness of the authority may be protected pursuant to
§§ 170-173.
§169
Authority of the authorised
representative and the
managing partner
To the extent that the expired authority of
an authorised representative or a managing
partner is deemed to continue in accordance
with §§ 674 and 729, it is not effective in
favour of a third party who, when a legal
transaction is undertaken, knows or ought to
know of the expiry.
§169
Vollmacht des Beauftragten
und des geschäftsfuhrenden
Gesellschafters
Soweit nach den §§ 674, 729 die erloschene
Vollmacht eines Beauftragten oder eines ge¬
schäftsfuhrenden Gesellschafters als fortbeste¬
hend gilt, wirkt sie nicht zugunsten eines
Dritten, der bei der Vornahme eines Rechts¬
geschäfts das Erlöschen kennt oder kennen
muss.
1 Pursuant to § 168 1st St., authority may expire concurrently with the underlying contrac¬
tual relationship. An agent who then enters into a contract in the principal’s name may be
held liable by the third party pursuant to § 179(1). In order to protect the agent who may not
have known of the expiration of authority, §§ 674, 675 and § 729 constitute a legal fiction
1 BGH 13.12.1990 - III ZR 333/89, NJW-RR 1991, 439, 441.
2 BGH 26.2.1988 - V ZR 231/86, NJW 1988, 2603.
3 BGH 12.5.1969 - VII ZR 15/67, BeckRS 1969, 31173352; BGH 30.1.1985 - VIII ZR 292/83. BeckR$
1985, 31076526.
226
Wais
Period of effectiveness in the case of announcement 1 § 171
that an expired contractual relationship, and hence the authority, are deemed to be still
effective, thereby facilitating valid contracts and thus avoiding liability under § 179(1).
However, this sort of protection comes at the price of legally binding the principal or his
successor where in fact no authority existed. § 169 curtails the effects of the fiction
established by these provisions where the agent does not require protection, i. e. where no
liability may be established under § 179(1). That is the case where § 179(3) applies: if the
third party knew or ought to have known of the expiration, the agent is not liable. In this case
it is not necessary to bind the principal.
§170
Period of effectiveness
of the authority
If authority is granted by declaration to a
third party, it remains in force in relation to
this third party until he is notified by the
principal of the expiry thereof.
§170
Wirkungsdauer der Vollmacht
Wird die Vollmacht durch Erklärung ge¬
genüber einem Dritten erteilt, so bleibt sie
diesem gegenüber in Kraft, bis ihm das Erlö¬
schen von dem Vollmachtgeber angezeigt
wird.
§§ 170-173 aim to protect the third party who relied on the effectiveness of a non-existing 1
or no longer existing authority. By stipulating that, under the given circumstances, the
authority must nonetheless be considered effective, these provisions constitute a liability for
legal appearance (Rechtsscheinhaftung) of the principal.1 While § 171 and § 172 may also
apply where authority was not or not effectively made, § 170 presupposes that the authority
was at some point effective. The provision protects the third party in his belief that the (once
effective) authority continues to exist, provided that it has not been brought to his attention
that the authority has in fact been revoked. However, § 170 also applies to subsequent
limitations or alterations of the authority. Where no actual authority ever existed, the third
party may also enjoy protection under the principles of tolerated authority and apparent
authority (i.e. Duldungsvollmacht and Anscheinsvollmacht) developed by the courts.2
§171
Period of effectiveness in the case
of announcement
(1) If a person has announced by separate
notice to a third party or by public notice
that he has granted authority to another, the
latter, on the basis of the announcement, is
authorised to represent the person to that
third party in the former case, and to any
third party in the latter case.
(2) The authority remains effective until
the notice is revoked in the same manner in
which it was made.
§ 171
Wirkungsdauer bei Kundgebung
(1) Hat jemand durch besondere Mittei¬
lung an einen Dritten oder durch öffentliche
Bekanntmachung kundgegeben, dass er einen
anderen bevollmächtigt habe, so ist dieser auf
Grund der Kundgebung im ersteren Falle
dem Dritten gegenüber, im letzteren Falle
jedem Dritten gegenüber zur Vertretung be-
fugt.
(2) Die Vertretungsmacht bleibt bestehen,
bis die Kundgebung in derselben Weise, wie
sie erfolgt ist, widerrufen wird.
§ 171 applies where a principal brings to the third party’s attention by separate or public 1
notice that he has authorised an agent. Since the notice is not intended to establish authority,
it is not authority itself but merely information regarding an (allegedly) existing authority.
1 Palandt BGB/Ellenberger, § 170 mn. 1.
2 See -> § 172 mn. 10-11.
Wais
227
§ 172 1 Division 3. Legal transactions
However, unlike § 170, § 171 does not presuppose that effective authority actually existed.
Hence, the third party may benefit from the liability for apparent legal appearance (Rechts¬
scheinhaftung) established by § 171 also in cases where the agent was never effectively
authorised at all.1 A separate notice can also be made impliedly, for example if the principal
informs the third party that his agent will soon visit him. A public notice will most likely be
made by announcement in a newspaper, but other notifications to the public are also
possible. In any case, however, it is necessary that the person of the agent and the scope of
his authority become sufficiently apparent from the separate or public notice.2 So long as the
notice is not revoked, the third party may rely on the existence of authority. Pursuant to
Sub. 2, the appearance of effective authority may only be eliminated by revoking the notice
by another notice if the same kind. For instance, a revocation by separate notice is not
sufficient if the principal shared the information of the agent’s authority by public notice.
However, in this case, § 173 may apply.
§172
Letter of authorisation
(1) If the principal has delivered a letter of
authorisation to the agent and the agent pre¬
sents it to a third party, this is equivalent to a
separate notification of authorisation by the
principal.
(2) The power of agency remains effective
until the letter of authorisation is returned to
the principal or declared to be invalid.
§172
Vollmachtsurkunde
(1) Der besonderen Mitteilung einer Be¬
vollmächtigung durch den Vollmachtgeber
steht es gleich, wenn dieser dem Vertreter
eine Vollmachtsurkunde ausgehändigt hat
und der Vertreter sie dem Dritten vorlegt
(2) Die Vertretungsmacht bleibt bestehen,
bis die Vollmachtsurkunde dem Vollmacht¬
geber zurückgegeben oder für kraftlos erklärt
wird.
Contents
mn.
A. Function ... 1
B. Explanation 2
I. Letter of authorisation 2
II. Communication of letter 3
III. Burden of proof 4
IV. Appearance of authority 5
V. Other concepts of authority 6
1. Liability 8
2. Requirements 9
3. Authority by toleration 10
4. Apparent authority 11
5. Avoidance 12
6. Effects 13
A. Function
1 § 172 applies where the principal, instead of giving a separate notice falling under § 17b
provides his agent with a letter of authorisation which the agent presents to the third part}'-
§ 172 allows the third party to rely on the effectiveness of the authority.
> Palandt BGB/Ellenberger, § 171 BGB mn. 1; Jauernig BGB/Mansel, § 171 BGB mn.6.
2 Palandt BGB/Ellenberger, § 171 BGB mn. 2; HK-BGB/Dörner, § 173 BGB mn. 3.
228
Wais
Letter of authorisation
2-7 § 172
B. Explanation
I. Letter of authorisation
Similar to § 171, the third party may rely on the appearance of effective authority unless the 2
letter of authorisation is given back to the principal or declared void by him. A letter of
authorisation falling under § 172 is a written document that denotes the person of the agent and
the scope of his authority and is signed by the issuer. A copy is not permissible. It is required
that the undersigner is in fact the principal; § 172 does not apply to a fake letter of authorisation.
On the other hand, it is not required that the authorisation is effective.1 Further, § 171 is only
applicable if the principal deliberately delivered the letter of authorisation to the agent and not
if it was stolen or in another way taken from the principal against or without his will.2
IL Communication of letter
The agent must present the letter of authorisation to the third party. The third party must 3
have immediate access to the document allowing him to take note of its content. It is
irrelevant, however, whether or not the third party actually makes use of this opportunity.3 It
is not necessary’ that the letter of authorisation in fact induced the third party to conclude the
legal transaction.
III. Burden of proof
The burden of proof for the presentation of the letter of authorisation lies with the person 4
that seeks to rely on the rights conferred onto him by Sub. 1.
IV. Appearance of authority
Pursuant to Sub. 2, the appearance of an effective authority persists until the letter of 5
authorisation is given back to the principal or declared void by him. The obligation of the
third party to return the letter of authorisation follows from § 175. The requirements which
the principal must comply with in order to effectively declare void the letter of authorisation
are regulated by § 176.
V. Other concepts of authority
Already from §§ 170-172 it follows that the third party, under certain conditions, may rely 6
on the appearance of effective authority despite the fact that the authority is in fact ineffective
or nonexistent.
The courts have furthermore developed two concepts on the basis of which an agent can 7
effectively bind the principal where no actual authority exists. These concepts are commonly
referred to as Duldungsvollmacht and Anscheinsvollmacht, which may best translate to
‘tolerated authority’ and ‘apparent authority’, respectively. It is important to note that these
are terms of art and as such they must be taken with caution. They may or may not mean the
same as their terminological counterparts in other legal systems.
1 BGH 2.5.2000 - XI ZR 108/99, NJW 2000, 2270, 2271.
2 BGH 30.5.1975 - V ZR 206/73, NJW 1975, 2101, 2101.
3 BGH 17.1.2012 - XI ZR 457/10, NJW-RR 2012, 622, 623.
Wais
229
§ 172 8-11 Division 3. Legal transactions
1. Liability
8 It is unclear whether tolerated authority results from an (implied) declaration of intentor
is a concept based on liability for appearance.4 Apparent authority, on the other hand, clearly
is based on liability for appearance, as the name suggests.
2. Requirements
9 The requirements of both concepts are different, their effects, however, are the same:
where tolerated authority or apparent authority can be established, the principal is bound by
the acts done by the person acting on his behalf. It is important to note that the doctrine of
apparent authority under English law is significantly different.
3. Tolerated authority
10 Tolerated authority (Duldungsvolbnacht) requires that the principal, while knowing that
someone is acting on his behalf, does nothing to prevent him from entering into contracts or
concluding other legal transactions, so that a third party, relying on the principle of good
faith, may conclude that actual authority exists.5 The fact that the principal only once
knowingly tolerated that, for instance, his employee acted on his behalf without authority
can provide sufficient grounds for tolerated authority for a subsequent contract.6 Further, the
third party must have trusted the existence of authority and causation is required between
the third party’s reliance and the conclusion of the legal transaction.7 If these requirements
are complied with at the time of the legal transaction, the principal is bound.8 However, it
follows from an analogous application of § 173 that the principal is not bound if the third
party knew or ought to have known that no authority existed.9 Whether a certain transaction
is covered by the authority by acceptance depends on the circumstances of the specific case;
the principal is not bound if the third party could not have reasonably expected the authority
to comprise the transaction in question.
4. Apparent authority
11 Apparent authority does not result from a deliberate omission to intervene by the
principal, but rather from his negligent unawareness. It is required that someone without
authority acts on behalf of the principal; further, that the principal is negligently unaware of
that activity and that he would have been able to prevent the acting. The principal must be in
breach of his duty of care.10 In contrast to tolerated authority, where a one-time acting on
behalf of the principal may be sufficient, the person acting on the principal’s behalf must
have concluded legal transactions under the principal’s name repeatedly or over a certain
period of time.11 For example an unauthorised employee who, using the official letter forms
of his employer’s business, concludes numerous contracts with a third party, will eventually
bind his employer if the employer failed to arrange for any control of his employees’
activities, provided that this control would have prevented the employee from his activities.
Whether and when certain repeated actions suffice to establish authority by appearance
4 See MüKo BGB/Schubert, § 167 BGB mn. 103; HK-BGB/Dörner, § 173 BGB mn 8
5 BGH 14.5.2002 - XI ZR 155/01, NJW 2002, 2325.
6 Palandt BGB/Ellenberger, § 172 BGB mn. 9.
7 BGH 16.11.1987 - II ZR 92/87, NJW 1988,1199, 1200.
8 BGH 14.5.2002 - XI ZR 155/01, NJW 2002, 2325.
9 Palandt BGB/Ellenberger, § 172 BGB mn. 6; HK-BGB/Dörner, § 173 BGB mn. 8.
‘ü BGH 11.5.2011 - VIII ZR 289/09, NJW 2011, 2421, 2422; BGH 27.9.1956 - II ZR 178/55» NJW 1956,
1673.
11 BGH 10.1.2007 - VIII ZR 380/04, NJW 2007, 987, 988; BGH 5.3.1998 - III ZR 183/96, NJW 1998»
1854, 1855.
230
Wais
Period of efficetiveness in the case of knowledge/negligent lack of knowledge 1 § 173
depends on the individual case. Again, the third party must have relied on the existence of
authority and causation is required between reliance and the conclusion of the legal
transaction.12 No apparent authority exists where the person knew or ought to have known
that no actual authority existed.13
5. Avoidance
Whether tolerated authority and apparent authority are subject to avoidance is a highly 12
debated question. From a dogmatic point of view, one would tend to rather accept
avoidability with regard to tolerated authority as it involves an element of will. In contrast,
apparent authority responds to the negligence of the principal. As such, it does not entail an
element of will that could be subject to mistake. It may hence be argued that an apparent
authority cannot be voided.14 On the other hand, one may also argue that appearance cannot
not result in a stronger binding effect than a real given authority and therefore permit
voidability.15
6. Effects
The effects of tolerated authority and apparent authority are identical to the effects of 13
actual authority. Given that its requirements are met, a contract so concluded on behalf of
the principal is valid. The person acting on behalf of the principal is not liable to the third
party pursuant to § 179(1). As regards the relationship between him and the principal,
however, there will usually be grounds for liability pursuant to § 280.
§173
Period of effectiveness in the case
of knowledge and negligent
lack of knowledge
The provisions of § 170, § 171(2) and
§ 172(2) do not apply if the third party knows
or ought to know of the termination of the
authority when the legal transaction is en¬
tered into.
§173
Wirkungsdauer bei Kenntnis und
fahrlässiger Unkenntnis
Die Vorschriften des § 170, des § 171
Abs. 2 und des §172 Abs. 2 finden keine
Anwendung, wenn der Dritte das Erlöschen
der Vertretungsmacht bei der Vornahme des
Rechtsgeschäfts kennt oder kennen muss.
§ 173 stipulates that a third party who knows that an apparent authority does not 1
actually exist, or is negligently unaware thereof, is not worthy of legal protection pursuant
to §§ 170-172. Again, as is also the case with §§ 171-172, the provision not only applies
where actual authority no longer exists but also where it never existed at all.1 The require¬
ments of § 173 must be present at the time of the conclusion of the legal transaction.
Knowledge or negligent unawareness of the mere facts leading to the lack of authority does
not suffice. Rather, it is decisive whether the third party knew or ought to have known of the
lack of the authority itself.2 The burden of proof lies with the principal?
12 BGH 28.5.1986 - IVa ZR 185/84, NJW-RR 1986, 1476, 1477.
13 BGH 25.4.2006 - XI ZR 29/05, NJW 2006, 1952, 1954.
14 Jauernig BGB/Mansel, § 167 BGB mn. 9.
15 Palandt BGB/Ellenberger, § 172 BGB mn. 16.
1 BGH 8.11.1984 - III ZR 132/83, NJW 1985, 730.
2 BGH 25.4.2006 - XI ZR 29/05, NJW 2006, 1952, 1954.
3 Palandt BGB/Ellenberger, § 173 BGB mn. 2.
Wais
231
§ 174 1-4
Division 3. Legal transactions
§174
Unilateral legal transaction by an
authorised representative
»A unilateral legal transaction that an
authorised representative undertakes in rela¬
tion to another is ineffective if the authorised
representative does not present a letter of
authorisation and the other rejects the legal
transaction without undue delay for this rea¬
son. 1 2 * 4Rejection is excluded if the principal
notified the other of the authorisation.
§174
Einseitiges Rechtsgeschäft eines
Bevollmächtigten
»Ein einseitiges Rechtsgeschäft, das ein Be¬
vollmächtigter einem anderen gegenüber vor¬
nimmt, ist unwirksam, wenn der Bevollmäch¬
tigte eine Vollmachtsurkunde nicht vorlegt
und der andere das Rechtsgeschäft aus diesem
Grunde unverzüglich zurückweist. 2Die Zu¬
rückweisung ist ausgeschlossen, wenn der
Vollmachtgeber den anderen von der Bevoll¬
mächtigung in Kenntnis gesetzt hatte.
A. Function
I. Purpose
1 §174 provides for special protection of the third party in the case of a unilateral legal
transaction.1 The necessity for a special rule steins from the fact that - unlike bilateral legal
transactions - a unilateral legal transaction entered into by an agent without authority is
always ineffective and cannot be subsequently ratified by the principal (§ 180). It is for that
reason that the third party has a legitimate interest to clarify whether authority exists or not
when a unilateral legal transaction is entered into by an agent, e.g. where a contract is
terminated on the principal’s behalf. The provision also applies to conduct which is similar to
a legal transaction (geschäftsähnliche Handlungen).
II. Scope of application
2 The provision is not applicable where authority is stipulated by law as there is no act of
authorisation involved.
3
B. Explanation
I. Letter of authorisation
The letter of authorisation presented to the third Dartv mnct k. „ • • i » l
sufficient? nor is a f„> or an email. Further. *71effer „J .T"1* ’’'“‘’"'V
sufficiently clear - though not necessarily expressly - that th I utk°nsaUon must ma^e
within the scope of the .gen,•. .ttthort^ < ? kS«l transaction .rails
4
II. Rejection
Where a letter of authorisation is not presented the th •
transaction, provided that he does so without undue d 1 P3rty may reject
unduly delayed depends on the individual case. The court f ,Whether 016 rejection was
after six days was not permissible.5 A legal unilat»..,i .S tOUnd ,n one case that a rejection
ransaction that has been rejected
1 See -► Introduction to 116-144 mn 1 " —
2 BGH 10.2.1994 - IX ZR '109/93, NJW 1994 1472- BCH a ■>
’ BGH 10.10.2017 - XI ZR 457/16, NJW-RR 2018, 116 1.R ' VlH ZR 313/7’> NIW 1981, 1210-
4 Palandt BGB/Ellenberger. § 173 BGB mn. 5. 8‘
5 OLG Hamm 26.10.1990 - 20 U 71/90, NJW 1991 1185 H8
232
Wais
Declaration of invalidity of the letter of authorisation § 176
cannot be ratified; § 177 does not apply. Its ineffectivenes is final. Pursuant to the 2nd St., the
right to reject does not exist if the principal informs the third party of the authority of his
agent. The 2nd St. does not apply where the third party gathered the information from a
different source or in a different way. However, if, e. g., the agent gets promoted to a position
within the principal’s business that is usually vested with a certain authority, the promotion is
to be treated as a notification falling within the 2nd St.6 Further, if in a permanent business
relationship an agent has repeatedly concluded unilateral legal transactions that were not
rejected, the third party may by virtue of § 242 be barred from relying on the 1st St.7
§175
Return of the letter of
authorisation
After the expiry of the authority, the
authorised representative must return the let¬
ter of authorisation to the principal; he has
no right of retention.
§175
Rückgabe der Vollmachtsurkunde
Nach dem Erlöschen der Vollmacht hat der
Bevollmächtigte die Vollmachtsurkunde dem
Vollmachtgeber zurückzugeben; ein Zurück¬
behaltungsrecht steht ihm nicht zu.
A letter of authorisation may establish the appearance of effective authority. Hence, for the 1
principal, great risk stems from a letter of authorisation in the hands of an agent who is no
longer authorised. In order to protect the principal, § 175 provides him with a right to
reclaim the letter of authorisation if the authority has expired. The provision also applies
where authority was never effective at all. If a person other than the agent is in possession of
the letter of authorisation, that person must return it to the principal.* 1 The principal may
reclaim the letter even if he is not the owner.2 In addition, the agent does not have a right of
retention; § 273 does not apply. It follows that the agent may not retain the letter to induce
the principal to fulfill his obligations towards him.
§176
Declaration of invalidity of the
letter of authorisation
(1) ’The principal may, by public notice,
declare the letter of authorisation to be in¬
valid; the declaration of invalidity must be
published in compliance with the provisions
of the Code of Civil Procedure [Zivilprozes¬
sordnung] that govern the service of a sum¬
mons by publication. 2The declaration of in¬
validity becomes effective at the end of one
month after its last appearance in the official
newspapers.
(2) The local court [Amtsgericht] in whose
district the principal is subject to general
jurisdiction and the local court [Amtsgericht]
which would have jurisdiction over the action
for the return of the letter of authorisation
are equally competent to authorise the pub-
§176
Kraftloserklärung der
V o Ilmachtsurkunde
(1) ’Der Vollmachtgeber kann die Voll¬
machtsurkunde durch eine öffentliche Be¬
kanntmachung für kraftlos erklären; die
Kraftloserklärung muss nach den für die öf¬
fentliche Zustellung einer Ladung geltenden
Vorschriften der Zivilprozessordnung ver¬
öffentlicht werden. 2Mit dem Ablauf eines
Monats nach der letzten Einrückung in die
öffentlichen Blätter wird die Kraftloserklä¬
rung wirksam.
(2) Zuständig für die Bewilligung der Ver¬
öffentlichung ist sowohl das Amtsgericht, in
dessen Bezirk der Vollmachtgeber seinen all¬
gemeinen Gerichtsstand hat, als das Amts¬
gericht, welches für die Klage auf Rückgabe
6 BAG 29.10.1992 - 2 AZR 460/92, NJW 1993, 1286.
7 Palandt BGB/Ellenberger, § 174 BGB mn. 7.
1 MüKo BGB/Schubert, § 175 BGB mn. 7.
2 Palandt BGB/Ellenberger, § 175 BGB mn. 1; HK-BGB/Dörner, § 176 BGB mn. 2.
Wais
233
§ 177 1-2
Division 3. Legal transactions
lication, irrespective of the value of the mat¬
ter in dispute.
(3) The declaration of invalidity is ineffec¬
tive if the principal may not revoke the
authority.
der Urkunde, abgesehen von dem Wert de«
Streitgegenstands, zuständig sein würde.
(3) Die Kraftloserklärung ist unwirksam,
wenn der Vollmachtgeber die Vollmacht
nicht widerrufen kann.
1 The principal can make a declaration of invalidity to eliminate the appearance of authority
created by the letter of authorisation. The effects are identical to the effects of returning the
letter of authorisation. The declaration of invalidity implies the revocation of the authority
given to the agent. However, the courts must authorise the publication irrespective of
whether authority is in fact ineffective or revocable. Where authority is irrevocable, it merely
follows that the declaration as such is ineffective.
§177
Entry into contract by an
unauthorised agent
(1) If a person enters into a contract in the
name of another without power of agency,
then the effectiveness of the contract to the
benefit or detriment of the principal requires
the ratification of the principal.
(2) ’If the other party requires the princi¬
pal to make a declaration as to whether or
not he ratifies the contract, the declaration
may only be made to that other party; a
ratification or a refusal of ratification de¬
clared to the agent before the demand is
without effect. 1 2The ratification may only be
declared before the expiry of two weeks after
receipt of the demand; if it is not declared, it
is considered to have been refused.
§177
Vertragsschluss durch Vertreter
ohne Vertretungsmacht
(1) Schließt jemand ohne Vertretungs¬
macht im Namen eines anderen einen Ver¬
trag, so hängt die Wirksamkeit des Vertrags
für und gegen den Vertretenen von dessen
Genehmigung ab.
(2) ’Fordert der andere Teil den Vertrete¬
nen zur Erklärung über die Genehmigung
auf, so kann die Erklärung nur ihm gegen¬
über erfolgen; eine vor der Aufforderung dem
Vertreter gegenüber erklärte Genehmigung
oder Verweigerung der Genehmigung wird
unwirksam. 2Die Genehmigung kann nur bis
zum Ablauf von zwei Wochen nach dem
Empfang der Aufforderung erklärt werden;
wird sie nicht erklärt, so gilt sie als verwei¬
gert.
A. Function
1 § 177 applies if the agent enters into a contract without sufficient authority or no authority
at all, e. g. where authority never existed, where authority is subsequently avoided by the
principal or deliberately or negligently exceeded by the agent.1 On the other hand, tolerated
authority and apparent authority are to be regarded as having the same effects as actual
authority2 and thus exclude the application of § 177.
B. Explanation
I. Ratification
2 If the agent enters into a contract without the authority of the principal, the principal may
subsequently ratify the contract made on his behalf. The ratification is a unilateral legal
transaction.3 It is made by a declaration ot intent that requires receipt by the receiving party-
1 HK-BGB/Dörner, § 177 BGB mn. 3.
2 See -> § 172 mn. 7-11.
3 See -► Introduction to §§ 116-144 mn. 1.
234
Wais
Right of revocation of the other party § 178
Its effectiveness does not depend on the intention or cooperation of the third party. The
contract can also be ratified by the principal’s heir, and by another agent, provided that the
ratification falls within his authority,4 or even by the very same agent who entered into the
contract after he has subsequently acquired authority.5 While ratification need not be
express, silence can only be interpreted as ratification where, under the principle of good
faith, the principal (or any other person entitled to ratification) would have been expected to
express his intention as to the contrary.6
IL Legal effects
A contract that is ratified by the principal has the same effects as a contract entered into by 3
an authorised agent and, ultimately, as a contract entered into by the principal. Prior to
ratification, the contract is ineffective pending ratification and hence in a state of suspense.
The contract becomes effective upon ratification. The ratification has a retroactive effect:
pursuant to § 184(2), a contract subsequently ratified is deemed to have been effective from
the time of conclusion.
III. Partial ratification; form
Where the contract is separable (§ 139), it is also possible to ratify only a part of it. 4
Further, as stipulated by § 182(2), the ratification does not have to be in a specific form;
where a special form is required for the contract to be effective (e.g. § 311b(l) 1st St.) that
requirement does not apply to the ratification of the contract.7
IV. Required declaration
In order to avoid uncertainty, the third party may, pursuant to Sub. 2 1st St., demand that 5
the principal clarifies whether or not he will ratify the contract or, alternatively, revoke the
contract pursuant to § 178. Under Sub. 2 1st St., ratification is considered to be denied if the
principal does not ratify the contract within a time frame of two weeks. Where ratification is
denied, either by the principal or by virtue of Sub. 2 1st St., the contract is permanently
ineffective and can no longer be ratified (§ 182).
V. Recipient
Subject to the request for clarification, the ratification may be declared to the third party or 6
the agent. Where clarification is requested, however, any declaration made to the agent is
without effect.
§178
Right of revocation of the
other party
’Until the ratification of the contract, the
other party is entitled to revoke it, unless he
knew of the lack of power of agency when he
entered into the contract. 2The revocation
may also be declared to the agent.
§178
Widerrufsrecht des anderen Teils
’Bis zur Genehmigung des Vertrags ist der
andere Teil zum Widerruf berechtigt, es sei
denn, dass er den Mangel der Vertretungs¬
macht bei dem Abschluss des Vertrags ge¬
kannt hat. 2Der Widerruf kann auch dem
Vertreter gegenüber erklärt werden.
4 Palandt BGB/Ellenberger, § 177 BGB mn. 6.
5 BGH 29.11.1993 - II ZR 107/92, NJW-RR 1994, 291, 293.
6 Palandt BGB/Ellenberger, § 177 BGB mn. 6.
7 BGH 25.2.1994 - V ZR 63/93, NJW 1994, 1344, 1345.
Wais
235
§179 1
Division 3. Legal transactions
1 Where the agent who entered into a contract does not have the required authority to act
on behalf of the principal, § 178 provides the third party with the right to revoke the
contract. The purpose is to protect the third party from the uncertainty that stems from the
fact that he cannot know whether the principal will ratify the contract pursuant to § 177(1).
However, the revocability is excluded if the third party was aware of the lack of authority
when he entered into the contract. Further, the contract cannot be revoked if it has been
ratified by the principal. The declaration by which the contract is revoked does not have to be
in a specific form. However, it must be apparent that the contract is revoked for lack of
authority.1 The courts are not prepared to accept a revocation where the third party cancels
the contract for reasons irrelevant to § 178.2
§179
Liability of an unauthorised agent
(1) A person who has entered into a contract
as an agent is, if he does not furnish proof of
his power of agency, obliged to the other party
at the other party’s choice either to perform
the contract or to pay damages to him, if the
principal refuses to ratify the contract.
(2) If the agent was not aware of his lack of
power of agency, he is obliged to make com¬
pensation only for the damage which the
other party suffers as a result of relying on
the power of agency; but not in excess of the
total amount of the interest which the other
or the third party has in the effectiveness of
the contract.
(3) ’The agent is not liable, if the other
party knew or ought to have known of the
lack of power of agency. 2The agent is also
not liable if he had limited capacity to con¬
tract, unless he acted with the consent of his
legal representative.
§179
Haftung des Vertreters ohne
V ertretungsmacht
(1) Wer als Vertreter einen Vertrag geschlos¬
sen hat, ist, sofern er nicht seine Vertretungs¬
macht nachweist, dem anderen Teil nach
dessen Wahl zur Erfüllung oder zum Schadens¬
ersatz verpflichtet, wenn der Vertretene die
Genehmigung des Vertrags verweigert.
(2) Hat der Vertreter den Mangel der Ver¬
tretungsmacht nicht gekannt, so ist er nur
zum Ersatz desjenigen Schadens verpflichtet,
welchen der andere Teil dadurch erleidet,
dass er auf die Vertretungsmacht vertraut,
jedoch nicht über den Betrag des Interesses
hinaus, welches der andere Teil an der Wirk¬
samkeit des Vertrags hat.
(3) ’Der Vertreter haftet nicht, wenn der
andere Teil den Mangel der Vertretungs¬
macht kannte oder kennen musste. 2Der Ver¬
treter haftet auch dann nicht, wenn er in der
Geschäftsfähigkeit beschränkt war, es sei
denn, dass er mit Zustimmung seines gesetz¬
lichen Vertreters gehandelt hat.
A. Function
I. Purpose
1 Subs 1 and 2 establish a strict liability of the agent, i.e. irrespective of fault, if the contract
entered into by him has no binding effect on the principal. The provision also applies where
power of agency is conferred by law and not by authorisation. The purpose is to protect the
third party who relied on the effectiveness of the agency. Hence, the agent cannot be held liable
under Sub. 1 where the contract is ineffective for other reasons than lack of power of agency,
e.g. the agent’s incapacity to contract (§§ 104, 105), lack of form (§ 125), etc. Pursuant to
Sub. 3, no such obligation exists where the other party is not worthy of protection.
1 BAG 31.1.1996 - 2 AZR 91/95, NJW 1996, 2594, 2595; BGH 22.6.1965 - V ZR 55/64 BeckRS 1965,
31175794.
2 Palandt BGB/Ellenberger, § 178 BGB mn. 1; HK-BGB/Dörner, § 178 BGB mn. 1.
236
Wais
Liability of an unauthorised agent
2-6 § 179
IL Scope of application
§ 179 generally applies to all forms of agency. Further, it is argued that § 179 may also 2
apply, by way of analogy, where a messenger delivers a message without being mandated by
the sender or delivers the wrong message.1
B. Explanation
I. Legal consequences
Under Sub. 1, the agent is liable to either fulfil the contract or to make up for the damages 3
the third party incurred due to the ineffectiveness of the contract. The decision lies with the
third party. Sub. 1 requires that the contract is ineffective solely for the lack of power to
agency. Liability under Sub. 1 also excluded where the principal subsequently ratified the
contract as the contract between the third party and the principal is effective. Further, the
contract concluded on the principal’s behalf need not be ineffective in its entirety. The agent
is also liable under Sub. 1 where, and to the extent that, the contract is only ineffective in
part. In the same way liability is incurred where an existing power of agency is exceeded by
the agent. The request for performance of contract does not make the agent party to the
contract.2 The agent has no right to request, in his turn, from the third party the performance
of the obligations under the contract. However, he has a right of retention pursuant to § 320
until that performance is rendered. Further, the agent has the rights set forth in §§ 323 et
seq.,3 e.g. where the third party delays his performance. Where a third party delivers
defective goods, the agent may also invoke the rights of the buyer set forth in §§ 437 et seq.4
IL Sub-agent
Uncertainty surrounds the question whether a sub-agent is liable for lack of the principal 4
authority. Some argue that no such liability is incurred where the sub-agent disclosed to the
third person that he is merely acting as a sub-agent.5 Others argue that the sub-agent is
always liable, but liability may be excluded under Sub. 3.6
III. Damages
If the third party opts for damages, he must be put in the financial position in which he would 5
have been had the contract been effective. For example, damages are owed for lost profits and,
where applicable, must also cover the costs of unsuccessful proceedings against the principal.7
IV. Unaware
A different liability applies pursuant to Sub. 2 if the agent unknowingly acts without, or 6
exceeds, the necessary power of agency: in this case the third party may only request to be
put in the financial position that would be his had he not relied on the contract. For example,
he may ask to be compensated for investments made in anticipation of the fulfilment of the
contract. Sub. 2 also provides that damages are automatically capped where they exceed his
interest in the contract. For example, suppose that after entering into the contract which
1 MüKo BGB/Schubert, § 177 BGB mn. 7.
2 BGH 14.11.1969 - V ZR 97/66, NJW 1970, 240, 241.
3 BGH 26.4.2001 - VII ZR 222/99, NJW 2001, 31 «4, 3185.
4 Palandt BGB/Ellenberger, § 179 BGB mn. 5.
5 HK-BGB/Dörner, § 179 BGB mn. 3.
6 MüKo BGB/Schubert, § 179 BGB mn. 26.
7 Palandt BGB/Ellenberger, § 179 BGB mn. 6.
Wfl/s
237
§ 180 Division 3. Legal transactions
would have yielded a profit of 1,000 euros the third party - assuming to be already bound -
passes on a contract with a profit of 2,000 euros. It follows from Sub. 2 that he is not entitled
to damages higher than his interest in the effectiveness of the contract with the principal,
which is the equivalent of 1,000 euros. The third party must not be better off compared to the
would-be situation where the contract was effective.
V. Liability of principal
7 If an agent acts on behalf of the principal without the necessary power of agency, the
principal may incur a liability for breach of pre-contractual duties.8 Under § 278 he may also
be liable for fault of the agent.
VI. Negligence
8 The other party must be worthy of protection. Subs 1 and 2 are not applicable if the other
party is negligently unaware of the lack of authority. The agent who promises to hand in the
letter of authorisation at a later point in time does not fall within Sub. 3 1st St, for the
declaration suggests that authorisation already exists; nor does the agent who overtly acts
without authority. In the latter case, however, the agent may be liable under culpa in
contrahendo if he deceitfully assured the other party of subsequent ratification by the
principal.9 Negligence may be established where the facts allow for reasonable doubts as to
the existence of authority.10 Irrespective of the requirements set forth in Sub. 3 1st St, the
agent whose capacity to contract is limited is only liable where he acted with the consent of
his legal representative (Sub. 3 2nd St.).
VII. Burden of proof
9 With regards to the requirements set forth in Sub. 1, the burden of proof lies with the third
party.11 The agent, on the other hand, must prove that he was in fact vested with the required
power of agency. In turn, it is for the third party to prove its expiration. The burden of proof
with regard to the requirements of Subs 2 and 3 lies with the agent.12
§180
Unilateral legal transactions
’Agency without authority is not permitted
for a unilateral legal transaction. 2However, if
the person in relation to whom such a legal
transaction was to be undertaken did not,
when the legal transaction was undertaken,
question the power of agency the agent
claimed to have, or if he was in agreement
that the agent might act without authority,
the provisions on contracts apply with the
necessary modifications. 3The same applies if
a unilateral legal transaction is undertaken in
relation to an unauthorised agent with his
consent.
§ 180
Einseitiges Rechtsgeschäft
’Bei einem einseitigen Rechtsgeschäft ist
Vertretung ohne Vertretungsmacht unzuläs¬
sig. 2Hat jedoch derjenige, welchem gegen¬
über ein solches Rechtsgeschäft vorzunehmen
war, die von dem Vertreter behauptete Ver-
tretungsmacht bei der Vornahme des Rechts¬
geschäfts nicht beanstandet oder ist er damit
einverstanden gewesen, dass der Vertreter
ohne Vertretungsmacht handele, so finden
die Vorschriften über Verträge entsprechende
Anwendung. 3Das Gleiche gilt, wenn ein ein¬
seitiges Rechtsgeschäft gegenüber einem Ver¬
treter ohne Vertretungsmacht mit dessen Ein¬
verständnis vorgenommen wird.
« BGH 20.9.1984 - III ZR 47/83, NJW 1985, 1778, 1780.
9 Palandt BGB/Ellenberger, § 179 BGB mn. 4.
10 BGH 8.2.2000 - XI ZR 313/98, NJW 2000, 1408, 1409.
11 MüKo BGB/Schubert, § 179 BGB mn. 61; HK-BGB/Dörner, § 179 BGB mn. 13.
12 Palandt BGB/Ellenberger, § 179 BGB mn. 10; HK-BGB/Dörner, § 179 BGB mn. 13.
238
Wais
Contracting with oneself
1 § 181
A. Explanation
I. Unilateral legal transaction
Unilateral legal transactions are legal transactions that do not presuppose an agreement in 1
order to be effective; instead, they consist solely of the declaration of intent of the party
undertaking the transaction, e.g. a declaration of avoidance under § 143; a withdrawal under
§ 355; the offer of an award to the public pursuant to § 657 or the abandonment of
ownership under § 959.1 Pursuant to the 1st St., unilateral legal transactions cannot be
undertaken without the required authority. They cannot subsequently be ratified. The 1st St.
applies irrespective of whether or not the declaration of intent, in order to be effective, must
be received by the receiving party.
IL Exception
However, the 2nd St. provides for an exception for unilateral legal transactions that must be 2
made in relation to another party, i.e. that presuppose a declaration of intent that requires
receipt by the receiving party, e.g. declaration of voidance under § 143; withdrawal under § 355.
These unilateral legal transactions may be subject to subsequent ratification if the receiving
party has not questioned the authority the agent claimed to have, or has accepted - expressly or
impliedly - that the agent may lack authority. Ratification has retroactive effect (§ 184(1)).
Pursuant to the the 3rd St., the same applies where the agent is not the declaring party but the
receiving party of a declaration of intent that constitutes a unilateral legal transaction.
§181
Contracting with oneself
An agent may not, unless otherwise per¬
mitted, enter into a legal transaction in the
name of the principal with himself in his own
name or as an agent of a third party, unless
the legal transaction consists solely in the
performance of an obligation.
§181
Insichgeschäft
Ein Vertreter kann, soweit nicht ein anderes
ihm gestattet ist, im Namen des Vertretenen
mit sich im eigenen Namen oder als Vertreter
eines Dritten ein Rechtsgeschäft nicht vorneh¬
men, es sei denn, dass das Rechtsgeschäft aus¬
schließlich in der Erfüllung einer Verbindlich¬
keit besteht.
A. Function
I. Underlying principle
The agent can neither conclude a contract on behalf of the principal with himself nor 1
conclude a contract on behalf of two principals as an agent of either. Where the agent makes
decisions on behalf of different people who, in principle, pursue different goals, a conflict of
interest and thus an abuse of power of agency is likely.1 An actual conflict of interest is not
required.2 Pursuant to § 181, contracting with oneself (Insichgeschäft - literally 'internal
transaction’) is therefore generally prohibited?
1 See ► Introduction to 116-144 mn. 1.
1 BGH 19.4.1971 - Il ZR 98/68, NJW 1971, 1355.
2 BGH 24.1.1991 - IX ZR 250/89, NJW 1991, 982, 984.
1 BGH 8.3.1991 - V ZR 25/90, NJW 1991, 1730.
Wais
239
§ 181 2-5
Division 3. Legal transactions
IL Scope of application
2 § 181 applies to agents by authorisation, legal representatives onto whom power of agency
is conferred to by law, members of a body corporate both under private and public law, and
even agents acting without power of agency.4 The provision is also applicable in cases of
joint-agency, rendering ineffective any such contract already if one agent alone is self¬
contracting or acting on behalf of both parties.5 The agent cannot circumvent § 181 by
authorising a sub-agent.6 The provision applies to legal transactions in general, i.e. to
contracts that establish a contractual relationship of obligations, contracts that constitute a
disposition, as well as to unilateral legal transactions such as termination, authorisation,
ratification etc. It is also applicable to acts that, without being legal transactions, have
comparable effects (geschäftsähnliche Handlungen),7 e.g. fixing a deadline (see § 281). § 181
is not generally restricted to specific fields of private law. However, in particular in the field
of company law, special rules may exclude its application.8
B. Explanation
I. Both sides of the contract
3 The agent must act on either side of the contract. It is not a case of contracting with
oneself falling within § 181 if the agent’s activity does not extend to both sides of the
contract, e.g. entering into a contract with the third party both on behalf of the principal and
in his own name.9 However, § 181 would apply in the latter example if, and to the extent
that, contractual obligations between the agent and the principal were also established, e.g. a
partnership agreement pursuant to § 705. § 181 does not apply if the agent, on behalf of the
principal, authorises the bank to make a payment to his own account; the agent might be the
beneficiary of the transaction but technically he is not involved on both sides of the
contract.10 However, in this case the principal enjoys sufficient protection under the
principles of abuse of authority.11
IL Legal consequence
4 Where § 181 applies, the legal transaction is ineffective since the agent exceeded his
authority. Pursuant to § 177, the transaction may subsequently be ratified by the principal.12
A contract that was entered into by an agent on behalf of principals on either side of the
contract must be ratified by all principals.13
III. Exceptions
5 There are two exceptions provided for by § 181: no prohibition exists where agent and
principal have agreed that the agent should be permitted to self-contract, and where"the self¬
contracting is the fulfilment of an existing obligation. The courts have established a third
4 Palandt BGB/Ellenberger, § 181 BGB mn. 3.
5 BGH 8.10.1991 - XI ZR 64/90, NJW 1992, 618.
6 BGH 24.9.1990 - II ZR 167/89, NJW 1991, 691, 692.
7 MüKo BGB/Schubert, § 181 BGB mn. 14.
• HK-BGB/Dörner, § 181 BGB mn. 14.
’ BGH 23.2.1968 - V ZR 188/64, NJW 1968, 936, 937.
'« BGH 15.6.2004 - XI ZR 220/03, NJW 2004, 2517, 2518.
" Palandt BGB/Ellenberger, § 181 BGB mn. 14.
‘2 BGH 29.11.1993 - 11 ZR 107/92, NJW-RR 94, 291, 293.
15 Palandt BGB/Ellenberger, § 181 BGB mn. 15.
240 Wais
Approval § 182
exception where transactions are purely beneficial to the principal.14 However, these excep¬
tions may only apply if the legal transaction is in some way objectively recognisable.15
1. Agreement
As provided for in § 181, the principal and agent may agree that contracting with oneself is 6
not prohibited. The agreement can either be express or implied, e. g. a buyer authorising the
auctioneer to bid on his behalf.16 Importantly though, a general authority to conclude legal
transactions of any kind (Generalvollmacht) does not automatically imply an agreement as to
the exclusion of § 181.17 Members of a body corporate can also be exempt from § 181 by
virtue of the statutes.18
2. Existing obligation
Contracting with oneself is permitted under § 181 under the condition that the legal 7
transaction is the performance of an existing obligation, e.g. the agent may, on behalf of the
principal, agree to transfer ownership to himself (§ 929) if the principal, in relation to the
agent, is already under such an obligation. This exception only applies to obligations that are
already effective at the time of performance.19 It thus does not apply to such obligations that
would only become effective upon performance (see §§ 518(2), 31 lb(l) 2nd St.: cure of defect
of form by rendering the performance). Further, the obligation must be due and the debtor
must not have a defence.20
Title 6
Consent and ratification
Titel 6
Einwilligung und Genehmigung
§182
Approval
(1) If the effectiveness of a contract, or of a
unilateral legal transaction to be undertaken
in relation to another, depends on the ap¬
proval of a third party, the grant and refusal
of approval may be declared either to one
party or to the other.
(2) The approval is not required to have
the form provided for the legal transaction.
(3) If a unilateral legal transaction whose
effectiveness depends on the approval of a
third party is undertaken with the consent of
the third party, then the provisions of § 111
sentences 2 and 3 apply with the necessary
modifications.
§182
Zustimmung
(1) Hängt die Wirksamkeit eines Vertrags
oder eines einseitigen Rechtsgeschäfts, das
einem anderen gegenüber vorzunehmen ist,
von der Zustimmung eines Dritten ab, so
kann die Erteilung sowie die Verweigerung
der Zustimmung sowohl dem einen als dem
anderen Teil gegenüber erklärt werden.
(2) Die Zustimmung bedarf nicht der für
das Rechtsgeschäft bestimmten Form.
(3) Wird ein einseitiges Rechtsgeschäft,
dessen Wirksamkeit von der Zustimmung ei¬
nes Dritten abhängt, mit Einwilligung des
Dritten vorgenommen, so finden die Vor¬
schriften des § 111 Satz 2, 3 entsprechende
Anwendung.
14 BGH 25.4.1985 - IX ZR 141/84, NJW 1985, 2407, 2408; BGH 26.5.1982 - IV b ZR 715/80, NJW
1982, 1983, 1984. See ► § 107 mn. 2.
15 BGH 8.3.1991 - V ZR 25/90, NJW 1991, 1730.
16 BGH 20.10.1982 - VIII ZR 186/81, NJW 1983, 1186, 1187.
17 Palandt BGB/Ellenberger, § 181 BGB mn. 21.
18 HK-BGB/Dörner, § 181 BGB mn. 8.
19 MüKo BGB/Schubert, § 181 BGB mn. 84.
™ Palandt BGB/Ellenberger, § 181 BGB mn. 22.
Wais
241
§ 182 1-5
Division 3. Legal transactions
A. Function
I. Underlying principle
1 The BGB uses different terms for approval, depending on whether it was made prior or
subsequent to the conclusion of the contract or the unilateral legal transaction. Pursuant to
§§ 183, 184, prior approval is referred to as consent (Einwilligung) whereas a subsequent
approval is called ratification (Genehmigung). Both terms, however, denote a kind of
approval that falls within the scope of § 182.
II. Scope of application
2 Approval, as regulated by §§182 et seq., can only be made with regard to a legal
transaction by someone else. For instance, the principal may subsequently ratify a contract
that an unauthorised agent entered into on his behalf (§ 177). This transaction, albeit binding
the principal, is one of the agent and the third party. §§ 182 et seq. do not apply to the
confirmation of one’s own void or voidable legal transaction under § 141 and § 144, nor to
the joint approval required in the management of a partnership pursuant to § 709 or
approval under § 744(2) and § 32(2)?
3 § 182 applies in the following cases: approval of a contract entered into by a minor (§§ 106
et seq.), or a person under custodianship (§ 1903); approval of a contract entered into by an
agent without authority (§ 177); approval of a disposition undertaken by an unauthorised
person (§ 185); approval of certain dispositions of the other spouse (§§ 1365 et seq., 1423 et
seq., 1516); approval of acknowledgement of paternity (§ 1596); approval of dispositions of
the prior heir (§ 2113(3)); approval of the assumption of a debt (§ 415); approval of the
cancellation or alteration of a right in a plot of land (§§ 876, 1071, 1255, 1276).1 2
B. Explanation
I. Approval
4 Approval is a unilateral legal transaction consisting of a declaration of intent that
requires receipt; i. e. that is only effective if it is received by the receiving party.3 The receiving
party can be either the party whose declaration of intent requires such approval or the party
that will be affected by the approved declaration. Where the approval is voidable for mistake
under §§ 119 et seq., it is assumed that avoidance must be declared to the party to whom
approval was given.4 A transaction that is separable (§ 139) may be partially approved,
resulting in a partial effectiveness of the transaction. The approval may be express or
implied.5 An implied approval may be ascertained where the party who can approve the
transaction treats it as if it were effective. Furthermore, approval can be given by an agent on
behalf of the principal. The principles of agency (§§ 164 et seq.) apply.6
5 Approval is not subject to a specific form, not even where such a form is required for the
transaction so approved.7 For example, the principal may ratify a sales contract over a plot of
land (§177) free of form despite the fact that the sales contract must be notarily recorded
under § 31 lb( 1) 1st St.
1 Palandt BGB/Ellenberger, Einführung vor § 182 BGB mn. 2.
2 See Palandt BGB/Ellenberger, Einführung vor § 182 BGB mn. 5.
3 Introduction to §§ 130-163 mn. 2.
4 MüKo BGB/Bayreuther, § 183 BGB mn. 19.
5 BGH 15.5.1990 - X ZR 82/88, NJW-RR 1990, 1251, 1252.
6 Palandt BGB/Ellenberger, § 182 BGB mn. 4.
7 BGH 23.1.1998 - V ZR 272/96, NJW 1998, 1482, 1483; BGH 25.2.1994 - V ZR 63/93, NJW 1994, 1344.
242
Wais
Revocability of consent
1-2 § 183
II. Unilateral legal transaction
Specific rules apply to the approval of unilateral legal transaction. Sub. 3 impliedly 6
provides for a general principle that can also be found in § 111 and § 180 with regard to
unilateral legal transactions of minors and agents without authority, respectively: consent, i.e.
prior approval, is permitted but subsequent ratification generally is not. Importantly, § 180
2nd St. provides for an exception where the third party accepts the uncertainty stemming
from provisional ineffectiveness of the acts done by the agent. By way of analogy, this
exception applies to approval in general. Importantly, Sub. 3, in referring to § 111 2nd and
3rd St., precludes prior approval of a unilateral legal transaction if the receiving party rejects
the transaction because he is not provided with approval in writing.8
§183
Revocability of consent
'Prior approval (consent) may be revoked
until the legal transaction is undertaken, un¬
less the legal relationship on which this con¬
sent is based leads to a different conclusion.
Revocation may either be declared to one
party or to the other.
§ 183
Widerruflichkeit der Einwilligung
’Die vorherige Zustimmung (Einwilligung)
ist bis zur Vornahme des Rechtsgeschäfts
widerruflich, soweit nicht aus dem ihrer Er¬
teilung zugrunde liegenden Rechtsverhältnis
sich ein anderes ergibt. * 1 2Der Widerruf kann
sowohl dem einen als dem anderen Teil ge¬
genüber erklärt werden.
A. Explanation
I. Revocation of consent
Approval that is given prior to the conclusion of the legal transaction is generally referred 1
to as consent. Similar to authorisation (§ 168) which can be regarded as a form of prior
approval, consent is revocable at any time before the legal transaction is made. It is argued
that refusal of consent is revocable, whereas refusal of ratification is not.1 Revocation can be
declared to either party of the legal transaction that consent would render effective. However,
revocation may be excluded: §§ 876, 1071, 1178, 1245, 1255, 1276, 1516, 1750. The parties
may also exclude the revocability on their own terms where it would otherwise be permitted.
IL Expiry of consent
Revocation is not the sole reason for the expiry of consent. Expiry may also be due to a 2
condition agreed on by the parties. Notwithstanding the abstract nature of approval, reasons
for the expiry of the consent may, under certain conditions, also result from the underlying
contractual relationship,2 subject to an express or implied agreement regarding the consent
itself.
8 BAG 4.3.2004 - 2 AZR 147/03, NJW 2004, 2612, 2613.
1 Palandt BGB/Ellenberger, § 182 BGB mn. 4.
2 Palandt BGB/Ellenberger, § 183 BGB mn. 3.
Wais
243
§ 184 1-3
Division 3. Legal transactions
§184
Retroactive effect of ratification
(1) Subsequent approval (ratification) op¬
erates retroactively from the point of time
when the legal transaction was undertaken,
unless otherwise provided.
(2) The retroactive effect does not cancel
the effectiveness of dispositions made by the
ratifying person before the ratification of the
subject matter of the legal transaction, or
made by execution or attachment or by the
administrator in insolvency proceedings.
§184
Rückwirkung der Genehmigung
(1) Die nachträgliche Zustimmung (Geneh¬
migung) wirkt auf den Zeitpunkt der Vor¬
nahme des Rechtsgeschäfts zurück, soweit
nicht ein anderes bestimmt ist.
(2) Durch die Rückwirkung werden Ver¬
fügungen nicht unwirksam, die vor der Ge¬
nehmigung über den Gegenstand des Rechts¬
geschäfts von dem Genehmigenden getroffen
worden oder im Wege der Zwangsvollstre¬
ckung oder der Arrestvollziehung oder durch
den Insolvenzverwalter erfolgt sind.
A. Function
1 § 184 applies to legal transactions which constitute a contractual relationship of obliga¬
tion (Verpflichtungsgeschäft, e.g. § 433) as well legal transactions by which a disposition is
made (Verfügungsgeschäft, e.g. § 929). Exceptionally, it may also apply to unilateral legal
transactions.1
B. Explanation
I. Ratification
2 Sub. 1 provides that a subsequent approval is referred to as ratification. Ratification is a
declaration of intent requiring receipt in order to be effective. Unlike approval it is not
revocable.2 It cannot be made conditionally.3 Ratification may however be subject to
avoidance on the grounds of mistake under §§ 119 et seq.4 The ratification has a retroactive
effect. Prior to the ratification, a legal transaction made without the required authority is
provisionally ineffective. Upon ratification it is deemed effective ab initio. Where ratification
is denied, the ineffectiveness of the legal transaction becomes final. The retroactive effect of
ratification may be excluded where it would run counter the legal purpose of another
provision, e.g. it is assumed that statutes of limitation only apply from the moment of
ratification.5
IL Time limit
3 The law does not provide a time limit for the approval. However, where § 108(2), § 177(2)
or § 1366(3) apply, the other person can demand a declaration whether the transaction is
approved and, after the expiry of a deadline of two weeks, approval is assumed to be denied.
It has been argued that this principle applies to all cases falling within § 184.6 Where no
deadline applies, approval may, however, still be impermissible under § 242 pursuant to the
principle of Verwirkung.7
1 See -► e.g. § 182 mn. 6.
2 BGH 14.10.1963 - VII ZR 33/62, NJW 1964, 243, 244.
3 HK-BGB/Dörner, § 184 BGB mn. 2.
4 Palandt BGB/Ellenberger, § 184 BGB mn. 4.
5 HK-BGB/Dörner, § 184 BGB mn. 6.
6 MüKo BGB/Bayreuther, § 184 BGB mn. 9.
7 See -► § 242 mn. 29.
244
Wais
Disposition by an unauthorised person
1-2 § 185
III. Limitation
Sub. 2 limits the retroactive effect of ratification with regard to other dispositions that have 4
been made in the meantime. Since a disposition that is ineffective pending ratification only
results in a loss of the right that has been disposed of when ratification is declared, prior to
ratification the right holder may still be in the position to make other dispositions over that
right. Sub. 2 regulates that the effectiveness of such a disposition is not called into question
by the retroactive effect of the ratification, for example: on behalf of the principal an agent
who lacks the required authority transfers ownership of the principal’s car onto person A; the
disposition is ineffective pending ratification of the principal (§ 177(1)). The principal who,
due to the ineffectiveness of the disposition, is still the owner, pledges the car to creditor B
(§§ 1204, 1205) and later ratifies the disposition previously made. As a consequence, A is
deemed to have acquired ownership already when the agent made the disposition (Sub. 1)
but the pledge remains valid (Sub. 2), even if the pledgee, at the time, knew that the transfer
of ownership was pending ratification.
§185
Disposition by an
unauthorised person
(1) A disposition of a thing made by a
person without the authority to do so is
effective if made with the consent of the
person entitled.
(2) ’The disposition becomes effective if
the person entitled ratifies it, or if the person
disposing acquires the thing or if the person
entitled has succeeded to the estate of the
disposer and has unlimited liability for the
obligations of the estate. 1 2In the last two
cases, if more than one conflicting disposi¬
tion has been made in respect of the thing,
then only the first disposition is effective.
§185
Verfügung eines Nichtberechtigten
(1) Eine Verfügung, die ein Nichtberechtig¬
ter über einen Gegenstand trifft, ist wirksam,
wenn sie mit Einwilligung des Berechtigten
erfolgt.
(2) ’Die Verfügung wird wirksam, wenn
der Berechtigte sie genehmigt oder wenn der
Verfügende den Gegenstand erwirbt oder
wenn er von dem Berechtigten beerbt wird
und dieser für die Nachlassverbindlichkeiten
unbeschränkt haftet. 2In den beiden letzteren
Fällen wird, wenn über den Gegenstand meh¬
rere miteinander nicht in Einklang stehende
Verfügungen getroffen worden sind, nur die
frühere Verfügung wirksam.
A. Function
§ 185 applies to dispositions of a thing (e.g. § 929). It follows from the wording of § 185 that 1
the provision does not apply to legal transactions that merely create obligations between the
parties. A third party may not create obligations of one party in relation to another by virtue of
§ 185.* He may do so only under the conditions provide for in §§ 164 et seq.
B. Explanation
I. Disposition of a thing
The term disposition denotes a legal transaction, by which an existing right is dissolved, 2
transferred, encumbered with another right, or altered.2 Importantly, the term thing also
1 BGH 20.3.1991 - VIII ARZ6/90, NJW 1991, 1815; BGH 21.12.1960 - VIII ZR 89/59, NJW 1961,499,
500.
2 BGH 10.12.2009 - IX ZR 1/09, NJW-RR 2010, 558, 560; BGH 4.5.1987 - 11 ZR 211/86, NJW 1987, 3177.
Wais
245
§ 185 3-7 Division 3. Legal transactions
comprises immaterial objects, such as claims. Examples of dispositions: creation of a
mortgage (§§ 1113, 1115, 1117); transfer of ownership (§ 929), assigning a claim (§ 398);
creation of a pledge (§§ 1204, 1205).
II. Own name
3 Importantly, § 185 is applicable only where a person disposes of a right or thing in his own
name. It is not applicable where the disposition is made on behalf of another person, e. g. by
an agent. The latter is a matter falling exclusively within §§ 164 et seq. For example, a person
may transfer ownership of a car onto another person in his own name with the consent of
the owner (§§ 929, 185(1)). In this case, the transfer is a disposition of that person, not the
owner. However, that person may also act as an agent and transfer ownership on behalf of
the owner (§§ 929, 164 et seq.). In this case, given the required authorisation, the transfer is a
disposition of the owner as the principal.
III. Approval
4 Whether the disposition is made with approval pursuant to § 185 or on behalf of, and with
authority from, the agent pursuant to §§ 164 et seq. depends on how the parties’ declarations
of intent are to be interpreted pursuant to §§ 133, 157. The distinction is crucial primarily for
two reasons: first, only under § 185 the other party obtains the right directly from the person
making the disposition so that disclosure of the actual right holder is not required whereas
disclosure of the agency usually is.3 Secondly, the specific rules of § 184(2) 2nd and 3rd St. are
not available in the field of agency.
5 Further, §§ 182 et seq. apply to the approval under § 185.4 In particular, it follows that
approval can be made without a specific form; it is generally revocable until the disposition is
made; and it has retroactive effect. The approval can be express or implied. It can also be
limited to certain circumstances, e.g. a seller who retains ownership of the sold good until
full payment regularly consents to the buyer’s disposition over the good in return for an
assignment of all claims against third parties arising in connection with that disposition; his
consent usually does not comprise irregular business conduct.5
IV. Authority
6 § 185 applies to persons who lack the full authority to dispose of a thing but also to persons
whose existing authority is insufficient, e.g. one owner alone cannot make a disposition over
joint ownership alone.6 It is also applicable where a person no longer has the required authority
to make a disposition: a creditor who has already assigned his claim (§ 398) does not have the
authority to subsequently assign the same claim again. Under § 185 the first assignee may - at
the cost of losing the claim previously obtained - approve or subsequently ratify the second
assignment.7 § 185 also applies where the necessary authority does not yet exist, and, more
importantly, where authority to make a disposition is legally restricted, e.g. in an insolvency
proceeding8 and, generally, in cases falling within §§ 135, 136.
V. Subsequent effectiveness
7 Pursuant to Sub. 2, an unauthorised disposition may also become effective where the
person who disposes of the thing subsequently acquires the ownership or another entitlement
’ See -► § 164 mn. 6-7.
4 Palandt BGB/Ellenberger, § 185 BGB mn. 7.
5 BGH 3.11.1988 - IX ZR 213/87, NJW 1989, 895, 896.
6 MüKo BGB/Bayreuther, § 185 BGB mn. 18.
7 BGH 15.1.1990 - Il ZR 311/88, NJW 1990, 2678, 2680.
8 HK-BGB/Dörner, § 185 BGB mn. 2.
246
Wais
Scope of applicability 1-4 § 186
which provides the required authority. For example, the assignment of a claim that is not the
claim ot the assignor becomes effective if that claim is acquired by the assignor by assignment
or inheritance.
Division 4
Periods of time and fixed dates
Abschnitt 4
Fristen, Termine
§186
Scope of applicability
The interpretation provisions of §§ 187 to
193 apply to the fixing of periods of time and
dates contained in statutes, court orders and
legal transactions.
§186
Geltungsbereich
Für die in Gesetzen, gerichtlichen Ver¬
fügungen und Rechtsgeschäften enthaltenen
Frist- und Terminsbestimmungen gelten die
Auslegungsvorschriften der §§ 187 bis 193.
A. Function
§ 186 regulates the scope of application of §§ 187-193. These provisions regulate the 1
computation of time determination in statutes, court orders and legal transactions (such as
contracts), striving for a maximum of predictability. However, they fall short of this goal due
to their nature as interpretative rules: they apply where interpretation of a statutory or
contractual provision leaves room for doubt. In practice, this does not pose much of a
problem, as typically a dissenting interpretation cannot be established with sufficient
certainty, causing the parties to fall back on §§ 187-193.
§§ 187-193 apply directly to determinations of time periods and dates in statutory 2
provisions, judicial orders and legal transactions (including contracts). As long as no specific
other rules apply, application of §§ 187-193 extends to all branches of law.
B. Explanation
I. Period of time: definition
A period of time is a fixed or at least definable interval of time, starting at a definite point 3
in time, and ending at a later point in time. A period of time does not necessarily cover a
continuous interval (cf. § 191). Examples of periods of time are the period of prescription
(§ 937(1)), limitation periods (§§ 195 et seq.) as well as the period for avoidance (§ 124). A
date is a definite point in time at which an event must come to pass or at which a legal effect
sets in.
II. Calculation
The language of the provisions for computation of time is quite technical. Generally, the 4
beginning of the period of time is determined in accordance with § 187, while the end is
established by § 188. § 187 distinguishes between periods of time which include or exclude
the first day for computation. Periods of time measured in days or larger units are governed
by the principle of civil computation, meaning that a period of time is strictly computed in
full days lasting from midnight to midnight. Computation occurs in steps of one day, not in
parts of a day. Partial days are not factored in, thereby extending the period for the person
who has to act within it to full days instead. For example, according to civil computation,
there is exactly one day between Monday, 14:00 h (2 p.m.), and Wednesday, 15:00 h (3 p.m.),
Effer-Uhe/Mohnert
247
§ 187 1 Division 4. Periods of time and fixed dates
because Tuesday is the only full day between those two points in time, while only fractions of
Monday and Wednesday respectively fall into the interval.
III. Backward computation
5 On occasion, a period of time needs to be computed backwards, because the period ends
chronologically before instead of after it has begun. An example is the calling of a general
meeting of an association. Invitations must be sent out early enough for all members to be
able to attend. The relevant point in time (the period’s start) is the general meeting itself.
Therefore, the period must be cast backwards in time to an earlier point, which is the end of
the period. At this end, it would be too late to send out invitations; all members must, in fact,
be invited before this period ends. The same is true for notice periods in employment
relationships (e.g. § 622). Starting from the intended date of termination, the notice period is
cast backwards to find the end thereof; the employee must accordingly be notified no later
than the day before this end. Backward periods can be mostly computed in the same manner
as forward periods, including the extending principle of civil computation. According to the
prevailing view, this is as an analogy of §§ 187-193, although with the exclusion of some
provisions.1
§187
Beginning of a period of time
(1) If a period commences on the occur¬
rence of an event or at a point of time falling
in the course of a day, then the day on which
the event or point of time occurs is not
included in the calculation of the period.
(2) *If the beginning of a day is the deter¬
mining point of time for the commencement
of a period, then this day is included in the
calculation of the period. 2The same applies
to the date of birth when the age of a person
is calculated.
§187
Fristbeginn
(1) Ist für den Anfang einer Frist ein Er¬
eignis oder ein in den Lauf eines Tages fallen¬
der Zeitpunkt maßgebend, so wird bei der
Berechnung der Frist der Tag nicht mit¬
gerechnet, in welchen das Ereignis oder der
Zeitpunkt fallt.
(2) *Ist der Beginn eines Tages der für den
Anfang einer Frist maßgebende Zeitpunkt, so
wird dieser Tag bei der Berechnung der Frist
mitgerechnet. 2 *Das Gleiche gilt von dem Tage
der Geburt bei der Berechnung des Lebens¬
alters.
A. Function
I. Purpose and underlying principle
1 In a rather technical manner, § 187 in conjunction with § 188 lay out the principle of civil
computation. According to this principle, periods of time are counted in full days,1 fractions
of days do not count. A day within a period of time always has to last from 0:00 h to 24:00 h
(midnight to midnight). For this reason, where a period of time is triggered by an event or a
point in time which occurs at any time other than midnight, the time between the event and
midnight is not used for computation, as otherwise a fraction of a day would need to be
factored in. For example, according to § 438(2), the limitation period of § 438(1) commences
with the delivery of the thing; if this occurs at noon, the period which is triggered by
delivery begins on the following midnight. This means where a period of time is set ‘starting
today, the day which is indicated as starting date does in fact not count. There are no explicit
rules for computing periods of hours and minutes. Contrary to computation of days or other
1 See -* § 187 mn. 7, § 188 mn. 8 and § 193 mn. 3.
1 See -► § 186 mn. 4.
248
EJfer-Uhe/Mohnert
Beginning of a period of time 2-6 § 187
periods, they are computed to last between the two relevant moments, as long as interpreta¬
tion does not point to a different meaning. Thus, a period of period of two hours starting
9:35 (a.m.) ends at 11:35 (a.m.), whereas a period of ‘24 hours* may, depending on the
circumstances of the case, be interpreted to mean the same as ‘two days*.
IL Scope of application
Sub. 1 applies by analogy to interest resulting from default by the obligor, pending 2
litigation, or loan disbursement. In these cases, the interest rates are calculated starting the
day after default, pending litigation, or disbursement. Sub. 1 does not apply to the beginning
of suspension of limitation (cf. §§ 203 et seq.), as suspension in itself is not a period of time.
According to § 209, even the day on which the suspending event has occurred does not count
towards the period of limitation.
B. Context
Similar provisions can be found in Art. I.—1:110(2)—(3) DCFR. 3
C. Explanation
I. Beginning
If the beginning of a period of time is set at exactly 0:00 h (midnight) of a given day, that 4
day is included in the period of time (Sub. 2 1st St.), since its full length of this date falls
within the interval as required by the principle of civil computation. A period starting at
24:00 h (midnight) of a given day is treated as if starting the following day at 0:00 h
(midnight), since both indicate the same point in time.
IL Calculating age
For the purpose of calculating the age of a person, according to Sub. 2 2nd St, the day of the 5
birth is factored in. Thus, a person born on 2 October 2000 turns 18 as soon as 1 October
2018 has elapsed. Those born in a leap year on 29 February turn 18 when 28 February has
elapsed, both in leap and non-leap years. In leap years, those born on 1 March become one
year older when 29 February has elapsed.
III. Backward periods
When computing backward periods,2 which are marked by a chronological end of period 6
before the event (e.g. inviting all members to attend an annual meeting in time), by casting it
back in time from the date of the meeting, this date is not factored in, because it does not
amount to a full day from 0:00 to 24:00 h (midnight to midnight) as required by the principle
of civil computation.3 If, by way of exception, the period is to be cast backwards from the end
of a day, this day does count (Sub. 2 1st St. by analogy), as it falls completely into the interval
of the period.
2 See -*§186 mn. 5. For the end of backward periods, see ► § 188 mn. 8.
3 See *§186 mn. 4.
Effer- Uhe/Mohnert
249
§ 188 1-4
Division 4. Periods of time and fixed dates
§188
End of a period of time
(1) A period of time specified by days ends
on the expiry of the last day of the period.
(2) A period of time specified by weeks, by
months or by a duration of time comprising
more than one month - year, half-year, quar¬
ter - ends, in the case of § 187(1), on the
expiry of the day of the last week or of the
last month which, in its designation or its
number, corresponds to the day on which
the event or the point of time occurs, or in
the case of § 187(2), on the expiry of the day
of the last week or of the last month that
precedes the day which corresponds in desig¬
nation or number to the first day of the
period of time.
(3) If, in the case of a period of time
determined by months, the day on which it
is due to expire does not occur in the last
month, the period ends on the expiry of the
last day of this month.
§188
Fristende
(1) Eine nach Tagen bestimmte Frist endigt
mit dem Ablauf des letzten Tages der Frist.
(2) Eine Frist, die nach Wochen, nach Mona¬
ten oder nach einem mehrere Monate umfas¬
senden Zeitraum - Jahr, halbes Jahr, Viertel¬
jahr - bestimmt ist, endigt im Falle des § 187
Abs. 1 mit dem Ablauf desjenigen Tages der
letzten Woche oder des letzten Monats, welcher
durch seine Benennung oder seine Zahl dem
Tage entspricht, in den das Ereignis oder der
Zeitpunkt fallt, im Falle des § 187 Abs. 2 mit
dem Ablauf desjenigen Tages der letzten Woche
oder des letzten Monats, welcher dem Tage
vorhergeht, der durch seine Benennung oder
seine Zahl dem Anfangstag der Frist entspricht
(3) Fehlt bei einer nach Monaten bestimm¬
ten Frist in dem letzten Monat der für ihren
Ablauf maßgebende Tag, so endigt die Frist
mit dem Ablauf des letzten Tages dieses Mo¬
nats.
A. Function
1 In a rather technical manner, § 187 in conjunction with § 188 lay out the principle of civil
computation which extends periods of time by computing in full days only.1 A period which
is determined by a given number of days ends when the last day of the period has elapsed,
according to Sub. 1.
B. Context
2 A similar provision can be found in Art. I,-1:110(2)(c) DCFR.
C. Explanation
L Starting date
3 For a period of time determined by weeks, months or by longer intervals which in turn are
counted in months (such as ‘one year’ or ‘one quarter of a year’), the starting date is
determined in the same way as it is for days, that is, according to § 187(1) or § 187(2).
computing its end depends on its beginning, as laid out by Sub. 2. A period starts according
to § 187(1) or § 187(2).
II. Event
4 In all cases of § 187(1), the day of the event which triggers the beginning of the period
occurs is not factored in; rather, the period begins with the following day. A period counted
in weeks which is triggered by an event on a Tuesday thus ends when Tuesday of the lad
week of the period elapses. This mechanism grants the person who is due to act in a certain
1 See -► § 186 mn. 4.
250
Effer- Uhe/Moh nert
Calculation of individual periods of time §189
way an entire week from Wednesday to Tuesday, seven full days from 0:00 to 24:00 h
(midnight to midnight) through the principle of civil computation. Similarly, a period of
three months which is triggered by an event on 15 January ends with the lapse of 15 April.
III. Day
By contrast, in all cases covered by § 187(2), the period starts with the beginning of the 5
day, thereby factoring in that day. These periods end according to Sub. 2 when the day before
the day matching the weekday or digit of the period’s starting day has elapsed. Thus, a period
of a week which starts with the beginning of Tuesday ends when the following Monday
elapses. Again, a person who is due to act in a certain way is granted an entire week, in this
case from 0:00 h Tuesday to 24:00 h Monday. This is because - as opposed to a case of § 187
(1) - the first Tuesday is factored in fully.
IV. Month
As not all months have the same number of days, sometimes the day on which a month's 6
period ought to end according to Sub. 2 does not exist. For example, the period of a month
which begins on 31 January under § 187(1) would normally end on the 31 February. Instead,
the period ends when the last day of that month elapses, thus on 28 February in a regular
year, and on 29 February in a leap year.
V. Hours
If cooperation of another party is required for the effect of a certain act, that party can be 7
expected to cooperate only during normal business hours, or for consumers, during those
hours of the day during which they are typically active. In order for a declaration of intent
(such as an offer or acceptance) to reach the recipient, it is therefore not sufficient if such a
declaration is placed in the recipient’s letterbox shortly before midnight on the last day, as
the recipient cannot reasonably be expected to take note of the letter until the next day.2
VI. Backward calculation
The principle of civil computation3 which extends periods to full days applies equally to 8
backward periods.4 As such a period counts backwards rather than forwards, an action which
must be taken before the beginning of the period (after which the action would be too late),
may have to be carried out even earlier. For example, the period to send out invitations to a
general meeting of an association is a week before the meeting. The meeting will be on
Thursday, 10 August. Therefore, all invitations must be sent out before Wednesday, 2 August
elapses. This method ensures that there are seven full days from 0:00 to 24:00 h (midnight to
midnight) for members to receive the invitation and prepare for the meeting.
§189
Calculation of individual
periods of time
(1) A half-year is understood to mean a
period of six months, a quarter is understood
to mean a period of three months, and half a
month is understood to mean a period of
fifteen days.
§189
Berechnung einzelner Fristen
(1) Unter einem halben Jahr wird eine Frist
von sechs Monaten, unter einem Vierteljahr
eine Frist von drei Monaten, unter einem
halben Monat eine Frist von 15 Tagen ver¬
standen.
2 See ► § 130 mn. 3-4.
3 See -► § 186 mn. 4.
4 See -► § 186 mn. 5.
Effer-Uhe/Mohnert
251
§ 190 1-2 Division 4. Periods of time andßxed dates
(2) If a period of time is specified as one or
more than one whole month and a half-month,
then the fifteen days shall be counted last of all.
(2) Ist eine Frist auf einen oder mehrere
ganze Monate und einen halben Monat ge¬
stellt, so sind die 15 Tage zuletzt zu zählen.
A. Explanation
I. Half
1 According to Sub. 1, half a year equals six months when determining a period of time. A
quarter of a year equals three months, half a month equals 15 days. It is thus irrelevant how
many days there are in the calendar month in question. Half a month equals 15 days, no
matter if that month lasts 28 or 31 days in total. Other periods of time are not explicitly
mentioned in § 189. ‘Four weeks’ has to be understood to actually mean four weeks (as
opposed to a month), if no other interpretation can be established with reasonable certainty.
In the common parlance of setting a date to ‘(today) in eight days’, this will typically mean
the same weekday of the following week. Note, though, that for commercial transactions,
when in doubt, eight days means full eight days according to § 359(2) HGB.
IL Month
2 Since months have durations of between 28 and 31 days, computation of times consisting
of full months plus half a month (e.g. ‘one and a half months’), the total duration can
depend on whether computation begins with the full months or with the half-month. Sub. 2
provides that the half-month (15 days according to Sub. 1) must be counted last. For
example, a period of one and a half months which is to be counted from the beginning of
17 January (cf. § 187(2)) ends when 3 March has elapsed in a regular year: the full month
takes the period to 16 February, the additional 15 days to 3 March (and to 2 March in a leap
year). If, contrary to Sub. 2, the half month were to be counted first, the same period would
end when 28 February has elapsed (31 January plus one month, in accordance with § 188(3)).
§190
Extension of period
If a period of time is extended, the new
period is calculated from the expiry of the
previous period.
§190
Fristverlängerung
Im Falle der Verlängerung einer Frist wird
die neue Frist von dem Ablauf der vorigen
Frist an berechnet.
A. Explanation
I. Starting point
1 A period of time may be extended by contract. This is possible even after its expiry. The
new period of time is computed to start when the earlier period ends, regardless whether the
extension was agreed upon before or after expiry. The same rule applies when a second
statutory' period is added to another, earlier one.
2 According to § 187, the new period starts when the original period elapses, and ends as
laid out in § 188. § 193 does not apply to cases in which the original period was going to end
on a holiday or a weekend, as there is no need for it: as the new period is added, no party will
be forced to take action during leisure time.1 § 193 may, however, apply to extensions of
some procedural periods.2
1 See ► 193 mn. 1
* 224(3) ZPO, see BeckOGK BGB/Fervers, § 190 BGB mn. 9-21.
252
Effer-Uhe/Mohnert
Calculation of periods of time
1-4 § 191
II. Contractual agreement
As all rules on periods of time,3 § 190 only applies when in doubt, i.e. where contractual 3
interpretation does not lead to a certain, divergent result. Where parties agree to a prolonged
period by contract, this can be also interpreted to mean the substitution of the original period
with a new period, or alternatively the extension of the original period by a period starting on
the day when the agreement to extend was made. The party claiming such interpretation
deviating from § 190 carries the burden of proof.
§191
Calculation of periods of time
If a period of time is determined by
months or by years with the meaning that
they are not required to run consecutively, a
month is counted as thirty days and a year as
365 days.
§191
Berechnung von Zeiträumen
Ist ein Zeitraum nach Monaten oder nach
Jahren in dem Sinne bestimmt, dass er nicht
zusammenhängend zu verlaufen braucht, so
wird der Monat zu 30, das Jahr zu 365 Tagen
gerechnet.
A. Function
I. Purpose
This provision concerns period of times which can be interrupted, as in the case of an 1
employee who under the employment contract is entitled to two months of paid leave each
year.
IL Scope of application
§ 191 does not apply to the computation of periods of limitation, even though these can be 2
suspended and later resumed (§§ 203 et seq.). The suspension is a mere exception to the
general rule that limitation periods run consecutively.
B. Context
Similar provisions can be found in Art. I.-1:110(2)(d) DCFR and in Art. 3(2)(d) Regula- 3
tion 1182/71 determining the rules applicable to periods, dates and time limits.
C. Explanation
In cases of interruption, periods of time which are measured in either months or years are 4
computed to last 30 days per month and 365 days per year, regardless of their actual
duration. The interval expires when the sum of all elapsed days equals its total duration.
This is different from the computation of continuous periods of months or years, as they are
computed according to § 188(2) from date-to-date, so that a year could last 366 days, or a
month could last 28, 29, 30 or 31 days.
3 § 186 mn. 1.
Effer- Uhe/Mohnert
253
§ 193 1-2
Division 4. Periods of time and fixed dates
§192
Beginning, middle and
end of a month
The beginning of the month is understood
to be the first day, the middle of the month
the fifteenth day, and the end of month the
last day.
§192
Anfang, Mitte, Ende des Monats
Unter Anfang des Monats wird der erste,
unter Mitte des Monats der 15., unter Ende
des Monats der letzte Tag des Monats ver¬
standen.
1 § 192 regulates how references to the beginning, the middle and the end of a month are to
be interpreted for the purposes of computation of time. They are treated as references to the
first, the 15th and the last day of the month. Any party pleading that a different interpretation
was meant carries the burden of proof. On the other hand, there is no explicit rule for similar
specifications. The beginning of a week is usually understood to mean Monday. References
to the end of a week are less clear. Depending on context, this might mean Saturday, which
appears to be the most commonly accepted view, alternatively Friday as a reference to the
end of the regular working week, or to Sunday, as a logical consequence if Monday is the
beginning. Seasons such as spring are determined by calendar (therefore the interval between
21 March and 20 June), as long as there is no other common usage.
§193
Sundays and holidays; Saturdays
If a declaration of intent is to be made or
an act of performance to be done on a parti¬
cular day or within a period, and if the
particular day or the last day of the period
falls on a Sunday, a general holiday officially
recognised at the place of the declaration or
performance, or on a Saturday, the next
working day takes the place of this day.
§193
Sonn- und Feiertag; Sonnabend
Ist an einem bestimmten Tage oder inner¬
halb einer Frist eine Willenserklärung abzu¬
geben oder eine Leistung zu bewirken und
fallt der bestimmte Tag oder der letzte Tag
der Frist auf einen Sonntag, einen am Erklä-
rungs- oder Leistungsort staatlich anerkann¬
ten allgemeinen Feiertag oder einen Sonn¬
abend, so tritt an die Stelle eines solchen
Tages der nächste Werktag.
A. Function
I. Purpose
1 This provision extends periods of time in cases where declarations of intention should
otherwise be given, or a performance be made, during a weekend or public holiday. Typically, a
declaration of intent is to be made or an act of performance is to be undertaken on a particular
day or within a certain period of time; note that declarations of intent become effective only
when they reach the recipient according to § 130(1) 1« St. Whenever that day in question, or
the last day of the relevant period, falls on a Saturday, Sunday or a public holiday, § 193
extends this period to the next working day. § 193 protects leisure time by assuring that a
person who must meet a deadline is not forced to take action on weekends or public holidays.
2
II. Scope of application
This provision applies by analogy for other actions which must be taken within a certain
penod such as filing a lawsuit for the purpose of suspending the period of limitation in
accordance w.th § 204(1 No. 1. §193 does not apply when the last day of a period merely
marks the event of a legal effect coming into existence without any action.
254
Effer-Uhe/Mohnert
Subject-matter of limitation
§194
§ 193 does not apply to backward periods1 such as notice periods which have to be 3
computed by casting the period back in time from a set point, e.g. § 622(2), nor to periods
measured in hours. Likewise, § 193 does not apply where a right to terminate a contract by
notice expires after a specific date (e.g. § 573c(3)). The rationale is that these periods aim at
giving one of the parties (the recipient of the notice) time to adjust to the termination (in the
case of § 573(3): to find a new tenant) without having this period cut short by way of § 193.
B. Context
Similar provisions can be found in Art. 1.-1:110(6) DCFR and Art. 1:304(2) PECL. 4
C. Explanation
I. Holidays
Holidays in the sense of § 193 are all public holidays according to local Land law or federal 5
law (§§ 169, 270(4)), depending on the place where the declaration of intent is to be made or
the act of performance to be taken.
II. Contractual agreement
§ 193 is not mandatory. If parties explicitly set and agree upon dates for performance (e.g. 6
where time is of essence), action must generally be taken on that date, even if it falls on a
weekend or a public holiday. The burden of pleading and proving such a deviating agreement
lies which the party who is seeking to rely on it.
Division 5
Limitation
Title 1
Subject-matter and
duration of limitation
Abschnitt 5
Verjährung
Titel 1
Gegenstand und Dauer der
Verjährung
§194
Subject-matter of limitation
(1) The right to demand that another per¬
son does or refrains from an act (claim) is
subject to limitation.
(2) Claims based on a family-law relation¬
ship are not subject to limitation to the ex¬
tent that they are directed towards creating a
situation appropriate for the relationship for
the future or towards consent to a genetic test
to clarify biological descent.
§194
Gegenstand der Verjährung
(1) Das Recht, von einem anderen ein Tun
oder Unterlassen zu verlangen (Anspruch),
unterliegt der Verjährung.
(2) Ansprüche aus einem familienrecht¬
lichen Verhältnis unterliegen der Verjährung
nicht, soweit sie auf die Herstellung des dem
Verhältnis entsprechenden Zustands für die
Zukunft oder auf die Einwilligung in eine
genetische Untersuchung zur Klärung der
leiblichen Abstammung gerichtet sind.
1 See * § 186 mn. 5.
Effer-Uhe/Mohnert
255
§ 194 1-3 Division 5. Limitation
Contents
mn.
A. Function J
I. Purpose and underlying principles
1. Effect of limitation
2. Limitation as a defence
3. Distinctions ?
IL Scope of application
B. Context
I. Historical
IL European
C. Explanation
I. Duration
II. Beginning 13
III. Lapse
IV. Example 15
1. Duration of the period of limitation 16
2. Beginning of the period of limitation 17
3. End of the period of limitation 18
V. Burden of proof 20
A. Function
I. Purpose and underlying principles
1 §§ 194-218 regulate limitation, which is a time limit on the enforcement of rights.
Limitation solely applies to claims (Ansprüche), as defined in Sub. 1 as the right of a person
to demand that another person do or refrain from doing something. After expiry of the
limitation period, the claim continues to exist, but loses its enforceability. The person who
owes something (the obligor) still has the option to fulfil the obligation, but can and typically
will refuse to do so for good in accordance with §214(1) (cf. Art. 111.-7:501 DCFR,
Art. 14:501 PECL). Limitation prevents claims from being enforceable indefinitely and at a
time when it would be difficult to provide evidence, in particular when the obligor no longer
had any reason to keep evidence which would be necessary to defend the claim. The concept
of limitation serves the purpose of legal certainty, so that after a longer period of time
everyone can rely on the actual situation to correspond to the legal situation. In particular,
limitation protects the obligor’s interest in continuity of the status quo - after a specified
duration of time, an obligor may expect to no longer have to perform, therefore gaining
planning dependability. Limitation does infringe upon the constitutionally protected right of
property under Art. 14(1) 1st St. GG; however, with sufficiently long periods of limitation,
this is legally justified, as it protects the obligor’s right to a fair trial by sparing obligors from
having to save all evidence for all kinds of potentially legally relevant circumstances relating
to events which occurred long ago.
1. Effect of limitation
2 Limitation does not extinguish a claim. Its continued existence after having become time-
barred means that the obligor can still fulfil the obligation. If an obligor pays in ignorance of
the debt being time-barred, they cannot recover the payment according to § 214(2) 1st St.
2. Limitation as a defence
3 Limitation is a so-called defence in procedural law. This implies that a court will not
consider limitation unless the obligor invokes it actively in their favour. Consequently, the
judge will therefore not dismiss a lawsuit just because the period of limitation for the claim in
256
Effer- Uhe/Mohnert
Subject-matter of limitation 4-8 §
question has objectively elapsed, but only if the defendant invokes the defence of limitation.
It does not matter whether the obligor deliberately fails to invoke the defence, even though
they are aware of its time-barring, or whether they do not know about it. The court is neither
obliged nor does it have the authority according to predominant opinion to point out to the
parties that the defence of limitation is possible.
In highly exceptional cases, the obligor may be barred from invoking the defence of 4
limitation due to disloyal assertion (§ 242), e.g. if the obligor caused the obligee to err about
an impending limitation.1 For example, it is considered an inadmissible exercise of the right
to invoke the defence of limitation if limitation occurred as a consequence of the obligor s
legal representative having stated that the main proceedings could be discontinued because
the disputed point of law was capable of being resolved through temporary relief proceed¬
ings.2 It is not sufficient for the obligor to know that the claim exists to render its assertion
disloyal.
3. Distinctions
Limitation has to distinguished from other effects which occur through elapsed time, namely 5
cut-off periods. Cut-off periods can refer to rights which expire at the end of the cut-off
period, with the effect that they, too, can no longer be enforced. An example are copyrights,
which expire 70 years after the creator’s death according to § 64 UrhG. Rights to influence a
legal relationship by unilateral declaration, e.g. as in the case of rescission on the grounds of
deceit or duress under § 123, can also be impacted by cut-off periods, in this case § 124. In
addition, there are cut-off periods which apply to filing a lawsuit, but which also have an effect
on the substantive legal situation when they elapse. This is true in particular for the notice
period according to §§ 4 1st St., 7 KSchG, within which a recently dismissed employee may file
a lawsuit against their dismissal. In contrast to other cut-off periods, limitation affects
exclusively claims and no other rights. For example, ownership as a right cannot become
time-barred, but claims based on ownership such as the claim for surrender of the property
according to § 985 can. For some cases, the law lays out positive consequences for a lapse of
time by gaining a right, e.g. acquisition by prescription (§§ 937 et seq.).
Forfeiture (Verwirkung, similar to laches and estoppel in English law) is another case in 6
which lapse of time has an effect on rights and claims. This is not based on a period of
limitation prescribed by law, but concerns disloyally belated assertion of a right, whereas
limitation occurs after the lapse of a specified period regulated by law, irrespective of the
reasons for the late assertion. Forfeiture due to a disloyally belated assertion can occur before
the limitation period has elapsed, but under strict conditions only: apart from the lapse of a
longer time span within which the obligee has remained inactive, additional circumstances
must have led the obligor to trust that the obligee will not assert the right anymore. It should
be kept in mind that such forfeiture can occur only in exceptional cases only.3
II. Scope of application
The scope of limitation rules in §§ 194 et seq. is in principle limited to private law claims. 7
They are, however, also applied to public law claims, provided that there are no specific
provisions. Deviating from § 214(1), limitation of claims in public law is considered an
impediment to enforcement which must be taken into account ex officio, i.e. without the
obligor having to invoke limitation as defence.
Sub. 2 excludes certain claims under family law from limitation. Accordingly, claims from 8
a relationship under family law aimed at establishing a future status conforming to that
relationship cannot become time-barred. An example of this is one spouse’s claim against the
1 See HKK-BGB/Hermann, §§ 194-225 BGB mn. 23.
2 OLG Hamm 10.5.1977 - 4 U 83/77, WRP 1977, 814, 815.
3 See ► § 242 mn. 19 et seq. for details.
Effer-Uhe/Mohnert je-i
§ 194 9-13 Division 5. Limitation
other to alimony for the family (§ 1360), or a claim against a third party to return the child
(§ 1362). The same exclusion applies to claims under § 1598a(l) to consent to a genetic
examination for the purpose of establishing parentage, according to Sub. 2 2 Alt.
9 Outside of Sub. 2, some specific provisions give rise to individual claims without
limitation, such as the claim to terminate co-ownership via § 758, or the claim to correc¬
tion of the Land Register via § 898.
B. Context
I. Historical
10 In Roman law, a general limitation to file a lawsuit was first provided through a
Constitution by emperor Honorius and Theodosius II in the year 424 AD.4 In the ius
commune, the generic term of praescriptio was used as conceptual link between acquiring
limitation (acquisition by prescription) and expiring limitation (limitation in the current
sense of §§ 194-218). By contrast, the BGB separated both notions spatially and concep¬
tually, by moving the (expiring) limitation to the General Part, whereas acquisition by
prescription - which in practice has remained insignificant - was regulated within property
law (§§ 900, 937-945). The legal definition of claims in Sub. 1 marks a departure by German
civil law from the legal thinking of Roman law, which envisaged the actio as the procedural
right to file a lawsuit. Under the BGB, it is not the lawsuit which turns time-barred, but
rather the claim as a matter of substantive law, thus marking a clear separation of substantive
civil law and civil procedural law. Today, the status of limitation as an institution of
substantive rather than as procedural law is firmly rooted in German civil law.
IL European
11 The BGB contained rules on limitation when it entered into force in 1900. However, rules
on limitation were thoroughly revised with effect of 1 January 2002, as part of the law
modernising the law of obligations, which transposed the EU Consumer Sales Directive, the
EU E-Commerce Directive, and the EU Late Payment Directive 2000. The reform of the law
of limitation was largely incidental to this implementation, rather than having been
necessitated by any of those Directives.
C. Explanation
I. Duration
12 Determining whether a claim is time-barred involves several steps. The first step is to
establish the duration of the period of limitation which applies to a given claim. Whenever
specific provisions for the period of limitation for a specific claim exist, they take precedence
(e.g. § 438(1)). Failing such specific rules, the next aspect to verify is whether the claim
belongs to a group of claims generally regulated by §§ 196, 197. If that is not the case, the
regular period of limitation of three years applies according to § 195,
II. Beginning
13 The second step is to determine the beginning of the period of limitation. Specific
provisions on limitation typically contain an express rule to this effect (e.g. § 438(2)). For
the groups of claims regulated by §§ 196, 197, the beginning of the limitation period is
defined in §§ 200, 201. In practice, the most important regular period of limitation of § 195
1 Codex T heodosianus 4.14, Codex Justianus 7.39.3.
258
Effer- Uhe/Mohnert
Subject-matter of limitation 14-18 § 194
begins according to § 199(1) after the calendar year has elapsed during which the claim came
into existence, i. e. when the claim could first have become subject to a lawsuit. This in turn
refers to the time when the claim became due5 and the obligee became aware, or with gross
negligence failed to become aware, of the circumstances which constitute the claim. Some
claims have a maximum period of limitation (long-stop), regardless of when the obligee had
or should have obtained this knowledge (§ 199(2)—(4)).
III. Lapse
Having determined the beginning of the period of limitation, the third step is to verify 14
whether the period has elapsed. This aspect is not expressly regulated in §§ 194-218, but
governed by general rules for computing periods and dates (§§ 186-193, particularly § 188). In
certain cases, however, the period may be extended. The most important of these is the
suspension of the period of limitation according to §§ 203-209. Through certain measures,
such as filing a lawsuit (§ 204(1) No. 1), the period of limitation is suspended according to
§ 204(2) 1st St. for up to six months after the proceedings have ended, with the result that this
duration is not factored into the period of limitation according to § 209. In cases of §§ 210, 211
(persons who lack full capacity to contract and who are without a legal representative, or
claims belonging to a deceased’s estate, or directed against a deceased’s estate before acceptance
of an inheritance), the elapse of the period is suspended. In contrast to a suspension according
to § § 203-209, the limitation period does continue after the end of the situations. However, the
limitation period cannot elapse any earlier than six months after the reason for the suspension
of lapse has ceased. The period of limitation restarts according to § 212(1) if the obligor
acknowledges a claim, or else if the obligee resorts to certain execution measures.
IV. Example
S and B conclude a sales contract on 10 July 2018. S delivers the goods, but B does not pay. 15
On 5 January 2022, S files a lawsuit to claim payment. B invokes the defence of limitation
during the proceedings.
1. Duration of the period of limitation
A claim for payment of the purchase price under § 433(2) becomes time-barred after the 16
regular period of limitation of three years according to § 195 has elapsed. There are no
special provisions in sales law (§ 438(1) is not relevant, because it regulates claims due to
defects only, excluding the primary claim to payment), nor do the separate periods of
limitations of §§ 196, 197 correspond to claims to payment due to purchase contracts.
2. Beginning of the period of limitation
The regular period of limitation begins with the lapse of the year in which both the claim 17
to payment of the purchase price arose and S had or should have been aware of the
circumstances giving rise to the claim and the identity of the obligor. That was the year of
2018, so the period of limitation begins on 1 January 2019 at the turn of the year at midnight.
3. End of the period of limitation
The beginning of the period is the beginning of a day (§ 187(2)), therefore, it ends 18
according to (§ 188(2) 2nd Alt.) when the last day (31 December) of the last month
(December 2021) lapses which preceded the day the digit of which corresponds to the digit
of the day of the beginning of the period (1 January 2022). Thus, limitation occurs on
31 December 2021 at midnight (24:00h). The claim was thus prescribed when S filed the
5 See -► § 271 for details on when claims become mature.
Effer-Uhe/Mohnert
259
§ 195 1-4 Division 5. Limitation
lawsuit on 5 January. B has therefore successfolly invoked the defence of limitation, so that
the court will reject S’s lawsuit on the basis of § 214(1).
19 If S had filed their lawsuit on 31 December 2021, limitation would have been suspended
according to §§ 204(1) No. 1, 209. In this case, B could not have invoked the defence of
limitation during these proceedings.
V. Burden of proof
20 The party invoking limitation bears the burden of pleading and proving facts which give
rise to the elapse of the limitation period, therefore usually the obligor. German law generally
considers burden of proof as a question of substantive law, rather than procedural law.
§195
Standard limitation period
The standard limitation period is three
years.
§195
Regelmäßige Verjährungsfrist
Die regelmäßige Verjährungsfrist beträgt
drei Jahre.
A. Function
I. Purpose
1 § 195 specifies the duration of the standard (or regular) period of limitation. The provision
has to be seen in context with § 199(1) which regulates the beginning of the standard period
of limitation, which is the elapse of the year in which the claim has come into existence and
the obligee became aware of the circumstances constituting the claim as well as the identity of
the obligor (or should have become aware without gross negligence).
IL Scope of application
2 The standard period of limitation applies whenever there is no valid deviating agreement
between the parties,1 and if there are no applicable specific provisions on limitation for the
claim in question (e.g. § 438(1)), and if furthermore the general rules for groups of cases in
§§ 196, 197 do not apply. Under these conditions, the provision covers claims of all kinds.
This holds true for claims based on legal transactions (as those arising from contracts) as well
as to claims similar to legal transactions (as e.g. those arising from negotiorum gestio,
§§ 677-687), claims arising from statutory obligations (including tort law claims under
§§ 823-853), and claims based on family or inheritance law.
1. Application in private law
3 § 195 also applies by express reference to various claims arising outside the BGB, such as
claims for compensation for damages due to copyright infringement under § 102 UrhG).
However, as the provisions of the General Part of the BGB generally apply to the entire
German private law, no such express reference is needed. Where no deviating specific
provisions exists, §§ 195 et seq. therefore apply to all private law claims, unless such an
application would not be justified in exceptional cases.
2. Application in public law
4 As a rule, limitation in accordance with §§ 195,199 also operates as a fallback for claims
under public law, provided that other provisions on limitation of civil law such as §§ 196, 197
1 For restrictions on such agreements, see -► § 202.
260
Effer-Uhe/Mohnert
Standard limitation period 5-9 § 195
do not have a greater similarity to the respective claims under public law and are therefore
preferable as basis for analogy. The BVerwG considered a claim for the surrender of the
proceeds or value of immovable property under public law as a surrogate for claims to
surrender of the property based on ownership, and held that this claim would become time-
barred after 30 years by analogous application of § 197.2
3. Novation
If a claim is replaced by a new claim by means of novation (recreation of an obligation in 5
accordance with § 311(1)), it is this new obligation to which limitation rules apply. Therefore
the period of limitation starts at the end of the year in which the obligee becomes aware of
the circumstances giving rise to the novation and the identity of the obligor (both of which
should usually be well-known to the obligee), therefore typically at the end of the year in
which the novation took place.
4. Acknowledgement of debt
In case of an acknowledgment of debt, it is necessary to differentiate: if the acknowl- 6
edgment of debt is constitutive,3 intended to create a new obligation independent of the
existing obligation, a new claim is established which dictates limitation. A merely declarative
acknowledgment of debt to simply confirm an existing obligation keeps the original claim
valid, therefore limitation depends on the same claim as before; however, an acknowl¬
edgment of debt renews the period of limitation according to § 212(1) No. 1, starting it the
day after the acknowledgment of debt was concluded (§ 187(1)), as opposed to the end of the
year in which the debt was acknowledged. Acknowledging a specific balance in current
account with a business partner is also a novation.
5. Claims
For claims to compensation (e.g. claims for damages in lieu of performance according to 7
§§ 280(1, 3), 281) and collateral claims (e.g. to interest) which replace or supplement another
claim in whole or in part, the period of limitation applicable to the main claim usually applies
as well, unless incompatible with the purpose of the main claim’s period of limitation as an
exception. On the other hand, alternative claims (e.g. to information disclosure) typically
come time-barred independently by means of §§ 195, 199. However, limitation of the main
claim can influence them insofar as it may eliminate requirements for the alternative claim,
e. g. rendering the interest to disclose information obsolete.
If there are several claims based on the same facts, each claim in principle becomes time- 8
barred independently after the period of limitation applicable to it. As an exception, the
shorter time limit extends to all competing claims if their purpose would otherwise be
frustrated.
6. Legal succession
Limitation is unaffected by a change of obligee or obligor as a result of legal succession, as 9
long as this change of party does not constitute a new claim, as is the case in real claims
against the respective possessor, a situation for which, however, § 198 provides a special
provision.
2 BVerwG 11.12.2008 - 3 C 37/07, BeckRS 2009, 31187.
3 cf. § 781 mn. 1.
Effer-Uhe/Mohnert
261
Division 5. Limitation
§ 196 1-3
§ 196
Limitation period for rights to a
plot of land
Claims to the transfer of ownership of land
and to the creation, transfer or cancellation
of a right to a plot of land or to a change o
the subject-matter of such a right and entitle¬
ments to consideration are subject to a ten-
year limitation period.
§ 196
Verjährungsfrist bei Rechten an
einem Grundstück
Ansprüche auf Übertragung des Eigentums
an einem Grundstück sowie auf Begründung,
Übertragung oder Aufhebung eines Rechts an
einem Grundstück oder auf Änderung des
Inhalts eines solchen Rechts sowie die An¬
sprüche auf die Gegenleistung verjähren in
zehn Jahren.
A. Function
1
I. Purpose
Rights to a plot of land have longer periods of limitation according to § 196, in order to
account for two problem areas? on the one hand, the parties engaged in dealings with real
property are often confronted with externally caused problems delaying the intended transac-
tion, and over which neither party has any control (e.g. if an external survey is required, or if
clearance certificates must first be submitted to the fiscal authorities). In such cases, the short
period of time specified in § 195 would often force an obligee to sue an obligor who is in
principle willing to perform. The second situation concerns owners who failed to cancel or to
reassign a land charge in the assumption that they might be using the land charge for securing
another loan, which is then not taken out. In these situations, the short limitation period of
§ 195 would not do justice to their claims to have the land charge waived under § 1169. Some
scholars have argued that this provision is not very sensible as a matter of legal policy.1 2 3 * 5 The
discussion is not particularly relevant in legal practice. The longer period of § 196 applies
regardless of any delays, even though they provided the rationale for its introduction.
2
3
II. Scope of application
Claims governed by § 196 have a period of limitation of 10 years, starting as soon as the
claim comes into existence according to § 200 1st St. § 196 applies to Haims for the
conveyance of land, e.g. under a sales contract, but also claims for the creation, termination
or transfer of rights in land (e. g„ a claim to cancel a land charge). Some scholars argue that the
claim to waive a land charge according to §§ 1169,1192 cannot become time-barred according
to § 902, with the consequence that § 196 does not apply? § 196 applies accordingly to claims
arising under contracts governed by public law which establish or relinquish a fcgal position
which is similar to a pnvate law right in rem in a plot of land (e.g., an obligation to construct
or maintain a building), by an express reference contained in 8 62 VwVfG
§ 196 does not apply to claims for the transfer of the nr „ „ _ ‘ . . . . . a
plot of land, nor to the transfer of mere possession (88 854 et « ^jW *C hin
of a plot of land. In one case, contractuaTdaimsfor thVretm !f °PP°Sed '° lud
from the scope of application of § 196 by way of restrict^ f prOperty was .
view has not found wider recognition? 7 purposive interpretation? but this
1 See BT-Drs. 14/6040 of 14.5.2011, p. 105. '
2 Staudinger BGB/Peters/Jacoby, § 196 BGB mn. 1-4
3 Otte, Die Verjährung des Anspruchs auf Rückübertrao,.„„ •
grundschuld, DNotZ 2011, 897, 903. B n8 einer „stehengelassenen“ Sicherung«-
' LG Rottweil 11.4.2006 - 2 O 490/05, NJW-RR 2007 4S7 a«
5 cf. BGH 25.1.2008 - V ZR 118/07. NJW-RR 2008, 824 825
262
Effer'Uhe/Mohnert
Thirty-year limitation period
§197
§ 196 regulates the duration of the period of limitation not only for a claim which directly 4
relates to a plot of land, but also for any contractual counter-performance, such as the
payment of the purchase price; this counter-claim also becomes time-barred after 10 years.
Such counter-claims are not necessarily between the same parties; they include e.g. any
payment which is due to a building developer under the same contract. It is necessary,
though, that this claim forms part of the contractual counter-performance to be provided in
exchange for the claim which directly relates to the land.
§197
Thirty-year limitation period
(1) Unless otherwise provided, the follow¬
ing are statute-barred after thirty years:
1. damage claims based on intentional in¬
jury to life, limb, health, liberty or sexual self-
determination,
2. claims for return based on ownership,
other real rights, §§ 2018, 2130 and 2362, as
well as claims serving to assert the claims for
return
3. claims that have been declared final and
absolute,
4. claims under enforceable settlements or
enforceable documents,
5. claims that have become enforceable
upon being recognised in insolvency proceed¬
ings, and
6. claims to reimbursement of the costs of
execution.
(2) To the extent that claims under
subsection (1), nos. 3 to 5 are concerned
with periodically recurring acts of perfor¬
mance that will fall due in the future, the
standard limitation period takes the place of
the period of thirty years.
§ 197
Dreißigjährige Verjährungsfrist
(1) In 30 Jahren verjähren, soweit nicht ein
anderes bestimmt ist,
1. Schadensersatzansprüche, die auf der
vorsätzlichen Verletzung des Lebens, des Kör¬
pers, der Gesundheit, der Freiheit oder der
sexuellen Selbstbestimmung beruhen,
2. Herausgabeansprüche aus Eigentum, an¬
deren dinglichen Rechten, den §§ 2018, 2130
und 2362 sowie die Ansprüche, die der Gel¬
tendmachung der Herausgabeansprüche die¬
nen,
3. rechtskräftig festgestellte Ansprüche,
4. Ansprüche aus vollstreckbaren Verglei¬
chen oder vollstreckbaren Urkunden,
5. Ansprüche, die durch die im Insolvenz¬
verfahren erfolgte Feststellung vollstreckbar
geworden sind, und
6. Ansprüche auf Erstattung der Kosten der
Zwangsvollstreckung.
(2) Soweit Ansprüche nach Absatz 1 Nr. 3
bis 5 künftig fällig werdende regelmäßig wie¬
derkehrende Leistungen zum Inhalt haben,
tritt an die Stelle der Verjährungsfrist von
30 Jahren die regelmäßige Verjährungsfrist.
Contents
mn.
A. Function 1
B. Explanation 2
I. Damage claims 2
II. Claims for return 3
III. Final and absolute claims 4
IV. Claims from enforceable settlements/documents 5
V. Insolvency proceedings 7
VI. Recovery of costs 8
VII. Periodically recurring performance 9
VIII. Starting point 10
Effer- Uhe/Mohnert
263
Division 5. Limitation
§ 197 1-4
1
A. Function
§ 197 sets out a period of limitation of 30 years unless otherwise specified, pointing out that
this provision replaces only the standard periods of limitation, rather^thananyo ther specific
provision on limitation. For various claims, the legislator preferred to create a penod of
limitation which is longer than those provided by §§ 195, 196. The reasons differ greatly
between the individual alternatives listed in § 197. They are therefore addressed separately
below.
2
3
4
B. Explanation
I. Damage claims
Sub 1 No 1 encompasses claims to compensation for damages resulting from infringe¬
ments of the rights to life, body, health, freedom or sexual self-determination, insofar as the
injury was intentional. The rationale behind this regulation is that the victim should have
time to await the result of criminal proceedings before taking any civil action against the
offender. Sub. 1 applies likewise to contractual and statutory claims for damages, against
both the offender and any third parties whose fault can be attributed to the offender, e.g.
according to § 31 or § 278. Suspension under § 208 may result in a considerably later expiry
of the period of limitation for claims based on a violation of the right to sexual self-
determination. By way of restrictive purposive interpretation, Sub. 1 No. 1 does not apply to
cases in which an injury is intentional but does not amount to abuse or mistreatment by a
teleological reduction, as notably in cases of injury resulting from medical treatment.
II. Claims for return
Sub. 1 No. 2 concerns claims for surrender of property (‘claims for return’) which are
based on rights in rem, in particular the claim of the owner against the possessor for
surrender of property under § 985, which can thus become time-barred, rendering the
owner’s right largely meaningless. This long period therefore seeks to avoid such a devalua-
tion of the essence of ownership after as short a time as the standard period of limitation,
while at the same time allowing for limitation of such claims in order to account for
evidential problems which are likely to occur when several decades have elapsed. This part
of the provision extends to secondary claims which provide an economic substitute for the
claim tn rem to return, e. g. such as a claim for compensation for loss of property under § 951
in conjunction with §§ 812 et seq. (unjustified enrichment! On ih .uP tP j e t > Wa o
does not apply to claims for the surrender of emo üm»" tS, °?" a m
right » rem itself, but on obligations arising cZ"X fr» f ”0' r’“ s°«-
Likewise, Sob. 1 No. 2 does not apply t„ data" for sur end K <e'8' 8 '
claims based on possession, such as §861 clalm. 7^ baM<i on rlSl,ls F‘rsmam. or
anspriiche) or claims to remove objects from a proper^ m reHef
claims based on rights in rem which are enteredinto th^’ TN°te ^S° that> Under § 9°2’
limitation. Apart from claims in rem for the surrende L ~ Register are not subjeCt T.
includes three claims for surrender which are based • P pert7> Sub- 1 No. 2 expressly
2130 and 2362. By express provision, Sub. 1 No 2 als jn^er^tance *aw> namely §§ 2018»
in asserting claims to return, particularly claims for Worm t aUXiliary daims which help
HI. Final and absolute claims
Sub. 1 No. 3 governs claims which have been declar d c
established by a judgment, an order for execution ” and abso,ute> such as claims
• an order on costs (§ 104 ZPO) or an
264
Effer-Uhe/Mohnert
Thirty-year limitation period 5-9 § 197
arbitration award (§§ 1051 et seq. ZPO), but not other enforceable titles such as a bill for
notary fees (§ 89 GNotKG), or acts of public authority governed by § 53(2) VwVfG. Sub. 1
No. 3 also applies to final judgments by foreign court, provided that they meet the
requirements for being acknowledged in Germany. In this case, Sub. 1 No. 3 applies to titles
and claims of any kind which formed part of the substance matter of the foreign dispute in
question. Therefore, Sub. 1 No. 3 applies not only to the claim which is expressly stated in the
title, but also to any substituting claim, such as a claim to compensation for damages arising
in lieu of an impossible execution of a claim for surrender. On the other hand, a mere
interlocutory judgment in accordance with § 304 ZPO is not subject to Sub. 1 No. 3, which
does not apply if proceedings remain pending, if a final determination of the claim is
outstanding, or if a decision is still subject to legal remedies. Once a claimant obtains a
judgment which acknowledges a foreign title, the claim becomes subject to a 30-year period
of limitation according to Sub. 1 No. 3.
IV. Claims from enforceable settlements/documents
Claims arising from enforceable settlements (§§ 794(1) No. 1, 796a, 1053 ZPO) or enforce- 5
able legal documents (§ 794(1) No. 5 ZPO) become time-barred after 30 years according to
Sub. 1 No. 4. The settlement or legal document has to actually be enforceable, so Sub. 1 No. 4
does not apply where a clause under which obligors have subjected themselves to immediate
compulsory enforcement is void for violation of a statutory prohibition according to § 134.
A so-called ‘acknowledgement substituting a judgment’ is sometimes used by parties in 6
order to extend the effects of § 197 to an acknowledgment of debt, particularly between an
underwriter and an injured party, with the effect that the 30-year limitation period applies.1
This serves to exclude any defences and objections which the obligor might otherwise invoke,
just as a successful lawsuit would.
V. Insolvency proceedings
Sub. 1 No. 5 regulates claims which have been registered in an insolvency schedule 7
according to § 178(3) InsO. Under §201(2) InsO they have the same effect as a final
judgment against the insolvent obligor, and are likewise enforceable once the insolvency
plan is final according to § 257(1) InsO.2
VI. Recovery of costs
Sub. 1 No. 6 relates to claims for recovery of the costs for compulsory enforcement 8
according to § 788(1) ZPO. These are not determined in a separate title, but are recovered
at the same time and together with the titled claim. The long period of limitation makes it
unnecessary for the obligee to obtain a separate title for the costs of compulsory enforcement
in order to avoid their limitation, which would cause unnecessary further costs.
VII. Periodically recurring performance
Sub. 2 makes an exemption from Sub. 1 for those claims covered by Sub. 1 Nos 3-5 9
concerning periodically recurring performances which will become due in the future (that is,
after creation of the title). Such claims fall instead within the standard period of limitation under
§§ 195, 199. By contrast, claims which are already due at the time when the title is created retain
a 30-year period of limitation as specified in Sub. 1. Periodically recurring performances are only
those claims arising recurrently and periodically as individual claims (e.g. claims to payment of
rent or maintenance), as opposed to payment of a single debt in instalments.
1 BGH 6.3.1990 - VI ZR 44/89, NJW-RR 1990, 664 et seq.
2 See also MüKo BGB/Grothe, § 197 BGB mn. 25.
Effer- Uhe/Mohnert
265
§ 198 1-3
Division 5. Limitation
VIII. Starting point
10 The beginning of the period of limitation according to Sub. 1 Nos 1 and 2 is regulated in
§ 200 (when the claim comes into existence); for Sub. 1 Nos 3-6, § 201 sets the beginning to
the time when the claim is ascertained. For claims which are subject to standard limitation
(§§ 195, 196), the beginning of the period of limitation for all claims which fall under
standard limitation rules is regulated in § 199(1).
§ 198
Limitation in the case of a
successor in title
If a thing in respect of which a real claim
exists comes into the possession of a third
party by succession in title, the part of the
limitation period that passed while posses¬
sion was held by his predecessor in title is
deemed to benefit the successor in title.
§198
Verjährung bei Rechtsnachfolge
Gelangt eine Sache, hinsichtlich derer ein
dinglicher Anspruch besteht, durch Rechts¬
nachfolge in den Besitz eines Dritten, so
kommt die während des Besitzes des Rechts¬
vorgängers verstrichene Verjährungszeit dem
Rechtsnachfolger zugute.
A. Function
I. Purpose
1 Changes in the person of the claimant by way of succession in title are mostly irrelevant
for the purpose of limitation: the period of limitation simply continues. This can be different
for claims in rem, such as the owner’s claim against the possessor for surrender under § 985.
As these claims are based on a relationship between obligor and obligee mediated through
their relationship to a thing, a change in possession does not result in a simple transfer of an
existing claim against the previous possessor. Instead, the claim against the previous
possessor expires, as this person no longer fulfils the requirements of § 985. A new claim
arises against the new possessor. In this situation, § 198 prevents the period of limitation
from recommencing. Thus, the new possessor benefits from the progression of time which
occurred under the predecessor.
II. Scope of application
2 § 198 applies each time when possession is transferred from party to party. Therefore the
duration of possession of all previous possessors is accumulated, counted from the beginning of
the limitation period. § 198 does not apply to original acquisition of possession (e.g. finding
under § 965) and other types of acquisition of possession without the former possessors
intention, such as theft.
3 § 198 does not contain any express provision for a succession in the person of the obligee
that is the owner in a case of § 985. Some argue that succession in ownership does not give
rise to a new claim. Others would apply § 198 by analogy. The result is the same: periods of
limitation passed under previous owners count against the new owners as well.
266
Effer- Uhe/Mohnert
Commencement of the standard limitation period
§199
B. Explanation
I. Preconditions
In order for § 198 to apply, the thing1 in question must be subject to a claim in rem against 4
the possessor, who moreover must have acquired possession (cf. §§ 854 et seq.) by way of
succession in title, or more precisely: through succession in possession. The provision
applies to both direct and indirect possession (§ 868). There are several ways in which such
a succession in possession can occur. One of these is derivative acquisition of possession
through an intended transfer of ownership. As long as this also aims at transfer of possession,
it does not matter whether the transfer of ownership fails, as would be the case in a failed
attempt to transfer property to a mala fide buyer who is or ought to be aware that the seller
does not have the right to transfer title in the goods (cf. § 932). Another way in which
succession in title for the purpose of § 198 can occur is when the possessor of a thing which
is subject to a claim in rem passes away: in this situation, their heir takes over as possessor by
virtue of § 857. Other situations include the reversal of a void sales contract, or a change of
possession due to a judgment, including compulsory enforcement.
II. Legal consequences
Ultimately, in terms of limitation, the successor in possession is treated like a previous 5
possessor. While the successor benefits from any time that has passed under the previous
possessors, the successor is likewise exposed to any suspension under §§ 203 et seq. or
renewal of the limitation period under § 212 which may have occurred under previous
possessors.
§199
Commencement of the standard
limitation period and maximum
limitation periods
(1) Unless another commencement of lim¬
itation of is determined, the standard limita¬
tion period commences at the end of the year
in which:
1. the claim arose and
2. the obligee obtains knowledge of the cir¬
cumstances giving rise to the claim and of the
identity of the obligor, or would have obtained
such knowledge if he had not shown gross
negligence.
(2) Claims for damages based on injury to
life, body, health or liberty, notwithstanding
the manner in which they arose and notwith¬
standing knowledge or a grossly negligent
lack of knowledge, are statute-barred thirty
years from the date on which the act, breach
of duty or other event that caused the damage
occurred.
§199
Beginn der regelmäßigen
Verjährungsfrist und
Verjährungshöchstfristen
(1) Die regelmäßige Verjährungsfrist be¬
ginnt, soweit nicht ein anderer Verjährungs¬
beginn bestimmt ist, mit dem Schluss des
Jahres, in dem
1. der Anspruch entstanden ist und
2. der Gläubiger von den den Anspruch be¬
gründenden Umständen und der Person des
Schuldners Kenntnis erlangt oder ohne grobe
Fahrlässigkeit erlangen müsste.
(2) Schadensersatzansprüche, die auf der
Verletzung des Lebens, des Körpers, der Ge¬
sundheit oder der Freiheit beruhen, verjähren
ohne Rücksicht auf ihre Entstehung und die
Kenntnis oder grob fahrlässige Unkenntnis in
30 Jahren von der Begehung der Handlung,
der Pflichtverletzung oder dem sonstigen, den
Schaden auslösenden Ereignis an.
1 This includes real property and chattels, see § 90.
Effer- Uhe/Mohnert
267
§ 199 1
Division 5. Limitation
(3) 1 Other claims for damages become sta¬
tute-barred
1. notwithstanding knowledge or a grossly
negligent lack of knowledge, ten years after
they arise and
2. regardless of how they arose and of knowl¬
edge or a grossly negligent lack of knowledge,
thirty years from the date on which the act,
breach of duty or other event that caused the
damage occurred.
2The period that ends first is applicable.
(3a) Claims based on the devolution of an
inheritance or whose claiming is contingent
on knowledge of a disposition mortis causa
become statute-barred in 30 years from when
the claim comes into being regardless of
knowledge or of grossly negligent ignorance.
(4) Notwithstanding knowledge or a
grossly negligent lack of knowledge, claims
other than those under subsections (2) to
(3a) become statute-barred ten years after
the date upon which they arise.
(5) If the claim is for forbearance, the date
of the breach of such an obligation takes the
place of the date on which the claim arose.
(3) Sonstige Schadensersatzansprüche ver¬
jähren
1. ohne Rücksicht auf die Kenntnis oder
grob fahrlässige Unkenntnis in zehn Jahren
von ihrer Entstehung an und
2. ohne Rücksicht auf ihre Entstehung und
die Kenntnis oder grob fahrlässige Unkennt¬
nis in 30 Jahren von der Begehung der Hand¬
lung, der Pflichtverletzung oder dem sons¬
tigen, den Schaden auslösenden Ereignis an.
Maßgeblich ist die früher endende Frist.
(3a) Ansprüche, die auf einem Erbfall
beruhen oder deren Geltendmachung die
Kenntnis einer Verfügung von Todes wegen
voraussetzt, verjähren ohne Rücksicht auf die
Kenntnis oder grob fahrlässige Unkenntnis in
30 Jahren von der Entstehung des Anspruchs
an.
(4) Andere Ansprüche als die nach den Ab¬
sätzen 2 bis 3a verjähren ohne Rücksicht auf
die Kenntnis oder grob fahrlässige Unkenntnis
in zehn Jahren von ihrer Entstehung an.
(5) Geht der Anspruch auf ein Unterlassen,
so tritt an die Stelle der Entstehung die Zu¬
widerhandlung.
Contents
mn.
A. Function 1
B. Explanation 2
I. Preconditions 2
1. Claim 3
2. Knowledge 4
a) Obligor 5
b) Extent 6
c) Gross negligence 7
II. Limitation period 8
1. Claim for forbearance 9
2. Maximum period 10
3. Long-stop 12
4. Succession 13
5. Other claims 14
A. Function
Sub. 1 regulates the commencement of the standard period of limitation under § 195,
combining objective elements (the time when the claim arises) and subjective elements (knowl¬
edge or gross negligence in lack of knowledge of the existence of the claim and the identity of
the obligor). The subjective elements can considerably extend the time until limitation occurs.
For this reason, the legislator provides various long-stops in Subs 2-4 without a subjective
requirement in order to protect the obligee against claims being asserted after an exceedingly
long duration of time. The claims which are indicated in Subs 2-4 thus become time-barred
after these maximum periods of limitation have elapsed, provided that they are subject to
regular limitation according to § 195, regardless of whether the period of § 195 in conjunction
268
Effer- Uhe/Mohnert
Commencement of the standard limitation period 2-4 § 199
with Sub. 1 has not elapsed yet. Sub. 5 contains a specific rule for claims for a forbearance, i.e.
injunctive relief aimed at preventing the obligor from committing certain acts.
B. Explanation
I. Preconditions
According to Sub. 1, the standard period of limitation of three years under § 195 2
commences with the elapse of the calendar year in which the claim arose and the obligee
became aware of the circumstances giving rise to the claim, and also gained knowledge of the
identity of the obligor, or was grossly negligent1 in failing to gain such knowledge. Periods
are calculated in accordance with §§ 187 et seq. Subs 2-5 also presuppose that § 195 applies.
1. Claim
In the context of this provision, a claim is considered as having arisen as soon as it can be 3
asserted in a lawsuit. In principle, the claim must already be due (cf. § 271). However, it is
sufficient if a lawsuit for a declaration of the existence of a claim could have been filed which,
under § 204(1) No. 1, suspends limitation. Claims subject to a condition precedent (§ 158(1))
do not arise until the condition is met. If a time has been specified for the beginning of the
effect of a legal transaction which gives rise to a claim (§§ 158(1), 163), the claim arises at
this specified time. Claims to recurring performances arise whenever a single performance
becomes due. Claims which are characterised by the fact that the obligee may demand
performance at any time, but which need to be performed only if and when the obligee
demands it (such as the claim for the return of a deposited object under § 695 1st St.) arise in
the sense of Sub. 1 when the obligee demands performance; this is clarified by provisions
such as §§ 695 2nd St., 604(5). If several claims for compensation in damages arise from the
same act, limitation of all claims occurs at the same time, even if the consequences of the
harmful act occur at different times, and limitation begins as soon as the first of these claims
arises, i. e. could be asserted in a lawsuit. However, this rule does not apply to unforeseeable
damages. Whenever claims arise from a continuous infringement by the obligor, the period
of limitation does not begin while the infringement is still going on. By contrast, in cases in
which harmful acts are repeated, every individual act induces a new period of limitation.
2. Knowledge
Knowledge or grossly negligent lack of knowledge are related to those circumstances which 4
give rise to the claim as well as the identity of the obligor. It is not necessary for the obligee to
appreciate correctly the legal relevance of these facts; mere knowledge of the facts is sufficient.
However, according to the BGH, if the legal situation is extraordinarily unclear, such
significant legal doubt may exceptionally lead to the beginning of the period of limitation
being postponed until the legal matter is clarified.2 If the obligor has breached several duties,
and the obligee learns about these breaches at different points in time, a separate period of
limitation is set on each breach of duty, even if these breaches have caused one and the same
damage. It is not necessary for obligees to know the facts in all details, provided they could
have filed a lawsuit based on the facts known to them at the time, or which were identifiable
with sufficient certainty. On the other hand, doubts about whether the obligee will be in a
position to prove the facts to the satisfaction of the court do not inhibit the beginning of the
period of limitation. It is sufficient if the obligee is in a position of filing a successful lawsuit
based on the facts they know or should know against another party, so that it would be
reasonable to expect them to do so. For subjective facts such as intention, it is sufficient if the
1 See -> § 276 mn. 10.
2 BGH 18.12.2008 - III ZR 132/08, NJW 2009, 984.
Effer-Uhe/Mohnert
269
§ 199 5-11 Division 5. Limitation
obligee is aware of objective facts from which these subjective facts can be deduced. It is not
necessary for the obligee to have knowledge or grossly negligent lack of knowledge of any
defences or other objections which the obligor might successfully raise. The crucial point is that
it is reasonable to expect the obligee to file a lawsuit which promises to lead to a successful
outcome based on the facts which the obligee knows or should have known.
5 a) Obligor. In terms of the obligor’s identity and address, knowledge or grossly negligent
lack of knowledge is necessary in order to trigger the limitation period under Sub. 1. If the
obligor has passed away in the meantime, the obligee does not need to additionally know the
identity of the heir. If a claim is directed against several obligors, the period of limitation may
start at different points in time when the obligee learns about their identities or addresses at
different points in time.
6 b) Extent. Knowledge does not require absolute certainty about the circumstances giving
rise to the claim. It is considered sufficient if the obligee knows at least generally about the
events and the fact that there are relevant indicators that a claim has arisen in their favour.
7 c) Gross negligence. A grossly negligent lack of knowledge is equated to knowledge.
Obligees act with gross negligence if they have failed to take even self-evident precautions, or
disregarded what should have been obvious to everyone, or have in other way grossly failed to
take the necessary care in legal relations. The obligee has a grossly negligent lack of knowledge if
the circumstances giving rise to the claim practically imposed themselves or if the obligee failed
to use easily accessible sources of information despite having very good reasons to inquire.
Obligees are grossly negligent in their lack of knowledge about the identity of the obligor if they
do not know the name and address of the obligor, but could have gained this information easily,
e.g. through noting the registration plate number of the other party in a car accident.
IL Limitation period
8 As concerns computation of the standard period of limitation, see § 194, mn. 15-19 for a
practical example.
1. Claim for forbearance
9 As concerns claims for forbearance (which can give rise to an injunction), Sub. 5 regulates
that the relevant time which triggers the beginning of the limitation period is not the time
when the claim arose, but rather the time when the claim for forbearance is infringed. This
applies to cases of Sub. 1 as well as cases which fall under Subs 2-4. A different rule applies,
however, whenever the claim for forbearance is not continuous: if the obligee may claim
forbearance only in a single incident after which the infringement does not persist, it
becomes impossible for the obligor to perform the claim, with the consequence that
impossibility under § 275(1) will exclude the claim from being enforced. In this situation,
the obligor may still be able to resort to claims for compensation for damages according to
§§ 280(3), 283. They become time-barred in the regular way according to §§ 195, 199(1). The
claim for forbearance itself is not subject to limitation.
2. Maximum period
10 The maximum periods of limitation which are provided by § 199(2)-(4) are computed on
a day-by-day basis. In contrast to Sub. 1, the beginning of the limitation period is not
postponed to the end of a calendar year. Maximum limitation periods can be extended
further through a suspension of limitation, suspension of lapse, or renewal (§§ 209-212).
11 Sub. 2 stipulates a 30-year maximum limitation period for statutory or contractual claims
to compensation for damages which are based on an infringement of life, body, health or
270
Effer-Uhe/Mohnert
Commencement of other limitation periods 1 §200
liberty.3 By way of analogy, the same period applies to any potential claims to information
which is needed to prepare the assertion of these claims. The 30-year period begins when the
act which gives rise to these claims to compensation for damages is committed, or when a
duty is breached, or when any other event occurs giving rise to these claims . It is not relevant
whether this act, breach or event has already caused the loss in question. It is therefore
possible in cases of particularly elongated chains of causation for the claim to become time-
barred even before the damage occurs.
3. Long-stop
Other claims to compensation for damages which are not governed by Sub. 2 are subject to 12
an alternative long-stop under Sub. 3. The first long-stop occurs 10 years after the claim
arose, the second 30 years after the act, breach of duty or other event occurred which induced
the loss; the earlier of those two long-stops applies.
4. Succession
According to Sub. 3a, claims which are based on a case of succession or of which the 13
assertion requires knowledge of a disposition mortis causa (will, contract of inheritance)
become time-barred at the latest 10 years counted from the time when the claim arose,
regardless of any knowledge or grossly negligent lack of knowledge of the claim. As is
indicated by the wording, the claim must either be based on succession, or require knowledge
of a disposition mortis causa for its assertion. The rule does not apply to claims directed
against the testator during this person’s lifetime, even if they must be asserted against the heir
after the testator’s death. In the latter situation, if the heir is unknown, limitation can be
suspended according to § 204(1) No. 1 by filing a lawsuit against the curator of the estate
(§§ 1960(2), 1958) who may be appointed on application by the obligee.
5. Other claims
All other claims which are subject to the standard period of limitation according to § 195 14
and which are not mentioned in Subs 2-4 become time-barred according to Sub. 4 after a
maximum period of 10 years counted from the time when they arose.
§200
Commencement of other
limitation periods
’Unless another date for the commence¬
ment of limitation is specified, the limitation
period of claims not subject to the standard
limitation period commences when the claim
arises. 2§ 199(5) applies with the necessary
modifications.
§200
Beginn anderer Verjährungsfristen
’Die Verjährungsfrist von Ansprüchen, die
nicht der regelmäßigen Verjährungsfrist un¬
terliegen, beginnt mit der Entstehung des
Anspruchs, soweit nicht ein anderer Verjäh¬
rungsbeginn bestimmt ist. 2§ 199 Abs. 5 fin¬
det entsprechende Anwendung.
§ 200 regulates the beginning of the period of limitation for all cases in which no other, more 1
specific rules apply. Under § 200, limitation of all claims which are neither subject to standard
limitation according to §§ 195, 198 nor to a specific rule on the beginning of the period of
limitation (e.g. § 438(2)) commences when the claim arises.* 1 For claims for forbearance (giving
rise to injunctive relief), the reference in § 195(5) in the 2nd St. replaces the time when the claim
arose with the time when the right was infringed. As the 2nd St. does not also refer to § 199(1), it
is irrelevant whether the obligee had any knowledge of the infringement.
3 See § 823 mn. 8-12.
1 See § 199 mn. 3.
Effer- Uhe/Mohnert
271
§ 201 1-4 Division 5.
§ 201
Commencement of the limitation
period for recognised claims
’The limitation period for claims of the
kind referred to in § 197(1) nos. 3 to
commences on the date when the decision
becomes final and absolute, the enforceable
instrument is executed or the claim is recog¬
nised in insolvency proceedings, but not be¬
fore the claim arises. 2§ 199(5) applies with
the necessary modifications.
Limitation
§201
Beginn der Verjährungsfrist von
festgestellten Ansprüchen
ipie Verjährung von Ansprüchen der in
S 197 Abs. 1 Nr. 3 bis 6 bezeichneten Art be¬
ginnt mit der Rechtskraft der Entscheidung,
der Errichtung des vollstreckbaren Titels oder
der Feststellung im Insolvenzverfahren, nicht
jedoch vor der Entstehung des Anspruchs.
2§ 199 Abs. 5 findet entsprechende Anwen¬
dung.
A. Function
1 § 201 regulates the period of limitation for titled claims as listed in § 197(1) Nos 3-6.
Generally, the period of limitation begins when the title becomes final. These claims thus
begin to prescribe when the decision has become formally valid.1 For enforceable documents
and enforceable settlements as mentioned in § 197(1) No. 4, limitation begins when the
document or settlement is notarised or recorded, but including any period during which a
party can exercise a unilateral right to withdraw from the settlement. For claims determined
in the course of insolvency proceedings as mentioned in § 197(1) No. 5, the limitation period
begins at the time of this determination. The titled costs of compulsory enforcement
according to § 788(2) ZPO2 may become time-barred earlier in accordance with § 217.
B. Explanation
I. Commencement
2 The period of limitation cannot begin to run before the claim arises, even if a future claim
has already been titled. The limitation period does begin, however, if the claim is already due,
at the point in time laid out in § 201, even in cases where limitation would be suspended
under § 204(2) 1st St. For claims which were determined in the context of insolvency
proceedings, the 1« St. is sometimes interpreted generously as letting the period of limitation
begm when the obligee has the first opportunity to sue the obligor, rather than when the time
the claim was determined.3
3
II. Determination of a claim
preventing the claim from becoming time-barred. (Feststellun&klage) tor the purpose of
III. Claims for forbearance
4 Claims for forbearance (which can lead to injunctive „1- a
the purpose of § 201, only the actual infringement is regula,ed b>’ § 199(5)'
which the obligee might or ought to have had because th^nT’ rather than any kn0"’,edge
also to § 199(1). use tbe 2 d St. refers to § 199(5) and not
1 For judgments, see ->■ § 705 ZPO
2 See ► § 197 mn. 8.
’ See Staudinger BGB/Peters/Jacoby, § 201 BGB
mn. 5.
272
Effer-Uhe/Mohnert
Inadmissibility of agreements on limitation
1-3 § 202
§202
Inadmissibility of
agreements on limitation
(1) In the case of liability for intention, the
limitation period may not be relaxed in ad¬
vance by legal transaction.
(2) The limitation period may not be ex¬
tended by legal transaction beyond a period
of thirty years from the beginning of the
statutory limitation period.
§202
Unzulässigkeit von
Vereinbarungen über die
Verjährung
(1) Die Verjährung kann bei Haftung we¬
gen Vorsatzes nicht im Voraus durch Rechts¬
geschäft erleichtert werden.
(2) Die Verjährung kann durch Rechts¬
geschäft nicht über eine Verjährungsfrist von
30 Jahren ab dem gesetzlichen Verjährungs¬
beginn hinaus erschwert werden.
A. Function
L Purpose
The official heading of § 202 is somewhat misleading. This provision does not make all 1
agreements on limitation inadmissible. Within freedom of contract, such agreements can be
made in principle and without formal requirements. § 202 simply provides certain boundaries.
To the degree that § 202 makes agreements on limitation inadmissible, it operates as a prohibi¬
tory norm for the purpose of § 134, invalidating such agreements. When an invalid agreement to
relax limitation is made, the respective provisions on limitation apply instead. If the invalid
agreement purports to push limitation beyond 30 years, the statutory maximum period of
30 years applies instead according to the disputed view of the BGH.1 There are other statutory
provisions which prohibit or restrict agreements which make limitation more difficult, such as
§§ 307, 309 for provisions in general terms and conditions, § 475(2) for sale contracts on
consumer goods. § 138, on the prohibition of transactions contra bonos mores, may also apply.
IL Scope of application
§ 202 limits agreements which seek to extend the limitation period to a maximum period 2
of 30 years counted from the beginning of the statutory period of limitation. According to its
wording, Sub. 2 applies only to a duration of the period. This implies that, according to a
preferable, even though disputed view, further extensions are possible if they take a different
route, e.g. through an agreed suspension of limitation.2
B. Context
Sub. 2 corresponds to Art. 14:601 PECL and Art. 111.-7:601 DCFR, which regulate exten- 3
sions of the period of limitation in a similar way. By contrast, as concerns the shortening of
the limitation period by way of agreement, Art. 14:601 PECL I Art. 111.-7:601 DCFR provide
a minimum period of limitation of one year, to which there is no corresponding BGB
provision, while the DCFR and PECL do not contain any general exclusion of limitation for
liability for intention.
1 As in BGH 18.9.2007 - XI ZR 447/06, VersR 2008, 366 (by way of restrictive interpretation of an
unlimited waiver of the right to rely on limitation),.
2 See Staudinger BGB/Peters/Jacoby, § 202 BGB mn. 20; this view is disputed.
Effer-Uhe/Mohnert
273
§203
Division 5. Limitation
C. Explanation
I. Legal transaction
4 The provision refers solely to agreements between obligor and obligee on limitation of
claims which are subject to limitation. Claims which cannot become time-barred cannot be
subjected to limitation through legal transaction by the parties, n pnncip e, i is possi e to
unilaterally change limitation through legal transaction for obligations arising rom un* ateral
legal transactions (e.g. promise of a reward under § 657). A party may even unilaterally
waive their defence of limitation entirely; however, in the opinion of the BGH, such a
declaration of a waiver should be interpreted as being limited to 30 years. A competing view
regards an unqualified waiver of the defence of limitation as resulting in a recommencement
of the limitation period.4 Similar effects can occur outside of the scope of application of § 202
in a variety of situations, including by way of recreation of a claim (novation), leading to a
new period of limitation of the novated claim,5 through deferral and pactum de non petendo
(cf. § 205), when the obligor acknowledges the claim (§212(1) No. 1), as well as when the
claim becomes titled (§ 197(1) No. 4).
II. Intention
5 The only boundary which § 202 places on facilitated limitation can be found in Sub. 1,
which states that limitation of liability claims based on intention may not be relaxed in
advance. A relaxation of limitation of liability for gross negligence is possible, as well as a
relaxation of limitation of liability for intention after the intentional act or omission which
gave rise to this liability has occurred.
Title 2
Suspension, suspension of expiry
and recommencement of the
limitation period
§203
Suspension of limitation in the
case of negotiations
’If negotiations between the obligor and
the obligee are in progress in respect of the
claim or the circumstances giving rise to the
claim, the limitation period is suspended un¬
til one party or the other refuses to continue
the negotiations. 2The claim is statute-barred
at the earliest three months after the end of
the suspension.
Titel 2
Hemmung, Ablaufhemmung und
Neubeginn der Verjährung
§203
Hemmung der Verjährung bei
V erhandlungen
'Schweben zwischen dem Schuldner und
u Obiger Verhandlungen über den An-
n™* °.^er den Anspruch begründenden
hi« a an -e> S° d*e Verjährung gehemmt,
, er e,ne oder der andere Teil die Fortset-
Veriik eF Verhandlungen verweigert. *D‘e
dem f frühestens drei Monate nach
“em Ende der Hemmung ein.
’ BGH 18.9.2007 - IX ZR 447/06.
See e.g. Brandenburgisches OLG 16 2 200S o wr
> See - S l9S 5. ’ W 3««s. N|W.RR
274
Effer-Uhe/Mohnert
Suspension of limitation in the case of negotiations
1-5 § 203
A. Function
As long as obligee and obligor are still in negotiation over the claim, it would not be 1
appropriate to force the obligee to file a lawsuit in order to avoid limitation. Therefore, § 203
stipulates a suspension of limitation, with the result that the parties can negotiate without
time pressure.
B. Explanation
I. Claim
Suspension of limitation according to this provision requires the obligee and obligor to 2
negotiate over a claim or its constituting circumstances. A claim in this sense is not identified
by any particular statutory provision which might give rise to it, but rather by an assertion of a
right which is based on certain facts of the case, regardless of whether e. g. the claim is pursued
in contract or tort. In this sense, it is the (disputed or undisputed) facts of the case which define
a claim for the purpose of § 203 as the point of origin from which the obligee derives this
claim. Therefore, a suspension of limitation usually affects all potential claims which may
accrue to the obligee on the basis of those facts of the case. Only if the parties negotiate
exclusively over certain specified claims (e.g., claims based on a contract), suspension does not
set in for the delimitable rest of claims arising from the same facts (e.g., based on tort).
IL Negotiation
Negotiation means an exchange of opinions between obligee and obligor, on the basis of 3
which the obligee may still assume that the obligor has not yet definitively rejected the claim
which the obligee has asserted. Therefore, both parties must display a willingness to negotiate.
This is not the case if the obligor categorically rejects negotiations, or if the obligee categorically
demands what the obligee believes to be due to them (e.g. by sending reminders). Even if the
obligor denies the claim, suspension under § 203 may occur as long as the obligor demon¬
strates a willingness to contribute to a negotiation by clarifying facts. Negotiation does not need
to happen voluntarily. If there is an obligation to negotiate, as can e. g. be a requirement under
§ 313(1)—(2) when one party demands an adjustment of the contract, it is sufficient for the
other party to request negotiation in order to induce the suspension of limitation.
1. Multiple obligors
If there is more than one obligor, the period of limitation is suspended exclusively for 4
those obligors who engage in negotiations. However, it is sufficient for one obligor to
represent the others, the suspensive effect extends to these other obligors. In cases in which
an obligor is covered by a liability insurance which gives rise to a direct claim against the
underwriter according to § 115(1) WG, any suspension due to negotiations with either the
obligor or the underwriter extends to the other according to § 115(2) 4th St. WG.
2. Suspension
As long as the negotiations are continuing without having been concluded, limitation is in 5
principle suspended retroactively, from the time when the obligee first asserted the claim
against the obligor. Any amount of time which has since passed is not counted towards the
period of limitation. The negotiation ends when at least one party refuses to continue further
negotiations. For this purpose, the obligor must reject both the claim and the continuation of
negotiations. If the negotiation lingers, suspension stops as soon as the obligor should have,
Effer-Uhe/Mohnert
275
§204 Division 5. Limitation
but has failed to take the next step, as seen from the obligee’s perspective. If a discontinued
negotiation is reinstated, suspension recommences. If the negotiations result in an acknowl¬
edgement of the claim by the obligor, § 212(1) No. 1 applies. For example, if the obligor
acknowledges the claim in principle, but disputes its exact value, the period of limitation
recommences through the acknowledgement according to § 212(1) No. 1. In addition, the
renewed period of limitation is suspended due to negotiations over the value of the claim
according to § 203(1).
6 The effect of suspension is that the time during which limitation was suspended is not
counted towards the period ot limitation (§ 209). Another effect occurs by virtue of § 203
2nd St.: limitation cannot occur any earlier than three months after the suspension ends. In
this way, the obligee has sufficient time to consider filing a lawsuit even after an unexpected
termination of negotiations.
§204
Suspension of limitation as a
result of prosecution of rights
(1) The limitation period is suspended by:
1. the bringing of an action for performance
or for a declaration of the existence of a claim,
for the grant of an execution clause or for the
issue of an order for execution,
la. the bringing of a model action for
acknowledgment for a claim which the debtor
has registered effectively in the register of
actions administered for the claim, if the
registered claim is based on the same factual
situation as the objectives of the model action
for acknowledgement,
2. the service of an application in the sim¬
plified procedure for the maintenance of
minors,
3. the service of a demand for payment in
summary' proceedings for recovery of debt or
of the European order for payment in the
European order for payment procedure in
accordance with Regulation (EC) No. 1896/
2006 of the European Parliament and of the
Council of 12 December 2006 creating a Eur¬
opean order for payment procedure (OJ EU L
399 p. 1),
4. arranging for notice to be given of an
application, with which the claim is to be
enforced, at a
a) state or officially recognised dispute set¬
tlement body, or
b) other dispute settlement bodies, if the
procedure is conducted with the consent of
the respondent;
the limitation period is suspended upon
receipt of the application at the dispute set¬
tlement body, if notice of the application is to
be given shortly.
5. the assertion of a set-off of a claim in a
legal action,
§204
Hemmung der Verjährung durch
Rechtsverfolgung
(1) Die Verjährung wird gehemmt durch
1. die Erhebung der Klage auf Leistung
oder auf Feststellung des Anspruchs, auf Er¬
teilung der Vollstreckungsklausel oder auf
Erlass des Vollstreckungsurteils,
la. die Erhebung einer Musterfeststellungs¬
klage für einen Anspruch, den ein Gläubiger
zu dem zu der Klage geführten Klageregister
wirksam angemeldet hat, wenn dem angemel¬
deten Anspruch derselbe Lebenssachverhalt
zugrunde liegt wie den Feststellungszielen
der Musterfeststellungsklage,
2. die Zustellung des Antrags im verein¬
fachten Verfahren über den Unterhalt Min¬
derjähriger,
3. die Zustellung des Mahnbescheids im
Mahnverfahren oder des Europäischen Zah¬
lungsbefehls im Europäischen Mahnverfahren
nach der Verordnung (EG) Nr. 1896/2006 des
Europäischen Parlaments und des Rates vom
12. Dezember 2006 zur Einführung eines Eu¬
ropäischen Mahnverfahrens (ABI. EU Nr. L
399 S. 1),
4. die Veranlassung der Bekanntgabe eines
Antrags, mit dem der Anspruch geltend ge¬
macht wird, bei einer
a) staatlichen oder staatlich anerkannten
Streitbeilegungsstelle oder
b) anderen Streitbeilegungsstelle, wenn das
Verfahren im Einvernehmen mit dem An¬
tragsgegner betrieben wird;
die Verjährung wird schon durch den Ein¬
gang des Antrags bei der Streitbeilegungs¬
stelle gehemmt, wenn der Antrag demnächst
bekannt gegeben wird,
5. die Geltendmachung der Aufrechnung
des Anspruchs im Prozess,
276
LJjer- Uhe/Mohnert
Suspension of prosecution of rights
§204
6. the service of a third-party notice,
6a. the service of the registration for a test
case for claims designated therein, where they
are based on the same circumstances as the
determinations applied for in the test case,
and if the action for performance or for a
declaration of the existence of the claims
designated in the registration is lodged
within three months of the final termination
of the test case,
7. the service of an application for evidence
to be taken in independent proceedings,
8. the beginning of agreed expert opinion
proceedings,
9. the service of an application for an
attachment order, an interim injunction or
an interim order, or, if the application is not
served, the filing of the application if the
order for attachment, the interim injunction
or the interim order is served on the obligor
within one month of its being pronounced or
of its service on the obligee,
10. the filing of a claim in insolvency pro¬
ceedings or in proceedings for the distribu¬
tion of assets under maritime law,
11. the beginning of arbitration proceed¬
ings,
12. the filing of an application with a pub¬
lic authority, if the admissibility of the action
depends on a has been disposed of; this ap¬
plies with the necessary modifications to ap¬
plications required to be preliminary decision
by this authority and the action is brought
within three months after the application
made to a court or a dispute settlement body
referred to in no. 4 above, whose admissibil¬
ity is subject to a preliminary decision by an
authority,
13. the filing of an application with the
higher court, if the higher court must decide
upon the court with jurisdiction over the
claim and the action is brought within three
months after the application has been dis¬
posed of, or the application for which a deci¬
sion on jurisdiction is necessary is filed, and
14. arranging for notice to be given of the
first application for the grant of legal aid or
procedural costs assistance; if notice is ar¬
ranged shortly after the filing of the applica¬
tion, the suspension of the limitation period
takes effect immediately when the application
is filed.
(2) ’Suspension under subsection (1) above
ends six months after the final and absolute
decision in the proceedings commenced, or
6. die Zustellung der Streitverkündung,
6a. die Zustellung der Anmeldung zu ei¬
nem Musterverfahren für darin bezeichnete
Ansprüche, soweit diesen der gleiche Lebens¬
sachverhalt zugrunde liegt wie den Feststel¬
lungszielen des Musterverfahrens und wenn
innerhalb von drei Monaten nach dem rechts¬
kräftigen Ende des Musterverfahrens die
Klage auf Leistung oder Feststellung der in
der Anmeldung bezeichneten Ansprüche er¬
hoben wird,
7. die Zustellung des Antrags auf Durch¬
führung eines selbständigen Beweisverfah¬
rens,
8. den Beginn eines vereinbarten Begutach¬
tungsverfahrens,
9. die Zustellung des Antrags auf Erlass
eines Arrests, einer einstweiligen Verfügung
oder einer einstweiligen Anordnung, oder,
wenn der Antrag nicht zugestellt wird, dessen
Einreichung, wenn der Arrestbefehl, die
einstweilige Verfügung oder die einstweilige
Anordnung innerhalb eines Monats seit Ver¬
kündung oder Zustellung an den Gläubiger
dem Schuldner zugestellt wird,
10. die Anmeldung des Anspruchs im In¬
solvenzverfahren oder im Schifffahrtsrecht¬
lichen Verteilungsverfahren,
11. den Beginn des schiedsrichterlichen
Verfahrens,
12. die Einreichung des Antrags bei einer
Behörde, wenn die Zulässigkeit der Klage von
der Vorentscheidung dieser Behörde abhängt
und innerhalb von drei Monaten nach Erledi¬
gung des Gesuchs die Klage erhoben wird;
dies gilt entsprechend für bei einem Gericht
oder bei einer in Nummer 4 bezeichneten
Streitbeilegungsstelle zu stellende Anträge,
deren Zulässigkeit von der Vorentscheidung
einer Behörde abhängt,
13. die Einreichung des Antrags bei dem
höheren Gericht, wenn dieses das zuständige
Gericht zu bestimmen hat und innerhalb von
drei Monaten nach Erledigung des Gesuchs
die Klage erhoben oder der Antrag, für den
die Gerichtsstandsbestimmung zu erfolgen
hat, gestellt wird, und
14. die Veranlassung der Bekanntgabe des
erstmaligen Antrags auf Gewährung von Pro¬
zesskostenhilfe oder Verfahrenskostenhilfe;
wird die Bekanntgabe demnächst nach der
Einreichung des Antrags veranlasst, so tritt
die Hemmung der Verjährung bereits mit der
Einreichung ein.
(2) ’Die Hemmung nach Absatz 1 endet
sechs Monate nach der rechtskräftigen Ent¬
scheidung oder anderweitigen Beendigung
Effer- Uhe/Mohnert 277
§ 204 1-3 Division 5.
after they end in another way. Suspension
under subsection (1) No. la above ends six
months after the retraction of the application
to the register of actions. 'If the proceedings
come to a standstill because the parties do
not prosecute them, the date of the last act in
the proceedings by the parties, the court or
other body responsible for the proceedings
takes the place of the date when the proceed¬
ings end. ‘Suspension commences again if
one of the parties continues the proceedings.
(3) §§206, 210 and 211 apply with the
necessary modifications to subsection (1),
nos. 6a, 9, 12 and 13 above.
Limitation
des eingeleiteten Verfahrens. 2Die Hemmung
nach Absatz 1 Nummer la endet auch sechs
Monate nach der Rücknahme der Anmeldung
zum Klageregister. 3Gerät das Verfahren da¬
durch in Stillstand, dass die Parteien es nicht
betreiben, so tritt an die Stelle der Beendi¬
gung des Verfahrens die letzte Verfahrens¬
handlung der Parteien, des Gerichts oder der
sonst mit dem Verfahren befassten Stelle.
‘Die Hemmung beginnt erneut, wenn eine
der Parteien das Verfahren weiter betreibt.
(3) Auf die Frist nach Absatz 1 Nr. 6a, 9,12
und 13 finden die §§ 206, 210 und 211 ent¬
sprechende Anwendung.
A. Function
1 When the obligee files a lawsuit to assert a claim, § 204 prevents the claim from becoming
time-barred before a judgment is passed: the time in between will not count towards
limitation under § 209. Additionally, limitation cannot occur earlier than six months after
the end of the proceedings under Sub. 2. Sub. 1 contains a long list of other enforcement or
similar measures which have the same effect.
B. Explanation
I. Suspension
2 The obligee can achieve suspension of a claim under Sub. 1 No. 1 by filing a lawsuit for
performance (Leistungsklage), determination of a claim (Feststellungsklage), the grant of an
execution clause (§§ 731, 796, 797 ZPO), or the issue of an order for execution (§ 723 ZPO).
Suspension requires that the obligee (as claimant) identifies the correct obligor (as defendant).
Suspension does not depend on this assertion being fully substantiated. Suspension affects all
claims arising within the matter in dispute (Streitgegenstand). The matter in dispute, also
referred to as claim in the procedural sense, consists in the request as characterised by the
proposition presented to the court and the facts of the case which are presented to substantiate
this proposition. The suspension may be extended to other claims according to § 213. A
lawsuit is filed when the defendant has been served with the statement of claim according to
§ 253 ZPO. However, according to § 167 ZPO, service takes effect retroactively to the point in
time when it was filed at the court, on the condition that service has occurred within an
adequate period of time, and that the obligee has done everything reasonable to achieve service
in the near future. Thus, suspension can occur retroactively, even if the statement of claim is
served after the limitation period has elapsed, provided that the statement of claim is served
shortly afterwards within the above-mentioned adequate time period for service.
IL Assertion/enforcement of claims
3 Suspension of limitation also takes effect through various other means by which claims can
be asserted or enforced. These include the lodging of a model action for acknowledgment of
a claim (Musterfeststellungsklage, a new and rather limited functional equivalent to a class
action available to consumers only), provided that the claimant has validly filed the claim in a
specific action register, and that the claim is based on the same circumstances as the
declaratory goals in the sample declaratory action (Sub. 1 No. la);1 service of a petition in
1 cf. §§ 606 et seq. ZPO.
278
Effer- Uhe/Mohnert
Suspension of prosecution of rights 4 § 204
simplified proceedings for alimony for a minor (Sub. 1 No. 2);2 service of a payment order in
simplified proceedings (Sub. 1 No. 2),3 or of a European payment order within a European
procedure for payment order (Sub. 1 No. 3); initiation of notification of conciliatory proceed¬
ings (Sub. 1 No. 4);4 and an assertion of a set-off during the proceedings (Sub. 1 No. 5).5 This
applies also whenever the set-off is made as secondary defence, i. e. conditional on the court
finding that the claim against which set-off is declared does in fact exist, to the degree that
the claim is not actually used for the set-off (as otherwise limitation would no longer be an
issue). Further means for suspension include the service of a third-party notice according to
§§ 72 et seq. ZPO (Sub. 1 No. 6); and, in principle, service of an application to a model case
(Musterverfahren) (Sub. 1 No. 7);6 service of an application for evidence to be taken in
independent evidentiary proceedings according to §§ 485, 487 ZPO (Sub. 1 No. 7); the
commencement of expert opinion proceedings through an arbitration board or an arbitrator
(Sub. 1 No. 8); the service of an application for interim relief, or the filing of such an
application when the application is not served, but service occurs for an injunction based
on such an application and within one month of this injunction being issued or served on the
claimant (Sub. 1 No. 9); filing a claim with the insolvency administrator’s list of claims
according to § 174 InsO (Sub. 1 No. 10); the commencement of arbitration proceedings
according to §§ 1025 et seq. ZPO (Sub. 1 No. Il);7 the filing of an application with a public
authority when the admissibility of a lawsuit depends on such an application (Sub. 1
No. 12);8 the filing of an application at a higher court in case this higher court needs to
decide which court has jurisdiction,9 provided that the lawsuit is filed within three months
after the higher court has rendered its decision (Sub. 1 No. 13); an application for legal aid
under §§ 114 et seq. ZPO, or initiating the notification of such an application to the other
party in cases when this initiation does not occur soon after the application (Sub. 1 No. 14).
III. Legal consequences
The legal consequences of suspension are governed by § 209. Suspension ends six months 4
after the final ruling, or after any other ending of the initiated proceedings, (Sub. 2 1st St.). If
the proceedings end with a final determination of the claim, this decision induces a 30-year
period of limitation according to § 197(1) No. 3 when it becomes final. If the parties do not
continue the proceedings without any objectively perceptible good reason, suspension ends six
months after the last action was taken in the proceedings by either the parties, or the court, or
any other authority which may be responsible for the proceedings. Suspension begins again
according to Sub. 2 3rd St. as soon as one of the parties takes up the proceedings again.
2 cf. §§ 249 et seq. FamFG.
3 cf. §§ 688 et seq. ZPO. Note that an out of court warning notice (Mahnung) under § 286 BGB is
insufficient for this purpose.
4 See § 794(1) No. 1 ZPO, § 15a EGZPO in conduction with Land law.
5 Note that an out of court declaration of set-off according to §§ 387 et seq. is insufficient for this
purpose.
6 See Gesetz über Musterverfahren in kapitalmarktrechtlichen Streitigkeiten (KapMUG; Capital Markets
Model Case Act). An English translation of the KapMUG is available under www.gesetze-ini-internet.de.
7 See -► § 1044 1st St. for the time when these proceedings commence.
8 For an example, see 10 et seq. StrEG (Gesetz über die Entschädigung für Strafverfolgungsmaßnah¬
men - Act concerning compensation for criminal prosecution measures).
9 See in particular § 36 ZPO.
Effer-Uhe/Mohnert
279
§206
Division 5. Limitation
§ 205
Suspension of limitation in the
case of a right to refuse
performance
Limitation is suspended for as long as the
obligor» under an agreement with the obligee,
is temporarily entitled to refuse performance.
§205
Hemmung der Verjährung bei
Leistungsverweigerungsrecht
Die Verjährung ist gehemmt, solange der
Schuldner auf Grund einer Vereinbarung mit
dem Gläubiger vorübergehend zur Verweige¬
rung der Leistung berechtigt ist.
A. Function
1 If the obligor may temporarily refuse performance due to an agreement with the obligee,
limitation is suspended for the duration of this right to refuse performance. By contrast,
statutory rights to refuse performance do not suspend limitation. § 205 comprises primarily
agreements not to proceed on a claim (pacta de non petendo) or for deferral (Stundung).
B. Explanation
2 Suspension under § 205 requires an agreement on a right to refuse performance. Suspen¬
sion does not occur if the obligee unilaterally declares that they will temporarily refrain from
asserting this right. In contrast to agreements to withhold action, deferrals are of fairly
limited relevance for suspension of limitation. This is because deferrals are typically preceded
by a request by the obligor for deferral, which in turn will typically amount to an acknowl¬
edgement which, under § 212, triggers a recommencement of the period of limitation.
3 An agreement not to proceed on a claim is an agreement which awards the obligor the
right to temporarily refuse performance. If parties agree on a deferral to which § 205 applies,
the claim has already arisen, but its maturity is deferred through contract. If the claim is
deferred from the outset, limitation does not begin simply because the claim is not mature, so
this is not a case for § 205. Besides agreements not to proceed on a claim, and for deferral
after the claim has arisen, there are additional temporary rights to refuse performance on
which the parties may agree. If the parties agreed to assign a claim in lieu of performance,1
the obligor may refuse performance until it has been established that the obligee’s claim can
be satisfied by means of the assigned claim. Likewise, the parties may have agreed to merge
different claims which may become due at different times into a current account, with the
result that the limitation of these individual claims is suspended until the balance is
established. By acknowledging this balance, a new claim is created which becomes time-
barred independently of the individual claims.
§206
Suspension of limitation in case of
force majeure
Limitation is suspended for as long as,
within the last six months of the limitation
period, the obligee is prevented by force ma¬
jeure from prosecuting his rights.
§206
Hemmung der Verjährung bei
höherer Gewalt
Die Verjährung ist gehemmt, solange der
Gläubiger innerhalb der letzten sechs Monate
der Verjährungsfrist durch höhere Gewalt an
der Rechtsverfolgung gehindert ist.
’See > § 364.
280
Effer- Uhe/Mohnert
Suspension of limitation for family and other reasons
§207
A. Function
By way of express references, this provision also applies mutatis mutandis to various cut- 1
off periods (e.g. § 124(2) 2nd St.).
B. Explanation
I. Suspension
Within the last six months of the period of limitation only, limitation can be suspended as 2
long as the obligee is prevented from pursuing a claim due to force majeure. If the obstacle to
enforcement already existed before those last six months, suspension nevertheless does not
take effect until the beginning of the six-month period.
IL Force majeure
Events which make it impossible to pursue a claim even through the utmost diligence which 3
could reasonably be expected count as such an obstacle due to force majeure. The slightest fault
on the part of the obligee excludes any reliance on force majeure-, in this context, the fault of a
court appointed or statutory agent is attributed to the obligee. Examples of force majeure
include unforeseeable illness which prevents legal action in cases in which this inactivity could
not have been prevented with precautionary measures, incorrect handling of a case by courts or
authorities insofar as the obligee was unable to remedy the situation, or in the event of a
standstill in the administration of justice due to war, natural disasters, or similar events. Mere
complications in the legal proceedings are not sufficient.
§207
Suspension of limitation for
family and other reasons
(1) ]The limitation of claims between
spouses is suspended for as long as the mar¬
riage continues. 2The same applies to claims
between
1. civil partners for as long as a civil part¬
nership exists,
2. the child, and
a) his parents or
b) the spouse or civil partner of one parent,
until the child reaches the age of 21,
3. a guardian and his ward for the duration
of the guardianship,
4. a person placed under the care of a
custodian and his custodian for the duration
of a care relationship, and
5. a person subject to curatorship and his
curator for the duration of the curatorship.
§207
Hemmung der Verjährung aus
familiären und ähnlichen Gründen
(1) ’Die Verjährung von Ansprüchen zwi-
sehen Ehegatten ist gehemmt, solange die Ehe
besteht. 2Das Gleiche gilt für Ansprüche zwi¬
schen
1. Lebenspartnern, solange die Lebenspart¬
nerschaft besteht,
2. dem Kind und
a) seinen Eltern oder
b) dem Ehegatten oder Lebenspartner eines
Elternteils
bis zur Vollendung des 21. Lebensjahres
des Kindes,
3. dem Vormund und dem Mündel wäh¬
rend der Dauer des Vormundschaftsverhält-
nisses,
4. dem Betreuten und dem Betreuer wäh¬
rend der Dauer des Betreuungsverhältnisses
und
5. dem Pflegling und dem Pfleger während
der Dauer der Pflegschaft.
Effer- Uhe/Moh nert
281
§208
Division 5. Limitation
3The limitation of claims of a child against
a legal adviser in litigation proceedings is
suspended during the period when the latter
is acting as a legal adviser.
(2) § 208 remains unaffected.
3Die Verjährung von Ansprüchen des Kin¬
des gegen den Beistand ist während der
Dauer der Beistandschaft gehemmt.
(2) § 208 bleibt unberührt.
A. Function
1 Within families and similar relationships, § 207 suspends limitation on the ground that
asserting a claim judicially within such relationships may be inappropriate or unreasonable.
It should be noted that the application of § 207 does not depend on any actual emotional
proximity. The prevailing view rejects an application of § 207 by analogy to claims between
partners in non-marital and unregistered partnerships, even in cases of cohabitation.1 Sub. 2
clarities that suspension due to § 208 remains unaffected, so that suspension under that
provision can be additional to suspension under § 207.
B. Explanation
2 Limitation is suspended between spouses for the duration of the marriage (Sub. 1 1st St.),
between life partners in a registered life partnership for the duration of the life partnership
(Sub. 1 2nd St. No. 1), between parents and children as well as a parent’s spouse or life partner
and their children up until the age of 21 of the child (Sub. 1 2nd St. No. 2), between guardian
and ward for the duration of the guardianship (Sub. 1 2nd St. No. 3),2 between custodian and
an adult person with restricted capacity to contract for the duration of the custodianship
(Sub. 1 2nd St. No. 4),3 and between curator and the person subject to curatorship for the
duration of the curatorship (Sub. 1 2nd St. No. 4).4 In the relationship between child and legal
advisor (§§ 1712-1717), suspension according to Sub. 1 3rd St. operates only for the child’s
claims against the legal advisor, but not for the advisor’s claim against the child.
§208
Suspension of limitation in the
case of claims for infringement of
the right to sexual self-
determination
‘The limitation period of claims for infrin¬
gement of the right to sexual self-determina¬
tion is suspended until the obligee reaches the
age of twenty-one. 2If, when the limitation
period commences, the obligee in respect of
claims for infringement of the right to sexual
self-determination is living with the obligor
in a common household, limitation is sus¬
pended until this common household ends.
§208
Hemmung der Verjährung bei
Ansprüchen wegen Verletzung der
sexuellen Selbstbestimmung
lDie Verjährung von Ansprüchen wegen
Verletzung der sexuellen Selbstbestimmung
ist bis zur Vollendung des 21. Lebensjahrs
des Gläubigers gehemmt. 2Lebt der Gläubiger
von Ansprüchen wegen Verletzung der sexu¬
ellen Selbstbestimmung bei Beginn der Ver¬
jährung mit dem Schuldner in häuslicher
Gemeinschaft, so ist die Verjährung auch bis
zur Beendigung der häuslichen Gemeinschaft
gehemmt.
1 See e.g. Staudinger BGB/Peters/Jacoby, § 207 BGB mn 5
2 See *§§ 1773-1895.
3 See *§§ 1896-1908 i.
4 See * §§ 1909-1921.
282
EJjer- Uhe/Mohnert
Effect of suspension
1 §209
A. Explanation
I. Claims
When claims are based on an infringement of the right to sexual self-determination, the 1
ls( St suspends limitation until the victim reaches the age of 21. This suspension is not
limited to criminal offences under §§ 174 et seq., 176 et seq. StGB which give rise to a claim
for compensation for breach of statutory duty under § 823(2). Other claims may arise, with
or without a criminal offence having been committed, in particular under § 823(1) and
§ 825, but also under § 280 in conjunction with a welfare duty under family law.
II. Suspension
According to the 2nd St., limitation of claims based on an infringement of the right to 2
sexual self-determination is likewise suspended if the victim was cohabitating with the
obligor at the time of the beginning of the period of limitation; in this case, limitation is
suspended until cohabitation ends. In contrast to suspension under the 1st St., no age
restrictions are imposed by the 2nd St., with the result that a suspension under the 2nd St.
may follow directly after suspension according to the 1st St. ends. Note that for the purpose of
the 2nd St., the parties must have cohabitated at the time when the period of limitation
began. This usually coincides with the time when the claim arose,1 but where suspension
under the 2nd St. is to follow on the heels of a suspension under the 1st St., the parties must
have cohabitated at the point in time when suspension under the 1st St. ended, regardless of
whether they cohabited at the time when the offence was committed.
§209
Effect of suspension
A period in which limitation is suspended
is not included in the calculation of the lim¬
itation period.
§209
Wirkung der Hemmung
Der Zeitraum, während dessen die Verjäh¬
rung gehemmt ist, wird in die Verjähnmgs
frist nicht eingerechnet.
§ 209 provides that if limitation is suspended according to §§ 203-208, the duration of the 1
suspension will not be counted towards the period of limitation. The suspension begins at the
beginning of the day on which the requirement for suspension is fulfilled; § 187(1) is not
applicable because the duration of suspension is not a period in the usual sense of the BGB.
Suspension ends with the lapse of the day on which the reason for suspension ceases to exist.
The days from the beginning to the end of a suspension are not counted towards the period of
limitation; the period of limitation elapses a corresponding number of days later. Suspension
periods and the corresponding extensions of limitation are counted on a day-by-day basis.
This also applies to claims for which the period of limitation begins at the end of a calendar
year according to § 199(1), and which therefore also regularly ends with the end of a calendar
year. For these cases also, the number of days from the beginning to the end of a suspension is
counted exactly day-by-day (including the day of the beginning and the day of the end of
suspension), and added to the period which must elapse in order for the claim to be prescribed.
For example, if the regular period of limitation for a claim begins with the lapse of
31 December 2018, and limitation is subsequently suspended from 10 June 2019 to 15 June
2019 (six days), the period of limitation ends with the lapse of 6 January 2022, therefore six
days later than it would otherwise end, which would be the lapse of 31 December 2021.
' By virtue of § 199(3) or § 197 No. 1 in conjunction with § 200.
Effer-Uhe/Mohnert
283
§ 210 1-3
Division 5. Limitation
§210
Suspension of expiry of the
limitation period in the case of
persons without full capacity to
contract
(1) ’If a person incapable of contracting or
with limited capacity to contract has no legal
representative, a limitation period to his ben¬
efit or detriment does not end until the expiry
of six months after the time when the person
acquires unlimited capacity to contract or the
lack of representation is remedied. 1 2If the
limitation period is shorter than six months,
the period specified for limitation takes the
place of the period of six months.
(2) Subsection (1) does not apply to the
extent that a person with limited capacity to
contract is capable of suing and being sued.
§210
Ablaufhemmung bei nicht voll
Geschäftsfähigen
(1) ’Ist eine geschäftsunfähige oder in der
Geschäftsfähigkeit beschränkte Person ohne ge¬
setzlichen Vertreter, so tritt eine für oder gegen
sie laufende Verjährung nicht vor dem Ablauf
von sechs Monaten nach dem Zeitpunkt ein, in
dem die Person unbeschränkt geschäftsfähig
oder der Mangel der Vertretung behoben wird.
2Ist die Verjährungsfrist kürzer als sechs Mona¬
te, so tritt der für die Verjährung bestimmte
Zeitraum an die Stelle der sechs Monate.
(2) Absatz 1 findet keine Anwendung, so¬
weit eine in der Geschäftsfähigkeit be¬
schränkte Person prozessfähig ist.
A. Function
I. Purpose
1 In contrast to § 209, which excludes periods of suspension from being counted towards the
limitation period, §§210 and 211 delay limitation by postponing the end of the limitation
period for a certain amount of time. This type of suspension is called Ablaufhemmung or
suspension of expiry.
IL Scope of application
2 § 210 cannot be applied to legal persons. For associations, § 29 allows the court appoint¬
ment of a lacking but necessary member of the board. § 210 can be applied by analogy to
some cut-off periods, though details are controversial.1
B. Explanation
I. Suspension of expiry
3 A suspension of expiry according to Sub. 1 operates for claims held by, or directed against
natural persons2 with limited or without capacity to contract (§§ 104, 106), for a period
during which they have no statutory representative. This provision serves a dual function.
First, the person of limited or without capacity to contract is protected against limitation
during a period of inadequate representation, when they might otherwise be unable to
prevent limitation by themselves. Secondly, the obligee of a person of limited or no capacity
to contract is absolved of the need to request a curator ad litem being appointed for their
opponent according to § 57 ZPO, which would otherwise be the only means to prevent
limitation. The legal consequence of a suspension of expiry is that limitation cannot occur
any earlier than six months after the point in time when the person either gains full capacity
of contract, or proper statutory representation is instated.
1 See Staudinger BGB/Peters/Jacoby, § 210 BGB mn. 9 et seq.
2 § 1 mn 3.
284
Effer- Uhe/Mohnert
Suspension of expiry in matters relating to estates
1 § 211
IL Limitation
According to Sub. 1 2nd St., for periods of limitation shorter than six months, limitation 4
does not occur before the lapse of this shorter period after the person gains full capacity to
contract or the instatement of proper statutory representation. As the reform to modernise
the law of obligations in 2002 abolished most shorter periods of limitation, Sub. 1 2nd St. has
very limited significance.
III. Capacity to sue/be sued
Sub. 2 provides an exception to Sub. 1: this does not apply to a person of limited capacity 5
to contract who nevertheless has the capacity to sue and be sued according to § 51 ZPO.
While §§ 51, 52 ZPO build on the relevant BGB provisions, they nevertheless make some
exceptions. For this reason, there can be cases of persons who are legally capable of suing and
being sued despite of their limited capacity to contract, in particular according to § 52 ZPO
in conjunction with §§ 112, 113.
§211
Suspension of expiry in matters
relating to estates
!A claim that is part of or directed against
an estate does not become statute-barred un¬
til at least six months have passed from the
time when the inheritance is accepted by the
heir or when insolvency proceedings in re¬
spect of the estate are commenced or when
the claim can be asserted by or against an
agent. 1 2If the limitation period is shorter than
six months, the period specified for limita¬
tion takes the place of the period of six
months.
§211
Ablaufhemmung in Nachlassfällen
!Die Verjährung eines Anspruchs, der zu
einem Nachlass gehört oder sich gegen einen
Nachlass richtet, tritt nicht vor dem Ablauf
von sechs Monaten nach dem Zeitpunkt ein,
in dem die Erbschaft von dem Erben ange¬
nommen oder das Insolvenzverfahren über
den Nachlass eröffnet wird oder von dem an
der Anspruch von einem oder gegen einen
Vertreter geltend gemacht werden kann. 2Ist
die Verjährungsfrist kürzer als sechs Monate,
so tritt der für die Verjährung bestimmte
Zeitraum an die Stelle der sechs Monate.
As heirs may not initially be able to take measures for suspending limitation, while obligees 1
of the estate may not initially be able to sue the heirs, § 211 provides for a suspension of
expiry1 for all claims belonging to, or directed against the estate. These include claims which
arose for or against the deceased during this person’s lifetime, as well as claims arising for or
against the estate after this person’s death (e.g. claims to compensation under § 204(1) 1st St.).
The 1st St. provides that limitation cannot occur any earlier than six months after the point in
time when the inheritance was accepted (§ 1943).2 This implies that separate, different
suspension periods may apply in the case that there are several heirs. Alternatively, the six
month period can be triggered by the commencement of insolvency proceedings over the
estate according to §§ 315-331 InsO, giving the insolvency administrator both the right to sue
and the capacity to be defendant as a party ex officio. The same period can also be triggered
when an agent for the estate becomes available who can assert claims on behalf of the estate, or
against whom claims against the estate can be asserted (these agents include curators of the
estate according to § 1960, administrators of the estate according to § 1975, curators for
absentees according to § 1911, and executors according to §§ 2197-2228).
1 See § 210 mn. 1.
2 The 2nd St. mirrors § 210(1) 2nd St., see ► § 210 mn. 3.
Effer- Uhe/Mohnert
285
§212 1-2
Division 5. Limitation
§212
Recommencement of the
limitation period
(1) The limitation period recommences if
1. the obligor acknowledges the claim to¬
wards the obligee by part payment, the pay¬
ment of interest, the provision of security or
in another way, or
2. a judicial or official act of execution is
undertaken or applied for.
(2) The recommencement of the limitation
period as a result of an act of execution is
considered not to have occurred if the act of
execution is cancelled on the application of
the obligee or as the result of a failure to
comply with the statutory requirements.
(3) The recommencement of the limitation
period as a result of an application for an act
of execution is considered not to have oc¬
curred if the application is not granted or is
revoked before the act or the act of execution
obtained is cancelled under subsection (2)
above.
§212
Neubeginn der Verjährung
(1) Die Verjährung beginnt erneut, wenn
1. der Schuldner dem Gläubiger gegenüber
den Anspruch durch Abschlagszahlung, Zins¬
zahlung, Sicherheitsleistung oder in anderer
Weise anerkennt oder
2. eine gerichtliche oder behördliche Voll¬
streckungshandlung vorgenommen oder be¬
antragt wird.
(2) Der erneute Beginn der Verjährung
infolge einer Vollstreckungshandlung gilt als
nicht eingetreten, wenn die Vollstreckungs¬
handlung auf Antrag des Gläubigers oder
wegen Mangels der gesetzlichen Vorausset¬
zungen aufgehoben wird.
(3) Der erneute Beginn der Verjährung
durch den Antrag auf Vornahme einer Voll-
streckungshandiung gilt als nicht eingetreten,
wenn dem Antrag nicht stattgegeben oder der
Antrag vor der Vollstreckungshandlung zu¬
rückgenommen oder die erwirkte Vollstre¬
ckungshandlung nach Absatz 2 aufgehoben
wird.
A. Function
1 When an obligor acknowledges the obligee’s claim, the obligee will typically not resort to
enforcement measures, because they place trust in the acknowledgement. For this reason,
Sub. 1 No. 1 provides that an acknowledgment triggers recommencement of the period of
limitation, thus awarding the obligee a fresh full duration of the period of limitation. The
obligee of a titled claim benefits from a long period of limitation through § 197(1), but risks
that after 30 years the claim will no longer be enforceable. Sub. 1 No. 2 allows such obligees to
let the period of limitation recommence by resorting to a measure of compulsory enforcement.
B. Explanation
2 Recommencement1 under Sub. 1 No. 1 requires the obligor to have acknowledged the
claim. Any actual behaviour of the obligor may qualify, as long as the obligee should read
this as an unequivocal express or implied statement that the obligor is aware of the existence
of the claim. In addition to the three options which are explicitly stated in the provision (part
payment, the payment of interest, the provision of security), a request for deferral or a cure of
defects can qualify. According to Sub. 1 No. 2, a petition by the obligee for a measure of
compulsory enforcement (execution) through a court or a public authority will likewise
result in a recommencement of the period of limitation. The same is true for subsequent
judicial or administrative measures of enforcement, such as issuing an execution mandate for
the bailiff, a pledge through the bailiff, or an order of attachment and transfer according to
1 translation note: Although Neubeginn may be translated as recommencement, renewal is a more
appropriate translation in this context as it better expresses that the limitation period starts afresh.
286
Efjer- Uhe/Mohncrt
Suspension, suspension of expiry and recommencement of limitation 1-2 § 213
§ 829 ZPO. However, the limitation period does not recommence according to Subs 2 and 3,
if the measure of compulsory enforcement is revoked on request of the obligee, or for lack of
its statutory requirements, or if the petition is not granted, or retracted before the requested
measure of compulsory enforcement is taken. In these cases, the recommencement is treated
as never having come into effect in the first place.
A recommencement of the period of limitation implies that a fresh full limitation period 3
begins to run on the day following the day of the acknowledgement or the measure of
compulsory enforcement, or the petition for such a measure. If limitation has already
occurred at the point in time of the acknowledgement, the measure of compulsory enforce¬
ment, or the petition for such a measure, there is no recommencement.
§213
Suspension, suspension of expiry
and recommencement of
limitation in the case of other
claims
The suspension, suspension of expiry and
recommencement of the limitation period
also apply to claims which are available, for
the same reason, either in addition to the
claim or instead of the claim.
§213
Hemmung, Ablaufhemmung und
erneuter Beginn der Verjährung
bei anderen Ansprüchen
Die Hemmung, die Ablaufhemmung und
der erneute Beginn der Verjährung gelten
auch für Ansprüche, die aus demselben
Grunde wahlweise neben dem Anspruch oder
an seiner Stelle gegeben sind.
A. Function
I. Purpose
In principle, limitation occurs individually for separate claims, even if the facts of the case 1
give rise to several claims. A claim to return property based on contract can become time-
barred according to §§ 195, 199(1), whereas a parallel vindication claim in rem to return
under § 985 follows the different limitation rules under §§ 197(1), 200, and a possible third
claim to compensation for damages arising from the same set of facts would be subject to
§ 199(3). Events or measures suspending limitation, or the expiry of the limitation period, or
else inducing a recommencement of the period of limitation operate separately for individual
claims. § 213 makes an exception by extending the effects of a suspension, suspension of
expiry, or recommencement of limitation to certain concurring claims, and claims which
replace the original claim. § 213 extends the effect of suspension, suspension of expiry, or
recommencement of the period of limitation under §§ 204-209 (suspension), 210-211
(suspension of expiry) and 212 (recommencement).
IL Scope of application
In spite of its wording, § 213 does not apply where limitation is extended through an act 2
by the obligor (e.g. acknowledgement according to §212(1) No. 1) or joint conduct of
obligor and obligee (e.g. negotiations according to § 203). This is also true where such an
extension occurs in cases of §§ 206-208, 210, and 211.
Effer-Uhe/Mohnert
287
§214 1
Division 5. Limitation
B. Explanation
I. Same reason
3 A first requirement of § 213 is that the claims must be directed against the same obligor
and be based on the same facts of the case. For example, a claim for performance and a claim
to compensation for damages based on non-performance are based on the same facts of the
case, even though further requirements exist for the claim to compensation. Note that there
is no need for an earlier claim to persist or have persisted, as in a case of impossibility
according to § 275(1).
IL Second claim
4 The second requirement is that the second claim must be available either as alternative
to,1 or as replacement of the first claim. In spite of the misleading wording, extension does
not occur for claims which can be cumulated with the original claim (e.g. claims to
compensation for pecuniary and for non-pecuniary damages). The alternative which are
available ... in addition to the claim comprises cases in which the obligee can pursue two or
more options, but needs to choose between the original and the other claim(s), e.g. by
either pursuing claims arising under a contract, or claims arising after rescission of a
contract. The alternative instead of the claim, on the other hand, comprises cases in which
the obligee no longer has a choice but can only assert the other claim which has replaced
the original claim (e.g. because the original claim can no longer be pursued due to
impossibility according to § 275(1)).
Title 3
Legal consequences of limitation
Titel 3
Rechtsfolgen der Verjährung
§214
Effect of limitation
(1) After limitation occurs, the obligor is
entitled to refuse performance.
(2) ’Performance rendered in satisfaction
of a claim that is now statute-barred may not
be claimed back even if performance was
rendered without knowledge of the limita¬
tion. 2The same applies to an acknowledge¬
ment made in accordance with a contract and
to a security provided by the obligor.
§214
Wirkung der Verjährung
(1) Nach Eintritt der Verjährung ist der
Schuldner berechtigt, die Leistung zu verwei¬
gern.
(2) ’Das zur Befriedigung eines verjährten
Anspruchs Geleistete kann nicht zurückgefor¬
dert werden, auch wenn in Unkenntnis der
Verjährung geleistet worden ist. 2Das Gleich*
gilt von einem vertragsmäßigen Anerkenntnis
sowie einer Sicherheitsleistung des Schuld¬
ners.
A. Function
1 Sub. 1 regulates the general legal consequence of limitation, which gives the obligor the
right to refuse performance. Sub. 2 elaborates on the effect of limitation for the case that the
obligor has performed after limitation has occurred.
i See BGH 20.1.2016 - VIII ZR 77/15, NJW 2015, 2106.
288
Effer-Uhe/Mohnert
Effect of limitation
2-7 § 214
B. Context
Similar provisions can be found in Art. 111.-7:401 DCFR and Art. 14:501 PECL. 2
C. Explanation
I. Effect of limitation
A precondition of § 214 is that limitation has already occurred in accordance with 3
§§ 194-213. The legal consequence of limitation according to Sub. 1 is not the expiry of the
claim, but merely that the obligor is given a permanent right to refuse performance. This
operates as a defence which an obligor must raise expressly or tacitly. For claims involving
several obligors, or several obligees, the effect of limitation must be determined separately
within each relationship: limitation can take effect in different ways against each obligee, and
every obligor can reach limitation at different times. Also, each obligor must invoke
limitation separately in order for the defence to operate.
IL Defence
It follows that the court does not consider limitation ex officio in legal proceedings; rather, 4
the obligor must have invoked the defence it at the latest at the end of the last date of the
hearing by the trial court, which can also occur by reference to an invocation outside of court
proceedings. If the defence is invoked only during appeal, the court will hear it only under
additional requirements provided by § 531(2) ZPO.
The defence of limitation can be invoked at any time after the period of limitation has 5
elapsed. In very exceptional cases, an obligor may be prevented from invoking the defence
due to bad faith, especially if the obligee had good reasons to trust and did indeed trust that
the obligor would not invoke the defence anymore. If the obligor validly choses to waive the
defence after limitation has occurred, the defence becomes inadmissible. Such a waiver can be
declared unilaterally, or agreed upon with the obligee.
III. Performance
If the obligor performs despite limitation having occurred, this amounts to performance in 6
accordance with § 362(1). The fact that the claim was subject to a defence will not give rise to
a claim for return of the object of unjustified enrichment, as § 813(1) 2nd St. makes an
express exception for the defence of § 214(1). This applies even if the obligor was unaware of
the limitation. Similarly, if an obligor provides security (§§ 232 et seq.), or an acknowl¬
edgement of debt after limitation has occurred, this does not affect the validity of the
provision or acknowledgment according to Sub. 2 2nd St. The acknowledgement of debt
creates a separate claim based on an independent contract according to § 781, which
becomes time-barred independently of the original claim. It cannot be reclaimed as having
been provided without legal grounds according to § 812(2).
Sub. 2 is applicable only if the obligor has performed voluntarily. Where performance was 7
made under compulsion, in particular by way of, or in order to prevent compulsory
enforcement, Sub. 2 provides no bar to recovery under unjustified enrichment rules (§§812
et seq.).
Effer- Uhe/Moh nert
289
§216 1
Division 5. Limitation
§215
Set-off and right of retention after
a claim is statute-barred
Limitation of actions does not exclude set¬
off and the assertion of a right of retention if
the claim was not yet statute-barred at the
time when the set-off could first have been
made or performance first refused.
§215
Aufrechnung und
Zurückbehaltungsrecht nach
Eintritt der Verjährung
Die Verjährung schließt die Aufrechnung
und die Geltendmachung eines Zurückbehal¬
tungsrechts nicht aus, wenn der Anspruch in
dem Zeitpunkt noch nicht verjährt war, in
dem erstmals aufgerechnet oder die Leistung
verweigert werden konnte.
1 A time-barred claim (arguably a more precise translation than statute-barred) can still be
set off against a counter- claim (§ 388). Likewise, a time-barred claim can also still provide a
right of retention (e.g. § 273(1)), in both cases on the condition that the claim was not yet
time-barred at the time when it could first have been used to be set-off against the counter¬
claim, or else when the obligor first had the right to assert a right of retention.
2 § 215 can apply even when a court has already dismissed the obligee’s claim on the ground
that it was time-barred. There is no room for an analogous application of § 215 to claims
which are not time-barred but which have expired due to a cut-off period (e.g. § 651g(l)).
§216
Effect of limitation in the case of
secured claims
(1) The limitation of a claim for which a
mortgage, ship mortgage or security right
exists does not prevent the obligee from seek¬
ing satisfaction of his claim from the object
encumbered.
(2) 1 If a right has been procured for the
purpose of securing a claim, the retransfer of
the right may not be demanded on the basis
of the limitation of the claim. 2If title has
been retained, the right to revoke the contract
may be exercised even if the secured claim is
statute-barred.
(3) Subsections (1) and (2) above do not
apply to the limitation of claims for interest
and other recurring obligations.
§216
Wirkung der Verjährung bei
gesicherten Ansprüchen
(1) Die Verjährung eines Anspruchs, für
den eine Hypothek, eine Schiffshypothek
oder ein Pfandrecht besteht, hindert den
Gläubiger nicht, seine Befriedigung aus dem
belasteten Gegenstand zu suchen.
(2) !lst zur Sicherung eines Anspruchs ein
Recht verschafft worden, so kann die Rück¬
übertragung nicht auf Grund der Verjährung
des Anspruchs gefordert werden. 2lst das Ei¬
gentum vorbehalten, so kann der Rücktritt
vom Vertrag auch erfolgen, wenn der gesi¬
cherte Anspruch verjährt ist.
(3) Die Absätze 1 und 2 finden keine An¬
wendung auf die Verjährung von Ansprüchen
auf Zinsen und andere wiederkehrende Leis¬
tungen.
A. Function
When a claim has become time-barred (arguably a more precise translation than statute-
barred), the obligee’s accessory securities in rem still remain. They can thus continue to be
used for satisfaction of the time-barred claim; the obligor cannot invoke the defence of
limitation (Sub. 1). This is in contrast to e.g. a surety under § 765 which is accessory security,
but only gives a right in personam. § 216 applies only to the accessory securities which are
explicitly mentioned - mortgage, ship mortgage and pledge, and does not apply to priority
notices under § 883 as an accessory security.
290
Effer-Uhe/Mohnert
Limitation of collateral performance
1 § 217
B. Explanation
I. Right as security
Sub. 2 1st St. extends the effect of Sub. 1 to situations in which the obligee has received 2
another right as an abstract means of security. This applies to retention of title under § 449,
an assignment under §§ 398 et seq. for security purposes, or a security land charge under
§ 1192(1 a)). Limitation of the secured claim does not give the obligor any right to claim
reassignment of the security. Subsequently, the security may be utilised just as if the claim
had not yet become time-barred.
In a case of retention of title (§ 449), the seller continues to be owner even after the 3
secured claim (the performance of which was the condition precedent for the retention of
title) has become time-barred. The buyer’s right to refuse performance according to § 214(1)
is not equated to performance in this sense of this condition. However, under § 449(2), a
retention of title clause entitles the seller to reclaim the object sold only after the seller has
revoked (i.e. terminated) the contract. This is why Sub. 2 2nd St. expressly preserves the
seller’s right to revoke the contract even if the secured claim is time-barred and the obligor
invokes the defence of limitation, as an exception to § 218(1) 1st St. The requirements for
revocation must be met.1
IL Interest; recurring performances
Subs 1 and 2 do not operate for claims for interest or other recurring performances which 4
have become time-barred. Sub. 3 regulates that for these claims, the obligor may invoke
limitation without any restrictions for securing rights. Therefore, if the only outstanding
claims which are secured relate to interest and/or recurring performances, the obligor may
request the security’s clearance once these claims have become time-barred. If the obligee has
nevertheless used such securities for the satisfaction of time-barred claims, the obligor may
request restitution of the proceeds insofar as these were used for the satisfaction of time-
barred interest claims. Note that in this case, in deviation from § 367(1), the proceeds will be
counted first against the main claim, and only any remaining surplus against the interest
claims.
§217
Limitation of
collateral performance
A claim for collateral performance depen¬
dent on the main claim becomes statute-
barred at the same time as the main claim,
even if the specific limitation period applying
to the claim for collateral performance has
not ended.
§217
Verjährung von Nebenleistungen
Mit dem Hauptanspruch verjährt der An¬
spruch auf die von ihm abhängenden Neben¬
leistungen, auch wenn die für diesen An¬
spruch geltende besondere Verjährung noch
nicht eingetreten ist.
In principle, claims for collateral performances (notably interest, fruits, emoluments, 1
commissions, costs) prescribe independently of their main claim, so that the beginning of
the period of limitation, its duration, suspension and recommencement are independent of
the main claim’s aspects of limitation. This implies that claims to collateral performances can
become time-barred before or after the main claim. In this situation, § 217 ensures that such
claims become time-barred at the latest at the same time as the main claim. There are,
1 See in particular § 323(1) and § 323(2) No. 1.
Effer-Uhe/Mohnert
291
§218 1-2 Division 5. Limitation
however, some exceptions. The first occurs once the obligee has successfully asserted the
claim to collateral performances before the main claim became time-barred. Other cases in
which § 217 does not apply are if the period of limitation for the collateral claim has been
and continues to be suspended for other reasons according to § 204(1), or when the period of
limitation for the collateral claim recommences according to § 212, or else if the main claim
has expired before becoming time-barred, in particular through performance. § 216 applies
by analogy to claims to compensation for default (§§ 280(1), (2), 286), but not to other
claims to compensation for damages.
§218
Ineffectiveness of revocation
(1) 1 Revocation for non-performance or
for the failure to perform in conformity with
the contract is ineffective if the claim for
performance or the claim for cure is now
statute-barred and the obligor invokes this.
2This applies even if, in accordance with
§ 275(1) to (3), § 439(4) or § 635(3), the ob¬
ligor is not required to perform and the claim
for performance or cure would be statute-
barred. 3§ 216(2), sentence 2, remains unaf¬
fected.
(2) §214(2) applies with the necessary
modifications.
§218
Unwirksamkeit des Rücktritts
(1) ]Der Rücktritt wegen nicht oder nicht
vertragsgemäß erbrachter Leistung ist un¬
wirksam, wenn der Anspruch auf die Leistung
oder der Nacherfüllungsanspruch verjährt ist
und der Schuldner sich hierauf beruft. 2Dies
gilt auch, wenn der Schuldner nach § 275
Absatz 1 bis 3, § 439 Absatz 4 oder § 635
Absatz 3 nicht zu leisten braucht und der
Anspruch auf die Leistung oder der Nach¬
erfüllungsanspruch verjährt wäre. 3§ 216
Abs. 2 Satz 2 bleibt unberührt.
(2) § 214 Abs. 2 findet entsprechende An¬
wendung.
A. Function
1 German law sees revocation (alternatively translated as termination) of a contract due to
non-performance as part of a group of rights to influence a legal relationship by way of
unilateral declaration (Gestaltungsrechte). Not being claims, these rights are not subject to
limitation (cf. § 194(1)). Nevertheless, when a claim to performance or cure is time-barred
and the obligor invokes the defence of limitation, this situation renders any revocation due to
non-performance or performance not in conformity with the contract (§ 323) invalid
according to Sub. 1 1st St. The law stipulates no specific period within which the defence
must be invoked. In extreme cases, an obligor may be barred from invoking the defence
owing to good faith.1 If a party has declared a revocation before limitation has occurred,
§ 218 does not apply. Revocation gives rise to new claims under §§ 346, 347 which are
subject to an independent period of limitation.
B. Explanation
I. Impossibility; refused performance
2 According to Sub. 1 2nd St., revocation is excluded in cases of impossibility of performance
under § 275(1) even if the claim can no longer become time-barred because it is invalid
according to § 275(1) due to impossibility;2 in this situation, revocation is excluded once the
claim would have become time-barred if it still existed. Similarly, revocation based on § 326
(5) is invalid if the obligor may refuse performance due to disproportionate expense and
1 Doctrine of Verwirkung (torefeiture). sec * § 242 mn. 19 ct seq.
2 In this case, revocation would occur under § 326(5).
292
Effer- Uhe/Mohnert
Prohibition of chicanery 1 §226
effort or unreasonableness in accordance with §§ 275(2) or (3), 439(3), 635(3), once the
period of limitation for the underlying claim to performance or cure has lapsed.
II. Reversal of return
If performances made under a contract have been returned in consequence of a revocation 3
which is invalid due to Sub. 1, any claim to reverse the return is excluded according to Sub. 2
by reference to § 214(2)?
IIL Right of reduction
Due to the reference in Sub. 1 2nd St. to § 438(5) and § 634a(5), the same applies to the 4
right of reduction under sales and work contracts (not to be confused with contracts of
employment).
IV. Retention of title
§ 216(2) 2nd St., a specific provision concerning sales contracts with a retention of title 5
clause, remains unaffected by virtue of Sub. 1 3rd St.
§§ 219-225
(repealed)
Division 6
Exercise of rights, self-defence,
self-help
§ 226
Prohibition of chicanery
The exercise of a right is not permitted if
its only possible purpose consists in causing
damage to another.
§§ 219 bis 225
( weggefallen)
Abschnitt 6
Ausübung der Rechte,
Selbstverteidigung, Selbsthilfe
§226
Schikaneverbot
Die Ausübung eines Rechts ist unzulässig,
wenn sie nur den Zweck haben kann, einem
anderen Schaden zuzufugen.
A. Explanation
L Preconditions
§ 226 provides a specific rule on the abuse of legal rights, which can be understood as a 1
sub-set of the principle of good faith enshrined in § 242. Exercising an existing right without
some legitimate cause is prohibited; this cause is lacking if the right is used for the sole
purpose of causing harm to another person. § 226 combines an objective and a subjective
element. The objective test is whether, in a given case, the exercise of the right in question
can have any other function than harming someone else. The subjective test is whether
exercising the right is based on the intention to nefariously harm the other party. It is not
necessary for the exercising party to act with direct intent; dolus eventualis is sufficient. Some
scholars argue for dropping the subjective element completely.* 1 The simple fact that someone
makes use of their right for subjectively reprehensible reasons is not sufficient for § 226 (but
3 See ► § 214 mn. 6-7.
1 See Staudinger BGB/Repgen, § 226 BGB mn. 20-21.
Effer- Uhe/Mohnert
293
2
r 227 1-2
hr lA/hpn the exercise of the right confers anv
can be relevant for § 242). § 226 does not app y
advantage on the owner of the right.
II. Rights
All private law rights are rights in the sense of2 * *“o slights to inti«*
the lauer’ there ’„ill rarely be eases whieh »«old i«s.ily the assumption that such a „ght was
exclusively exercised to cause harm.
III. Damage to another
3 § 226 prohibits the exercise of a right for the sole purpose of harassment. Its exercise is
thereby unlawful and may be prevented by self-defence (cf. § 227). § 226 also gives rise to a
right to forbearance, which can lead to an injunction. In cases in which the prohibited
exercise has any enduring effects, § 226 also gives rise to a claim for removal. Furthermore,
such a prohibited exercise can result in a claim to compensation for damages.2 If the right is
exercised for harassment during court proceedings, the court will consider § 226 as an
objection ex officio, i. e. without any need of the affected party to invoke this provision. On
the other hand, the prohibited exercise of a right does not cause the right to expire - it may
still be exercised under other, non-harassing circumstances.
§227
Self-defence against persons
(1) An act required for self-defence is not
unlawful.
(2) Self-defence is the defence required to
ward off a present unlawful assault on oneself
or another.
§227
Notwehr
(1) Eine durch Notwehr gebotene Hand¬
lung ist nicht widerrechtlich.
(2) Notwehr ist diejenige Verteidigung,
welche erforderlich ist, um einen gegenwärti¬
gen rechtswidrigen Angriff von sich oder ei¬
nem anderen abzuwenden.
1
A. Function
§ 227 allows for certain acts of defence ev^n . k
considered unlawful Th.* k «. i • ’ en w^en ^ese acts would otherwise be
considered unlawful, lhe English translation as self-dpfp„ro ck^, i j k ., .
as § 227 applies to defence of both one’s own righfs and he S f T L
attacks by animals can be justified by §227 onlv if tb5 § i ?S
influence; otherwise, such defence may be justified! und« § ^8
B. Explanation
2
I. Assault
Sub. 2 defines self-defence as a necessary act of def
(assault1) on a right or legally protected interest of the d 4^1 against. a Present unlawful attack
any action which threatens to impair a rieht or leoilk,.? ender or of another party. An attack is
b 8 y protec,ed interest. A disputed view would
2 Under 826 or 823(2), in conjunction with § 226 ~~
Translation note: Whereas Angriff niav be t™«k, a
favoured to avoid potential confusion w.th assault in a.criminalicontexr"5'““0"
294
Effer-Uhe/Mohnert
Necessity § 228
extend ‘attack’ to omissions in breach of a duty imposed on the ‘attacker’.2 3 All individual rights
and legally protected interests are included? An attack is unlawful if it infringes upon applicable
rules or prohibitions, unless the legal system specifically allows such an infringement (as in a case
of § 229). The attack is present when it is imminent, has already begun and has not yet ended.
II. Act of defence
The predominant opinion is that the act of defence must subjectively serve the purpose to 3
defend a right, so that mere objective suitability is not sufficient.4 The act is justified only if it
is necessary (Sub. 2) as well as required (Sub. 1) in order to defend the right. In summary, the
act of defence must be objectively capable of repelling the attack, and there must be no less
harmful or dangerous means available that are equally safe and can quickly eliminate the
attack. The person affected must evade the attack rather than resorting to defence only if this
is possible without surrendering legally protected interests.”
1. Required
The element of requirement according to Sub. 1 places further restrictions on the defence. In 4
principle, there is no need for proportionality between the legally protected interests which were
being defended and those affected by the defence. For example, the defence of mere material
assets can still be justified by an act that endangers the aggressor’s life: an unlawfully acting
aggressor must, in this respect, accept a curtailment of their legally protected interests. However,
in individual cases, the defence may not be ‘required’ if it is directed against a child, a close
relative or a person who is clearly not culpable for his illegal conduct. The same applies if the
person whose rights are under attack has caused this situation in a legally reproachable way. In
such cases, the attacked party has to exercise as much restraint as can reasonably be expected
when defending themselves. The defence may also not be ‘required’ in exceptional cases where
there is a particularly severe imbalance between the impaired and the protected legal interest
2. Excess
Defence actions which exceed the limits of what is necessary (excess of defence) and 5
actions in situations which the acting person mistakes as a situation calling for defence, but
objectively do not fall within this scope (putative defence), are not justified by § 227.
However, these acts will lead to a liability for damages only if the actor is at fault. This is in
contrast to erroneous self-help, where § 231 imposes strict liability.
§228
Necessity
’A person who damages or destroys a thing
belonging to another in order to ward off
from himself or from another a danger threa¬
tened by the thing does not act unlawfully if
the damage or destruction is necessary to
ward off the danger and the damage is not
out of proportion to the danger. 2If the per¬
son acting in this manner caused the danger,
he is obliged to pay damages.
§228
Notstand
’Wer eine fremde Sache beschädigt oder
zerstört, um eine durch sie drohende Gefahr
von sich oder einem anderen abzuwenden,
handelt nicht widerrechtlich, wenn die Beschä¬
digung oder die Zerstörung zur Abwendung
der Gefahr erforderlich ist und der Schaden
nicht außer Verhältnis zu der Gefahr steht.
2Hat der Handelnde die Gefahr verschuldet,
so ist er zum Schadensersatz verpflichtet.
2 Staudinger BGB/Repgen, § 227 BGB mn. 17.
3 This includes all rights in rem, privacy and honour and others, but generally not rights in personam,
see ► § 823 mn. 20 et seq.
4 BGH 30.10.1984 - VI ZR 74/83, NJW 1985, 490.
Effer-Uhe/Mohnert
295
§ 228 1-5
Division 6. Exercise of rights, self-defence, self-help
A. Function
I. Purpose
1 Whereas the preceding provision, § 227, can justify defence against a person engaging in
an attack, § 228 provides a ground of justification in situations in which a dangerous
situation is emanating from an object (or, in accordance with § 90a 3 St., an animal),
without necessarily any involvement of human action.
IL Scope of application
2 § 904, rather than § 228, applies to situations in which the danger emanates not from the
damaged or destroyed thing or animal, but from another object. § 228 applies mutatis
mutandis to unappropriated (ownerless) things or animals. In cases of putative defence
(mistaken assumption of a danger which would have fallen under the scope of § 228) and
excess of defence, see § 227 mn. 5.
B. Context
3 Criminal law provides a related ground of justification in § 34 StGB, which may apply in
some cases in which the requirements of § 228 are not met: ‘A person who, faced with an
imminent danger to life, limb, freedom, honour, property or another legal interest which
cannot otherwise be averted, commits an act to avert the danger from himself or another,
does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected
legal interests and the degree of the danger facing them, the protected interest substantially
outweighs the one interfered with. This shall apply only if and to the extent that the act
committed is an adequate means to avert the danger.’1
C. Explanation
L Thing
4 § 228 requires a thing (a physical object under § 90) or animal belonging to another
person to pose an imminent threat to rights, legally protected interests or mere financial
interests of the actor or a third party. In this case, this thing or animal may be damaged or
destroyed in order to avert the danger, for example, by killing an attacking dog.
IL Act
5 The danger must be impending, therefore at least be imminent. In order to be justified,
the damage or destruction must be objectively necessary to avert the danger, and also be
subjectively supported by a will to avert this danger. The action is necessary if it is objectively
suitable to avert the danger, provided there are no less harmful or dangerous means available
which are equally rapid and effective. Contrary to § 227, the act is, however, unjustified if
there was an option to safeguard the threatened legally protected interest by evading the
danger. Moreover, any loss caused by the damage or destruction must not exceed dispro¬
portionately the threatening loss to be averted. If the last aspect rules out justification under
§ 228, justification may nevertheless occur under § 227 if the imminent danger was simulta¬
neously generated by a human attack.
This translation is from the English translation of the StGB available under www.gesctze-im-internet.de.
296
Efjer- Uhe/Mohnert
Self-help by mistake
§231
III. Justification
Justification by necessity under § 228 implies that the justified conduct is not unlawful. It 6
can thus not give rise to liability for damages in accordance with § 823(1); on the contrary,
attempts to resist justified conduct are themselves unlawful. The justified conduct can
nevertheless give rise to liability under the 2nd St., provided that the person acting under
§ 228 is at fault for having caused the danger in the first place.
§ 229 § 229
Self-help Selbsthilfe
A person who, for the purpose of self-help,
removes, destroys or damages a thing, or a
person who, for the purpose of self-help,
arrests an obliged person who is suspected of
flight, or overcomes the resistance to an act of
an obliged person who has a duty to tolerate
that act, does not act unlawfully if help can¬
not be obtained from the authorities in good
time and there is a danger, without immedi¬
ate intervention, that the realisation of the
claim will be prevented or be considerably
more difficult.
Wer zum Zwecke der Selbsthilfe eine Sache
wegnimmt, zerstört oder beschädigt oder wer
zum Zwecke der Selbsthilfe einen Verpflich¬
teten, welcher der Flucht verdächtig ist, fest¬
nimmt oder den Widerstand des Verpflichte¬
ten gegen eine Handlung, die dieser zu
dulden verpflichtet ist, beseitigt, handelt
nicht widerrechtlich, wenn obrigkeitliche
Hilfe nicht rechtzeitig zu erlangen ist und
ohne sofortiges Eingreifen die Gefahr besteht,
dass die Verwirklichung des Anspruchs ver¬
eitelt oder wesentlich erschwert werde.
§230
Limits of seif-help
(1) Self-help may not extend further than is
necessary to ward off the danger.
(2) In the case where things are removed,
then, unless execution of judgment is being
effected, a writ of attachment is to be sought.
(3) In the case of the arrest of the person
obliged, unless he is set free again, an appli¬
cation for his preventive custody is to be filed
with the local court [Amtsgericht] in whose
district the arrest took place; the person ob¬
liged is to be presented to the court without
undue delay.
(4) If the application for arrest is delayed
or rejected, the things seized must be re¬
turned and the person arrested released with¬
out undue delay.
§231
Self-help by mistake
If a person does any of the acts described
in § 229 in the mistaken assumption that the
requirements necessary to exclude unlawful¬
ness are satisfied, he is obliged to pay da¬
mages to the other party, even if the mistake
does not result from negligence.
§230
Grenzen der Selbsthilfe
(1) Die Selbsthilfe darf nicht weiter gehen,
als zur Abwendung der Gefahr erforderlich
ist.
(2) Im Falle der Wegnahme von Sachen ist,
sofern nicht Zwangsvollstreckung erwirkt
wird, der dingliche Arrest zu beantragen.
(3) Im Falle der Festnahme des Verpflich¬
teten ist, sofern er nicht wieder in Freiheit
gesetzt wird, der persönliche Sicherheitsarrest
bei dem Amtsgericht zu beantragen, in dessen
Bezirk die Festnahme erfolgt ist; der Ver¬
pflichtete ist unverzüglich dem Gericht vor¬
zuführen.
(4) Wird der Arrestantrag verzögert oder
abgelehnt, so hat die Rückgabe der weg¬
genommenen Sachen und die Freilassung des
Festgenommenen unverzüglich zu erfolgen.
§231
Irrtümliche Selbsthilfe
Wer eine der im § 229 bezeichneten Hand¬
lungen in der irrigen Annahme vorniinmt,
dass die für den Ausschluss der Widerrecht¬
lichkeit erforderlichen Voraussetzungen vor¬
handen seien, ist dem anderen Teil zum Scha¬
densersatz verpflichtet, auch wenn der Irrtum
nicht auf Fahrlässigkeit beruht.
Effer-Uhe/Mohnert
297
§ 231 1-6 Division 6. Exercise of rights, self-defence, self-help
A. Function
1 While §§ 227, 228 justify the defence of threatened legally protected interests only, §§ 229,
230 lay out the conditions under which an obligee may safeguard or even enforce a claim
(including claims in personam) by means of private force. Due to the state’s monopoly on the
legitimate use of force, such a right is reserved for exceptional situations. Usually, rights must
be enforced through the public justice system. Several specific provisions supplement § 229,
permitting self-help in some exceptional cases (e.g. §§ 859, 860, 910).
B. Explanation
I. Preconditions
2 In order for § 229 to apply, the actor needs to hold an actual and valid claim (§194) of their
own, which must furthermore be enforceable, which excludes time-barred claims (cf. § 214(1)),
Self-help may be used to defend the claim of another party if the actor is that party’s agent
(§§ 164 et seq.). Claims which are suspended conditionally or limited in time (§§ 158(1), 163)
can also be safeguarded by self-help, provided the fulfilment of the condition has not become
so improbable that the claim does not currently have an asset value (cf. § 916(2) ZPO).
3 Furthermore, self-help can be exercised only if no sufficient aid from the authorities can
be obtained in time, such as a preliminary injunction. Assistance by police qualifies as
alternative only in those exceptional cases where the police may be responsible for protecting
private rights. In addition, the enforcement of the claim must be made considerably more
difficult without immediate intervention, e.g. because the obligor is about to sideline
substantial assets. Self-help is not justified for mere evidential difficulties, or because of an
impending insolvency. Self-help is likewise excluded if the obligee has received sufficient
securities.
II. Acts of self-help
4 Subject to the further restrictions of § 230, when all of the above conditions are met, an
exercise of self-help which leads to the removal, destruction or damage of a thing (e.g. by
breaking open an apartment door), or preventing an obligor from absconding, is lawful
according to § 229. Self-help under § 229 can give the obligee the right to break the obligor’s
resistance; in some cases, the claim which the obligee seeks to secure or enforce contains
already a duty of the obligor to tolerate a certain conduct by the obligee. The obligee may
detain the obligor only in accordance with § 918 ZPO (cf. § 230(3)). Similarly, the obligee
may remove a thing only if this object could otherwise be subject to compulsory execution or
arrest in rem as under §§ 916 et seq. ZPO (cf. § 230(2)). Conduct which is justified by § 229
excludes liability for damages or criminal sanctions, provided that such conduct infringes
only the obligor s rights. The obligor must furthermore bear all costs of permissible self-help.
III. Extent
5 § 230( 1) states that self-help in accordance with § 229 may only go as far as is necessary to
avert the danger. Note that proportionality is not required: the damage to the obligor’s
legally protected interests may well exceed the value of the obligee’s interests at risk. In some
extreme cases, the principle of good faith (§ 242) may limit what is admissible under self¬
help.
6 If several options to act are available, the obligee must choose the least harmful means
amongst those which can effectively provide a preliminarily safeguard for the enforcement of
the obligee s claim. It follows that self-help can usually only secure, not settle a claim, as this
is typically not necessary for averting a danger. Final decisions are left to the courts.
298
Effer- Uhe/Mohnert
Types
§232
IV. Arrest
The above is furthermore demonstrated by the rules contained in § 230(2) and (3), namely 7
that the obligee must petition for preliminary injunctions according to §§ 916 et seq. ZPO. In
cases of removal of property, the arrest in rem provides the appropriate injunctive relief. In
cases in which the obligee has relied on § 229 for an arrest, an application for personal
detention must be lodged at the local court where the arrest took place, to which the obligor
must be presented without delay. No such application for interim relief is necessary if, in a
case of a removal of property, the obligee already has a writ of execution or other enforceable
legal document as laid out in § 230(2) (cf. § 794 ZPO), or if, in the event of the obligor’s
arrest, this person was released, e. g. after all personal details were ascertained.
V. Return; release
According to § 230(4), removed property must be returned promptly if there is any delay 8
in the application for arrest in rem, or if this application is rejected. The prevailing opinion
awards the same claim even against an obligee with a right of possession. Similarly, the
arrested party must be released immediately if the application for personal arrest is delayed
or declined. Note that § 859 (self-help of the possessor) takes precedence over § 230; when
§ 859 applies, there is no need to apply for injunctive relief.
VI. Mistake
Self-help is unlawful if the requirements in §§ 229, 230 are not met. § 231 imposes strict 9
liability for such unlawful acts of self-help, even when the actor mistakably, but without
negligence assumed to have met them. Liability under § 231 also includes cases in which the
limits of lawful self-help as set out in § 230 were exceeded.
Division 7
Provision of securitiy
Abschnitt 7
Sicherheitsleistung
§232
Types
(1) A person who is required to provide
security may do so:
by the deposit of money or securities,
by the pledge of claims that are registered
in the Federal Debt Register [Bundesschuld¬
buch] or the Land Debt Register [Land¬
esschuldbuch] of a Land,
by the pledge of movable things,
by the creation of ship mortgages on ships
or ships under construction which are re¬
corded in a German ship register or a ship
construction register,
by the creation of mortgages on land
within the country,
by the pledge of claims for which there is a
mortgage on land within the country,
§232
Arten
(1) Wer Sicherheit zu leisten hat, kann dies
bewirken
durch Hinterlegung von Geld oder Wert¬
papieren,
durch Verpfändung von Forderungen, die
in das Bundesschuldbuch oder in das Landes¬
schuldbuch eines Landes eingetragen sind,
durch Verpfändung beweglicher Sachen,
durch Bestellung von Schiffshypotheken an
Schiffen oder Schiffsbauwerken, die in einem
deutschen Schiffsregister oder Schiffsbau¬
register eingetragen sind,
durch Bestellung von Hypotheken an in¬
ländischen Grundstücken,
durch Verpfändung von Forderungen, für
die eine Hypothek an einem inländischen
Grundstück besteht,
Effer-Uhe/Mohnert
299
Division 7, Provision of security
§ 232 1-3
or by the pledge of land charges or annuity
land charges on land within the country.
(2) If security cannot be provided in this
manner, it is admissible to furnish a reason¬
able surety.
oder durch Verpfändung von Grundschul-
den oder Rentenschulden an inländischen
Grundstücken.
(2) Kann die Sicherheit nicht in dieser
Weise geleistet werden, so ist die Stellung
eines tauglichen Bürgen zulässig.
Contents
mn.
A. Function J
I. Purpose
II. Scope of application
B. Explanation
I. Choice of means
II. Value of security 5
IIL Means 6
1. Deposit of money &
2. Deposit of bonds ®
3. Pledge 9
4. Mortgage 11
5. Surety 14
A. Function
I. Purpose
1 § 232 regulates how security can be provided if a party is under a contractual, statutory or
judicial obligation to do so. The security may consist in an obligation (e.g. a claim against a
third party as in Sub. 2), or in a real right (e.g. a pledge from pledging a movable thing as in
§§ 1204-1259), in favour of the person to whom the security was provided. This new claim
or right may be used in order to avoid losses which the beneficiary could face in failing to
enforce the secured right. In addition to the items listed in § 232, there are some other means
to secure a claim (e.g. by priority notice under §§ 883 et seq.). Parties are free to deviate from
§§ 232-240, and can thus agree on other means of security, such as a bank suretyship. There
are also some additional means of security specified by statute for some individual cases, as
e.g. in § 647. The security can sometimes serve to safeguard the obligor(!) against disadvan¬
tages which they would suffer if the obligee exercised the right being secured (e.g. § 273(3))-
2 §§ 232-240 lay out the modalities in which security can be provided. They do not give rise
to any right to security but presume that such a right exists. A claim to security can be
derived from a statutory provision (such as § 843(2) 2nd St.), an agreement or a judicial order
(e.g. § 1382(3)). 5 ’ j
IL Scope of application
3 Whenever securities need to be provided under a judicial order 1 §§ 232-240 are replaced
by the appropriate provisions in civil procedure law (§§ 108-113 ZPO) However analogs
to substantive civil law provisions can often fill gaps in procedural law?’ Similarly, whenever
no different or addtttonal rules apply to a security provided under public law 88 ^2-240 can
apply by way of analogy/ r ’ **
1 e.g., under § 709 ZPO for the preliminary enforcement of a iudemen. I,- u • c .
2 See Zoller ZPO/Hergct, § 108 ZPO mn. 1. %n>ent which is not yet tinal.
3 Staudinger BGB/Repgen, Vor §§ 232 et seq. mn. 7.
300
Effer-Uhe/Mohnert
Types
4-10 § 232
B. Explanation
I. Choice of means
§ 232 lists suitable means of security to be provided by the obligor. Sub. 1 leaves the choice of 4
means to the obligor as the person who must provide security. Obligors are not bound by their
choice, however, until the security has in fact been commissioned. The obligor may combine
different means of security, so that e. g. one part of the debt may be secured by the creation of a
mortgage, and the remaining part by deposit of money or bonds (arguably a better translation of
Wertpapiere than securities, in the English translation of the first alternative).4
II. Value of security
The value of the security must correspond to the value of the right which is being secured. 5
Typically, a security will be worth at least 110 percent of the value of the secured claim or
right, whereby the excess serves to cover costs for potential legal enforcement.5 If the security
provided exceeds the value of the secured claims by more than 50 percent, the provider of the
security may generally require the excess to be released.6 Note that for some means of
security, the amount is capped by §§ 234(2), 236 and 237 Is' St.
III. Means
According to § 232, security may be provided by the following means:
1. Deposit of money
This can be done by deposit of cash only. Foreign currencies can be used, but are limited 6
in their capacity to provide security to 75 percent of their nominal value at the time of the
deposit by an analogous application of § 234(3). This limit serves to accommodate for
fluctuations in the exchange rate. This rule does not apply if the order to provide security
explicitly prescribes the usage of a specific foreign currency.
Deposits are carried out according to the appropriate Hinterlegungsgesetz (Deposit Act) of a 7
Land (in Rhineland-Palatinate by the Hinterlegungsordnung, respectively). The effect of a deposit
is regulated in § 233. Note that §§ 372-386 on deposits do not apply to deposits for security.
2. Deposit of bonds
For deposit of bonds, gilt-edged bearer bonds with trustee security status and order papers 8
with blank endorsement may be used.7
3. Pledge
The second item on the list of securities is pledging a debt register claim against the Bund 9
or a Land, i.e. claims registered in a debt register as in § 8 BSchuWG (Bundesschuldenwe¬
sengesetz - Federal Debt Management Act) or a corresponding debt register law of a Land.
Pledges of book claims against a municipality8 are not admissible as a security; neither are
pledges of other simple claims.
Movables may be pledged for security in accordance with § 237 and §§ 1204 et seq. 10
4 On the translation used, see Introduction mn. 63 et seq.
5 For the limit of cover, -» also § 307.
6 BGH 27.11.1997 - GSZ 1/97, GSZ 2/97, NJW 1998, 671.
7 See -» § 234 for further details.
8 Note that the city states of Berlin, Hamburg and Bremen are Under, not municipalities.
Effer- Uhe/Mohnert
301
§ 233 1-2
Division 7. Provision of securitiy
4. Mortgage
11 Ship mortgages may be created for security in a German maritime register or shipbuild¬
ing register (cf. §§ 8, 77 SchRG). They can provide security for up to two-thirds of the
estimated value of the ship in an analogous application of § 237 1st St. Note that the rules
for ship mortgages apply also to aircraft registered in Germany by virtue of § 98(2)
LuftFzgG.
12 A mortgage may be created on a plot of land situated in Germany for security. This
must, by way of analogy, meet the requirements for trustee security status as stipulated by
§ 238( 1 ).9 By way of purposive interpretation of § 232 in favour of conformity with EU
law,10 security may also be provided by rights similar to mortgages in other EU Member
States.11
13 Rather than creating a new mortgage, security may also be provided by pledging the claim
which is secured by an existing mortgage.12 Details are regulated in § 238. Alternatively,
§ 1192(1) in conjunction with § 232 allows pledging a land charge for security.
5. Surety
14 According to Sub. 2, a surety (a Bürgschaft under §§ 765 et seq., which could alternatively
be translated as guarantee) may be provided as security only if none of the other listed means
of security are available. The obligor carries the burden of proof. Security by way of such a
guarantee is restricted further by § 239.
§233
Effect of deposit
When the deposit is made, the person en¬
titled acquires a security right over the money
deposited or the securities deposited and, if
the money or the securities pass into the
ownership of the treasury or the institution
designated as the depositary office, a security
right over the claim for reimbursement.
§ 233
Wirkung der Hinterlegung
Mit der Hinterlegung erwirbt der Berechtigte
ein Pfandrecht an dem hinterlegten Geld oder
an den hinterlegten Wertpapieren und, wenn
das Geld oder die Wertpapiere in das Eigentum
des Fiskus oder der als Hinterlegungsstelle be¬
stimmten Anstalt übergehen, ein Pfandrecht an
der Forderung auf Rückerstattung.
1 § 233 applies only where security has been provided by deposit of money or of bonds.
When a person deposits money or bonds, the creditor acquires a pledge in the deposited
objects which is created by operation of the law (§ 1257). If the treasury (i.e., the fiscal
authorities) gains ownership of deposited money according to the federal or Land Hinterle¬
gungsgesetz (Deposit Act), the person who has made the deposit acquires a reimbursement
claim, while the secured creditor acquires a pledge in this claim which is also created by
operation of the law.
2 If the person who made the deposit used funds from a third party of which the treason’
gained ownership, this person nevertheless acquires a reimbursement claim against the
treasury. The creditor acquires a pledge in this reimbursement claim, regardless of whether
the creditor was bona fide. However, according to the prevailing view, deposit of foreign
currency or foreign bonds which belong to a third party does not create a pledge if the
creditor is in bad faith.1
9 See * § 234 mn. 2.
10 See *► Introduction mn. 36.
11 MiiKo BGB/Grothc, § 232 BGB mn. 9.
12 See 1273 et seq.
1 By virtue of an analogy to § 1207, which refers to bona fide acquisition under § 932(2).
302
Effer- Uhe/Mohnert
Suitable securities
1-3 § 234
§234
Suitable securities
(1) ’Securities are only suitable for the
provision of security if they are made out to
the bearer, have a market value and are of a
kind in which money held in trust for a ward
may be invested, instruments made out to
order and endorsed in blank are equivalent to
bearer instruments.
(2) The interest coupons, annuity coupons,
dividend coupons and renewal coupons are to
be deposited with the securities.
(3) Securities may be provided as security
only up to the amount of three quarters of
their market value.
§234
Geeignete Wertpapiere
(1) 'Wertpapiere sind zur Sicherheitsleis-
tung nur geeignet, wenn sie auf den Inhaber
lauten, einen Kurswert haben und einer Gat¬
tung angehören, in der Mündelgeld angelegt
werden darf. 2Den Inhaberpapieren stehen
Orderpapiere gleich, die mit Blankoindos¬
sament versehen sind.
(2) Mit den Wertpapieren sind die Zins-,
Renten-, Gewinnanteil- und Erneuerungs¬
scheine zu hinterlegen.
(3) Mit Wertpapieren kann Sicherheit nur
in Höhe von drei Vierteln des Kurswerts
geleistet werden.
A. Function
§ 234 regulates which bonds (arguably a better translation of Wertpapiere than securities) 1
may be used for providing security under § 232. Bonds must be made out to the bearer,
including bearer bonds as in §§ 793 et seq. and bearer shares as in § 10(1) 2nd St. AktG.
Pursuant to Sub. 1 2nd St., order papers with blank endorsement qualify the same as bearer
bonds. The rationale behind this is that order papers are factually equated to bearer bonds by
blank endorsement (so-called ‘technical bearer bonds’) because they may be passed on by
simple delivery without renewed endorsement (e.g. Art. 16(2), 17(2) No. 3 ScheckG).1 2 By
contrast, registered bonds with bearer clause as in § 808 do not qualify.
B. Explanation
I. Bond
The bond must have trustee security status and continue to have a market value. For market 2
value, it is sufficient for the bond’s market price to be determinable by demand and supply,
while an official listing is not mandatory. Bonds with trustee security status are chartered
government bonds of the Bund or a Land pursuant to § 1807(1) No. 2, bonds for which
interest is guaranteed by the Bund or a Land pursuant to § 1807(1) No. 3, as well as other
bonds pursuant to § 1807(1) No. 4 declared to have trustee security status by the Verordnung
über die Mündelsicherheit der Pfandbriefe und verwandten Schuldverschreibungen (Mündel-
PfandBrV; Regulation on the high-grade security of bonds and other related obligations).
IL Supplementary bonds
According to Sub. 2, some supplementary bonds (cf. §§ 803-805) may also be deposited, 3
with the effect that the pledge created in favour of the secured party extends to those bonds.
The prevailing view is that the party who has deposited the bonds may demand return under
§ 1296 2nd St. insofar as the supplementary bonds become due during deposit.2
1 See > e.g. Art. 16(2), 17(2) No. 3 ScheckG.
2 Erman BGB/Schmidt-Räntsch, § 234 BGB mn. 3.
Effer- Uhe/M oh nert
303
§237 1
Division 7. Provision of securitiy
III. Value
4 Bonds can be used as security for up to three-quarters of their market value according to
Sub. 3, i.e. the market value of the bonds must surpass the worth of the sum to be secured by
at least one third. In case of a market price decrease, § 240 applies.
§235
Right to exchange
A person who has provided security by
depositing money or securities is entitled to
exchange the money deposited for suitable
securities and the securities deposited for
other suitable securities or for money.
§235
Umtauschrecht
Wer durch Hinterlegung von Geld oder
von Wertpapieren Sicherheit geleistet hat, ist
berechtigt, das hinterlegte Geld gegen geeig¬
nete Wertpapiere, die hinterlegten Wert¬
papiere gegen andere geeignete Wertpapiere
oder gegen Geld umzutauschen.
1 Prior to providing security, the obligor may choose among the means of security admissible
under § 232(1). Once the security is provided, the obligor may generally not exchange the
security for another without consent from the entitled party. § 235 provides an exception for
security provided by money or bonds: deposited money may be changed for bonds, or bonds
for money, or bonds for other suitable bonds (§ 234), without consent from the entitled party,
thereby allowing the person who provides security economic freedom of disposition.
§236
Registered claims
A registered claim against the Federal Gov¬
ernment or a Land may be provided as secur¬
ity only up to the amount of three quarters of
the market value of the securities the delivery
of which the creditor may demand in return
for cancellation of his claim.
§236
Buchforderungen
Mit einer Schuldbuchforderung gegen den
Bund oder ein Land kann Sicherheit nur in
Höhe von drei Vierteln des Kurswerts der
Wertpapiere geleistet werden, deren Aushän¬
digung der Gläubiger gegen Löschung seiner
Forderung verlangen kann.
1 Debt register claims against the Bund or a Land1 are capped to provide security for no
more than three quarters of their market value, referring to the sum the creditor will receive
upon liquidation of the claim. Therefore, the market value of these bonds must surpass the
worth of the sum to be secured by at least one third.
§237
Movable things
’A movable thing may be provided as se¬
curity only up to the amount of two thirds of
its estimated value. 2Things may be rejected
as security if their spoilage is to be feared or
if their safekeeping involves special difficul¬
ties.
§237
Bewegliche Sachen
'Mit einer beweglichen Sache kann Sicher¬
heit nur in Höhe von zwei Dritteln des Schät-
zungswerts geleistet werden. 2Sachcn, deren
Verderb zu besorgen oder deren Aufbewah¬
rung mit besonderen Schwierigkeiten verbun¬
den ist, können zurückgewiesen werden.
When providing security by deposit of movable things (chattels), they must have an
economic value. The depositor carries the burden of proof for the value of these objects. Deposit
1 See -♦ § 232 mn. 10.
304
Effer- Uhe/Mohnert
Mortgages, land charges and annuity land charges 1-2 § 238
of movables provides security to no more than two thirds of the assessed value according to the
1st St. Thus, the assessed value must surpass the worth of the sum to be secured by 50 percent.
The BGH applies this limit by analogy to revolving global securities (e.g. global transfer of
ownership by way of security of a warehouse with changing inventory) which may be provided
under standard business terms.1 There is a rebuttable presumption derived from the 1st St. that
for the purpose of assessing the security value of movables in relation to the secured claims the
two thirds ratio is both necessary and sufficient.2 The creditor may reject perishables and things
which are particularly difficult to keep safe (e.g. live animals) as security.
§238
Mortgages, land charges and
annuity land charges
(1) A mortgage claim, a land charge or an
annuity land charge is suitable as security
only if it complies with the requirements for
the investment of money held in trust for a
ward in mortgage claims, land charges or
annuity land charges at the place where se¬
curity is provided.
(2) A claim secured by a debt-securing
mortgage is not suitable as security.
§238
Hypotheken, Grund- und
Rentenschulden
(1) Eine Hypothekenforderung, eine Grund¬
schuld oder eine Rentenschuld ist zur Sicher¬
heitsleistung nur geeignet, wenn sie den Vo¬
raussetzungen entspricht, unter denen am
Orte der Sicherheitsleistung Mündelgeld in
Hypothekenforderungen, Grundschulden oder
Rentenschulden angelegt werden darf.
(2) Eine Forderung, für die eine Siche¬
rungshypothek besteht, ist zur Sicherheitsleis¬
tung nicht geeignet.
A. Function
Sub. 1 limits the provision of security according to § 232(1) by pledging a mortgage claim, 1
land charge or annuity land charge to such security which has trustee security status. The
same applies in cases in which a mortgage is created specifically for providing security.
Trustee security status, meaning a suitable investment of a ward’s funds, are claims secured
by mortgage, land charge or annuity land charge which have been created on plots of land
situated in Germany pursuant to § 1807. These securities need to assure full payout with
outmost certainty in order to be considered safe. Adequate safety in this sense may be
assumed if the value of a charge on real property reaches between one half and three fifths of
the market value of the plot of land, irrespective of the charge’s order of priority. Sub. 1
applies by analogy to charges on real property and foreign equivalents from EU Member
States respectively. Ship mortgages, not considered to have trustee security status, should
likewise also be subject to such a limit.
B. Explanation
Claims secured by a ‘debt-securing mortgage’ (i.e. a mortgage in the sense of § 1184 only) 2
cannot themselves be used as a means of security, according to Sub. 2. The reason for this is
that the mere creation of a debt-securing mortgage for security on a claim provides no
assurance that this claim actually exists (cf. § 1184(1)). However, a claim which is secured by
such a debt-securing mortgage can be suitable as a means of security if secured by an
additional mortgage in the sense of § 1113(1), adhering to Sub. 1. This must be distinguished
from the case where a debt-securing mortgage is created to provide security for the creditor’s
own claim (the claim to be secured under § 232), because the creditor of the claim deserves
1 BGH 27.11.1997 - GSZ 1/97, GSZ 2/97, NJW 1998, 671.
2 See BGH 27.11.1997 - GSZ 1/97, GSZ 2/97, NJW 1998, 671.
Effer- Uhe/Mohnert
305
o 240 . Division 7. Provision of security
9 , • wi.Mlv exists. Any effort to secure a non-existing
security and protection only if that cairni a,*. nJkgal effect.
claim by way of a debt-securing mor g g
§239
Surety
(1) A surety is qualified if he possesses
property appropriate for the amount of se¬
curity to be provided and is subject to general
jurisdiction within the country.
(2) The declaration of suretyship must con¬
tain a waiver of the defence of unexhausted
remedies.
§239
Bürge
(1) Ein Bürge ist tauglich, wenn er ein der
Höhe der zu leistenden Sicherheit angemesse¬
nes Vermögen besitzt und seinen allgemeinen
Gerichtsstand im Inland hat.
(2) Die Bürgschaftserklärung muss den
Verzicht auf die Einrede der Vorausklage ent¬
halten.
A. Explanation
I. Assets
1 To provide security by suretyship (which could alternatively be translated as guarantee), the
surety (or guarantor) (cf. §§ 765 et seq.) must have assets at disposal which are sufficient in
relation to the value which is to be secured. Generally, the sum of the assets of which the surety
can dispose must significantly surpass this person’s debts; safe, recurring revenues can qualify.
IL Jurisdiction
2 Additionally, according to the wording of Sub. 1, the surety’s general court of jurisdiction
(§ 12 ZPO) must be domestic; general jurisdiction within the EU does also qualify’. Major
banks, trustee savings banks and cooperative banks will regularly meet this requirement
III. Waiver
3 According to Sub. 2, the surety must waive the defence of prior exhaustion of remedies
against the obligor (cf. §§ 771, 773).
IV. Burden of proof
4 The obligor carries the burden of proof for the surety’s suitability.
§240
Duty to supplement security
If the security provided becomes insuffi¬
cient without this being the fault of the per¬
son entitled, it is to be supplemented or
another security is to be provided.
§24°
Ergänzungspflicht
W jd die geleistete Sicherheit ohne Ver¬
schulden des Berechtigten unzureichend. »
is sie zu ergänzen oder anderweitige Sicher
heit zu leisten.
1
A. Explanation
I. Insufficient
§ 240 applies if a security that has alreadv h
occur when the security is subsequently destroY^rT*^ becomes insufficient. This n«?
case when a budding on the mortgaged land is i significantly, as may be
StrOyed‘ Or when deposited bonds lose in
306
Effer-Uhe/Mohnert
Duty to supplement security 2 §240
value), or when the secured claim increases in value. § 240 provides to the entitled party a
claim against the obligor to either increase the security, or to exchange it for another security
as provided by § 232.
II. Supplementary security
When a security becomes insufficient due to the overall economic development rather 2
than reasons related to either the security or the secured debt, § 240 also gives the creditor
the right to request supplementary security. The same applies in case of a general breakdown
of the housing market. If, by contrast, the insufficiency is caused by a currency erosion, the
same claim will arise instead based on § 242, or by way of extended contractual interpreta¬
tion. A security which was insufficient from the outset must also be increased, but this
already follows from the original right to provide security in conjunction with § 232.
Effer- Uhe/Mohnert
307
BOOK 2
LAW OF OBLIGATIONS
BUCH 2
RECHT DER
SCHULD VERHÄLTNISSE
Division 1
Subject matter of obligations
Abschnitt 1
Inhalt der Schuldverhältnisse
Title I
Titel 1
Duty of performance
Verpflichtung zur Leistung
§241
Duties arising from an obligation
(1) 'By virtue of an obligation an obligee is
entitled to claim performance from the ob¬
ligor. 2The performance may also consist in
forbearance.
(2) An obligation may also, depending on
its contents, oblige each party to take account
of the rights, legal interests and other inter¬
ests of the other party.
§241
Pflichten aus dem
Schuldverhältnis
(1) ’Kraft des Schuldverhältnisses ist der
Gläubiger berechtigt, von dem Schuldner
eine Leistung zu fordern. 2Die Leistung kann
auch in einem Unterlassen bestehen.
(2) Das Schuldverhältnis kann nach seinem
Inhalt jeden Teil zur Rücksicht auf die Rech¬
te, Rechtsgüter und Interessen des anderen
Teils verpflichten.
Contents
mn.
A. Function 1
B. Context 2
C. Explanation 3
I. Concept of obligation 3
II. Legal transaction 4
III. Parties 5
IV. Performance 6
V. Scope of performance 7
VI. Duties of protection 8
VII. Amicable acts 10
VIII. Liability 11
A. Function
§ 241 features numerous concepts central to the entire law of obligations: the obligation itself, 1
the parties to the obligation (obligee and obligor), performance, and the duty to take account of
the rights, legal interests and other interests of the other party. The provision does not define
these concepts, but rather determines the general effects of the obligation. Sub. 1 entitles
the obligee to claim performance from the obligor. This is the main effect and in principle the
German law of obligations thus allows the obligee to demand performance in natura by the
obligor. Sub. 2 stipulates that the obligation may give rise to duties to take account of the rights,
legal interests and other interests of the other party (Schutzpflichten - duties of protection).
Schulze
309
§ 241 2-6
Division 1. Subject matter of obligations
B. Context
2 The entitlement to claim performance is a fundamental difference to the common law,
which provides specific performance only as an equitable remedy. The regulation (along¬
side the performance obligations) in Sub. 2 of the duties of protection vis-ä-vis rights, legal
interests and other interests of the other parties represents a difference between the
German law of obligations and other civil law systems. Sub. 2 was introduced in 2002 by
the SMG and is based on extensive case law which used the principle of good faith (§ 242)
to impose such duties.
C. Explanation
I. Concept of obligation
3 The entitlement to claim performance is rooted in the obligation (Sub. 1). Broadly speak¬
ing, obligation refers to all legal transactions in which there is special relationship between
the obligee and obligor (e.g. the rights and duties of buyer and seller in a sales contract,
including possible secondary duties such as the disclosure of information). Although such
broader meaning can be observed in other provisions (e.g. § 273(1)), Sub. 1 applies the
concept of obligation in a narrower sense: it does not refer to all legal relationships, but
rather to an individual, specific entitlement for the obligee to claim performance (e.g. the
seller’s right to demand payment from the buyer) and the obligor’s corresponding duty.
II. Legal transaction
4 Obligations may be imposed either through a legal transaction (Rechtsgeschäft) or by
statute (gesetzliche Schuldverhältnisse - statutory obligations). The former mostly concerns
contracts (i.e. through bilateral or multi-lateral legal transactions), but obligations may also
arise via unilateral legal transactions (in particular through the promise of a reward under
§ 657). In contrast, statutory obligations arise as a direct result of statutory provisions (e.g.
due to the rules on agency without specific authorisation in §§ 677 et seq., on unjust
enrichment in §§ 812 et seq., and on damages for torts in §§ 823 et seq.).
III. Parties
5 § 241 refers to the entitled party as the Gläubiger (obligee - also translated as ‘creditor’)
and the obliged party as Schuldner (obligor - also translated as ‘debtor’); such designations
apply to all types of obligation. Obligee and obligor must be different, defined or at least
definable persons (either natural or legal). The obligation is extinguished through confusion
(Konfusion) if the obligor and obligee become one and the same person after the obligations
have arisen.
IV. Performance
6 The object of the obligation is a defined or definable performance (Sub. 1). Performance
is a broad concept and in principle consists of every disposition of real or supposed
benefits. These need not necessarily have financial value; a legal interest that is worthy of
protection will suffice. Whether the concept refers to the performance of the undertaking
owed (Leistungshandlung) or to the result of the performance (Leistungserfolg), or both, will
depend on the statutory and contractual form of the respective obligation. Performance
obligations can therefore be duties to undertake (obligation de moyen) or duties to achieve a
result (obligation de resultat). The meaning of performance (Leistung) in individual
310
Schulze
Duties arising from an obligation 7-9 § 241
legislative provisions is ascertained via interpretation (in particular according to their
purpose and context1), e.g. §§ 243(2), 269, 271 refer to the undertaking, whereas §362
concerns the result.
V. Scope of performance
Performance exists not only an act (positive Leistung, e.g. making a payment, transferring 7
property, performing a service, creating rights) but also in the form of a forbearance
(negative Leistung), as clarified by Sub. 1 2nd St. In the latter respect, the forebearance may
concern an act that the obligor would otherwise be entitled to perform (e. g. building on land
or entering into competition with the obligee after the sale of a business). Toleration
(Duldung) of particular acts represents a particular form of forebearance, e.g. where a party
is to retrain from exercising available defensive or counter rights (e. g. the claim to removal in
the event of an interference with property, see § 1004(2)).
VI. Duties of protection
Sub. 2 concerns ‘duties of protection’ (Schutzpflichten). Such duties serve to respond to 8
instances in which a contract or a similar relationship (especially pre-contractual relations)
often exposes health, property and other legal interests to considerable influences by the
other party, yet tort law does not provide sufficient protection.2 Accordingly, the legal
transaction can oblige parties to take account of the other party’s rights, legal interests and
other interests, and to avoid harm to the other party. These duties of protection can exist as
collateral duties alongside the primary performance obligations (e.g. the seller’s duty not
to damage the buyer’s furniture when delivering a good to the buyer’s residence). However,
they may also be the sole content of a legal transaction, i.e. no primary duties (in particular
in the pre-contractual relationship according to § 311(2), (3)). The obligee cannot enforce
performance of these duties but their breach gives rise to a damages claim (under the
requirements of § 280(1) or §§ 280(1), (3), 282) and to a right of revocation (§ 324) in
reciprocal contracts.
Examples of duties of protection include making arrangements for life and health (e.g. 9
consideration of non-smokers with a smoke allergy3), taking care of another’s things (e.g.
in transport or when surrendering for repair), and guaranteeing insurance in particular
high-risk situations (e.g. comprehensive insurance undertaken by a car dealership for
customers test-driving vehicles4). Information duties are a particularly broad type of such
protective duties: there is no general obligation to give information,5 though numerous
individual information duties are regulated by statute (e.g. §§ 355(2), 469, 663, 694).
Furthermore, information duties may exist without an express statutory basis due to the
type and content of the obligation (depending on the individual circumstances, in
particular in high risk transactions, long-term agreements, and capital investments). The
difference in the parties’ experience and knowledge is also to be taken into account.6
Moreover, duties to warn may arise in especially dangerous situations.7 The variety of
duties of protection reflects their origins in the principle of good faith and accordingly such
duties may apply in all areas of the law of obligations and are subject to the individual
circumstances.
1 BGH 6.2.1954 - II ZR 176/53, NJW 1954, 794.
2 See >§311 mn. 6.
3 OLG Frankfurt a.M. 10.2.1994 - 1 U 96/92, NJW-RR 1994, 633.
4 BGH 8.1.1986 - VIII ZR 8/85, NJW 1986, 1099.
5 BGH 9 10 1990 - XI ZR 200/89, NJW-RR 1991, 170.
6 On the inexperience of a party see BGH 5.10.1991 - VI ZR 314/90, NJW 1992, 302; on a lawyer’s legal
knowledge see BGH 8.12.1983 - I ZR 183/81, NJW 1984, 791.
7 BGH 19.2.1975 - VIII ZR 144/73, NJW 1975, 824.
Schulze
311
§ 241a
Division 1. Subject matter of obligations
10
VII. Amicable acts
The obligation is to be distinguished from a as neighbours.^
an act undertaken in the context of friendship tvoicallv eratnit™
distinction between an amicable act and an obligation oes , y t■ .
nature of the former as obligations may also be gratuitous, in p gratuitous f
such as donation (§ 516), a gratuitous loan (§ 598), mandate (§ 662), and gra uitous safe-
keeping (§ 690). In comparison to a purely amicable act, these gratui o gations are
described as gratuitous contracts (Gefälligkeitsverträge). The key distinguishing feature is the
lack of an intention to be legally bound (Rechtsbindungswille) in a purely amicable act (its
economic and legal significance, the interests of the parties, as well as the type, reason and
purpose of the act are to be considered8). Indications for an intention to be legally bound
may include the high value of the object entrusted, considerable efforts, or the risk of
significant harm to the beneficiary in the event of non- or poor performance. Purely amicable
acts include e. g. watching over a neighbour’s home during his holiday or forming a lottery
syndicate with colleagues.9 An intention to be legally bound may be inferred in a car-pooling
arrangement thus giving rise to an obligation.10
VIII. Liability
11 There is neither an obligation to perform nor a claim to performance with regard to a
purely amicable act - a key difference to gratuitous contracts. In principle, case law does not
afford claims to damages except those arising from §§ 823 et seq. due to a tortious act
However, some aspects of legal doctrine suppose that Sub. 2 ought to give rise to duties of
protection for the party performing the amicable act and a claim to damages under § 280 if
the act is based on particular social contact comparable to ‘similar business contacts’
according to § 311(2) No. 3. The extent of liability is also controversial: case law prorides
that the injuring party is in principle (according to § 276) liable in the scope of §§ 823 et seq.
for every fault,11 whereas a part of legal doctrine favours a lesser standard(liability for
intention and gross negligence or for the care the injuring party customarily applies in his
own affairs, in analogous application of §§ 521, 599, 680, 690)12
§ 241a
Unsolicited performance
(1) The supply of movable things that are
not being sold by way of an execution of
judgment or otherwise by authority of law
(goods), or the provision of other services to
the consumer by a trader, does not create a
claim against the consumer if the consumer
has not ordered these goods or other services.
(2) Statutory claims are not excluded if the
performance was not intended for the recipi-
" BGH 6 71"5 - HI ZR 176/94, NJW 1995
BGH 16.5.1974 - II ZR 12/73, NJW 1974 I705
'"BGH 14.11.1991 - III ZR4/91. NJW 1992 498
BGH 9.6.1992 - VI ZR 49/91, NJW 1992, 2474
For further detail see The German Law of Contract p 86 et
* r* et seq.
12
§ 241a
Unbestellte Leistungen
(1) Durch die Lieferung beweglicher Sa-
C en;> d'e n*ch* auf Grund von Zwangsvoll-
Streckungsmaßnahmen oder anderen gericht-
liehen Maßnahmen verkauft werden (Waren),
o er durch die Erbringung sonstiger Leis-
ungen durch einen Unternehmer an den
er räucher wird ein Anspruch gegen den
hrJ I?ucil*r nicht begründet, wenn der Ver-
UC. er die Waren oder sonstigen Leistun¬
gen nicht bestellt hat.
npQchi Geset*llche Ansprüche sind nicht aus¬
geschlossen, wenn die Leistung nicht für den
312
Schulze
Unsolicited performance
1-4 § 241a
ent or was made in the mistaken belief that
there had been an order, and the recipient
was aware of this or could have been aware of
this if he had taken reasonable care.
(3) ’There may be no derogation from the
stipulations of this provision to the disadvan¬
tage of the consumer. 1 2The stipulations apply
even if they are circumvented by other con¬
structions.
Empfänger bestimmt war oder in der irrigen
Vorstellung einer Bestellung erfolgte und der
Empfänger dies erkannt hat oder bei Anwen¬
dung der im Verkehr erforderlichen Sorgfalt
hätte erkennen können.
(3) ’Von den Regelungen dieser Vorschrift
darf nicht zum Nachteil des Verbrauchers
abgewichen werden. 2Die Regelungen finden
auch Anwendung, wenn sie durch anderwei¬
tige Gestaltungen umgangen werden.
A. Function
I. Purpose
The provision serves to protect a consumer who receives goods or services from a trader 1
without having placed a corresponding order (unsolicited). The provision also serves to
prevent such commercial practices.1
IL Position within the BGB
The rule forms an element of the general part of obligations as it excludes claims against 2
the consumer that may arise under various provisions of the law of obligations and
property law.
III. Scope of application
The provision covers the delivery of goods or the provision of other services. Sub. 1 defines 3
goods as moveable things that are not being sold by way of compulsory enforcement
(Zwangsvollstreckung2) or otherwise by authority of law. Other services are all forms of
services (irrespective of the type of contract, e.g. a services contract under § 611 or a contract
to produce a work under § 631). The delivery or the performance of the other service must
be performed or initiated by a trader (§ 143) for a consumer (§ 13). However, the notion of
consumer under § 13 cannot be applied directly because unsolicited performance does not
form a legal transaction (Rechtsgeschäft). For the purposes of § 241a, a consumer is a natural
person who would be a consumer under § 13 if the contract were concluded for the delivery
or other service.
B. Context
The provision is based on Art. 27 EU Consumer Rights Directive. 4
1 See Wagner, Prävention und Verhaltenssteuerung durch Privatrecht - Anmaßung oder legitime
Aufgabe?, 206 AcP (2006), 352, 369.
2 Translation note: the BGB translation under www.gesetze-im-internet.de translates the term Zwangs¬
vollstreckung as execution of judgment. T his translation is not incorrect as such, but may create confusion
and therefore compulsory enforcement is preferable (sec also the English language translation ot the ZPO
available under www.gesetze-im-internet.de).
3 t he inconsistency in the translation available under www.gcsetze-im-internet.de is to be noted here:
Unternehmer is translated as entrepreneur in § 13 and other provisions, e.g. § 310(1), 478(1), whereas
Unternehmer is translated as trader (as typically favoured in EU legislation) in e.g. §§ 241a(l), 312(1),
355 etc.
Schulze
313
§242
Division 1. Subject matter of obligations
C. Explanation
L Unsolicited
5 The goods or other services are unsolicited if, prior to the delivery, the consumer neither
makes an offer nor is delivery attributable to him by other means (e.g. his agreement to
receive goods in order to make a decision regarding purchase, or the agreement to the
delivery of an alternative good instead of the good originally ordered). Solicited performance
will not be rendered unsolicited through avoidance of a contract concluded between the
consumer and the trader (§§ 119 et seq.). Sub. 2 limits the broad scope of Sub. 1 as the
delivery to the incorrect recipient or the delivery to the correct recipient made under the
mistaken belief that there had been an order do not exclude claims by the trader. However,
this only applies when the consumer was either aware or negligently unaware of the mistake.
IL Legal consequence
6 The trader does not have a claim against the consumer in the event of unsolicited
performance (Sub. 1). As the provision clarifies, the trader cannot raise a contractual claim
against the consumer due to the general principle that a declaration of intent is required by
the consumer in order for a contract to be concluded.4 Furthermore, all statutory claims by
the trader are excluded - in particular the claim to restitution of emoluments and the claim
to compensation which, due to the unsolicited performance, the business could enforce
against the consumer on the basis of unjust enrichment, tort or property law.5 The consumer
is therefore protected from the trader’s broad counter-claims even though the consumer does
not acquire ownership of the unsolicited good.
§242
Performance in good faith
An obligor has a duty to perform accord¬
ing to the requirements of good faith, taking
customary practice into consideration.
§242
Leistung nach Treu und Glauben
Der Schuldner ist verpflichtet, die Leistung
so zu bewirken, wie Treu und Glauben mit
Rücksicht auf die Verkehrssitte es erfordern.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Party intention 4
II. Public policy 5
III. Prohibition of chicanery 6
IV. Standard business terms 7
V. Relationship 8
VI. Mandatory nature 9
VII. Burden of proof 10
VIII. Obligor and obligee 11
4 See -> § 145 mn. 3.
5 For criticism of the complete exclusion of claims to restitution by the entrepreneur, as owner, see Hn
BGB/Schulze, § 241a BGB mn. 7.
314
Schulze
Performance in good faith
1-2 § 242
IX. Concept 12
X. Customary practice and constitutional values 13
XI. Balance of interests 14
XII. Legitimate interests 15
XIII. Obligations to co-operate 16
XIV. Duty of information and duty to render account 17
XV. Post-contractual duties 18
XVI. Exercise of rights 19
1. Legal consequences of abuse of rights 20
2. Application 21
3. Defeating the counterparty’s rights 22
4. Breach 23
5. Interest warranting protection 24
6. Duty of immediate restitution 25
7. Minor breach and disproportionality 26
8. Exploiting a formal legal position 27
9. Contradictory behaviour 28
10. Irreconcilable self-contradiction 29
A. Function
I. Purpose and underlying principle
The provision concerns the manner of the obligors performance (the how of the 1
performance). Case law and legal doctrine have attributed considerable significance to the
provision in deriving the general legal principle that rights are to be exercised and
obligations are to be performed in good faith.1 It is material to the whole legal community
and, as a general clause with a broad scope of application, must be substantiated in light of
the individual circumstances of the case. Careful consideration is to be given to the other
principles and values in the legal system, to the specific provisions in the relevant area of law
concerned and, where appropriate, to the content and purpose of the contract. The principle
derived from § 242 affords equitable results that can replace the legal outcome provided by
statute or contract in the individual case. However, the provision also targets loyal behaviour
and serves to avoid intolerable results.2 Legal certainty and transparency require the principle
to be applied in accordance with the particular legal institution (Rechtsinstitut) and the
substance of its individual elements. With regard to the latter, the substance of the principle
can be seen in developments in case law and legal doctrine that serve to fill the principle’s
broad scope and which are generally accepted.
IL Scope of application
The criteria for determining the areas in which the principle of good faith are to be applied 2
and operate are controversial and the individual aspects thereof are subject of discussion.
Distinctions are typically drawn with respect to the following functions: the wording of § 242
specifies the manner of the performance by the obligor. Details and, under some circum¬
stances, an extension of the content of the main performance obligation arise from the
provision on how the performance is to be effected. The supplementary function extends far
beyond the wording of the provision: good faith may require the content of the main
performance obligation to be supplemented with collateral obligations, especially disclosure
obligations, information obligations and obligations to co-operate in preparing, executing
and safeguarding the performance. Duties of protection are now covered in § 241(2);
collateral obligations not covered by § 241(2) also arise for both parties due to good faith,
1 BOH 24.1.2011 - X ZB 33/08, BeckRS 2011, 05430.
2 See BGH 22.10.1987 - ZR 12/87, N(W 1988, 255.
Schulze
315
§ 242 3-5 Division 1. Subject matter of obligations
i.e. for the obligor and obligee (whose behaviour ought not endanger the success of the
performance). Good faith serves to restrict the exercise of rights and prevents their
illegitimate exercise. Moreover, the principle of good faith also serves to establish and develop
legal institutions, which have significantly changed the traditional legal landscape creative
function. In particular, legal doctrine and case law had developed the legal institution of
absence or disappearance of the basis of the transaction before the 2002 SMG codified this in
§ 313 as the interference with the basis of the transaction.
B. Context
3 The private law of other countries and EU law also contain legal principles founded - as
§ 242 - in the concept of bona fides-, though these take different forms and are much more
limited than in German law? Generally, there will also be a distinction between the objective
and subjective aspects of good faith. Common law traditionally does not acknowledge the
principle of good faith (but does use concepts in its place e.g. reasonable), though the
principle has found recognition in rules for international commercial contracts (e.g. Art 1.7
PICC, Art. 1:201 PECL). The use of good faith as a concept of EU law is to be especially’
considered for the law of commercial agents (Arts 3(1), 4(1) EU Commercial Agents
Directive) and in the interpretation of § 307 for consumer contracts due to Art. 3 EU Unfair
Terms Directive. However, the CJEU only has to interpret the general criteria in Art 3
without examining their application to a specific contract term.4
C. Explanation
I. Party intention
4 The intention of the parties is to be ascertained via interpretation in accordance with
§§ 133 and 157 (and, where applicable, with completive interpretation of contract) before
applying the objective criteria under § 242. The parties’ lawful wants are material to § 157,
whereas § 242 concerns the lawful shoulds.5 Despite this distinction between the subjective
and objective perspectives, there is an overlap in the evaluation criteria for each provision.
Completive interpretation of contract (ergänzende Vertragsauslegung6) and the applica¬
tion of legal principles developed on the basis of § 242 often intertwine in establishing
collateral obligations. Case law therefore occasionally states § 157 together with § 242 even
though the interpretation of the contract takes priority over the duties determined on the
basis of § 242.7
IL Public policy
5 The scope of § 138 (legal transaction contrary to public policy; usury) is narrower than ttf
§ 242. Whereas a breach of public policy will always represent a breach of good faith,
performance in bad faith may not always breach public policy. As regards the relationship to
§ 134 (statutory prohibition), § 242 is not a statutory prohibition therefore a breach ot
faith does not void the legal transaction according to § 134.
3 See Zimmermann/Whittaker (eds), Good faith in European Contract Law (CUP 2008); on the
opposition to abuse of rights in European private law Fleischer, Der Rechtsmißbrauch zw^hen
Gemeineuropäischem Privat recht und Gemeinschaftsprivatrecht, JZ 2003, 865
4 CJEU C-237/02 Freiburger Kommunalbautcn ECLI:EU:C:2004•‘>09 nm 22
5 BGH 14.12.1954 - I ZR 65/53, NJW 1955,460. ’ *
6 See -> § 157 mn. 4 et seq.
7 BGH 29.9.1967 - V ZR 131/64, NJW 1967, 2351; LG München 18.11.1988 - 21 O 11130/86. ^1
1989, 2625.
316
Schulze
Performance in good faith
6-12 § 242
III. Prohibition of chicanery
In contrast to § 242, the prohibition of chicanery (§ 226) and intentional damage contrary 6
to public policy (§ 826) do not require a legal relationship and give rise to a claim for
damages (§ 226 in conjunction with § 823(2)). However, the narrow nature of the require¬
ments in § 226 and the higher threshold put on public policy than on the breach of good
faith mean that §§ 226, 826 are of limited practical importance in comparison to the
inadmissible exercise of a right due to good faith.
IV. Standard business terms
§§ 305 et seq. do not contain specific provisions on the content of standard business terms. 7
According to case law, these provisions substantiate good faith conclusively with regard to
the content of a general control of reasonableness. However, § 242 continues to provide the
basis for the control of content insofar as these provisions do not apply according to § 301.8
V. Relationship
Good faith requries a relationship between the parties that is of legal relevance.9 However, 8
any qualified social contact alongside contractual and statutory obligations will suffice, e.g. the
relationship between the parties to a void legal transaction, legal relationships due to infringe¬
ments of competition law or the aftermath of a contract. This general requirement means that
the principle of good faith is not limited to the law of obligations but applies across private
law.10 The principle also applies in procedural law insofar as no restrictions are provided. The
principle is especially applied to the illegitimate use of rights in enforcement.11
VI. Mandatory nature
In principle the requirements of good faith are mandatory. Courts must apply the 9
principle regardless of whether any party relies on it.
VII. Burden of proof
The party who would benefit from an application of the principle of good faith will often 10
bear the burden of proof.
VIII. Obligor and obligee
The obligation of good faith extends beyond the wording of § 242 to apply not only to the 11
obligor but also to the obligee. The principle encompasses the performance and the exercise
of rights and the performance of duties as a whole.
IX. Concept
§ 242 characterises good faith as a general clause and accordingly the concept requires legal 12
doctrine and case law to provide the details. The literal meaning can only serve as the starting
8 BGH 17.9.1987 - VII ZR 153/86, NIW 1988, 135. On the similarity between the standards under
§ 242 and the law of standard business terms e.g. in partnership agreements with silent partners see BGH
27.11.2000 - II ZR 218/00, NJW 2001, 1270.
9 BGH 11.6.1996 - VI ZR 256/95, NJW 1996, 2724; disputed.
10 e.g. on the application to a marriage clause in an inheritance agreement see BVerfG 21.2.2000 -
1 BvR 1937/97, NJW 2000, 2495.
11 BGH 19.2.1951 - IV ZR 39/50, BeckRS 1951, 31397485; BGH 12.1.1951 - V ZR 14/50, NJW 1951,
269; BGH 6.10.1971 - VIII ZR 165/69, NJW 1971, 226.
Schulze
317
§ 242 13-16 Division 1. Subject matter of obligations
point. The English translation of Treu und Glauben simply as good faith does not, however
reflect the semantic distinction drawn in German. Treue (loyalty, devotion) describes behaviour
between the parties that encompasses reliability, sincerity, and consideration. Glauben (faith)
means the trust by one party in such behaviour by the other. The combination of these two
words thus contains the requirement of honest and loyal behaviour with due consideration of the
other party’s legitimate interests. This requirement includes the notion of protection of reliance.12
X. Customary practice and constitutional values
13 Closer elucidation of the requirements of good faith first requires consideration of
customary practice i.e. the actual exercise in the respective practice. However, this only
applies when the practice does not itself contradict good faith or other requirements of the
legal system thereby becoming a bad practice as a result. Determining the requirements of
good faith beyond customary practice may also require consideration of value decisions
within the legal system, especially constitutional values. As for other general clauses, § 242
also reflects the effects in private law of value decisions expressed in fundamental rights and
structural principles of the constitution, such as the welfare state (mittelbare Drittwirkung
von Grundrechten - ‘indirect effect of fundamental rights’13).
XI. Balance of interests
14 It is always necessary to balance the interests in light of the individual circumstances.14 A
breach of good faith does not require fault,15 16 but subjective elements are to be considered in
assessing and balancing the interests. Fault by one party does not necessarily favour the
other. The extent of the demands of good faith also requires due consideration of the
intensity and duration of the legal relations between the parties. Higher demands are to be
placed on continuing obligations requiring long-term co-operation, such as in the distribu¬
tion sector (e.g. commercial agency, distribution, and franchising).
XII. Legitimate interests
15 As one of the main areas of application of § 242, the manner of the performance requires
the obligor to consider the obligee’s legitimate interests and to perform the obligation not
only to the letter but also according to the purpose of the relationship - for instance, he mav
not perform at an inappropriate time (e.g. delivery of the goods in the middle of the night
for commercial law see § 358 HGB). The obligor may be obliged to perform at a different
location if the performance at the intended place is unreasonable for the obligee.10 The
obligee must also give due consideration to the obligor's legitimate interests and the purpose
of the contract when performing. In particular, he may have to accept minor deviations from
the type of performance owed insofar as the same economic effect is achieved and he has no
opposing material interests (e.g. accepting part performance in deviation from § 266. or the
transfer to a different bank account17).
XIII. Obligations to co-operate
16 Good faith may give rise to collateral obligations of co-operation between the obligor an<i
obligee if co-operation is necessary in order to achieve the purpose of the contract O’1
u BGH 22.5.1985 - IVa ZR 153/8, NJW-RR 1986, 162.
13 BVerfG 15.1.1958 - 1 BvR 400/51, BeckRS 9998, 181159; BeckOGK BGB/Vossler, § 134
mn. 35-36 on a lessor’s duty to tolerate the installation of a parabolic intenni bv a foreign les>ee **
BGH 16.5.2007 - VIII ZR 207/04, NJW-RR 2007, 1243. ‘ •
h BGH 22.12.1967 - V ZR 11/67, NJW 1968, 549.
15 BGH 31.1.1975 - IV ZR 18/74, NJW 1975, 827.
16 RC; 19.9.1923 - I 164/22.
17 BGH 11.11.1968 - Il ZR 228/66, NJW 1969, 320.
318
Schulze
Performance in good faith 17-19 § 242
particular in overcoming an obstacle to performance, if this is reasonable under the
circumstances). Obligations to co-operate often arise when official approval is necessary in
order to perform the contract (e.g. an import license or planning permission). In such cases
the parties are to take all the necessary measures in order to obtain approval and refrain from
acts that could prevent the approval.18 Further groups of cases include e.g. a statutory or
contractual adaptation to the contract (e.g. adapting a partnership agreement or adapting the
price as agreed in the contract19). The obligee will be in default in accepting the performance
(§§ 293 et seq.) if he refrains from such co-operation.
XIV. Duty of information and duty to render account
Collateral duties to give information and to render account often stem from good faith. 17
Such duties are provided by statute, e.g. in §§ 402, 666, 681, 687(2), 713, 1379 and 2057. But
they can also arise under the principle of good faith when the following requirements are
satisfied: the beneficiary’s lack of knowledge of the existence or extent of his rights must be
excusable. Furthermore, he is unable to acquire the information by other means. The party
obliged to give information must be able to give the necessary information without
difficulty.20 The extent of the duty to provide information is to be determined by balancing
the parties’ interests under the circumstances of the case, e.g. the duty may be limited if the
parties to the contract are competitors.21
XV. Post-contractual duties
Duties based on good faith may arise after the contract has been performed. Such duties may 18
oblige a party to refrain from, to tolerate, or to undertake certain acts. They may arise as
implied terms from a ‘completive interpretation of contract’ (ergänzende Vertragsauslegung), or
directly based on good faith as a consequence of the contractual relationship. Post-contractual
collateral duties may be duties of protection pursuant to § 241(2) or independently enforce¬
able duties arising under § 242. Examples for such post-contractual duties are duties of
confidentiality following an employment relationship,22 to tolerate a law firm affixing a
relocation sign to the property after the end of a lease agreement,23 to grant access to patient
files after treatment has finished.24 They also include the producer’s duty to surveil products.25
XVI. Exercise of rights
The principle of good faith may render the exercise of rights illegitimate under various 19
different circumstances as the principle not only establishes duties but also serves as an
internal limitation on all rights, legal institutes and legal provisions (Theorie der immanenten
Schranke, Innentheorie26). Not dissimilar to the French notion of abus de droit, and in
continuation of the Roman law principle exceptio doli praesentis, this application of the
principle of good faith may prevent the assertion of rights and the exploitation of a legal
position if such reliance would be abusive.27 However, in order to prevent an abuse of rights
by either party, it is necessary to evaluate the exercise of rights under changing circum-
18 BGH 25.6.1976 - V ZR 121/73, NJW 1976, 1939.
19 BGH 24.4.197« - II ZR 172/76, NJW 197«, 1625.
20 BGH 2«. 10.1953 - II ZR 149/52, NJW 1954, 70; BGH 17.6.1953 - II ZR 205/52, NJW 1953, 1217;
BGH 13.6.19«5 - I ZR 35/«3, NJW 19«6, 1247.
21 BGH 19.9.1975 - I ZB 3/74, GRUR 1976, 143.
22 BGH 20.1.19«! - VI ZR 162/79, NJW 1981, I0«9.
23 OLG Dusseldorf 27.5.19«« - 16 U 56/««, NJW 19««, 2545.
24 BGH 23.11.19«2 - VI ZR 222/79, NJW 19«3, 32«.
25 BGH 9.12.19«6 - VI ZR 65/«6. NJW 1987, 1009.
26 BGH l«.l 1.1955 - 1 ZR 176/53, NJW 1956, 341; BGH 29.4.1959 - IV ZR 265/5«, NJW 1959, 2207.
27 BGH 27.1.1954 - VI ZR 16/53, NJW 1954, 50«.
Schulze
319
§ 242 20-23 Division 1. Subject matter of obligations
stances: an exercise of a right which was prima facie inadmissible may be rendered admissible
by a change in the relevant circumstances, and vice versa.28
1. Legal consequences of abuse of rights
20 The legal consequences of an abuse depend on the area of application and the interests in
the individual case. They limit the rights of the party exercising the right. In particular,
circumstances that would be significant and beneficial to the party may not be taken into
consideration (e.g. prevention from relying on a defence or formal requirements29 which
would otherwise be available) or the enforcement of rights may be denied. The party
invoking the abuse of the right bears the burden of proof.30
2. Application
21 The most important areas in which the principle of good faith is applied to the abuse of
rights include groups of cases in which the exercise of the right is actually or legally
connected to earlier dishonest behaviour. The limitation of the exercise of rights in such
cases is based on the notion that the holder of the right should not gain legal advantages
from his own dishonest behaviour.31 Examples include the demand for performance of a
contract that has been concluded through the abuse of a power of authority (Missbrauch der
Vertretungsmacht) and the obligee has recognised this fact;32 the dishonest assertion of
personal need after leasing alternative apartments;33 asserting a contractual penalty after the
obligee caused the non-conformity by the obligor.34
3. Defeating the counterparty’s rights
22 The abuse of a right may also be present if the party acts in bad faith to defeat the
counterparty’s rights: a party who prevents a right or benefit from accruing may, under the
principle of good faith, be prevented from treating this failure as the other party’s breach of
contract. This principle is based i.a. on §§ 162(2), 815. For example: if the customer refuses to
co-operate in order to allow the work to be completed, the customer cannot defeat the
contractor’s claim for payment on the ground there was no opportunity to accept the work/*
A declaration may be considered as received if a party acts deceitfully in order to prevent its
receipt.36 A contract subject to formal requirements may, as an exception, be considered
effective if a party has prevented the satisfaction of the formal requirements in order to later
rely on this lack of form.37
4. Breach
23 The obligee’s own breach may in some instances temporarily or permanently prevent him
from asserting his own rights. However, there is no general principle that rights can onlv be
asserted by a party who has fully complied with all of its own obligations. On the other hand,
if a party, despite being seriously non-compliant, seeks to exercise rights with extensive
consequences for the obligation (such as revocation or termination), this mav be barred by
: ——
BGH 8.10.1969 - I ZR 7/68, NJW 1970, 141.
29 BGH 19.11.1982 - V ZR 161/81, NJW 1983, 563.
30 BGH 27.1.1954 - VI ZR 16/53, NJW 1954. 508; BVerfG 24.6.1988 - 1 BvR 736/88 NJW 1988.
3' BGH 31.3.1993 - XII ZR 198/91, NJW 1993, 1645; BGH 21.3.1985 - VII ZR 148/83. NJW IQ8>-
1826.
32 BGH 25.10.1994 - XI ZR 239/93, NJW 1995, 250.
33 BVerfG 13.11.1990 - 1 BvR 275/90, NJW 1991, 157.
34 BGH 23.3.1971 - VI ZR 199/69, NJW 1971. 1126.
35 BGH 8.7.1970 - VIII ZR 28/69, NJW 1970, 2015.
» BGH 26.11.1997 - VIII ZR 22/97, NJW 1998, 976; BGH 3,11.1976 - VIII ZR 140/75 NJW I’7'
BGH 11.11.1992 - 2 AZR 328/92. NJW 1993, 1093.
v BGH 2.6.1976 - VIII ZR 97/74, NJW 1976, 1395.
320
Schulze
Performance in good faith 24-26 § 242
the principle of good faith. In particular, the objection that the entitled party has also been in
breach (tu quoque-objection) may also render the exercise of the right inadmissible if the
obligee, despite his own significant breach, revokes the contract according to §§ 323 et seq.,38
or if a lessee seeks to rely on § 537(2) although he has moved out of the apartment and is no
longer paying rent.
5. Interest warranting protection
A party may be barred from exercising a right if this party is lacking an interest warranting 24
protection (schutzwürdiges Interesse). This is particularly the case if such an exercise of the
right would only serve as a pretence in order to achieve purposes that are beyond the scope of
the contract or that are improper,39 or if exercising this right would not serve any perceptible
material interest of this party. It is not necessary to show that the party who is barred from
exercising this right intended to harm another party, as would be the case for the prohibition
of chicanery (§ 226) It is rather sufficient that obligee’s legal position does not objectively
warrant protection. A self-interest warranting protection may be lacking e.g. in revoking the
contract or reducing the price after the defect no longer exists, or with regard to a defect that
has no actual negative effect on the purchaser after the object has been used,40 or where a
party would abuse information rights for commiting industrial espionage 41
6. Duty of immediate restitution
A self-interest warranting protection is also lacking if the obligee requests surrender of an 25
object which he would immediately have to return. In such instances, the obligee will act in
bad faith because he seeks to obtain an advantage that is ultimately not available to him,
placing unnecessary7 burdens on the obligor, in particular the increased burden for the
obligor of enforcing return, and of the obligee’s insolvency. This corresponds to the maxim
dolo agit, qui petit, quod statim redditurus est,42 which is derived from Roman law. In
practice this concerns in particular claims for performance in the form of surrender or
delivery of an object which would, once handed over, immediately have to be returned as
compensation. A claim for performance is thus generally inadmissible if the object in
question has to be restored as compensation43 or in accordance with rules on unjust
enrichment.44
7. Minor breach and disproportionality
The exploitation of minor, inconsequential breaches or defects in order to assert unrea- 26
sonable legal consequences (i.e. abuse due to insignificance and disproportionality) will also
constitute an abuse of rights. The constitutional principle of proportionality is also to be
considered in civil law45 with the consequence that the exercise of a right must not be
completely disproportionate to the other party’s behaviour.46 Several provisions express this
notion (i.a. §§ 259(3), 281(1) 3rd St., 320(2), 323(5) 2nd St., 543(2) No. 3). However, there is
no general principle that minor breaches will never attract legal consequences. Specific
statutory provisions, such as those mentioned above, but also express provisions to the
3* See also BGH 13.11.1998 - V ZR 386-97, NJW 1999, 352 on contractual rights of revocation.
39 BGH 22.1.1991 - XI ZR 342/89, NJW 1991, 1289.
40 BGH 22.2.1984 - VIII ZR 316/82, NJW 1984. 2287; BGH 20.10.2000 - V ZR 207/99, NJW2001, 66.
41 BGH 28.10.1953 - II ZR 149/52, NJW 1954, 70.
42 BGH 21.5.1953 - IV ZR 192/52, NJW 1953, 1099; BGH 10.7.1991 - XII ZR 114/89, NJW 1991,2553.
43 BGH 24.5.1976 - HI ZR 145/74, NJW 1976, 1631; BGH 14.4.1976 - IV ZB 43/75, NJW 1976, 1258.
44 BGH 19.3.1971 - V ZR 166/68, NJW 1971, 1750; BGH 28.5.1979 - II ZR 85/78, NJW 1979, 1652.
45 BVerfG 7.2.1990 1 BvR 26/84, NJW 1990, 1469; BGH 6.12.1989 - Iva ZR 249/88, NJW 1990, 911;
BGH 20.10.1993 - IV ZR 231/92, NJW 1994, 248.
46 See BGH 8.7.1983 - V ZR 53/82, NJW 1983, 2437; Buß, De minimis non curat lex, NJW 1998, 337,
343.
Schulze
321
§ 242 27-28 Division 1. Subject matter of obligations
contrary, take precedence. Otherwise, reliance on remedies for a minor breach can be barred
under the principle of good faith if, in full consideration of the circumstances, a balance of
interests reveals that a minor breach would lead to an extraordinarily severe legal conse¬
quence. For instance, if an insured party commits a minor breach of a lesser form of
obligation (Obliegenheit47) towards the insurer, or is in insignificant arrears, this will not
release the insurer from all liability under the insurance contract.48 Revocation due to non¬
performance within the period for performance or notification may be illegitimate if, frorn
the perspective of the obligee, the delay is only very minor.49 Similarly, a customer may not
refuse acceptance and payment for a work based on an insignificant defect that can be easily
rectified.50 The principle of proportionality may give rise to further restrictions on the
exercise of rights in continuing obligations (Dauerschuldverhältnisse) and other long-term
or particularly close relationships between the parties. For instance, good faith may require
the injured party to choose the least severe measure as the response to a breach. For example,
in a partnership, the exclusion of a partner51 and the removal of a partner’s managerial
powers52 would violate the proportionality requirement if if less severe measures are possible
and reasonable.
8. Exploiting a formal legal position
27 The exploitation of a formal legal position may be inadmissible if the obligee intends to
gain advantages that clearly contradict the underlying legal relationship. Examples include
the misuse of bank or cheque guarantees;53 the assertion of security rights although the
purpose for the security does not or no longer exists.54 An inconsiderate, unreasonable
exercise of rights for one’s own benefit may also render the exercise of rights inadmissible.
The exercise of a right may be inadmissible due to the grossly unreasonable and incon¬
siderate enforcement of interests vis-ä-vis the obligor. A sudden demand by a buyer for
complete and immediate performance of a high volume sales contract in which the buyer had
previously failed to take delivery may thus be considered as violating good faith.55
9. Contradictory behaviour
28 The exercise of a right will generally be inadmissible in cases of contradictor}' behaviour
(venire contra factum proprium). However, not any contradiction between present and
earlier behaviour will render the exercise of a right inadmissible. Typically, the earlier
behaviour by one party will have led to reasonable reliance by the other, which is then
protected by ruling the subsequent contradictory behaviour inadmissible. A similar prohi¬
bition on the exercise of a right on the ground of contradictory behaviour may alternatively
arise from other specific circumstances.56 Fault is not a requirement for such contradictor)'
behaviour,57 although it is to be taken into account when balancing the parties' interests. In
—
47 An Obliegenheit is not a duty in the strict sense as the counterparty^ cannot take legal action m lhe
event of its breach e.g. if the party foils to perform the Obliegenheit. However, a failure to perform
Obliegenheit may e.g. prevent the party in breach from asserting a right. A typical example is the hover*
failure to examine the goods within an examination period. In such cases the buver mav be prewnt<M
from asserting his guarantee rights against the seller, whereas the seller cannot claim damages for tk
buyer’s failure to examine.
48 BGH 25.6.1956 - II ZR 101/55, NJW 1956, 1634.
49 BGH 11.4.1984 - VIII ZR 315/82, NJW 1985, 267.
50 BGH 25.1.1996 - VII ZR 26/95, NJW 1996, 1280.
81 BGH 17.2.1955 - II ZR 316/53, NIW 1955, 667.
82 BGH 9.12.1968 - II ZR 33/67, NJW 1969, 507.
» BGH 12.3.1984 - Il ZR 198/82, NJW 1984, 2030.
84 BGH 25.2.1987 - VIII ZR 47/86, NJW 1987, 1880.
55 BGH 28.10.1987 - VIII ZR 206/86, BeckRS 1987, 31076487.
5* BGH 9.11.2004 - X ZR 119/01. NJW 2005, 418.
” BGH 28.5.1968 - VI ZR 37/67, NJW 1968, 2105.
322
Schulze
Obligation in kind 1 § 243
particular, reliance on the earlier behaviour may warrant protection if, firstly, the entitled
party's earlier behaviour has created the impression that this party will either not exercise
its right at all or will not exercise it a particular form or at that moment in time. Secondly,
the other party has exposed itself by relying on the earlier behaviour to such a degree that
the change appears unreasonable (abandonment of rights) e.g. if the obligor has prevented
the obligee from interrupting the limitation period in order to await a decision in parallel
proceedings and then relies on limitation.58 The prohibition of contradictory behaviour can
be used to overcome formal requirements only in extraordinary circumstances, involving
exceptionally serious breaches of good faith and where otherwise the results would appear
completely inacceptable.59
10. Irreconcilable self-contradiction
Further groups of cases of the inadmissible exercise of rights concern the so-called 29
‘irreconcilable self-contradiction’ (unlösbarer Selb st wider Spruch). This concerns e.g. the case
where a party in court proceedings invokes an arbitration clause that it has already rendered
ineffective in arbitration.60 Another example concerns co-tenants of residential property
where one of the tenants moves out and the other, staying on, refuses to either give joint
notice of the tenancy agreement, or to agree to release the co-tenant from the existing
agreement.61 Laches form a particular case of self-contradiction (i.e. preventing enforcement
of a right because of an unreasonable delay). Reliance arises in such cases as the entitled party
has not enforced his right over a long period of time and, due to such behaviour, it was
objectively justifiable under the circumstances for the other party not to expect the right to
be exercised in the future. The creation of such reliance places a time limit on the exercise of
the right; late exercise will breach the principle of good faith.62 However, preventing the
enforcement of a right because of an unreasonable delay is narrowly limited to exceptional
cases and, in particular, must not undermine the provisions on prescription and limitation
periods.63
§243
Obligation in kind
(1) A person who owes a thing defined only
by class must supply a thing of average kind
and quality.
(2) If the obligor has done what is neces¬
sary on his part to supply such a thing, the
obligation is restricted to that thing.
§243
Gattungsschuld
(1) Wer eine nur der Gattung nach be¬
stimmte Sache schuldet, hat eine Sache von
mittlerer Art und Güte zu leisten.
(2) Hat der Schuldner das zur Leistung
einer solchen Sache seinerseits Erforderliche
getan, so beschränkt sich das Schuldverhältnis
auf diese Sache.
A. Function
An obligation in kind concerns circumstances in which the specific object owed under the 1
obligation has not yet been ascertained, but is rather ascertainable by its class (cf. unascer¬
tained goods). Such obligations in kind are common in both commercial and consumer
contracts to the extent that the modern phenomenon of mass contracting has allowed an
58 BGH 27.11.1984 - VI ZR 38/83, NJW 1985, 1152.
59 BGH 19.11.1982 - V ZR 161/81, NJW 1983, 563.
BGH 20.5.1968 - VII ZR 80/67, NJW 1968, 1928.
61 BGH 16.3.2005 - VIII ZR 14/04, NJW 2005. 1715.
62 See HK-BGB/Schulze, § 242 BGB mn. 42 et seq.
63 BGH 7.7.1992 - VI ZR 211/91, NJW RR 1992, 1241.
Schulze
323
S 243 2-6 «•*»» I. Subject wetter »/
A A nractice. The term Stückschuld (also Speziesschukh
obligation in kind to reflect the standar p ^vidual, specific object is owed e.g. a
applies to the contrasting concept when: y a farmer’s entire crop (cf. ascertained
particular used car or objects in their for an obligation in fond, wher^
goods; specific goods). Sub. 1 speci le g fr unascertained to ascertained (Gat-
Sub. 2 concerns the criterion for a transition
tungsschuld to Stückschuld).
B. Explanation
I. Class
2 For the purposes of § 243, class is a group of objects that can be distinguished from other
objects by reason of their joint features (e.g. by model, type, year, and sometimes by their price
category). The features (and therefore the limits of the class) are determined foremost by the
parties (subjective) then by general standards (objective). The obligation in kind often relates to
the delivery of fungible things (§ 91), e.g. a particular model of a new car. However, the parties
can provide for non-fungible things to be the object of an obligation in kind, for instance a
developable plot of land in a particular city. An obligation in kind is to be distinguished from
the alternative obligation (Wahlschuld) and the power to substitute (Ersetzungsbefügnis))
IL Right to select
3 The obligor has the possibility to dispose over his goods before exercising the right to
selecting the specific object. Sub. 1 provides that the object to be supplied has to be a thing of
average kind and quality. § 360 HGB applies with the necessary modifications to commer¬
cial sales. However, the parties can deviate from this standard and agree on above or below-
average quality (e.g. ‘grade A’).
III. Performance
4 The obligor will not be released from his obligation to perfrom should individual things
from the owed class be destroyed before the obligor has done what is necessary under Sub. 2
(Konkretisierung - ascertainment). The obligor rather continues to owe a thing from the class
because the obligation does not relate to a specific object; he must thus acquire the thing
elsewhere if he no longer has it in stock. Impossibility under § 275(1) will only release the
obligor from his obligation to perform if the entire class has been destroyed and therefore
things or this class are not available elsewhere.
5
IV. Limited obligations in kind
although only from particular stock (e g wood8 from b PP‘ed aCCOrding t0 ItS.
particular portfolio). Impossibility pursuant to 8 S'* P»FtlC?lar SaWmiU’ bonl
performance obligations if the stock is destroyed (ee hv ""fi ** °bll8°r fr°m
yea by a fire at the sawmill).
V. Ascertainment
6
According to Sub. 2, if the obligor has done what ’
thing, the obligation is restricted to that thine A<;<-/, necessary on his part to supply such a
obligor to select the thing and offer it to the oblige '?ment (Konkretisierung) requires the
the obligee (Bringschuld; § 269), he will have « the obli8or agrees to take the thing »
t0 offer Physical good. In the event ot
1 See -► § 262-265 mn. 5. ~ '
324
Schulze
Foreign currency obligation 1-3 § 244
delivery to the obligee (Schickschuld-, § 447), the obligor will have to send the thing. Should
the obligee agree to collect the thing (Holschuld), the obligor will have to select the thing and
inform or request collection from the obligee.
VI. Delivery of substitute
Goods will become ascertained through such aforementioned acts by the obligor and 7
therefore the risk passes to the obligee pursuant to § 300(2). The extent ascertainment binds
the obligor is disputed.2 In any case, the obligor can supply another thing if the obligee rejects
the thing offered or if he accepts the delivery of a substitute as performance.3 The same
applies to delayed acceptance by the obligee and resulting delivery of the ascertained thing to
a third party. Impossibility (§ 275) does not apply in this instance, but rather the ascertain¬
ment will be reversed (Rekonkretisierung) and the obligation in kind is restored.
§244
Foreign currency obligation
(1) If a money debt stated in a currency
other than the euro is payable within the
country, then payment may be made in euro
unless payment in the other currency has
been expressly agreed.
(2) Conversion occurs at the rate of ex¬
change in effect in the place of payment at
the time of payment.
§244
Fremdwährungsschuld
(1) Ist eine in einer anderen Währung als
Euro ausgedrückte Geldschuld im Inland zu
zahlen, so kann die Zahlung in Euro erfolgen,
es sei denn, dass Zahlung in der anderen
Währung ausdrücklich vereinbart ist.
(2) Die Umrechnung erfolgt nach dem
Kurswert, der zur Zeit der Zahlung für den
Zahlungsort maßgebend ist.
A. Function
§§ 244-248 address individual aspects of a money debt. However, the provisions do not 1
regulate this matter fully, even though money debts are the most common type of debt. §§ 244,
245 concern debts in a currency other than euro (foreign currency obligation). § 244 eases the
performance for such types of money debt through the possibility to pay the debt in euro. This
priority should avoid obstructions to the performance of contract and other obligations due to
difficulties in acquiring foreign currency (in particular due to foreign rules on currency).
B. Context
§ 244 was based originally on the distinction between the German currency and foreign 2
currency. The 2002 SMG made the necessary changes to the provision following the
introduction of the euro as the common currency in the states of the Economic and
Monetary Union (Eurozone).
C. Explanation
I. Money debt
§ 244 requires a money debt. Although the BGB does not define either money or money 3
debt. case law considers money a means of exchange, unit of account, measure of value and
2 HK-BGB/Schulze, § 243 BGB mn. 9; cf Hager, Rechtsfragen des Finanzierungsleasing von Hard- und
Software, 190 AcP (1990), 332.
3 BGH 1.7.1964 - VIII ZR 266/62, WM 1964, 1023.
Schulze
325
§ 244 4-7 Division 1. Subject matter of obligations
as a means to maintain and transfer value.1 It serves to fulfil money debts in the function as a
means of payment. Money is understood as particular embodied monetary symbols, which
have to be accepted by reason of state orders to settle debts and designated as statutory means
of payment. Money debt categorises those obligations which address the performance with
money. The content ot the performance obligation in such instances is not the transfer of
particular, individual coins or notes, but rather the provision of value: the obligor has to
provide the obligee with a particular amount of control, expressed in units of currency. The
performance can therefore be made not only in the transfer of cash but also through
scriptural money (e. g. by bank transfer or cheque) if the obligor is not aware of the obligee s
different intention. A money debt is not a particular form of an obligation in kind, but is a
legal institute sui generis by reason of its character as an obligation to provide value.
IL Object
4 In contrast to § 243, money is to be supplied in the agreed currency and § 270 regulates
the transfer of risk. Furthermore, the obligor must always be responsible for his ability to
perform financially, as according to the principle of unlimited proprietary liability’
(unbeschränkte Vermögenshaftung). Although this is not expressly regulated in statute, he
will therefore (in deviation from § 275) not be released from his performance obligation
through financial incapability and is always responsible for a delay in payment ([‘you have to
pay your dues’] - Geld hat man zu haben). § 300(2) applies with the necessary modifications
to a delay in acceptance.
III. Value
5 The performance owed in a money debt is often determined exclusively as an amount in a
unit of currency. The nominal principle, which serves the stability of the currency, applies to
such debts: the value of the debt is determined solely according to the amount of money, not
according to its purchasing power or exchange value. The obligee therefore bears the risk of a
reduction in value. However, he may use a so-called index clause to protect against a
reduction in value of his claim, though within the limits permitted by the Act on the
prohibition of price clauses in determining money debts (Preisklauselgesetz] PrKG). Mod¬
ification of the contract under the provisions on an interference with the basis of the
transaction (§313) may come into consideration in instances of devaluation, though only
in exceptional circumstances.
IV. Other types of debts
6 Similar types of debts are to be distinguished from a money debt. A set amount is not
stated in a ‘cash value debt’ (Geldwertschuldf but rather the scope of the performance due is
set by factors arising from the purpose of the debt. As a consequence the actual amount is
first determined at the time of performance. Such examples include claims to damages and
compensation for expenses, the equalisation of accrued gains in family law and the
compulsory share in inheritance law (until the date for the valuation). In such instances,
the performance of the debt should serve to equalise the value. The full value of the debt
should therefore remain until the point in time which is material for setting the amount of
the debt (principle of valorisation in contrast to the nominal principle for money debts).
V. Proprietary debt
7 The concept of a money debt docs not apply when particular bank notes or coins are owed
(e.g. collector’s coins); a proprietary debt (Sachschuld) applies instead. These are to be
1 BGH 14.11.1973 - IV ZR 147/72. NJW 1974. 137; BGH 4.7.1975 - IV ZR 3/74, NJW 1975, 1831.
326
Schulze
Obligation payable in a specific denomination of money 1 § 245
distinguished from debts that concern the payment in a particular type of coin (e.g.
particular types of gold coins; so-called echte Geldsortenschuld). Such debts are considered
an obligation in kind according to § 243. In contrast, a special type of money debt is accepted
when the obligor shall simply have the possibility to pay using this particular type of money,
but is not released from this obligation if the particular type of money no longer exists -
payment is to be made in a different type of currency (cf § 245).
VI. Foreign currency debt
The rule in § 244 refers only to a particular form of money debt: the foreign currency 8
debt (Fremdwährungsschuld; Valutaschuld). This form is characterised by requiring perfor¬
mance in a currency other than euro. Furthermore the wording of the rule limits its
application to money debts to be performed within the country. However, since the
introduction of the euro as the common currency in the states of the European Economic
and Monetary Union, within the country applies to all countries that use the euro as their
legal tender.
VII. Right to choose
Although the debt is expressed in another currency, the obligor may pay in euro when the 9
requirements of Sub. 1 are satisfied. The obligor therefore has the right to choose (Befugnis
zur Ersetzung - power of substitution). In contrast, the obligee is only entitled to demand
payments in currency other than euro. This type of debt is referred to as a simple or false
foreign currency debt (einfache or unechte Fremdwährungsschuld). An effective or genuine
foreign currency debt (effektive or echte Fremdwährungsschuld) is present if the obligor can
only perform in the foreign currency. The parties can stipulate the latter with expressions
such as ‘effective’ or ‘payment in’ (so-called currency clause). In cases of doubt, such a
genuine foreign currency clause is to be accepted if the place of performance of the debt is
outside of the European Economic and Monetary Union.
VIII. Conversion
According to Sub. 2, the rate of exchange in effect in the place of payment at the time of 10
payment is material for the conversion. The time of performance is thus not material; the
obligee may, however, demand the obligor under §§ 280(1), (2), 286 to compensate for a
possible loss in value through a delay. Furthermore, in instances of set-off the point in time
of communication of the set-off is material.
§245
Obligation payable in a specific
denomination of money
If a money debt is payable in a specific
denomination of coin which is no longer in
circulation at the time of payment, payment
is to be made in the same way as if the
denomination of coin were not specified.
§245
Geldsortenschuld
Ist eine Geldschuld in einer bestimmten
Münzsorte zu zahlen, die sich zur Zeit der
Zahlung nicht mehr im Umlauf befindet, so
ist die Zahlung so zu leisten, wie wenn die
Münzsorte nicht bestimmt wäre.
A. Function
The provision ensures payment of a money debt in cases in which the agreed denomina- 1
tion of coin is no longer in circulation at the time of payment.
Schulze
327
§ 246 1-3
Division 1. Subject matter of obligations
B. Explanation
2
§ 245 requires the denomination to no longer be in circulation. This requirement is
satisfied e.g. if the denomination has been formally withdrawn. In such instances, the obligee
is not obliged to pay in the specified denomination, but to make payment as in every other
money debt (unechte Fremdwährungsschuld1).
§246
Statutory interest rate
If interest is payable on a debt by law or
under a legal transaction, the rate of interest
is four percent per year, unless otherwise
provided.
§246
Gesetzlicher Zinssatz
Ist eine Schuld nach Gesetz oder Rechts¬
geschäft zu verzinsen, so sind vier vom Hun¬
dert für das Jahr zu entrichten, sofern nicht
ein anderes bestimmt ist.
A. Function
I. Purpose
1 § 246 does not by itself create a claim to interest but rather serves to protect the obligee by
setting an interest rate of 4 percent for those cases in which a statutory or contractual claim
to interest exists, though no rate has been set.
2
IL Scope of application
The parties can agree to set the rate of interest above or below the statutory rate (though
within the boundaries of §§ 134, 138, 242 and the provisions on general terms). Specific
statutory provisions taking precedence over § 246 include e.g. §§ 288, 291, 497; §§ 352(1)
1st St. HGB; §§ 28(2), 48(1) No. 2, 49(1) No. 2 WG and Arts 45 No. 2, 46 No. 2 ScheckG.
3
B. Explanation
The provision requires an obligation to pay interest (as a collateral obligation in relation
to the respective primary obligation). Interest is payment for the use of capital which depen
on the duration of use, not on the profit or turnover. The economic nature, not
designation as interest, is decisive. Accordingly, one-off payments or deductions from P31
capital may constitute interest. It does not necessarily have to consist of a pre-determin
part of the capital, but just according to a pre-determined scale. For example, the amount o
interest may be stipulated in the contract or linked to statutory provisions on the basic rate o
interest (§ 247). Credit charges (which are typically agreed in consumer credit contract^
overdraft charges, one-off processing fees or for fixed sums for borrowing costs, are interest
for the purposes of § 246 if they each represent actual remuneration for the provision ot
capital which is dependent on the duration thereof (verschleierte Zinsen - ‘veiled interest )•
The discount (Damnum) is often part of the calculation of the interest which depends on th*
duration and is therefore viewed legally as interest.1
1 See - § 244 mn. 9.
‘This is disputed in individual cases; for exceptions see e.g. BGH 19.10.1993 - XI ZR 49/
1994, 47; on admissibility of subjecting the discount to interest despite § 248(1) see BGH 5.10.1"
ZR 280/98, NJW 2000, 352.
328
Schulze
Compound interest
§248
§247
Basic rate of interest
(1) ’The basic rate of interest is
3.62 percent. 2It changes on 1 January and
1 July each year by the percentage points by
which the reference rate has risen or fallen
since the last change in the basic rate of inter¬
est. 3The reference rate is the rate of interest
for the most recent main refinancing opera¬
tion of the European Central Bank before the
first calendar day of the relevant six-month
period.
(2) The Deutsche Bundesbank announces
the effective basic rate of interest in the Fed¬
eral Gazette without undue delay after the
dates referred to in subsection (1) sentence 2
above.
§247
Basiszinssatz
(1) ’Der Basiszinssatz beträgt 3,62 Prozent.
2Er verändert sich zum 1. Januar und 1. Juli
eines jeden Jahres um die Prozentpunkte, um
welche die Bezugsgröße seit der letzten Ver¬
änderung des Basiszinssatzes gestiegen oder
gefallen ist. 3Bezugsgröße ist der Zinssatz für
die jüngste Hauptrefinanzierungsoperation
der Europäischen Zentralbank vor dem ersten
Kalendertag des betreffenden Halbjahrs.
(2) Die Deutsche Bundesbank gibt den gel¬
tenden Basiszinssatz unverzüglich nach den
in Absatz 1 Satz 2 genannten Zeitpunkten im
Bundesanzeiger bekannt.
A. Function
§ 247 serves to define the basic rate of interest, which is material for the calculation of the 1
statutory interest rate under § 288.
B. Explanation
Contrary to its wording, the 1st St. does not determine the basic rate of interest; it merely 2
provides the basis for the calculation thereof. According to the 2nd and 3rd St., there is an
additional rate of interest set by the European Central Bank, which serves as the reference
rate. Adjustments to a change in this reference rate take place twice annually (1 January
and 1 July). Pursuant to Sub. 2, the German Bundesbank (Federal Bank) announces the
effective basic rate of interest in the Bundesanzeiger (Federal Gazette). The current rate can
be accessed under https://www.bundesbank.de/en/bundesbank/organisation/gtc-and-legal-
basis/basic-rate-of-interest-616708.
§248
Compound interest
(1) An agreement reached in advance that
interest due should in turn bear interest is
void.
(2) Savings banks, credit institutions and
owners of banking businesses may agree in
advance that interest not collected on depos¬
its should be held to be fresh interest-bearing
deposits. 2Credit institutions entitled to issue
interest-bearing bonds for the amount of the
loans granted by them may, for such loans,
have commitments made to them in advance
to pay interest on interest in arrears.
§248
Zinsezinsen
(1) Eine im Voraus getroffene Verein¬
barung, dass fällige Zinsen wieder Zinsen
tragen sollen, ist nichtig.
(2) ’Sparkassen, Kreditanstalten und Inha¬
ber von Bankgeschäften können im Voraus
vereinbaren, dass nicht erhobene Zinsen von
Einlagen als neue verzinsliche Einlagen gelten
sollen. Kreditanstalten, die berechtigt sind,
für den Betrag der von ihnen gewährten Dar¬
lehen verzinsliche Schuldverschreibungen auf
den Inhaber auszugeben, können sich bei
solchen Darlehen die Verzinsung rückständi¬
ger Zinsen im Voraus versprechen lassen.
Schulze
329
§249
Division 1. Subject matter of obligations
A. Function
I. Purpose
1 The prohibition on compound interest serves to protect the obligor from a culmination of
interest and at the same time shall ensure clarity regarding the interest.
IL Scope of application
2 The prohibition under Sub. 1 applies to statutory and contractual interest and is based on
the same concept of interest as under § 246. It therefore covers, for example, interest on
credit charges (though if applicable only as far as these refer to the interest and not to the
redemption).
B. Explanation
3 Pursuant to Sub. 1, advance agreements on compound interest are void, whereas agree¬
ments made after the due date for payment are admissible. Furthermore, if the parties agree a
discount and this is withheld when the loan is paid out, § 248 is not violated in subjecting
the entire loan amount including the discount because the transparency of the interest due is
not compromised.1 In addition, in principle the prohibition does not cover agreements
whereby the interest rate should increase in the event of late payment.2 Sub. 2 provides the
exceptions to the prohibition on compound interest (on the notions of savings banks, credit
institutions and banking businesses see §§ 1, 39, 40 KWG). § 355(1) HGB contains a further
exception for the balance in commercial current accounts.
§249
Nature and extent of damages
(1) A person who is liable in damages must
restore the position that would exist if the
circumstance obliging him had not occurred.
(2) 1Where damages are payable for injury
to a person or damage to a thing, the obligee
may demand the required monetary amount
in lieu of restoration. 2When a thing is da¬
maged, the monetary amount required under
sentence 1 only includes value-added tax if
and to the extent that it is actually incurred.
§249
Art und Umfang des
Schadensersatz
(1) Wer zum Schadensersatz verpflichtet
ist, hat den Zustand herzustellen, der beste¬
hen würde, wenn der zum Ersatz verpflich¬
tende Umstand nicht eingetreten wäre.
(2) 4st wegen Verletzung einer Person oder
Beschädigung einer Sache Schadensersatz zu
leisten, so kann der Gläubiger statt der Her¬
stellung den dazu erforderlichen Geldbetrag
verlangen. 2Bei der Beschädigung einer Sac e
schließt der nach Satz 1 erforderliche Ge
betrag die Umsatzsteuer nur mit ein, *enn
und soweit sie tatsächlich angefallen ist.
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Scope of application 3
* BGH 5.10.1999 - XI ZR 280/98, NJW 2000, 352.
2 RG 15.4.1896-V 319/95.
330
17. Magnus
Nature and extent of damages
§249
B. Context 4
C. Explanation 5
I. Primary principle of restitution 5
1. The influence of collective compensation systems 7
2. Difference hypothesis 8
a) Supplementary concepts 9
b) Third parties 10
3. Pecuniary v non-pecuniary loss 11
4. Further categories of damage 13
II. Assessment of Damages 16
1. General maxims of assessing damages: Total restitution 16
a) Exceptions 17
b) Effect 18
2. Maxim of economic reasonableness 19
a) Scope 20
b) Standard 21
3. Maxim of relation to the damage 22
4. Maxim of free disposition over the damages amount 23
5. Prohibition of enrichment 25
6. Concrete assessment of damage 26
III. Causation 27
1. The basic principle: Theory of equivalent condition 29
a) Omissions 30
b) Cumulative causation 31
c) Concurrent causation 32
d) Alternative causality 33
e) Proportional liability 34
2. Adequate causation 35
a) Test 36
b) Criticisms 37
3. Policy considerations 38
a) Protective purpose 39
b) Further examples 40
4. Specific causation problems 43
a) Victim’s predisposition 44
b) Shock damage 45
c) Victim’s own decision 46
d) Child as damage 51
e) Acts of third parties 54
f) Additional other causes 58
g) Hypothetical causation 60
IV. Set-off of benefits 67
1. Preconditions 68
2. Application 69
a) Advantages 70
b) Immaterial damages 72
c) Annuity 73
3. Method of assessment 74
4. Specific cases 76
a) Groups of cases: Advantages independent of activities of the
victim or third persons 76
b) Advantages through activities of the victim 79
c) Advantages through activities of third persons 80
V. Persons entitled to damages 85
1. Exceptions 86
2. Transferred loss 87
a) Statutory regulation 88
b) Examples 89
U, Magnus
331
§ 249 1-2
Division 1. Subject matter of obligations
c) Amount of damages 90
VI. The different kinds of damage 91
1. Special aspects: Damage to the person 91
2. Damage to things 93
a) Destruction 94
b) Merely damaged thing 96
c) Decrease in the market value 97
d) Loss of use 98
e) Compensation for abstract loss of use 99
f) No compensation for abstract VAT 100
3. Pure economic loss 101
4. Ecological damage 102
5. Special cases 103
a) Loss of earning capacity 103
b) Loss of leisure time 104
c) Litigation costs 105
d) Preventive expenditures 106
VII. The relevant point of time 107
VIII. Burden of proof 109
A. Function
I. Purpose and underlying principles
1 § 249 introduces the BGB’s law of damages. The section is the central and most general
provision for assessing damages wherever in private or even public law a person is obliged to
compensate damage and no more special provisions apply. The provision does, therefore, not
only apply to all situations where the BGB provides for a claim of damages but also to the
many situations where statutes outside the BGB foresee civil liability, often for no-fault
conduct. In public law, where public authorities are liable for damage the compensation is
assessed in accordance with §§ 249 et seq. However, § 249 itself does not provide for a
damages claim but presupposes that such an obligation exists. The provision then defines the
extent and the form of compensation. It, thus, concerns the consequences of liability
(Haftungsausfüllung), not establishing liability (Haftungsbegründung). §§ 250-254 regulate
further specific aspects of the law of damages.
2 The fundamental idea and purpose of § 249 is compensation. Damages shall make good
the loss that had occurred, neither more nor less; in particular, damages shall not enrich the
creditor. As far as possible, creditors shall be put in the position in which they would have
been in without the damaging event (negativer Schaden). In addition to this central aim, the
law of damages serves - as a 'desirable by-product1 2 3' - the aim of preventing damage. The
threatened sanction of damages claims can influence the conduct of potential wrongdoers in
direction of damage avoidance, at least where they act rationally and plan their future
behaviour for which they can calculate whether causing or avoiding damage will be cheaper
Principally, under German law damages do not pursue a penal or punitive function.
However, in the field of immaterial property rights, in particular the infringement of
personality rights through mass media, it is accepted that the amount of damages may
exceed the actual loss in order to have a real impeding effect on the wrongdoer’s conduct.
There, the gain of the wrongdoer can be taken as yardstick for assessing the amount ot
damages.4 Where a victim is entitled to compensation for pain and suffering the courts
further acknowledge that the compensation shall also provide satisfaction to the victim
1 Medicus/Lorenz, Schuldrecht I (21st edn, C.H.Beck 2015), § 27 I.
2 See, e.g., Schäfer/Ott, The Economic Analysis of Civil Law (Edward Elgar 2005) Part 2.
3 BGH 15.11.1994 - VI ZR 56/94, NJW 1995, 861; BGH 5.10.2004 - VI ZR 255/03 NIW 2005,215-
4 See, e.g., § 97(2) 2nd St. UrhG.
332
U. Magnus
Nature and extent of damages 3-5 § 249
(Genugtuung).5 Finally, it is accepted that the damages claim is in a sense the continuation
of the infringed right. This concept is used to justify in rare cases the compensation of an
objective minimum loss (objektiver Mindestschaden) which the victim in any case may claim
even if no other financial disadvantage has been suffered.6
IL Scope of application
§§ 249-254 are non-mandatory. The parties can change their effects by private agreement 3
which, however, must comply with the general rules on the validity of agreements. Therefore,
penalty clauses which generalise damages can be reduced if the penalty is disproportionately
high.7 Further, any exclusion of liability for damage which the obligee caused intentionally is
invalid.8 Respective exclusions in standard contract terms are subject to even more restrictive
conditions.9
B. Context
§§ 249-254 have survived almost unaltered since the enactment of the BGB in 1900. Even 4
the reform of the law of damages in 2OO210 11 merely added the 2nd St. in § 249u and
transferred the provision on compensation for pain and suffering from the law of torts12 to
the general law of damages13, thus generalising its application. Further, in 1990 the protection
of animals was extended;14 since then, costs for their cure are recoverable even if they
considerably exceed the value of the animal.15 The BGB’s provisions on the law of damages
are rather abstract and general and give only rather broad guidance. It was and is therefore
the courts in intense discussion with legal scholars who develop the concrete rules for
assessing damages.
C. Explanation
I. Primary principle of restitution
Sub. 1 provides that the obligee must restore the situation which would have existed 5
without the damaging event. The victim can therefore request restitution in kind although in
practice always claims monetary compensation. This is provided for by Sub. 2 1st St. which
allows claiming money instead of restitution in kind where a person has been injured or a
5 See further the commentary on § 253.
6 HK-BGB/Schulze, Vor §§ 249-253 BGB mn. 2; Lange/Schiemann, Schadensersatz (3rd edn, Mohr
Siebeck 2003), § 6 mn. 1; NK-BGB/Magnus, Vor §§ 249-255 BGB mn. 13; an example is OLG Braun¬
schweig 26.1.1891 Seufferts Archiv 46 No. 173: a bread trader delivered dough to a baker for baking rolls;
the baker took some dough for himself and baked and delivered slightly smaller rolls which the trader
sold for the usual price; the baker had to compensate the trader for the common value of the embezzled
dough although the trader suffered no economic loss.
7 See -► § 343 Penalty clauses and clauses which generalise damages in standard contract terms are
subject to further restrictions: see -* § 309 Nos 5 and 6.
8 § 276(3).
9 See -> § 309 No. 7.
10 This reform, which was independent of the famous reform of the German law of obligations of the
same year, concerned primarily the law of damages in the many statutes on strict liability existing outside
the BGB.
11 And made two paragraphs of what was only one.
12 The former § 847.
13 Now § 253(2).
14 By a new § 251(2) 2nd St.
15 See, for instance, 3,000 DM (= 1,500 euro) treatment costs for a cat without market value: LG
Bielefeld 15.5.1997 - 22 S 13/97, NJW 1997, 3320.
U. Magnus
333
§ 249 6-7 Division 1. Subject matter of obligations
thing has been damaged. For pure economic loss, claiming money is anyway the regular
of compensation. Nonetheless, the principle of restitution in kind is not dictated by mere
blindness towards needs of practice. It enables that the necessary costs for full restoration is
the general measure of compensation, not only the diminution of the value the unimpaired
good or right would have had. This means, for instance, that the obligee must bear all costs
connected with the replacement of a totally wrecked car (also insurance, registration costs
etc.), not only the value of the car. The idea behind is the full protection of the integrity of
the victim’s person, rights and goods in their concrete existence as they would stand without
the damaging event. Insofar, the law of damages very often pursues the same goals as the
provisions on which liability is founded. Moreover, the principle of restoration in kind grants
that non-pecuniary damage whose compensation in money is only very reluctantly granted
(see § 253) and must be compensated in kind if possible. For example, a victim of defamation
can therefore request that the wrongdoer renounces the defaming fact or apologises and
bears the costs for its publication.16
6 However, the principle of restitution has limits. If the restitution is either impossible or
not sufficient to really satisfy the interest of the creditor or is out of proportion for the
obligee, the creditor can no longer claim restitution but only monetary compensation.17 In
most cases this leads to a lower amount of damages than the restitution costs. Sometimes it
may increase the amount, if the full compensation so requires. In consequence of these rules,
the courts allow e.g., owners of damaged cars to charge repair (restitution) costs from
obligees up to 130 percent of the amount by which the value of the car was diminished.18 On
the other hand, if an animal is injured the recoverable restitution (healing) costs may be
much higher even than the value of the animal.19
1. The influence of collective compensation systems
7 The BGB’s law of damages basically rests on the concept that one individual, the aggrieved
party, has a damages claim against another individual, the infringer, who has imputably
caused the damage and should therefore compensate it out of own means. It has been rightly
observed that this concept no longer mirrors the reality of many damages disputes. In
modern reality, it is much more often, if not regularly the case that the main defendant is a
collective - social or private insurer - or other body (e. g. employer) who has not caused the
damage but answers for it. And even on the side of the person who suffered damage, very
often a collective body (health insurer, employer) has already compensated the damage and
claims it back from the other side, frequently from the insurer of the wrongdoer. For the sake
of efficiency and cost avoidance insurance companies regularly conclude agreements how to
share the different claims between each other (Teilungsabkommen). Moreover, in the field of
employment relations and in further fields (schools, universities) tort claims for bodily injury
are excluded and replaced by social security benefits.20 Because of this development it is said
that the private law of liability and damages has lost much of its importance. Some have
argued that it should be abolished at all and replaced by a total insurance system.21 Further, it
is doubted whether the law on damages and in particular tort law has any impact on steering
the behaviour of potential obligees. Nonetheless, there is still a considerable number of
disputes for which the individualistic concept fits. In addition, under certain conditions, the
collective body may have a redress claim against the actual wrongdoer. This claim and its
16 BGH 6.4.1976 - VI ZR 246/74, NJW 1976, 1198-1202.
17 See further the commentary on § 251.
18 BGH 15.10.1991 - VI ZR 314/90, NJW 1992, 302-304; BGH 15.2.2005 - VI ZR 70/04, NJW 2°°5,
1108; see in detail ->§251 mn. 7.
19 -► § 251(2) 2nd St.
20 See -> §§ 104 et seq. SGB VII. However, under certain conditions the social insurer has a redress
claim against the person who actually caused the damage.
21 See, e.g. at least for traffic accidents, von Hippel, Schadensausgleich bei Verkehrsunfällen. Haftungs¬
ersetzung durch Versicherungsschutz (Mohr Siebeck 1968).
334
U. Magnus
Nature and extent of damages 8-11 § 249
amount is regulated by the provisions on liability and damages. The whole regress carousel
acts in the shadow of the law, i.e., it follows the rules on liability and on the law of damages.
A steering effect is often induced through bonus and malus systems by which insurers try to
encourage damage avoiding behaviour and to discourage risky, damage-prone conduct.
2. Difference hypothesis
The damage is the loss the obligee has caused or is responsible for. This hole in the 8
victim’s sphere is what the obligee has to fill, and its ambit regularly, though not
necessarily, defines the amount of damages. It is common ground that a calculation is the
starting point for assessing the loss. § 249 requires that two states of affairs have to be
compared: the actual state the victim is in after the damaging event and the hypothetical
state in which he would have been in had the damage not occurred. The difference between
them is the damage that normally has to be compensated. This so-called Differenzhypothese
is used since the middle of the 19th century.22 It is primarily a method of calculation.
Its outcome depends on the values one fills in. In principle, damage is the loss of any
position which a person suffers and which in society is generally regarded as worthy to
be compensated.23 24 25
a) Supplementary concepts. In this respect, the appreciation and evaluation of goods and 9
immaterial rights has changed over time. In the long run, the recoverability of infringed
positions has been extended. In the past, courts and legal writers have supplemented the
Differenzhypothese with several additional concepts. For some a natural notion of damage
applies (natürlicher Schadensbegriff),14 others propagated a normative notion of damage
(normativer Schadensbegriff)15 The prevailing concept is the application of further policy
considerations such as the protective purpose of the violated liability norm (Schutzzweck der
Norm), the function of damages for the respective field etc. if it is not self-evident that the
position in question is a compensable loss. The policy considerations may lead to a
correction of the results achieved by the Differenzhypothese based on a mere natural notion
of damage.
b) Third parties. In principle, the comparison necessary for the calculation of the amount 10
of damages concerns exclusively the rights and goods of the person claiming damages. In rare
situations, also damage or advantages to third parties can be relevant for assessing damages,
in particular where it is the express or implied content of a contract that these effects shall
count, e. g. where a tax consultant shall advise on the best tax regulation for the transfer of a
family enterprise to the family successor.26
3. Pecuniary v non-pecuniary loss
German law draws a strict borderline between pecuniary and non-pecuniary or imma- 11
terial damage. The line is of great practical importance. While restitution in kind can be
claimed for both, monetary compensation is always admissible only for pecuniary
damage. Non-pecuniary damage is compensated merely if so provided for by special
provision (§ 253(1)). Those special provisions are few, among them the compensation for
22 It was developed by Friedrich Mommsen, Zur Lehre von dem Interesse (Schwetschke 1855).
23 For similar definitions see HK-BGB/Schulze, Vor §§ 249-253 BGB mn. 5 et seq.; Lange/Schiemann,
Schadensersatz (3rd edn, Mohr Siebeck 2003), § 1 I; MüKo BGB/Oetker § 249 BGB mn. 16 et seq.; NK-
BGB/Magnus, Vor §§ 249-255 BGB mn. 17; Palandt BGB/Grüneberg, Vor § 249 BGB mn. 14; Staudinger
BGB/Schiemann, Vor §§ 249 BGB mn. 35 et seq.
24 See still, e.g., Palandt BGB/Grüneberg, Vor § 249 BGB mn. 9.
25 For a while, even the BGH adopted a normative notion of damage: BGH 9.7.1968 - GSZ 2/67, NJW
1968, 1823.
26 BGH 5.2.2015 - IX ZR 167/13, NJW 2015, 1373 (mn. 8 et seq).
U. Magnus
335
§ 249 12-15 Division 1. Subject matter of obligations
immaterial harm (pain and suffering) caused by bodily injury and for infringements of the
general personality right.27 The reason for this specific reluctance of German law is that
non-pecuniary damage is difficult to assess, depends on subjective factors and could lead to
a flood of claims.28
12 The borderline between the two kinds of damage is not always easy to draw: pecuniary
damage is generally measurable by redress to market or other standard prices and has thus an
inter-personal objective basis. Non-pecuniary damage, on the other hand, has no precise
value in terms of money, but depends on the subjective feeling, emotion etc. of the affected
person and can only be estimated; it regularly concerns the personal sphere, too. As a rule,
the mere subjective appreciation and affection (AJfektionsinteresse) as such remains generally
without redress.29 As mentioned, the exceptions to this rule are few. However, where the
subjective evaluation - regularly of many people - leads to a market value as is the case with
certain people’s appreciation for, e.g., classic cars, idol articles etc. this market value is the
yardstick for compensation.
4. Further categories of damage
13 Further categorisations of the notion of damage have generally no principal importance.
One of those categories is the distinction between the direct and indirect damage. Apart
from the fact that the direct damage is generally easier to prove, for the assessment of
damages it is irrelevant whether the damage was the direct or indirect consequence of the
damaging event. Likewise, the distinction between positive damage (damnum emergens) and
future losses (lucrum cessans) has no meaning for the assessment of damages. That future
losses are less certain and therefore more difficult to prove is specifically taken into account
by § 252.30
14 Also the distinction between reliance damage (Vertrauensschaden) and non-performance
damage (Nichterfüllungsschaden) does not actually concern principal rules of damage assess¬
ment. In both situations the underlying norm which obliges to damages provides for different
limits of damages: non-performance damage is generally owed where a contractual obligation
has not, or not correctly, been performed; the amount of damages shall then place the victim
into the position as if the contract had been duly performed. This is the normal measure of
damages in case of breach of contract. However, there are cases where the victim relied on a
certain conduct of the obligee who was not under a contractual obligation, but under a quasi-
contractual obligation such as culpa in contrahendo31 or the like.32 Then, the victim shall be
put into the position as if he had not relied on the obligee’s conduct. That means that all
unnecessary expenditures can be claimed but generally not the profits the victim had
expected from the obligee’s conduct.33
15 The distinction between damage to the person, to things or to the pure economic sphere
of the aggrieved party does not call for distinctions in the method of assessing damages.
There are only factual differences between these categories. Some infringements can merely
concern the person (e.g. bodily injury, defamation), others merely the movable or immovable
things of the aggrieved (destruction of a car etc.) and still others occur exclusively in the pure
economic sphere (unfair competition etc.).
27 See * § 253 mn. 4 et seq.
28 These were the main reasons of the historical legislator of 1900; moreover, it was held that
compensation of an immaterial (ideal) damage would contradict the views of the ‘better parts of the
people’ (Mugdan II 517); see further Staudmger BGB/Schiemann,§ 253 BGB mn. 1.
An exception is § 251(2) 2nd St., which takes account of the special affection of an owner for his
injured pet.
30 See * § 252 mn. 2 et seq.
31 This legal institute is now regulated in § 311.
32 See > § 122(1) (damages for rescission because of own error), § 179(2) (damages claim against an
innocently unauthorised agent). °
33 See BGH 3.12.1991 - XI ZR 300/90, NJW 1992, 555.
336
U. Magnus
Nature and extent of damages
16-19 § 249
IL Assessment of Damages
1. General maxims of assessing damages: Total restitution
The basic principle is that the total damage has to be made good (Totalreparation). This is 16
in conformity with the general purpose of the law of damages to restore the aggrieved party
to the fullest extent to the situation he would have been in without the damaging event. The
amount of damages thus does generally not depend on the degree of fault. Even the slightest
fault obliges in principle to compensate the whole damage. This all-or-nothing-principle has
been held to conform to the principles enshrined in the Grundgesetz (the protection of the
dignity of the person and of a social existence) although it may lead to a life-long debtorship
of the obligee at the border to insolvency for one second of inadvertence:, the protection that
the law of execution and insolvency renders is regarded as sufficient.34
a) Exceptions. However, there are some exceptions to the maxim of total restitution. Most 17
statutes on strict liability provide for a maximum amount of compensation:35 if the damage
exceeds this amount, further compensation can only be claimed if the liable party was at fault.
In the field of employment law the degree of fault influences whether and how far employees
must finally bear damage done to others. If they acted with negligence - and in the course of
their employment - they can claim that, depending on the degree of negligence, their employer
finally must exonerate them from part or all of the loss for which they are liable.36 No such
exoneration or redress claim is available if they acted with intent. Minors (under 18) also enjoy
special protection. If they are fully liable (only if they are over 7, and with respect to traffic
accidents over 10) and the amount of damages would result in life-long oppression of their
financial existence the courts are allowed to reduce the amount to a reasonable extent.37
b) Effect. The principle of total restitution leads to an all or nothing-compensation 18
(Alles-oder-nichts-Prinzip). German law has not adopted the concept of compensation for the
loss of a chance which is accepted in many other countries, for instance, in France. Therefore,
if, for example, the conduct of a doctor reduced the patients healing prospects by 50 percent,
the patient gets nothing, unless the court is satisfied that the doctor’s conduct was the cause
of the patient’s damage with a probability close to certainty. In the example, courts would
normally deny liability because causation would be too unlikely.
2. Maxim of economic reasonableness
The fundamental principle of restitution in kind actually enables the aggrieved party to 19
incur even very high costs if necessary for the restitution. Sub. 2 2nd St. allows for the required
monetary amount though only if not out of proportion to the value of the infringed good or
right.38 Moreover, the general doctrine of contributory negligence requests that the claimant
does not make unnecessary expenditures at the expense of the debtor. Yet, there is still
considerable room for manoeuvre for aggrieved parties to choose between cheaper and more
costly ways of restitution. The courts therefore require the aggrieved party to generally
choose the cheaper of two or more equivalent alternatives.39 Only the alternatives of
34 See BVerfG 13.8.1998 - 1 BvL 25/96, NJW 1998, 3557.
35 See, e.g., §§ 12, 12a StVG, § 10 ProdHaftG, §§ 9, 10 HaftPflG, § 88 AMG.
36 See BAG 12.11.1998 - 8 AZR 221/97, NJW 1999, 966; BAG 28.10.2010 - 8 AZR 418/09, NJW 2011,
1096; BAG 21.5.2015 - 8 AZR 116/14, NZA 2015, 1517.
37 BVerfG 13.8.1998 - 1 BvL 25/96, NJW 1998, 3557; however, critical MüKo BGB/Oetker, § 249 BGB
nm. et seq.; Soergel BGB/Ekkenga/Kuntz, Vor § 249 BGB mn. 39 et seq.
38 See -> § 251(2) 2nd St.
39 See BGH 29.10.1974 - VI ZR 42/73, NJW 1975, 160; BGH 15.10.1991 - VI ZR 314/90, NJW 1992,
302; BGH 12.10.2004 - VI ZR 151/03, NJW 2005, 51.
U. Magnus
337
§ 249 20-23 Division L Subject matter of obligations
restitution must be compared. That restitution is often more expensive than mere compensa¬
tion for the diminished value is irrelevant as long as the restitution costs are not out of
proportion to the value of the infringed right or good. With respect to cars the restitution
(repair) costs must not exceed 130 percent of the replacement costs,40 with respect to land
neither the replacement costs nor 200 percent of the diminution in value.41
20 a) Scope. The maxim of economic reasonableness (Wirtschaftlichkeitsgebot) does not
mean that the claimant must perform extended market studies to find the cheapest
alternative of repair or replacement; however, for the practically most important case of the
repair of a damaged car, the claimant can only claim the repair (costs) of an easily accessible
free garage in his near if this is cheaper than a producer-tied garage and if its quality standard
is equivalent.42 But where the claimant always used the same car dealership for the normal
services on the car he cannot be referred to a cheaper alternative.43
21 b) Standard. The standard of economic reasonableness is oriented around the behaviour of
a reasonable, economically thinking person in the situation of the aggrieved party.44 In the sense
of § 249, the necessary measures and expenditures are those which such a person would have
taken and spent for restitution even if no other person would be liable for damages.
3. Maxim of relation to the damage
22 On several occasions the BGH stressed that the damage must be related to the subject, to
the person who claims damages (Subjektbezogenheit des Schadens)45 The law acknowledges a
specific value of goods and rights generally only with respect to the person who owns or
possesses these rights and goods. This is almost self-understanding in regard of the personal
rights such as life, body, health, freedom or personal dignity. It applies likewise to rights
which concern things, with certain exceptions for animals and ecological damage. The
relation to the subject does not mean that the victim has no damage if he regards the loss
as irrelevant, for instance, has no use for the damaged good or continues to use it as before
despite the damage. In those cases, the victim can nonetheless claim at least compensation of
the objective minimum damage.46 However, where the damage concerns the mere loss of use
the courts rely on the damage’s relation to the subject and deny damages for that loss if the
victim either was personally not able to use the good in question or could use a spare part, for
instance, an own second car.47 48 Insofar, the specific situation of the victim affects whether or
not damages are due.
4. Maxim of free disposition over the damages amount
23 Under German law the aggrieved party is in principle not bound to use the damages
amount for repairing the damage (Dispositionsfreiheit)43 The amount must be paid even it
the party uses it for entirely different purposes. Insofar, the aggrieved party is free in his
disposition. If the party decides against restitution and for another use of the damages
amount it cannot be argued that there was in fact no damage. Consequently, if, for instance,
40 See already above -► mn. 6.
41 BGH 4.4.2014 - V ZR 275/12. NJW 2015, 468.
42 BGH 22.6.2010 - VI ZR 337/09, NJW 2010, 2725 (mn. 7); BGH 28.4.2015 - VI ZR 267/14. N)"'
2015, 2110.
4J BGH 7.2.2017 - VI ZR 182/16, NJW 2017, 2182 (mn. 8).
44 See BGH 9.12.2014 - VI ZR 138/14, NJW 2015, 1298 (mn. 14); also former previous judgments. t°r
instance, BGH 1.2.1994 - VI ZR 229/92, NJW 1994, 999.
45 See, e.g.. BGH 29.10.1974 - VI ZR 42/73, NJW 1975, 160; BGH 9.12.2014 - VI ZR 138/14. NT"
2015, 1298 (mn. 14).
46 See above -► mn. 2.
47 See in detail below -► mn. 99.
48 See in particular BGH 23.3.1976 - VI ZR 41/74, NJW 1976, 1396.
338
U. Magnus
Nature and extent of damages 24-26 § 249
the aggrieved party does not repair the damaged car it can nevertheless claim the hypothe¬
tical restitution costs and not only the lower amount that represents the diminution in value
(unless the restitution costs are more than 130 percent higher).49 The maxim of free
disposition overturns insofar the maxim of economic reasonableness (Wirtschaftlichkeitsge¬
bot) and allows to a certain extent the compensation even of fictitious losses. The legislator
restricted such compensation in 2002 with respect to VAT. Since then, the aggrieved party
can claim VAT only if it was actually incurred (Sub. 2 2nd St.). Before 2002, even the
hypothetical VAT could be claimed which a hypothetical repair would incur.
Astonishingly enough and in contradiction to the solution for damage to property, the 24
maxim of free disposition over the damages amount does not apply to bodily injuries. There,
it is the common practice of the courts that the victim is not entitled to the costs of
hypothetical operations even if they are necessary but not performed.50 The costs of an
operation or other medical treatment can be claimed only if that measure was in fact
executed or firmly intended. The BGH justified this distinction between property damage
and bodily injury with the argument that it constitutes a non-pecuniary damage if the victim
decides to live with the uncorrected consequences of the bodily injury. Such loss should only
be taken into account when assessing the compensation for pain and suffering (Schmerzens¬
geld)?1 This does, however, not explain why a victim has such freedom of disposition with
respect to property damage which is therefore often compensated more generously.52
5. Prohibition of enrichment
It is a widely accepted maxim that, since damages shall only compensate the loss, they 25
must not enrich the victim.53 Consequently, advantages which the compensation, in parti¬
cular the restitution in kind, produces must in principle be automatically set off against the
victim’s damages claim (Vorteilsausgleichung). For instance, if the tyres of a car have been
destroyed in an accident for which the defendant is liable, the victim’s damages claim for new
tyres must be reduced by the amount by which the new tyres will last longer than the old
ones (reduction for new for old).54
6. Concrete assessment of damage
Generally, the damage must be calculated in a concrete way; it is the precisely examined and 26
proven loss of the aggrieved party in the concrete case that shall be made good. An abstract or
generalised calculation is the rare exception. The abstract assessment of damages does not
insist on the precise examination of the damage but takes some general yardstick to estimate
the typical damage in like cases. This is, for instance, expressly admitted by § 376(2) HGB for
commercial sales on a fix term where the aggrieved party can claim the (negative) difference
between the contract price and the market price without further proof.55 The courts allow
professional sellers generally to claim this difference as the - typical - damage.56 Where the
seller is also the producer the abstractly calculated damage is the difference between the price
of production and the contract price.57 The courts further rebuttably presume that the victim
49 See above ► mn. 19.
50 BGH 14.1.1986 - VI ZR 48/85, NJW 1986, 1538.
51 BGH 14.1.1986 - VI ZR 48/85, NJW 1986, 1538.
52 For critique of the attitude of the courts see also Staudinger BGB/Schiemann, § 249 BGB mn. 226.
53 See, e.g., BGH 25.1.2013 - V ZR 118/11, NJW-RR 2013, 825 (mn. 11) with further references; MüKo
BGB/Oetker § 249 BGB mn. 20; NK-BGB/Magnus, Vor §§ 249-255 BGB mn. 8, 37; Soergel BGB/
Ekkenga/Kuntz, Vor §§ 249 BGB mn. 26 et seq.
54 See further below -► mn. 78.
55 It is necessary that the good has a market price. Art. 76 CISG contains a similar rule.
56 See, e.g., BGH 19.6.1951 - I ZR 118/50, NJW 1951, 918; BGH 1.3.2001 - Ill ZR 361/99, NJW-RR
2001, 985.
57 BGH 1.3.2001 - III ZR 361/99, NJW-RR 2001, 985.
U. Magnus
339
§ 249 27-30 Division 1. Subject matter of obligations
had at least earned its expenditures if the contract had been duly performed (Rentabilitätsver¬
mutung).56 It is the victim’s choice whether to assess the damage concretely or abstractly
(where an abstract assessment is allowed). The two modes do not exclude each other.58 59
III. Causation
27 Any entitlement to damages requires a causative link between the damage and the conduct
or event that gives rise to liability. Causation is thus an essential element both of liability and
of the entitlement to damages. Likewise, liability for further losses which are the consequence
of the direct damage presupposes that causation is given. Both kinds of causality are
distinguished in German law, the first as haftungsbegründende Kausalität (liability-establish¬
ing causation), the latter as haftungsausfüllende Kausalität (liability-filling causation). The
distinction matters in two respects: where liability depends on fault, the fault must only refer
to the liability-establishing causation; in regard of the standard of evidence the liability¬
establishing causation must be proved with probability close to certainty,60 whereas in regard
of the liability-filling causation the courts are allowed to estimate the extent of damage.61
28 The following rules on causation apply to all kinds of liability for damage and also where
else in private and public law causation is of relevance and no more specific provisions
provide otherwise.
1. The basic principle: Theory of equivalent condition
29 The starting point of the German causation doctrine in the courts and in legal writing is
the condicio sine qua non principle or the Äquivalenzlehre. The damaging event or conduct
must not be thought away without the damage having not occurred.62 The event or conduct
must have been a condition for the damage. All conditions that satisfy this test are equivalent
and have theoretically the same weight. This is the minimum condition for establishing
causation. It is a necessary though not always sufficient condition for a claim for damages. In
common law jurisdictions it is generally termed factual causation.
30 a) Omissions. A first problem arises where the conduct was an omission. In that case it is
necessary that the behaviour which the debtor owed but omitted would have avoided the
damage. The court must therefore first decide which behaviour the wrongdoer was obliged to
show. If there was no obligation to act, the omission could not have caused the damage. If it
is questionable how the victim would have reacted to the owed correct behaviour of the
wrongdoer, it is rebuttably presumed that the victim would have followed the correct
conduct, for instance, a correct advice which a tax-adviser was obliged to give.63 This means
that the wrongdoer has the burden of proving that the victim would not have followed a
correct advice.64 However, where there were several equivalent alternatives in which the
victim could have reacted (some leading to the damage, some not), the victim must prove
which it had adopted.65 Further, it is necessary that the omission would have avoided the
58 BGH 19.4.1991 - V ZR 22/90, NJW 1991, 2277.
59 BGH 19.6.1951 - I ZR 118/50, NJW 1951, 918. ‘Although generally the loss of use of a car can be
abstractly calculated, this is no longer admitted if the car is exclusively used for professional purposes and
if the victim is, and must be, able to prove a concrete damage (BGH 6.12.2018 - VII ZR 285/17. NJ^
2019, 1064).’
60 § 286 ZPO.
61 § 287 ZPO; thereto BGH 21.7.1998 - VI ZR 15/98, NJW 1998, 3417; BGH 23.10.2003 - IX ZR 2491
02, NJW 2004, 444.
62 See BGH 11.5.1951 - I ZR 106/50, NJW 1951, 711; also BeckOK BGB/Schubert, § 249 BGB mn-4*
MüKo BGB/Oetker, § 249 BGB mn. 98; NK-BGB/Magnus, Vor §§ 249-254 BGB mn. 64-65; Palant
BGB/Grüneberg, Vor § 249 BGB mn. 25; Staudinger BGB/Schiemann, § 249 BGB mn. 8 et seq.
63 See BGH 23.10.2003 - IX ZR 249/02, NJW 2004, 444.
m See BGH 20.6.2013 - VII ZR 4/12, NJW 2013, 3442.
65 BGH 5.2.2015 - IX ZR 167/13, NJW 2015, 1373 (mn. 18).
340
U. Magnus
Nature and extent of damages 31-36 § 249
damage with a probability close to certainty so that no reasonable doubts remain.66 The mere
possibility or prevailing probability does not suffice.67
b) Cumulative causation. A second problem is the case that the conduct or event for 31
which the obligee is responsible caused the damage only jointly with other causes; the
conduct or event alone would not have caused the damage (cumulative causation). The
condicio-formula is then always satisfied and causation in this sense is established. Therefore,
each co-author, instigator, accomplice or assistant is responsible for the whole damage
(§ 830). Only where the damage can be separated in different independent parts each person
is liable for the own part.
c) Concurrent causation. A further problem arises where each of the relevant conditions 32
alone would have caused the damage (concurrent or double causation). In that case it is
common ground that each condition caused the damage nonetheless because otherwise none
of them would have caused it since for each the strict condicio-test would prove its
irrelevance.68 This is only different if both victim and obligee contributed concurrent causes:
the damage has to be allocated between them in accordance with § 254.69
d) Alternative causality. A final problem is the so-called alternative causality where it is 33
unclear whether one or the other person caused the damage. It is then rebuttably presumed
that both have caused the damage and are liable (§ 830(1) 2nd St.).
e) Proportional liability. German law has thus far not adopted the concept of propor- 34
tional liability. Proportional liability means that there are several, often many persons who
contributed to a certain damage. An example are the asbestos cases where a person suffers
from asbestosis due to exposure to asbestos by several producers. Proportional liability would
share liability among the producers according to a certain distribution yardstick, for instance
their respective market share. Under present German law each producer would be liable in
full if its causative contribution could be proved.
2. Adequate causation
The condicio sine qua non-requirement comprises an endless chain of conditions. It is 35
common ground that they must be limited so that only legally relevant conditions matter. In
Germany, the instrument for this task has for long been the institute of adequate causation
(Adäquanzlehre). Adequate causation is established if a fact in general and not under
especially peculiar, quite improbable circumstances, which in the regular course of things
can be left out of consideration, was apt to produce a consequence.70 Although this
formulation appears to focus on causality in a mere physical sense the BGH has acknowl¬
edged that this includes a value judgment. The Court held from early on that the decision on
adequate causation in essence is determining the border up to which the creator of a
condition should reasonably be made liable for the consequences.71 In common law jurisdic¬
tions this corresponds to the notion of legal causation.
a) Test. The practice under the adequate causation doctrine qualifies only those condi- 36
tions as relevant which do not lie outside the probability with which experience of life
66 BGH 19.2.1975 - VIII ZR 144/73, NJW 1975, 824; BGH 17.11.1992 - VII R 13/92, NJW-RR 1994,
102, 103; Staudinger BGB/Schiemann, § 249 BGB mn. 10.
67 Staudinger BGB/Schiemann, § 249 BGB mn. 10.
68 BGH 4.4.2014 - V ZR 275/12, NJW 2015, 468 (mn. 16).
69 BGH 20.2.2013 - VIII ZR 339/11, NJW 2013, 2018 (mn. 33 et seq.); BGH 4.4.2014 - V ZR 275/12,
NJW 2015, 468 (mn. 17 et seq.).
70 RG 15.3.1926 - IV 604/24, RGZ 113, 126, 127; taken over by BGH 24.4.1952 - III ZR 100/51, NJW
1952, 1010 and applied since then.
71 See BGH 24.4.1952 - III ZR 100/51, NJW 1952, 1010.
U. Magnus
341
§ 249 37-40 Division L Subject matter of obligations
reckons. However, for this judgment the courts look at what an optimal observer would
have foreseen and taken into consideration before the damage happened.72 In consequence
the courts have applied a rather high degree of foresight and have denied adequate causation
only in rare cases of extreme improbability. For instance, a car driver who was responsible
for an accident in 1937 by which a person lost one leg had not adequately caused the injury
that person suffered when he was hit in 1945 by artillery fire because due to his limping he
could not reach shelter in time.73 On the other hand, adequate causation was, e.g., accepted
in a case of a vaccination damage where the probability of such damage was less than
0.01 percent.74 Adequate causation is generally established where the wrongdoer causes
damage intentionally.75
37 b) Criticisms. In legal literature the theory of adequate causation has been frequently
criticised because of its vagueness and as this theory does not really limit the chain of possible
conditions; further that it is too one-sided to focus on the probability aspect alone.76 The
prevailing view regards the theory as a useful first filter to exclude extremely unlikely causal
links whose imputation would be unjust because they would make the obligee liable for mere
coincidence.77 Often, this first filter will suffice. In cases of complicated causal connections it
is, however, necessary to advance further policy considerations, in particular the protective
purpose of the violated norm.
3. Policy considerations
38 Already the doctrine of adequate causation contains an element of policy evaluation and it
is now widely accepted that at least in difficult causal situations such policy considerations
are unavoidable.78 They may lead to a restriction or extension of the result found under the
adequate causation doctrine.
39 a) Protective purpose. The most common consideration is the recognition of the protec¬
tive purpose of the violated norm (Schutzzweck der Norm). The obligee shall compensate
only those consequences which the norm is specifically designed to avoid. This purposive
approach is relevant for all causes of action which oblige to compensate damage. In contract
law it is the extent of the respective contractual obligation that must be defined; in tort law.
the extent of the respective general obligation, in particular, the extent of the duty of care
which is in question has to be taken into account. In the field of strict liabilities, the damage
must be the consequence of the specific risk against which the strict liability was introduced.
40 b) Further examples. Further policy considerations can be less easy generalised. The)’
often depend on the concrete situation of the case at hand. Partly, they apply only to groups
or types of cases. One of those considerations is the so-called general risk of life (allgemeines
Lebensrisiko) of the aggrieved party. Such risk must be borne by the affected party itself-
72 See e.g., BGH 23.10.1951 - I ZR 31/51, BeckRS 1951, 31400385; BGH 27.1.1981 - VI ZR 204."9.
NJW 1981, 983.
73 BGH 24.4.1952 - III ZR 100/51, NJW 1952, 1010.
74 BGH 17.10.1955 - III ZR 84/54, NJW 1955, 1876.
75 BGH 27.1.1981 - VI ZR 204/79, NJW 1981, 983.
76 Sec, for instance, Esser/Schmidt Schuldrecht Allgemeiner Teil (8th edn, C.F. Müller 2000). § 33 ]I:
Kötz/Wagner, Deliktsrecht (13th edn, Vahlen 2016) mn. 191 et seq.; jurisPK-BGB/RUssmann, § 249
mn. 28 et seq.
77 See, e.g., HK-BGB/Schulze, Vor §§ 249 BGB mn. 15; MiiKo BGB/Oetker, § 249 BGB mn. IP*
BGB/Magnus. Vor 249-255 BGB mn. 67; Palandt BGB/Grüneberg Vor § ’49 BGB mn. 28:
BGB/Ekkenga/Kuntz, Vor § 249 BGB mn. 133; Staudinger BGB/Schiemann S ’49 BGB mn. 20.
711 See, e.g., BGH 26.2.2013 - VI ZR 116/12, NJW 2013, 1679; BGH 20 5 20~14 - VI ZR 381/13- Nl"_
2014, 2190; BeckOK BGB/Flume, § 249 BGB mn. 293 et seq.; HK-BGB/Schulze Vor 88 249 BGB mn >•’
et seq.; MüKo BGB/Oetker, § 249 BGB mn. 120 et seq.; NK-BGB/Magnus, Vor'88 249-255 BGB n>n.^
et seq.; Palandt BGB/Grüneberg, Vor 8 249 BGB mn. 29 et seq.; Soergel BGB/Ekkenga/Kuntz, Vor J
BGB mn. 137; Staudinger BGB/Schiemann, § 249 BGB mn. 27 et seq.
342
U. Magnus
Nature and extent of damages 41-44 § 249
Thus, a divorced wife who has been informed by a doctor that her ex-husband now suffers
from a serious hereditary disease which their two children may have inherited with
50 percent probability has no claim against the doctor for her loss when she becomes
depressed and loses her job.79 80 The wife had no right not to know™ The BGH held in this
case that the sequence of events was the general risk of life a person has to face in such a
situation. In particular, the aspect of the general risk of life draws the attention to the
borderline of infringements which in a society everybody should tolerate without redress and
those which should lead to compensation.
A further consideration in respective cases is which party was in a better position to bring 41
the risk that realised under insurance coverage. This consideration alone is not decisive but
as an additional argument it may tip the scale. The existence of insurance on one side may
subliminally influence courts although it is a formally considered factor only if liability can be
exceptionally based on equity (§ 829).81
Also the consideration whether the conduct in question should be rather encouraged or 42
discouraged is of relevance. Where, for instance, a private person tries to catch a criminal and
suffers damage in taking the risk82 it can be an additional argument that damages claims
should not encourage such behaviour.
4. Specific causation problems
Difficult causation problems usually arise where several causes have contributed to the 43
damage. These additional causes may stem from the sphere of the aggrieved party, from
conduct of third parties or from natural events such as storms, floods etc. Several or all of
these causes can cumulate but also certain mono-causal situations pose special problems.
Court practice has developed rules of thumb for specific types of cases. One of those rules
provides that in principle additional causes do not affect the causative responsibility of the
obligee who also set a cause.83
a) Victim’s predisposition. One of the situations where a cause on the side of the victim 44
adds to the damage done by the wrongdoer is a predisposition of the injured party. It
generally plays a role in case of bodily injury but can apply also to things (e.g. animals) or
where the commercial sphere is at stake.84 The rule of thumb provides that the wrongdoer
must take the victim as he finds him.85 Therefore if the damage is increased because of a
specific vulnerability of the victim who, for instance, is a haemophiliac, the obligee must
nonetheless compensate the full damage.86 The obligee must also compensate a psychiatric
harm, even a wrong reaction of the victim to the injury as long as there is reasonable
certainty that this reaction had not entered but for the damaging event.87 However, there are
two exceptions: first, if the consequence is very extraordinary, unexpected and out of any
proportion to the damaging event the courts deny the causal link. This has been so held
where a person stepped on another’s foot and as a consequence of this step and the victim’s
79 BGH 20.5.2014 - VI ZR 381/13, NJW 2014, 2190.
80 The general personality right actually provides that a person is entitled not to know genetic or other
diseases against his will, however, only with regard to own diseases; BGH 20.5.2014 - VI ZR 381/13, NJW
2014, 2190.
81 See further the comment on this provision.
82 See further below mn. 47.
83 See, e.g., BGH 20.5.2014 - VI ZR 187/13, NJW-RR 2014, 1118 (mn. 20). It is a separate question
whether contributory negligence leads to a reduction or even exclusion of a damages claim; see thereto
§ 254 and the comment there.
84 BGH 5.7.1963 - VI ZR 188/62, BeckRS 1963, 30402211 (the enterprise of the aggrieved party
collapses because its only truck has been damaged).
85 BGH 29.2.1956 - VI ZR 352/54, NJW 1956, 1108.
86 OLG Koblenz 5.5.1986 - 12 U 894/85, BeckRS 2008, 18482.
87 BGH 16.3.2004 - VI ZR 138/03, NJW 2004, 1945 with further references.
U. Magnus
343
§ 249 45-47 Division 1. Subject matter of obligations
predisposition the complete leg had to be amputated,88 or where the wrong allegation to have
caused a traffic accident led to a stroke on the part of the accused.89 Secondly, the courts deny
a causal link if the psychiatric reaction is evidently no reasonable and understandable
reaction to the injury as is the case with a pension or compensating neurosis. There, the
wish to be secured for life becomes independent of the actual injury and takes a trivial injmy
as reason for permanent compensation. Then, the victim is no longer entitled to compensa¬
tion.90 However, the frequent neck (whiplash) trauma in traffic accidents was regarded as a
serious, not a merely trivial injury.91
45 b) Shock damage. German law is specifically reluctant to grant compensation if a person
suffers a shock by seeing, or hearing of, the death or a serious injury of another person. In
principle, everybody must bear their own psychiatric or psychosomatic consequences of such
an event, even if the observer becomes medically ill.92 It is part of the general risks of life. In
the past, the courts made an exception if a close relative was so injured or killed and the
observer suffered a medically diagnosed disease which exceeds what is the normal reaction to
tragic events.93 In 2017 the legislator alleviated these rigid conditions and introduced a
provision that allows for an adequate indemnification in money if a close person was killed
(§ 844(3)).94 A pathological disease and more than normal reaction is no longer required
although a claim can still be based on the prior case law which remains relevant, in particular
in cases of a serious injury of a close relative.
46 c) Victim’s own decision. If the victim by its own decision contributed to the own
damage the starting point is that this causal participation does not fall on the obligee.
Regularly, a distribution of the damage in accordance with § 254 will be the consequence.
However, there are exceptions. The courts often rely on whether the obligee provoked
the reaction of the victim and whether this reaction was understandable in the light of
the circumstances.
47 One case type is the group of pursuit cases (Verfolgungsfälle). There, a person suffers
damage while chasing a wrongdoer, often a criminal, immediately after their wrongful or
criminal act. The courts draw a strange distinction: they burden the wrongdoer with the
damage the hunter suffers if the pursuit was particularly dangerous and the damage just
therefore realised, for instance, if a ticket inspector falls and breaks his leg in chasing a person
without ticket down a steep staircase.95 On the other hand, if only the normal risks of a
pursuit realise (e.g. the hunter slips on freshly mowed lawn and suffers a muscle tear) this
damage has not been imputed to the escaping wrongdoer.96 The distinction has been justified
by the argument that the consequences should be imputed to the wrongdoer only if the latter
created an increased risk and provoked the pursuit by its foregoing illegal act and further that
the hunter was at least entitled to hinder the escape.97 Police, official ticket inspectors etc. are
even obliged to pursue crimes and illegal acts. Moreover, the immediate pursuit is only
justified if there is sufficient reason, in particular because of the severity of the illegal act, and
if the pursuit does not pose foreseeable risks that are out of proportion.98
- "
88 OLG Karlsruhe 25.1.1966 - 8 U 118/65, VersR 1966. 741.
89 BGH 6.6.1989 - VI ZR 241/88, NJW 1989, 2616.
90 BGH 29.2.1956 - VI ZR 352/54, NJW 1956, 1108; BGH 11 11 1997 - VI ZR 376/96, NJW 1998» 81
91 BGH 11.11.1997 -VI ZR 376/96, NJW 1998. 810. * M
92 LG Stuttgart 5.9.1972 - 9 0 243/72, VersR 1973. 648; contra Lange/Schiemann. Schadensersatz (-
edn. Mohr Siebeck 2003), § 3 X 5; MüKo BGB/Oetker. § 249 BGB mn. 147.
93 BGH 10.2.2015 — VI ZR 8/14, NJW 2015, 2246; BGH 27.1.2015 — VI ZR 548/12, NJW 2015» I1!
94 See further the comment to § 844.
95 BGH 13.7.1971 - VI ZR 125/70, NJW 1971, 1980.
96 BGH 13.7.1971 - VI ZR 165/69, NJW 1971, 1982.
97 BGH 13.7.1971 - VI ZR 125/70, NJW 1971, 1980; also BGH 12 3 1996 - VI ZR 12/95, NJW 19 ’
1533.
98 See the preceding references.
344
U. Magnus
Nature and extent of damages
48-52 § 249
A further case concerns situations where the obligee has not only provoked the dangerous 48
conduct of the victim but more or less urged or forced it. Thus, a drunken driver was held to
have caused the damage which his passenger suffered when she jumped out of the car at low
speed because she realised that the driver started to escape the police and feared severe
injuries to herself." The imputation is even not excluded if a man jumps through a window
from a height of 8-10m and suffers severe injuries because he fears that the furious husband
who already knocked down the doors will hold him for his wife’s affair and injure or kill
him.99 100 The causal link (and final liability) has also been affirmed where a patient disposed of
all her property because a wrong diagnosis attested a permanent progredient disability
(morbus Alzheimer in a late stage) whereas she in fact suffered from a temporary depression.
She was granted compensation for her loss.101
If a person helps in an emergency situation, which the obligee has created, damage that 49
the helper therefrom suffers is also caused by the creator of the emergency if the help was not
evidently useless from the start on and if the foreseeable risks were not out of proportion to
the possible benefit of the help. The damage must, however, be linked to the created
emergency. This was denied in a case where a fireman fell over the fire hose and injured
himself when he collected the fire hoses after the fire was extinguished that the defendant had
negligently caused.102 The accident was regarded as lying outside the specific risk that arson
creates.
Even if a claimant is not forced but rightfully feels morally obliged to take on a certain 50
damage in order to reduce or compensate a damage of a third person for which the
defendant is liable, the damage of the claimant can be regarded as caused by the defendant.
This has been so decided in a case where a mother had donated one of her kidneys for her
son whose only healthy kidney the defendant doctor had erroneously explanted. The causal
link was affirmed and the mother was entitled to compensation for her loss.103
d) Child as damage. A further group of cases is known under the misleading expression 51
Kind als Schaden (literally ‘child as damage’). In these cases the main question is whether
parents can claim the maintenance for an unwanted child or a child born with a handicap
from the involved doctor or other health professional who made a mistake in treating or
advising the parents. It is now settled that such a claim is admissible since it is not the
existence of the child as such which is the object of the compensation claim but only the
maintenance costs with which the parents are burdened.104 105 Although the defendants in these
cases have not caused the birth of the child, the child and the maintenance burden would not
exist without their mistake. Thus, the cond/cio-formula is met. Also further policy considera¬
tions speak in favour of causality and liability, in particular the argument that the damages
sanction serves as a means to secure careful contract performance in the delicate field of
family planning.103
The courts therefore affirmed the causal nexus and final liability, for instance, where a 52
pharmacist sold ineffective contraceptive pills,106 where the doctor performed an ineffective
sterilisation107 or an unsuccessful abortion108 and an unwanted child was born (‘wrongful life’
cases). Cases were decided similarly where the doctor overlooked an infection of the unborn
99 OLG Köln 10.6.1999 - 1 U 1/99, NJW-RR 2000, 1553.
100 BGH 16.4.2002 - VI ZR 227/01, NJW 2002, 2232.
101 OLG Oldenburg 1.3.1994 - 5 U 127/93, NJW-RR 1996, 666.
102 BGH 4.5.1993 - VI ZR 283/92, NJW 1993, 2234.
103 BGH 30.6.1987 - VI ZR 257/86, NJW 1987, 2925.
104 BVerfG 12.11.1997 - 1 BvR 479/92 and 1 BvR 307/94, NJW 1998, 519; still contrary BVerfG
28.5.1993 - 2 BvF 2/90, 2 BvF 4/92 and 2 BvF 5/92, NJW 1993, 1751 and BVerfG 22.10.1997 - 1 BvR 479/
92 and 1 BvR 307/94, NJW 1998, 523.
105 See, e.g., BGH 8.7.2008 - VI ZR 259/06, NJW 2008, 2846 (mn. 12).
106 LG Itzehoe 21.11.1968 - 6 O 66/68, VersR 69, 265.
107 BGH 18.3.1980 - VI ZR 105/78, NJW 1980, 1450; BGH 8.7.2008 - VI ZR 259/06, NJW 2008, 2846.
108 BGH 9.7.1985 - VI ZR 244/83, NJW 1985, 2752; BGH 28.3.1995 - VI ZR 356/93, NJW 1995, 1609.
U. Magnus
345
53
54
55
56
§ 249 53-56 Division 1. Subject matter of obligations
. . . z.110 ,nH the child was later born handicapped although
ehüd” or gave wrong genel.e adv.ee and for ^S»
L, julifed if the underlying contra« aims at the protection of the «»
financial burden of having either an unwanted or a h.nd.c.pped ch. d
integrity is impaired (in case of sterilisation or even through an unwanted
The child’s parents are entitled to damages, irrespective whether they are married. If an
unwanted healthy child is bom the amount of damages corresponds to die amount in the
usual maintenance tables. The maintenance for an unwanted handicapped child includes in
addition any farther necessary amount.109 110 111 112 * * 115 The child itself is not entitled to any damages
(unless bodily injured before or during birth); it cannot argue that it would not exist without
the mistake of the doctor or other health professional.116
e) Acts of third parties. If a third party contributes to the damage for which the obligee is
responsible and if this additional damage can be clearly separated from the first damage the
basic principle is that each author has caused (and is liable for) the own part of the damage. If
no such separation is possible both authors have created the damage and are generally jointly
liable.117 If the separation is possible the obligee has nonetheless caused the damage
committed by the third party if the conduct or event for which the obligee is responsible
increased the risk of damage through third persons to a considerable extent. The courts base
their judgment in part also on whether the first damage provoked the act of the third party.
A special group are the so-called roadside verges cases (Grünstreifenfälle). There, third
parties drive over the roadside verge/footpath/cycle path and damage it because there is a
traffic jam which they want to pass by. The traffic jam has been caused by a driver whom the
owner of the damaged verge/path makes liable for the costs of restitution. The BGH rejected
the claim and denied the causal link between the conduct of the author of the traffic jam and
the damage caused by the impatient drivers.118 * 120 The main argument was that the third parties
(impatient drivers) acted deliberately on their own initiative and intentionally caused damage
in contravention of the law. The Court further opined (somewhat doubtful) that the author
of the traffic jam had not provoked the acts of the third parties.
In case of two or more successive damaging events the author of the first damage is
regularly regarded to have caused the second or farther damage through others if the first
damage had brought the victim into an especially risky situation where damage of the kind
that happened typically occurs. This is, for instance, the case where the victim of the first
damage must be hospitalised and contracts an infection there;"’ it has also been held that a
first doctor s mistake is still the cause for damage through further necessary treatment by a
i2oeu neg 'Tn' ?KtOr1 U the SeC°nd d°Ctor committed a particularly grave
nustake "° It ,s only in th.s latter case in which the farther damage will no longer be
109 BGH 18.1.1983 - VI ZR 114/81, NJW 1983, 1371 '
110 BGH 16.11.1993 - VI ZR 105/92, NJW 1994, 788
111 BGH 4.12.2001 - VI ZR 213/00, NJW 2002 886 1™ ,k
unborn siblings would be handicapped and the abortion coufonot be „ °f'd **'the
life of the healthy sibling - and if no other ground for a 1X1 »I Pe^ormed without endangering h
present). legal ab°rtion [danger for lite of mother etc.)
112 See, e.g., BGH 8.7.2008 - VI ZR 259/06, NJW 2008 , i«
decisions. ’ ^846 (mn. 12) with references to earlier
1.3 BGH 18.3.1980 - VI ZR 247/78, NJW 1980, 1452
1.4 BGH 14.11.2006 - VI ZR 48/06, NJW 2007 989
1.5 BGH 22.11.1983 -VI ZR 85/82, NJW 1984,’ 658- BCM k., .
116 BGH 18.1.1983 - VI ZR 114/81, NJW 1983 137’1 Ib l1.1993 - VI ZR 105/92, NJW 1994,78»-
117 See-Ȥ830.
1,8 BGH 16.2.1972 - VI ZR 128/70, NJW 1972 904
RG 13.10.1922 - III 453/22, RGZ 105, 264 ’
120 BGH 28.1.1986 - VI ZR 83/85, NJW 1986 2367- Ren ,,
’ 67> BGH 22 5-2012 - VI ZR 157/11, NJW 2012, 2024.
346
tA Magnus
Nature and extent of damages 57-61 § 249
imputed to the first infringer. The same reasoning applies to consequential damage through
third persons that follows from mistakes by attorneys, advisers etc.121 Even if the garage in
which the victim has its car repaired makes mistakes and causes further damage, the obligee
who had first damaged the car is regarded as having caused the further damage and is liable
for it.122 In the event of an accident involving several cars (Kettenunfall) the driver
responsible for the first accident is generally liable for the following ones.123
Even in cases where the third party acted intentionally and unlawfully the courts have 57
affirmed the causal nexus if the author of the original damage brought the victim into a
helpless or dangerous situation that made it particularly easy and tempting for third parties
to make use of this situation and to commit criminal acts, for instance to steal property out of
the damaged car while the victim is unconscious or brought to the hospital124 or to steal
cattle that could escape because the obligee damaged the fence.125 It is a consideration in
these cases that the third party is unknown and cannot be made liable whereas the author of
the first damage brought the victim into this risky situation and is closer to bear the damage
than the victim.
f) Additional other causes. In principle, the infringer remains the cause of damage if in 58
addition to his conduct further causes such as natural events (storm, flood), technical failures
etc. contribute to the damage. However, where the damage is the result of a cumulation of
unexpected causes, causation will be rather denied than affirmed. The BGH denied a causal
link in a case where a fault of the obligee, a fault of the victim and an unforeseeable power
failure jointly caused the damage.126
If a later natural event increases the damage - the damaged car is totally destroyed by a 59
flood the next day - the author of the first damage is responsible for the whole damage only
if he created the risky situation precisely in which the final damage occurred; in the example,
if the first damage resulted in the car remaining in the flood area. If the author of the first
damage did not increase the risk he is liable only for the loss of use in the time between the
first and the second damage.127
g) Hypothetical causation. Sub. 1 requires the obligee to restore the position that would 60
exist if the circumstance obliging him had not occurred. In principle, therefore, circumstances
must be taken into account which most likely would have influenced the damage or its
extent. Again, the courts have developed specific solutions for specific groups of cases
although many of the results are but unanimously accepted.
A first group are the cases where there already exists an inherent risk that would anyway 61
lead to the damage which the obligee in fact caused (Anlagefälle). The materialisation of the
risk must not only be likely but almost certain as generally required as the usual standard of
proof; if that is the case, the infringer is merely liable for the interim damage between the
damaging event and the point of time when the risk would have caused the same damage.128
In contrast to the predisposition cases129 the victim here would in all probability have
suffered the same damage, however, only later. Therefore, if, due to the damage which the
infringer caused, a person must, for instance, retire from his active profession, the infringer is
regarded as having caused - and is liable for - only the loss of income until the date of the
121 See, e.g., BGH 19.7.2001 - IX ZR 246/00, NJW 2001, 3477.
122 BGH 29.10.1974 - VI ZR 42/73, NJW 1975, 160.
123 BGH 9.3.1965 - VI ZR 218/63, NJW 1965, 1177; BGH 11.7.1972 - VI ZR 79/71 and VI ZR 80/71,
NJW 1972, 1804.
124 BGH 10.12.1996 - VI ZR 14/96, NJW 1997, 865.
125 BGH 3.10.1978 - VI ZR 253/77, NJW 1979, 712.
126 BGH 23.10.1951 - 1 ZR 31/51, BeckRS 1951, 31400385.
127 See also below -► mn. 64.
128 See, e.g., BGH 19.4.1956 - III ZR 26/55, NJW 1956, 1027; BGH 23.10.1984 - VI ZR 24/83, NJW
1985. 676.
129 See above mn. 44.
U. Magnus
347
§ 249 62-64 Division 1. Subject matter of obligations
regular retirement150 The same solution has been adopted where the infringer caused the
insolvency of an enterprise which because of its financial difficulties anyway had to be
liquidated in the very near future.131
62 There is wide agreement that an infringer cannot be heard with the argument that a third
person would have caused the same damage a little later.132 Even if, e.g., a car which the
infringer destroyed would have been totally destroyed by a fire the next day, for which a third
person is liable, this is no excuse and does not interrupt the causal link between the first
infringer’s conduct and the damage.133 The reason is that, if the infringer would be relieved
by the later act, the victim would have no claim at all since there is also no claim against the
third person because that person has not caused any further damage to the already destroyed
car. Moreover, it must always remain hypothetical whether the third person would indeed
have caused the same damage. However, where the second act increased the extent of the first
damage each author would be liable for their own part.
63 In case of permanent damage for which the defendant has to pay an annuity, it is
generally accepted that a later deterioration or improvement of the damage can lead to a
correction of the amount of the annuity.134 However, if the permanent damage has been
compensated by way of a lump sum payment, no later revision of the sum is possible.135 Yet,
when asking for a lump sum the victim can also request for a declaratory judgment that the
defendant be liable for all future damage. If further negative consequences of the original
damage enter, the victim can claim further compensation.
64 The solution is much disputed where other events than acts of third persons would in
all likelihood have caused the same damage after that which the infringer in reality caused.
An example is the flood which would certainly have destroyed the victim’s car the day
after the obligee destroyed it.136 The prevailing view holds that the obligee is obliged to
compensate in full the direct damage to the good in question (so-called Objektschaden -
damage to the object) which he in fact has caused.137 In assessing the indirect, consequen¬
tial damage, lost profits, loss of use etc., according to this view, hypothetical causes should
be taken into account; it is argued that the indirect damage is not yet finished but still
developing.138 This distinction is unconvincing.139 Unless the author of the first damage
did not increase the risk of further damage through natural events there is no reason
visible why he should bear the risk of damage through such events, be that the real or a
merely hypothetical though certain cause. Without the first damage the victim would bear
the risk of such accidental damage in any event. It is no reason to modify this risk
allocation because another person caused damage at a slightly earlier date. This other
person should therefore only bear the loss that occurred because the damage was caused
earlier.140 Often this will merely be the loss of use for a short time. It has, however, to be
130 BGH 5.2.1965 - VI ZR 239/63, VersR 1965, 491.
131 BGH 30.9 196« - II ZR 224/66, BeckRS 1968, 31172607.
132 BGH 27.9.1988 - XI ZR 4/88, NJW-RR 1989, 150; MüKo BGB/Oetker, § 249 BGB mn. 214; NK-
BGB/Magnus, Vor §6 249-255 BGB mn. 103; Palandt BGB/Grüneberg, Vor § 249 BGB mn. 58; Staudin-
ger BGB/Schiemann, § 249 BGB mn. 95 et seq.
I3< Staudinger BGB/Schiemann, § 249 BGB mn. 95 et seq.
134 6 323 ZPO provides for a possibility to review a respective judgment.
l3SSee Lange/Schiemann, Schadensersatz (3rd edn, Mohr Siebeck 2003), 6 4 VIII; NK-BGB/Maenus,
Vor 66 249-255 BGB mn. 104. *
136 See already above ► mn. 59.
13 BGH 22 I 1959 - III ZR 148/57, NJW 1959, 1131; BGH 1.2.1994 - VI ZR 229/92, NJW 1994, 999;
HK BGB/Schulz.e, Vor §6 249-253 BGB mn. 22; Palandt BGB/Grüneberg, Vor § 249 BGB mn. 61;
probably also BeckOK BGB/Hume, § 249 BGB mn. 327 et seq.
BGH DB 1979, 35; HK BGB/Schulze, Vor §§ 249-253 BGB mn. 21; Palandt BGB/Grüneberg. Vor
6 249 BGB mn. 62. probably also BeckOK BGB/Hume. § 249 BGB mn. 328.
133 See MuKo BGB/Oetker. § 249 BGB mn 211; NK BGB/Magnus, Vor §§ 249-255 BGB mn. 104; also
Staudinger BGB/Schiemann. § 249 BGB mn. 100.
140 Also MuKo BGB/Oetker, § 249 BGB mn. 213.
348
U. Magnus
Nature and extent of damages 65-68 § 249
stressed that it must be almost certain that the hypothetical event would have caused
the identical damage.
Where the victim’s claim depends on how a court or public authority would have 65
decided - for instance if the action which the victim’s attorney wrongfully omitted to raise in
time would have been successful - it has to be assumed that the court or authority would
have decided correctly in accordance with the current law.141 Where the law grants discre¬
tion, it has to be assumed that the discretion would have been used in the so far usual way.142
A special form of a hypothetical cause is the so-called lawful alternative conduct 66
(rechtmäßiges Alternativverhalten). It means that the infringer would have caused the
same damage if he had acted in a lawful way. It depends on the purpose of the violated
norm whether such conduct can relieve the infringer from liability and restrict the
imputation of consequences.143 The argument regularly relieves the infringer where the
norm primarily intends the protection of the victim. This is, for instance, the case if a
patient who was not or not correctly informed about the risks of a medical treatment would
have accepted the treatment in any event and even after correct information.144 The
attorney who is made liable for the loss of a lawsuit because of his mistakes will be heard
that that lawsuit would have been lost anyway for legal reasons and even if the attorney
would have acted correctly.145 Where the norm essentially aims at securing a specific
conduct, the argument of a possible lawful behaviour that would have had the same result
is generally rejected. Therefore, a notary public who acted in an unlawful way cannot argue
that he could have brought about the same result by lawful conduct:146 The duties of the
notary public exist not only towards a party who suffers damage but generally towards all
involved parties and towards the public as a whole which trusts that the notary acts with
utmost care in accordance with the law.147 The infringer bears the burden of proof that he
could have caused the same damage in a lawful way.148
IV. Set-off of benefits
The principle of total restitution of the position which would have existed without the 67
damaging event (§ 249) requires - at least theoretically in each case - to examine whether the
victim obtained any accompanying advantage which may reduce the amount of damages.
Also the principle of prohibition of any enrichment through damages can be invoked to
justify a compensatio lucri cum damno. The BGB contains some provisions which require a
set-off of benefits (Vorteilsausgleichung):)49 others reject it.150 The historical legislator refused
to introduce a general solution and left the question to the courts and legal doctrine.151
1. Preconditions
The courts base their decisions generally on two aspects: first, to justify a set-off there 68
must be a sufficient causal link between the damaging event and the benefit. Secondly, the
set-off must not contradict the purpose of the damages claim. The overarching principle is
that the set-off should be acceptable for the victim and must not inadequately relieve the
141 See, e.g., BGH 6.11.1961 - III ZR 143/60, NJW 1962, 583; BGH 28.9.2000 - IX ZR 6/99, NJW 2001,
146.
142 BGH 15.11.2007 - IX ZR 34/04, NJW 2008, 440.
143 BGH 24.10.1985 - IX ZR 91/84, NJW 1986, 576; BGH 25.11.1992 - VIII ZR 170/91, NJW 1993, 520.
144 See now also § 630h(2) 2nd St.
145 BGH 25.10.2012 - IX ZR 207/11, NJW 2013, 540.
146 BGH 24.10.1985 - IX ZR 91/84, NJW 1986, 576.
147 BGH 24.10.1985 - IX ZR 91/84, NJW 1986, 576.
148 BGH 7.2.2012 - VI ZR 63/11, NJW 2012, 850.
149 See, e.g., §§ 326(2) 2nd St., 537(1) 2nd St., 615 2nd St., 616(1) 2nd St., 642(2), 648 2nd St., 650f(5) 2nd St.
150 e.g., §§ 843(4), 618(3).
151 Mot. II p. 19.
U. Magnus
349
§ 24 9 69-73 Division 1. Subject matter of obligations
infringer.152 Both - the causal and the normative - aspects must be examined. The causal
link must be a particularly close one (like a single unit of account).153 If, for instance, ina
traffic accident one brother is killed and the other severely injured, the liable person cannot
argue that the damage of the survivor must be reduced because in future he will be the
single heir; this could also occur without the accident.154 The normative considerations take
account of the special objectives of the benefits in question. § 843(4) gives rise to the rule
that benefits do not count if they do not have the objective to relieve the infringer.155
Insofar a principal rule is that maintenance claims or similar claims which the victim
acquires through the damaging event in addition to the claim against the author of the
damage - for instance, against the employer, the social security system etc. - do not reduce
the claim against the author of the damage.156 On the other hand, it follows from § 254(2)
1st St., that the victim must make use of advantages which would reasonably reduce the extent
of the damage.157 These rather open requirements have to be concretised in groups of cases.
2. Application
69 The principles on set-off of benefits apply to all cases where damages are due. However,
they actually constitute general principles which, with adaptations, can be used also in other
fields of law (e. g. unjust enrichment etc.) where closely connected advantages and disadvan¬
tages shall be balanced.
70 a) Advantages. It is more or less self-understanding that only advantages on the part of
the victim can reduce his damages claim. However, in specific cases also advantages of third
parties can count. This is the case where the third party falls under the protective scope of the
contract158 or where the rules on liquidation of third party damage apply.159
71 An advantage is not only any benefit that is otherwise not available but also an avoided loss
that without the damaging event would have occurred with probability close to certainty.160
72 b) Immaterial damages. With respect to immaterial damage, a formal set-off of immater¬
ial advantages and disadvantages is neither necessary nor possible. There, all relevant aspects
of the case have to be taken into account for the uniform assessment of the immaterial loss.
Anyway, it is hardly imaginable that immaterial damage produces at the same time any
immaterial advantage. Furthermore, immaterial damage and material loss cannot be set-oft
against each other.161 The Vorteilsausgleichung is also excluded where the damage can be
abstractly calculated.
73 c) Annuity. If the amount of damages has been finally determined by judgment, accepted
performance or settlement, no further set-off of benefits is admitted unless the defendant
must pay an annuity and circumstances have fundamentally changed.162
•
152 See BGH 15.1.1953 - VI ZR 46/52, NJW 1953. 618; BGH 12.11.2009 - VII ZR 233/08» NJW 2010.
675.
'53 BGH 17.5.1984 - VII ZR 169/82, NJW 1984, 2457.
'5< BGH 16.12.1975 - VI ZR 180/73, NJW 1976, 747.
155 See thereto in particular Lange/Schiemann, Schadensersatz (3rd edn, Mohr Siebeck 2003), § 9 VI.
'56 see NK-BGB/Magnus, Vor §§ 249-255 BGB mn. 124; Palandt BGB/Grüneberg, Vor § 249
mn. 70; Staudinger BGB/Schiemann, § 249 BGB mn. 135. Generally, these bearers of the damage acquire
the victim’s claim against the tortfeasor by cessio legis.
157 See -► § 254 mn. 10.
>5» See, e.g., BGH 5.2.2015 - IX ZR 167/13, NJW 2015, 1373 (tax savings of son must be taken >n'«
account if he was included in the protective scope of the contract which the parents concluded with a
adviser who gave them wrong advice and caused them damage).
'5« See below -► mns. 87 et seq.
'60 see BGH 15.12.1988 - III ZR 110/87. NJW 1989. 2117. 2118.
161 BGH 22.9.1967 - VI ZR 46/66, VersR 1967, 1080 (compensation for pain and suffering canno'
reduced because injured victim receives wages without working for it)
162 See also § 323 ZPO.
350
U. Magnus
Nature and extent of damages
74-77 § 249
3. Method of assessment
The compensatio lucri cum damno is not set-off in the traditional sense. No specific 74
declaration or procedural act is required. The courts act ex officio,163 They reduce the amount
of damages just by the amount the advantage is worth in terms of money. If the advantage
cannot be assessed in money it must be returned in kind against payment of damages.164
However, the party alleging a set-off of benefits bears the burden of proving them.165
According to the prevailing view, each benefit reduces only the congruent damages 75
position, tor instance,166 saved living costs reduce only the costs of medical treatment in
hospital, not the lost income against which they cannot be set off.167
4. Specific cases
a) Groups of cases: Advantages independent of activities of the victim or third persons. 76
There are several cases where an advantage is the natural consequence of a damaging event
independent of any activity of either the victim or a third person. One of those is the case
that the nourisher of dependants is killed; by the death the dependants lose not only the
maintenance but inherit also the estate of the deceased. The courts tend to reject this gain as
a deductible advantage168 but they regularly take into account any income from the estate
because the dependant would have inherited the estate only at a later point of time, namely at
the end of the statistical life time of the deceased had he not been killed; but the income is
now available earlier.169
Another case type concerns saved expenditures. It is rather uncontroversial that in 77
principle such savings, which are the consequence of the damaging event, reduce the victim’s
claim. Thus, where, because of the injury, the victim is cared for in hospital a sum of 5-10
euro per day is deducted from the costs of medical treatment because the victim saves these
expenditures which he would have at home without the damaging event.170 The most
common example of this case type is the saving of wear and tear when a car has been
damaged and must be repaired over several days. If the victim takes a rental car the courts
deduct a regular 10 percent from the rental sum for saved expenses for his own car.171 In
principle, tax savings due to the damaging event also reduce the damages amount unless this
would contradict the purpose of the respective tax.172 The latter is, for instance, the case
where tax benefits favour handicapped persons; these benefits shall not relieve wrongdoers.173
However, since taxation depends on the individual circumstances of each tax-payer and often
requires considerable efforts of calculation the BGH decided that only extraordinarily high
tax advantages need to be deducted.174
163 BGH 43.2004 - III ZR 72/03, NJW 2004, 1865; BGH 15.1.2009 - III ZR 28/08, NJW-RR 2009, 603
(mn. 14).
164 BGH 12.5.1958 - II ZR 103/57, NJW 1958, 1232.
165 See, e.g., BGH 17.10.2003 - V ZR 84/02, NJW-RR 2004, 79, 81.
166 e.g., BGH 17.10.2003 - V ZR 84/02, NJW-RR 2004, 79, 80; Lange/Schiemann, Schadensersatz (3rd
edn, Mohr Siebeck 2003), § 9 III 12; MüKo BGB/Oetker, § 249 BGB mn. 277; NK-BGB/Magnus, Vor
249-255 BGB mn. 130; Staudinger BGB/Schiemann, § 249 BGB mn. 144; contra Soergel BGB/
Ekkenga/Kuntz, Vor § 249 BGB mn. 295 et seq.
167 See Palandt BGB/Grüneberg, Vor § 249 BGB mn. 73; see also BGH 16.1.1990 - VI ZR 170/89, NJW
1990, 1360: damages claim of injured employee who has been dismissed because of the injury is not
reduced by the compensation which the employee is awarded in the dismissal lawsuit.
168 BGH 15.1.1953 - VI ZR 46/52, NJW 1953, 618 et seq.
169 BGH 19.3.1974 - VI ZR 19/73, NJW 1974, 1236; BGH 19.12.1978 - VI ZR 218/76, NJW 1979, 760.
170 See, e.g., OLG Saarbrücken 27.7.2010 - 4 U 585/09, NJW 2011, 933.
171 BGH 2.2.2010 - VI ZR 139/08, NJW 2010, 1445 (mn. 20).
172 BGH 28.1.2014 - XI ZR 495/12, NJW 2014, 994.
173 BGH 24.9.1985 - VI ZR 65/84, NJW 1986, 245.
174 BGH 28.1.2014 - XI ZR 495/12, NJW 2014, 994.
U. Magnus
351
78
79
80
81
82
§ 249 78-82 Division 1. Subject matter of obligation
j . k thp case that the restoration or repair
Another type of quasi automatic■ advan age tly longer than the damaged good
provides the victim with a good that will last g X deduction generally in the
„„„Id have lasted old). The courts assess he—. ol th
way that the Increased value - longer hie span " ,,s An excep.ion
damaging even. - must he deducted ^d "epiaeed by new ones. He “
where personal clothes prostheses, ^ "JinLettabJfor the victim who otherwise would
the courts generally hold that a deduction is inaccepta
be forced to be content with second-hand goods.
b) Advantages through activities of the victim. Generally, the victim is obliged to
minimise the damage (§ 254) by taking all reasonable measures. However, a vantages which
are the consequence of efforts to which the victim was not obliged via contributory
negligence regularly do not reduce the victim’s damages claim. For instance, if the victim
after recovery from injury works harder and thereby equalises the loss, the wrongdoer must
nevertheless compensate the full loss although actually no pecuniary damage remains.' In a
similar vein, if the victim by own efforts and cleverness makes a favourable transaction and a
gain that off-sets the damage, this profit need not be deducted. In particular, merchants are
allowed to calculate their damage in an abstract way that assumes that in any event the
normal profit would have been made.178
c) Advantages through activities of third persons. Frequently, the victim has not only a
claim against the wrongdoer but also against a third person such as an insurer, employer or a
person from whom he can claim maintenance. In most of these situations, if the third person
partly or fully compensates the loss this leaves the damages claim unchanged.
With respect to payments by an insurer for which the victim had paid the insurance
premiums their aim is not to relieve the wrongdoer from liability but to secure the victim.
The insurer's payment to the victim must be deducted from the victim’s damages claim only
where the wrongdoer insured himself against causing damage. For most private insurance
contracts, statute provides that the victim’s claim passes to the insurer as far as it
compensated the loss.179 The same is true for benefits which social insurance agencies have
to pay180 and for continued wages the employer is obliged to pay during injury or illness of
the employee.181 These benefits do not aim at relieving the wrongdoer either.
With respect to maintenance payments § 843(4) expressly provides that the wrongdoer is
not relieved by the fact that another person is obliged to maintain the claimant. Payments by
third persons which are intended to secure the maintenance of the claimant shall in no way
reduce the latter’s damages claim against the wrongdoer.1*“ An exception is made where the
damaging event enabled the (new) maintenance claim: If the husband (wife) is killed and the
surviving spouse remarries, the maintenance claim against the new spouse is deducted from
the ^rnages amount the widow/er can claim from the wrongdoer who killed the first
husband (wife). If the surviving spouse merely lives with a new partner, no deduction of
175 BGH 8.12.1987 - VI ZR 53/87, NJW 1988, 1835.
176 See for instance AG Landshut 10.5.1989 - 1 ~
8.1.2003 - 2 C 365/02, NJW-RR 2003, 307
177
178
See -► § 86(1) Is1 St. VVG.
180
- 1 C 278/89, NJW 1990, 1537 (false teeth), AG Weinheim
BGH 16.2.1971 - VI ZR 147/69, NJW 1971 836
BGH 29.6.1994 - VIII ZR 317/93, NJW 1994, 2478.
See the legal subrogation in §§ 116(1) SGB X, 90(1) BSHr « D„^
1,1 The employer has to pay full wages up to six weeks d ' 81a BVG.
injury or illness; § 3 EFZG; cessio legis in § 6(1) EFZG Urin8 which the employee is incapacitated by
182 General opinion: e.g., BGH 30.3.1953 - GSZ 1‘- 3/« MI,„
§§ 249-253 BGB mn. 118; Lange/Schiemann, SchadensersM, Ard Y 1953> 821: Erman BGB/Ebert. Vor
BGB/Magnus, Vor §§ 249-255 BGB mn. 145; Palandt BGR/r •• Mohr Siebeck 2003), § 9 VI 1; NK-
BGB/Ekkenga/Kuntz, Vor § 249 BGB mn. 304 '^nineberg, Vor § 249 BGB mn. 88; Soergel
183 BGH 16.2.1970 - HI ZR 183/68, NJW 1970 1127
352
U. Magnus
Nature and extent of damages 83-87 § 249
factual payments of the new partner have to be taken into account because no legal obligation
of maintenance exists.184
If guarantors, sureties etc. compensate the damage for which a wrongdoer is liable, their 83
payment does not reduce the victim’s damages claim against the wrongdoer.185 However,
they regularly acquire the victim’s claim by cessio legis as far as they have satisfied it.
If a third person compensates the damage of the victim it depends primarily on which 84
purpose the third person pursues with the payment. If no direct purpose is expressed the
circumstances must determine whether or not the payment shall relieve the wrongdoer. In
case of voluntary gifts to the victim it has been usually held that no relief of the wrongdoer
was intended.186
V. Persons entitled to damages
In principle, German law follows the basic rule that only the direct victim is entitled to 85
damages and can claim merely their own damage (Dogma des Gläubigerinteresses - dogma of
the creditor interest).187 In the field of contract law the person entitled to damages is not only
the aggrieved contract partner but also the person in whose favour (§ 328) or to whose
protection (§311) the contract has been concluded and whose contractual rights have been
violated (Relativitätsprinzip - principle of relativity of contract rights). In the field of tort law it
is the person whose absolutely protected rights have been infringed (Tatbestandsprinzip -
principle that the elements of the tort norm must be fulfilled). Persons who suffer indirect
damage because another person has been injured are generally not entitled to damages against
the author of their indirect damage. Thus, a person who causes damage to a company is not
liable to the company’s shareholders if - as a consequence of the damage - the value of their
shares decreases;188 a person who injures one partner of a successful professional ice-skating
pair is not liable for the (economic) damage which the other partner suffers:189 the claimant’s
protected right is not violated in either of these two examples.
1. Exceptions
There are few exceptions to the rule that only the direct victim is entitled to damages. The 86
practically most important is the statutory regulation that a person who has lost his nourisher
(who is legally obliged to render maintenance) has a direct claim against the person who is
liable for the death of the nourisher (§ 844(2)).190 Also the compensation for shock damage
where a close person is killed191 or of the damage to a nasciturus by injury to the mother192 is
an exception. A further, much criticised exception is the decision of the BGH that the
damage to a company can be qualified as own damage of the single shareholder (so-called
gesellschaftsfreundlicher Durchgriff - company-friendly measure).193
2. Transferred loss
The courts have developed a further instrument which in specific situations allows the 87
liquidation of the damage a third person has suffered (Drittschadensliquidation - literally
184 BGH 19.6.1984 - VI ZR 301/82, NJW 1984, 2520.
185 See NK-BGB/Magnus, Vor §§ 249-255 BGB mn. 149; Palandt BGB/Grüneberg, Vor § 249 BGB
mn. 90.
186 See for instance BGH 17.10.1972 - VI ZR 111/71, BeckRS 1972 30372589.
187 See thereto Staudinger BGB/Schiemann, Vor § 249 BGB mn. 49 et seq.
188 BGH 20.3.1995 - II ZR 205/94, NJW 1995, 1739 (differently, however, if a shareholder causes
damage to the other shareholders).
189 BGH 10.12.2002 - VI ZR 171/02, NJW 2003, 1040.
190 Further statutory cases are §§ 845, 618(3), § 62(3) HGB. § 844 is referred to in most strict liability
statutes: e.g. § 10(2) StVG, § 5(2) HaftpflG, § 7(2) ProdHG.
191 See above -► mn. 45.
192 BGH 20.12.1952 - II ZR 141/51, NJW 1953, 417.
193 BGH 6.10.1988 - III ZR 143/87, NJW-RR 1989, 684.
17. Magnus
353
§ 249 88-91 Division 1. Subject matter of obligations
liquidation of third party damage, also referred to as transferred loss194 195). The justification is
that in certain cases it is typical that the person who is formally entitled to claim has suffered
no damage whereas the person suffering damage has in law no claim against the liable
person. The wrongdoer shall not profit from this situation and escape liability. Therefore, the
person who is formally entitled to claim is also allowed to claim the damage the actual victim
has suffered. However, the institute of Drittschadensliquidation, though to a certain extent
comparable to the French action directe, is not as extensive and has no general application in
chains of contracts.
88 a) Statutory regulation. There are few statutory provisions which order that a person is
liable to its contract partner for damage which another person has suffered: the innkeeper,
carrier and warehouse keeper is liable for damage to goods (caused without negligence), even
if the goods do not belong the entitled contract partner but a third person.193 The contract
partner is entitled to damages in the amount of the loss of the third person; the third person
can regularly require the assignment of the damages claim.196
89 b) Examples. The courts decide in the same sense in contract situations where the risk
has already passed while the title to the property has not, as often occurs with sales by
dispatch. There, the seller usually remains the owner even after the risk passes. If a third
person damages the goods the seller suffers no damage (it gets the full price from the buyer);
the buyer has neither in contract nor in tort a claim against the third person. The seller is
entitled to claim damages paid either to him or to the buyer.197 Further similar cases are: the
situation of indirect agency where the undisclosed agent has the claim while the undisclosed
principal suffers the damage;198 the situation that a person rightfully concludes a contract
over goods of others he has in custody199 or under a fiduciary relationship200 and the goods
are damaged. No Drittschadensliquidation is available in cases of product liability201 or in
chains of sales.202
90 c) Amount of damages. The amount of damages reflects the loss of the person actually
suffering damage. However, a claim against the wrongdoer is not admitted against the will of
the person who actually suffered damage.203 Further, contributory negligence of both the
claimant and the actual victim has to be taken into account.204
VI. The different kinds of damage
1. Special aspects: Damage to the person
91 In case of death fas part of damage to the person or Personenschaden) the liable person
has to bear the costs of the funeral and maintenance claims of those whom the deceased
was legally obliged to maintain.205 In case of bodily injury the injured person can claim
restitution or the necessary costs for it such as costs of medical treatment, rehabilitation,
(even permanent) care, costs of prostheses, glasses etc., costs for transport to the doctor
or hospital. The victim can request the costs for treatment which is probably useful
194 On this concept, see also The German Law of Contract, p. 217 et seq
195 See -» § 701, §§ 421, 425, 461, 475 HGB.
196 See also § 285 and the comment there.
197 BGH 14.7.1972 - I ZR 33/71, BeckRS 1972, 30401443.
198 BGH 26.9.1957 - 11 ZR 267/56, NJW 1957, 1838; BGH 6.5.2008 - XI ZR 56/07 NJW 9008 2245.
See BGH 23.11.1954 - I ZR 78/53, NJW 1955, 257; BGH 10.5.1984 - I ZR 52/82 NJW* 1985, 2411-
200 BGH 4.12.1997 - IX ZR 41/97, NJW 1998, 1864.
201 BGH 26.11.1968 - VI ZR 212/66, NJW 1969, 269.
202 BGH 10.7.1963 - VIII ZR 204/61, NJW 1963, 2071.
203 BGH 10.5.1984 - I ZR 52/82, NJW 1985, 2412.
2W BGH 25.11.1971 - VII ZR 37/70, NJW 1972, 289.
205 See § 844(1).
354
U. Magnus
Nature and extent of damages 92-94 § 249
although finally unsuccessful. A wrong though reasonable prognosis goes at the wrong¬
doer’s risk.206 Even costs for the treatment by a foreign specialist are recoverable207
whereas costs for unreasonable measures are not. The victim can claim the standard of
treatment it is normally used to, for instance, treatment as private patient.208
The victim is, however, not entitled to the costs a fictitious treatment would require if 92
that treatment is in fact not used.209 On the other hand, costs for a care-person are
recoverable even if a close relative or other person renders the care gratuitously.210 Also, the
injured victim can claim costs for visits in the hospital by close relatives as far as those visits
aid recovery, in particular if the injured person is a child.211 Where the kind of the injury
requires modifications to the home or the car the necessary costs are also recoverable212 as
well as further costs for the compensation of increased needs.213 Generally, the victim can
claim any lost income due to the impairment of the - exploited - working capacity.214
2. Damage to things
The following rules principally apply to all kinds of things. Since the most prominent case 93
of damage to things is the damage to, or destruction of, a car, these rules were mostly
developed in the wake of such accidents. Generally, the victim can claim either restitution in
kind (§ 249(1)) or the respective repair or replacement costs215 if a thing216 has been
damaged or destroyed. In comparison to other legal systems it is amazing how detailed and
differentiated the rules are which the German courts developed in this field.
a) Destruction. If a thing has been destroyed the view of the historical legislator was that 94
restitution in kind was impossible.217 Therefore, the victim could claim only compensation in
terms of money (§ 251(1)). The measure of damages is insofar the loss of value (Wertinte-
resse), not the often higher costs for restitution in kind (Integritätsinteresse). However, if a
destroyed thing is not unique218 but can be replaced by an identical or very similar thing (e.g.
a used car) it is now common opinion that this is also a case of restitution in kind for which
the victim can request the necessary costs.219 Where restitution in kind is thus possible the
costs are recoverable which are necessary to acquire a replacement. With respect to cars the
victim can claim the price which a serious dealer would charge for a comparable car which
has been thoroughly checked and for which the normal guarantee is given.220 If the destroyed
thing still has some value the damages amount must be reduced by this sum or the victim
must leave the destroyed thing to the wrongdoer.221 The residual value corresponds to what
206 See, e.g., Erman BGB/Ebert, § 249 BGB mn. 41; HK-BGB/Schulze, § 249 BGB mn. 5; Lange/
Schiemann, Schadensersatz (3rd edn, Mohr Siebeck 2003), § 5 VIII 1; NK-BGB/Magnus, § 249 BGB
mn. 20.
207 OLG Hamburg 7.8.1987 - 14 U 136/86, NZV 1988, 105.
208 BGH 18.10.1988 - VI ZR 223/87, NZV 1989, 105.
209 BGH 14.1.1986 - VI ZR 48/85, NJW 1986, 1538.
210 BGH 22.11.1988 - VI ZR 126/88, NJW 1989, 766.
211 BGH 19.2.1991 - VI ZR 171/90, NJW 1991, 2341.
212 BGH 20.1.2004 - VI ZR 46/03, NJW-RR 2004, 671 (no costs for modification of motorbike if the
victim’s car was already modified).
2,3 See below § 843.
214 See below the comment to § 252.
2.5 See -► § 249(2) 1st St.
2.6 A thing is a movable or immovable tangible good; see —► § 90 (corporeal object).
2.7 For this reason § 249(2) 1st St. actually provides that compensation in money instead of restitution
in kind is available only if the thing is damaged.
2.8 BGH 10.7.1984 - VI ZR 262/82, NJW 1984, 2282 (destruction of a unique model boat which the
owner had built over hundreds of hours; no case of § 249 because restitution in kind impossible but
estimation of value under § 251).
219 See, e.g., BGH 6.3.2007 - VI ZR 120/06, NJW 2007, 1674.
220 BGH 17.5.1966 - VI ZR 252/64, NJW 1966, 1454.
221 BGH 7.6.2005 - VI ZR 192/04, NJW 2005, 2541.
U. Magnus
355
§ 249 95-97 Division 1. Subject matter of obligations
the victim would receive on the market.222 The victim is not required to search for the
highest bid for the rest of the destroyed thing.223 Yet, he must accept a specifically favourable
concrete offer by the wrongdoer (or his insurance).224 If the thing has been damaged but its
repair is uneconomical, namely much more expensive than a replacement (so-called
wirtschaftlicher Totalschaden - constructive total loss), only the costs for the replacement
are recoverable.
95 Special rules apply to the case that a new car has been severely though reparably
damaged. The victim is allowed to request the costs not only for the repair but instead for
a new car of the same brand (so-called unechter Totalschaden - pseudo total loss). The car
must have been used normally no longer than a month or for no more than 1000 km;225
the damage must concern supporting parts of the car and the victim must in fact buy a new
car.226 The rule has been justified with the argument that the market recognises the melt of
freshness227 so that the victim is made whole only if this way of compensation is grantel
The rule applies to other things as well if the market recognises that the freshness has a
specific value.
96 b) Merely damaged thing. Generally, the necessary costs of repair are the standard
measure of damages if the damaged thing, in particular a car, is reparable. However, the
maxim of economic reasonableness228 must be recognised. If a replacement would be
considerably cheaper only these costs are recoverable. With respect to cars the courts accept
repair costs up to 130 percent of the replacement costs,229 with respect to land (house) only
up to the replacement costs or to 200 percent of the diminution in value which the damaging
event caused.230 For cars this so-called Integritätszuschlag (integrity surcharge) shall secure
the victim’s interest in the specific car with which the victim is familiar; it shall also
compensate for any undiscoverable risk that may remain after the repair. However, the
courts refuse the Integritätszuschlag where the car was either sold or scrapped or not repaired
within six months after the damaging event.231
97 c) Decrease in the market value. The courts regularly award a further sum in addition to
the regular amount of damages if the thing has been severely though reparably damaged and
if the market value of the thing, even after complete repair, is reduced just because it is now
branded as a thing, in particular a car, involved in an accident (merkantiler Minderwert -
decrease in market value).232 The solution has been mainly justified with the argument that
the thing could still have undiscovered defects.233 The claim is independent of whether or not
the thing is sold or intended to be sold.234 Only if the thing is rather old or was already
significantly damaged no separate sum for its decreased market value will be awarded
because the market would not honour it.235 There are several methods to determine the
222 BGH 6.4.1993 - VI ZR 181/92, NJW 1993, 1849.
223 BGH 7.6.2005 - VI ZR 192/04, NJW 2005, 2541; BGH 6.3.2007 - VI ZR 120/06, NJW 2007, 1674.
224 BGH 1.6.2010 - VI ZR 316/09, NJW 2010, 2722.
225 BGH 3.11.1982 - VI ZR 234/80, NJW 1982, 433.
226 BGH 9.6.2009 - VI ZR 110/08, NJW 2009, 3022.
227 Lange/Schiemann, Schadensersatz (3rd edn, Mohr Siebeck 2003), § 6 XIV 5e.
228 See above -> mn. 19 et seq.
229 See BGH 15.10.1991 - VI ZR 314/90, NJW 1992, 302; BGH 15.2.2005 - VI ZR 70/04, NJW 2005,
1108.
230 BGH 4.4.2014 - V ZR 275/12, NJW 2015, 468.
231 See BGH 13.11.2007 - VI ZR 89/07, NJW 2008, 437.
232 BGH 23.11.2004 - VI ZR 357/03, NJW 2005, 277; for abolishing the institute of merkantiler
Minderwert because it leads to overcompensation: Staudinger BGB/Schiemann §251 BGB mn. 37;
critical also NK-BGB/Magnus, § 249 BGB mn. 48.
233 BGH 29.4.1958 - VI ZR 82/57, NJW 1958, 1085.
234 BGH 3.10.1961 - VI ZR 238/60, NJW 1961, 2253.
235 See BGH 23.11.2004 - VI ZR 357/03, NJW 2005, 277.
356
U. Magnus
Nature and extent of damages 98-101 § 249
amount of the decrease in market value. They generally award between 3 and 7 percent of the
costs of repair depending on the gravity of the damage and the age of the thing.236
d) Loss of use. If the aggrieved party loses the use of the destroyed or damaged thing for 98
a certain time until a replacement or repair can be effected the principle of full restitution
allows to rent a comparable substitute for the time which is objectively necessary to
replace or repair the thing. However, expenditures for the own thing which are saved must
be discounted from the recoverable rental costs.237 They can be estimated at 10 percent of
the rental costs.238 Many recent decisions focus on the question whether and when special
accident replacement tariffs for rental cars are recoverable. These tariffs are much more
expensive than normal tariffs. If a normal tariff is easily available the aggrieved party
can recover only the costs of this tariff.239 Under special circumstances (e.g. accident
occurred on weekend or at night) the costs of the special accident replacement tariff can
be recoverable.240
e) Compensation for abstract loss of use. There is a huge number of decisions on the 99
question whether and how much an aggrieved party should be given for the loss of use if the
party does not rent a substitute (abstrakte Nutzungsentschädigung). The leading decision held
that such abstract loss of use has to be compensated if the aggrieved party centrally depends
on the thing for his daily life.241 This is the case with one’s own car, home or flat, however,
not with a swimming pool, fur coat or pleasure boat.242 As far as this condition of the loss of
use of an essentially needed thing is met, it is today’s common practice that the aggrieved
party is entitled to a reasonable percentage of the virtual rental costs (for cars approx.
30-40 percent of the normal rental costs).243 However, no compensation is owed where the
aggrieved party is unable or unwilling to use the thing, e. g., if the party is in hospital.244 The
same is true if the aggrieved party owns a substitute, for instance a second car.245
f) No compensation for abstract VAT. German courts allow to a considerable extent the 100
compensation of fictitious or abstract losses. Sub. 2 2nd St. forbids such compensation at least
for the value added tax (VAT). The aggrieved party can claim redress of this tax only if he
had in fact to pay VAT when having the thing replaced or repaired. VAT becomes only due
if a professional repairs or replaces the damaged or destroyed thing. Transactions with
private persons do not lead to VAT liability.
3. Pure economic loss
Pure economic loss (reiner Vermögensschaden) means loss without the infringement of 101
the person or his things. In contract law such loss is always recoverable whereas in tort law
only under narrow conditions (see in particular § 826). In accordance with Sub. 1, the value
of the economic loss is the measure of compensation. However, it is often not the amount
of compensation that is questionable but whether the conduct of the defendant has caused
the loss.
236 See the references in NK-BGB/Magnus, § 249 BGB mn. 46 et seq.; Palandt BGB/Grüneberg, § 251
BGB mn. 17.
237 BGH 2.12.1966 - VI ZR 72/65, NJW 1967, 552.
238 BGH 2.2.2010 - VI ZR 139/08, NJW 2010, 1445.
239 BGH 2.2.2010 - VI ZR 139/08, NJW 2010, 1445.
240 BGH 23.1.2007 - VI ZR 243/05, NJW 2007, 1122.
241 BGH 9.7.1986 - GSZ 1/86, NJW 1987, 50; BGH 20.2.2014 - VII ZR 172/13, NJW 2014, 1374.
242 See the comprehensive survey on the case law in MüKo BGB/Oetker, § 249 BGB mn. 62 et seq. and
also the following discussion there.
243 There are tables which the courts usually apply, in particular Sanden/Danner/Küppersbusch,
Sch wacke-Liste Nutzungsausfallentschädigung (2018).
244 BGH 15.12.1970 - VI ZR 120/69, NJW 1971, 796.
245 BGH 14.10.1975 - VI ZR 255/74, NJW 1976, 286.
U. Magnus
357
§ 249 102-105
102
4. Ecological damage
, _ «otiirp aS such, to the ecosystem, its functioning and
Ecological damage is da^a^ .°"dscape. The damage often concerns things such as air,
balance, to biodiversity or to owned by a specific single person. In such
running waters or biodiversity which a law steps in. The provisions of the
cases civil liability is not ^edEnavironPm^tal Liability Act246 247) and the Gentechnik#-
STcenTC-Ge» T^fque AG)«’ es.ablish liabili.y «,.the pobfe .hey e„e„d fc
possibility of restitution. The 130 percent border up to which the costs of restitution may
exceed the value of the damaged or destroyed thing does not necessarily apply in cases of
ecological damage.
5. Special cases
103 a) Loss of earning capacity. If a person has been physically injured so that he cannot work
and loses income thereby it is self-evident that the wrongdoer has to compensate the loss (see
further § 252). Less evident is the solution if the person worked but not for money, for
instance as a monk. The loss of the earning capacity as such if it is not exploited does
generally not entitle to compensation. The courts have denied the claim of a monk who
gratuitously worked for his order248 but affirmed a claim of the spouse who led the household
before the injury249 250 or of an unemployed woman who was able to work but lost this capacity
through the injury and therefore also her entitlement to unemployment benefits.230 Where
the aggrieved party repairs the damaged thing himself, he can claim compensation if the
work has a market value.251
104 b) Loss of leisure time. The mere loss of free or leisure time as such is not recoverable
pecuniary damage 252 Any time or work which the aggrieved party needs for the claims
processing is regarded as belonging to that party’s own sphere and also entails no compensa¬
tion as far as it does not significantly exceed the normally necessary measure.253 Where the
booked holidays suffer from considerable shortcomings the contractor is liable to compen¬
sate this immaterial damage by paying a reasonable indemnification (§ 651f(2)).
105 c) Litigation costs. Generally, the costs of litigation are subject to the rule of civil
procedure that the losing party has to bear all costs (§ 91 ZPO). However if a claimant had
costs for the claims processing outside the civil procedure he is entitled to compensation if
those costs were reasonable, i.e. if a reasonable and considerate person would have inclined
them. Thus, costs for a lawyer outside court litigation are recoverable if the dispute is no
simple case or if the claimant, for instance because of the injury, was not able to pursue the
claim or if the defendant refuses to pay within a reasonable time 254 Also the costs are
recoverable which are necessary and usual to tow away a vehicle that parks without
Permission on private ground255 256 or the costs of an expert opinion as far as the latter is
246 §16(1) UmweltHG.
247 § 32(7) GenTG.
248 OLG Celle 3.12.1987 - 5 U 299/86, NJW 1988 2618' cnmnn c , .r
Karlsruhe 5.8.1996 - 12 0 148/95, NJW-RR 1996, 1239 ’ ’ Person working gratuitously
249 BGH 9.7.1968 - GSZ 2/67, NJW 1968, I823’
250 BGH 25.6.2013 - VI ZR 128/12, NJW 2014,’303
251 BGH 24.11.1995 - V ZR 88/95, NJW 1996 921
252 BGH 6.2.1975 - III ZR 149/72, NJW 1975 ’972
255 BGH 9.3.1976 - VI ZR 98/75, NJW 1976, ’1256
254 See BGH 8.11.1994 - VI ZR 3/94, NJW 1995 446
255 BGH 4.7.2014 - V ZR 229/13, NJW 2014 3727
256 BGH 6.11.1973 - VI ZR 27/73, NJW 1974 34 35
358
U. Magnus
Nature and extent of damages 106-109 § 249
d) Preventive expenditures. Generally, any costs which the aggrieved party incurred 106
already in advance in order to prevent damage such as costs for a burglar alarm, employment
of a detective etc. are not recoverable.257 Expenditures of this kind - and their extent - belong
to the aggrieved party’s own sphere. However, the BGH accepted some exceptions. Thieves
can be made liable for a bounty (Fangprämie) of a reasonable amount258 if they are caught by
the staff or other persons.259 The Court even allowed compensation for the costs with respect
to a tram which the aggrieved party, a transport enterprise, held as reserve in case a tram was
damaged by a liable defendant.260 Although the costs for holding a reserve fleet were not
directly caused by the later damage to one of the trams, the Court held compensation
justified by the fact that the aggrieved party could have rented a substitute; the omission to
do that should not benefit the wrongdoer. The amount of compensation is less than the
normal compensation for the abstract loss of use which cannot be claimed in addition.261
VII. The relevant point of time
In principle, the time when compensation is effected is the relevant point of time for the 107
assessment of the damage:262 at this time when the wrongdoer makes good the loss of the
victim the loss and damages must correspond to each other. Of course, developments which
influence the extent of the damage (e. g. the current share price) and occurred up to this time
or foreseeably will occur in the future have to be taken into account whereas actual later
developments principally no longer matter unless the victim was granted a declaratory
judgment that the defendant shall be liable for any future damage. An exception applies if
new unforeseeable consequences of the damaging event occur. The victim can then claim
compensation notwithstanding that the wrongdoer already effected compensation for the
original damage.263
Under the procedural perspective the relevant point of time is the last oral hearing.264 The 108
judge must take into account the development of the damage as foreseeable at that time; as
far as admitted by § 287 ZPO the damage must be estimated. However, later developments
can still be recognised in the execution proceedings (§ 767 ZPO). If the wrongdoer owes a
regular pension both parties are entitled to respective adaptations if the circumstances
significantly changed (§ 323 ZPO). The res judicata-effect of a judgment does not hinder
further claims based on consequences of a damaging event which that judgment did not yet
recognise.265
VIII. Burden of proof
The general rule applies that the claimant must prove all facts on which the claim is based. 109
The burden of proof comprises the existence and extent of the damage as well as its causal
link with the event for which the defendant is responsible. Some provisions facilitate the
burden of proof, e. g. § 252.266 Where an event regularly leads to a typical damage the courts
accept prima facie evidence (Anscheinsbeweis) which the defendant may however rebut. If
some damage is certain, though its extent is not precisely proven, the court is entitled to
estimate the extent of the damage (§ 287 ZPO).
257 BGH 6.11.1979 - VI ZR 254/77, NJW 1980, 119; BGH 2.12.2011 - V ZR 30/11, NJW 2012, 528.
258 The Court accepted 50 DM (ca. 25 euro).
259 BGH 6.11.1979 - VI ZR 254/77, NJW 1980, 119.
260 BGH 10.5.1960 - VI ZR 35/59, NJW 1960, 1339.
261 BGH 10.1.1978 - VI ZR 164/75, NJW 1978, 812.
262 BGH 17.10.2006 - VI ZR 249/05, NJW 2007, 67.
263 See Lange/Schiemann, Schadensersatz (3rd edn, Mohr Siebeck 2003), § 1 IV 2b aa; MüKo BGB/
Oetker, § 249 BGB mn. 316.
264 e.g., BGH 13.5.1953 - VI ZR 5/52, NJW 1953, 977; BGH 12.7.1996 - V ZR 117/95, NJW 1996, 2652.
265 See BGH 2.4.2001 - II ZR 331/99, NJW-RR 2001, 1450.
266 See the comment there.
U. Magnus
359
§ 250 1-2 Division 1. Subject matter of obligations
110 The standard of proof is the full conviction of the court. Mere prevailing probability does
not suffice. On the other hand, the standard does not require absolute certainty. It js
necessary that the judge gains the conviction that the fact was so probable that this comes
close to certainty. A degree of probability is sufficient that silences doubts without excluding
them completely.267
§250
Damages in money after the
specification of a period of time
’The obligee may specify a reasonable per¬
iod of time for the person liable in damages
to undertake restoration and declare that he
will reject restoration after the period of time
ends. 2After the end of the period of time the
obligee may demand damages in money, if
restoration does not occur in good time; the
claim to restoration is excluded.
§250
Schadensersatz in Geld nach
Fristsetzung
’Der Gläubiger kann dem Ersatzpflichtigen
zur Herstellung eine angemessene Frist mit
der Erklärung bestimmen, dass er die Her¬
stellung nach dem Ablauf der Frist ablehne.
2Nach dem Ablauf der Frist kann der Gläubi¬
ger den Ersatz in Geld verlangen, wenn nicht
die Herstellung rechtzeitig erfolgt; der An¬
spruch auf die Herstellung ist ausgeschlossen.
A. Function
1 The provision confirms the principal priority of restitution in kind as enshrined in
§ 249(1). § 250 provides that for compensation in money the aggrieved party must regularly
set the wrongdoer a reasonable period of time for the restitution; the aggrieved party can
claim compensation in money only after the unsuccessful lapse of that time. Nonetheless,
§ 250 plays almost no role in practice: the aggrieved party can in all cases of bodily injury and
property damage choose between restitution in kind and can immediately claim monetary
compensation without the need to set a period of time for this form of indemnification.* 1
Also, the restitution in kind of pure economic losses must generally be made by paying a
certain sum and is at the same time monetary compensation.2 In addition, § 251 lists further
cases where monetary compensation requires no setting of a period for restoration. There¬
fore, except in the rare cases of indemnity claims3 and possession claims4 which are
transformed into money claims only after setting a period of time which has unsuccessfully
lapsed, § 250 has no further practical importance.
B. Explanation
I. Requirements
2 § 250 requires that the aggrieved party declares that he will not accept restitution in kind
after the lapse of the set time. The declaration needs no specific form but must be
unequivocal. The declaration is unnecessary if the debtor finally refused restitution in kind
or is unable to execute it.5
267 BGH 14.12.1993 - VI ZR 221/92, NJW-RR 1994, 567.
1 See § 249(2) 15‘ St.
2 BGH 13.11.2012 - XI ZR 334/11, NJW 2013, 450.
3 BGH 11.6.1986 - VIII ZR 153/85, NJW-RR 1987, 43; BGH 17.2.2011 - HI ZR 144/10, NJW-RR2011,
910; an indemnity claim entitles the claimant to request that the defendant pays for him.’
4 OLG Düsseldorf 19.12.1997 - 22 U 83/97, NJW-RR 1998, 1716; a possession claim entitles the
claimant to request that possession is returned to him.
5 See -► § 281(2) which is applied by analogy.
360
17. Magnus
Damages in money without the specification of time
1-2 §251
II. Consequences
After the unsuccessful lapse of time the aggrieved party is entitled to the costs which are 3
necessary for the restitution in kind (§ 249(2) 1st St.), not only to the diminution.
§251
Damages in money without the
specification of a period of time
(1) To the extent that restoration is not
possible or is not sufficient to compensate
the obligee, the person liable in damages
must compensate the obligee in money.
(2) !The person liable in damages may
compensate the obligee in money if restora¬
tion is only possible with disproportionate
expenses. 1 2Expenses incurred as a result of
the curative treatment of an injured animal
are not disproportionate merely because they
significantly exceed the value of the animal.
§251
Schadensersatz in Geld ohne
Fristsetzung
(1) Soweit die Herstellung nicht möglich
oder zur Entschädigung des Gläubigers nicht
genügend ist, hat der Ersatzpflichtige den
Gläubiger in Geld zu entschädigen.
(2) *Der Ersatzpflichtige kann den
Gläubiger in Geld entschädigen, wenn die
Herstellung nur mit unverhältnismäßigen
Aufwendungen möglich ist. 2Die aus der
Heilbehandlung eines verletzten Tieres ent¬
standenen Aufwendungen sind nicht bereits
dann unverhältnismäßig, wenn sie dessen
Wert erheblich übersteigen.
A. Function
I. Purpose and underlying principle
§ 251 provides for a money claim if restitution in kind is either impossible or not 1
sufficient or disproportionately expensive. Sub. 1 protects the interests of the aggrieved
party where restitution in kind cannot, or cannot fully, indemnify him. Sub. 2 serves the
interests of the defendant who shall not be burdened with excessive costs. This latter rule is
slightly restricted with respect to medical treatment costs for injured animals. Whereas
§ 249 safeguards the integrity interest of the victim,1 § 251 merely recognises the so-called
value interest (Wertinteresse). Under § 251 the victim can only claim the diminution in
value, not the costs of full restoration. Often, the money amount owed under § 251 will be
lower than that under § 249.
IL Scope of application
In principle, the provision applies to all kinds of damages claims. However, it does not 2
apply as far as § 253 excludes money compensation for immaterial loss.2 Furthermore, the
restriction concerning excessive costs (Sub. 2 1st St.) cannot be invoked in case of bodily
injury to a person. High costs, for instance, for the medical treatment by a foreign specialist
are recoverable if the treatment is likely to improve the health of the party entitled to
compensation and no comparable treatment is provided in Germany.3
1 See -> § 249 mn. 5.
2 See the comment to § 253.
3 See, e.g., OLG Hamburg 7.8.1987 - 14 U 136/86, NZV 1988, 105 (German victim, therapy in Israel);
OLG Brandenburg 25.2.2010 - 12 U 60/09, BeckRS 2010, 08975 (German victim, therapy in Hungary).
U. Magnus
361
§ 251 3-6
Division 1. Subject matter of obligations
3
B. Explanation
I. Impossibility of restitution
The restitution can be impossible* either for factual or for legal reasons. The courts are
reluctant with factual reasons. Factual impossibility has been accepted w ere unique thing
had been irreparably destroyed which cannot - even comparably - be replaced paintings
etc.).5 * If a car has been destroyed the courts generally deny the impossibility of restitution in
kind because a comparable second-hand car can regularly be found. Even in a case where an
older house was destroyed and entirely rebuilt, the new house was regarded as mere
restitution in kind for which the necessary costs could be recovered. Legal impossibility
exists if the restitution would lead to a result which the law prohibits, for instance, if, in case
of public authority liability (§ 839), restitution in kind would constitute an inadmissible
interference with the competences of the public administration.8
IL Restitution insufficient to restore the victim
4 It is rather rare that the restitution in kind does not fully restore the infringed interests of
the aggrieved party. A common case is a remaining diminution of the market value
(merkantiler Minderwert).9 The courts have decided that, however, remaining scars or similar
remnants of bodily injury to a person do not fall within the scope of this alternative. In such
cases the victim can claim an increased sum for pain and suffering or, if in fact executed, the
costs for a promising cosmetic operation.10
III. Disproportionality of the restitution costs
5 Sub. 2 has significantly greater importance than Sub. 1. The provision is almost exclusively
applicable only to things. It restricts the costs necessary for restitution in kind. If those costs
are out of proportion to the value of the damaged or destroyed thing the defendant is entitled
to compensate only the latter11 and the aggrieved party can claim only the latter. With
respect to cars, repair or replacement costs that exceed the value of the car before the
damaging event by less than 130 percent are still proportionate.12 In case of damage to land,
the BGH held that costs are disproportionate if they exceed the market value of the
unimpaired land or are higher than 200 percent of the diminution in value (which is due to
the defect with which the land is affected).13 It is almost self-understanding that restitution
costs of 16,600 DM were held disproportionate if the diminution in value of a marble
staircase was assessed at 1,900 DM.14
6 In particular the costs for repair of a car may be estimated in advance as being
proportionate although after the repair it comes out that they are not. In such a case it is
4 For the term impossibility see also the comment to -► S 275 mn 3 et
claimmu had^bthf/over^l 00 hours = Äty^tiX^
mn.TfoXiW damage^w destoy^ca^see-0§ 24?™’n ’ MüKo BGB/Oetker, § 251 BGB
»S (h0WeW' 3 new for old wa, made).
9 See -► § 249 mn. 97.
10 BGH 14.11.1986 - VI ZR 48/85, NJW 1986, 1538.
11 The defendant has a so-called facultas alternativa.
12 See further -> § 249 mn. 96.
13 BGH 4.4.2014 - V ZR 275/12, NJW 2015, 468.
14 OLG Düsseldorf 18.2.2000 - 22 U 166/99, BeckRS 2nnn
drops of apple juice on the staircase which led to some stain«. Lb k7°40 <the defendanl had sPHt s0"ie
men were visible only in specific light).
362
U- Magnus
Lost profits § 252
the risk of the liable person that the prognosis was wrong, provided the aggrieved party used
a serious garage and had no reason to doubt the prognosis.15
IV. Curative costs for animals
Sub. 2 2nd St. was introduced in 1990 in order to strengthen the protection of animals 7
which the BGB no longer regards as things (although the provisions on things apply by
analogy as far as adequate).16 The provision applies if an animal has been injured and
curative costs were in fact incurred. It is further necessary that the curative costs were not
evidently useless although also costs for any medical help to let a fatally injured animal die
are recoverable.17 Then, the 130 percent rule of thumb does not necessarily apply. If an
animal has been injured the necessary costs for its healing may exceed its value by a
significantly higher percentage. Therefore, curative costs of 4,200 euro for a dog (value 700
euro) were still proportionate, in particular because of the owner’s high affection for the
animal.18 In a recent decision the BGH confirmed a judgment of the lower instance which
granted 3,000 euro healing costs for an almost worthless dog but rejected compensation for
the full healing costs of 4,177 euro as disproportionate.19
All circumstances of the case count for the assessment of the (dis-)proportionality. Besides 8
the degree of affection also the age of the animal, its health, its species and all other specific
circumstances, including the degree of fault of the defendant, influence how far healing costs
above the 130 percent limit are recoverable.20 The provision applies not only to pets but also
to animals for slaughter or farming purposes although the emotional relationship between
owner and animal may be much less intensive and therefore only lower percentages of
curative costs to the animal’s value (though still over 130 percent) are proportionate.
However, Sub. 2 2nd St. does not apply to wild animals which have no owner.
V. Consequences
If the restitution in kind is impossible, insufficient or disproportionate the aggrieved party 9
is entitled only to compensation for the value of the damaged or destroyed thing.21 The value
is regularly the market value which the good would have without the damaging event.
However, if an animal is injured the animal’s owner is entitled to the proportionate curative
costs, not only to the value of the animal.22
The party who relies on the fact that the restitution in kind was impossible or insufficient 10
or that its costs were disproportionate bears the burden of proof of the necessary facts.
§252
Lost profits
’The damage to be compensated for also
comprises lost profits. 2Those profits are con¬
sidered lost that in the normal course of
events or in the special circumstances, parti-
§252
Entgangener Gewinn
’Der zu ersetzende Schaden umfasst auch
den entgangenen Gewinn. 2Als entgangen gilt
der Gewinn, welcher nach dem gewöhnlichen
Lauf der Dinge oder nach den besonderen
15 BGH 20.6.1972 - VI ZR 61/71, NJW 1972, 1801.
16 See -► § 90a.
17 See Staudinger BGB/Schiemann, § 251 BGB mn. 29.
18 OLG München 11.4.2011 - 21 U 5534/10, BeckRS 2011, 10024.
19 BGH 27.10.2015 - VI ZR 23/15, NJW 2016, 1589.
20 See BGH 27.10.2015 - VI ZR 23/15, NJW 2016, 1589.
21 Which the BGB does no longer regard as things (although the provisions on things apply by
analogy).
BGH 27.10.2015 - VI ZR 23/15, NJW 2016, 1589 (mn. 21).
22 BGH 27.10.2015 - VI ZR 23/15, NJW 2016, 1589 (mn. 20 et seq.).
U. Magnus
363
§ 252 1-5
Division 1. Subject matter of obligations
cularly due to the measure and precautions Umständen, insbesondere nach den getroffe-
taken, could probably be expected. nen Anstalten und Vorkehrungen, mit Wahr¬
scheinlichkeit erwartet werden konnte.
A. Function
1 The provision deals with losses whose assessment is particularly difficult because they lie in
the future and are in any event hypothetical. The 1st St. clarifies and expressly confirms that
the aggrieved party is also entitled to lost profits (lucrum cessans). Actually it follows already
from the general principle of full reparation (§ 249(1)) that both damnum emergens and
lucrum cessans are recoverable. The 2nd St. requires that profits must be probable. However,
the provision facilitates the claimant’s burden of proof for profits which are only expected in
the future. It suffices that in the circumstances they are more likely than not in contrast to
the general standard of proof which requires a conviction close to certainty.
B. Explanation
I. Lost profits
2 Lost profits cover all pecuniary advantages which the aggrieved party did not already own
but would have gained without the damaging event.1 It is therefore a lost profit if the aggrieved
party loses the entitlement to regular social benefits due to the damaging event.2 The loss of
illegal or immoral profits (e.g. through illegal work) does not, however, constitute recoverable
damage.3 The loss of profits an injured prostitute suffers is considered fully recoverable since
the Prostitutionsgesetz (ProstG; Prostitution Act) of 2001 legalised agreements on sexual
services for money.4 Contrary to many other legal systems, in particular French law, German
law does not recognise the loss of the mere chance to make a gain as damage.5
3 Recoverable damage is not only any lost profit but also costs for needs which are
increased in future.6
IL Assessment of lost profits
4 The 2nd St. allows an abstract calculation of damages: the aggrieved party can claim the
profit which in the usual course of events would be probable. Proof of the concrete loss is not
required but merely of those facts which make the profit likely. In accordance with § 287
ZPO the court then can estimate the future loss. The 2nd St. facilitates the claimant’s burden
of proof considerably. The defendant may, though not easily, rebut the presumption of the
usual profit. The relevant point in time for the calculation of the lost profits is, as generally,
the last factual hearing in court.
1. Lost profits of merchants
5 In trade and commerce it is the usual course of events that traders buy or sell or öfter
services at the market-price. The - negative - difference between market-price and contract
price is therefore always recoverable.7 The lost profit must be reduced by any saved
1 See BGH 11.5.1989 - VII ZR 39/88, NJW-RR 1989, 980, 981.
2 BGH 20.3.1984 - VI ZR 14/82, NJW 1984, 1811.
3 Palandt BGB/Grüneberg, § 252 BGB mn. 2 et seq.
4 MuKo BGB/Oetker, § 252 BGB mn. 9; Palandt BGB/Grüneberg, § 252 BGB mn 3
5 BGH 23.9.1982 - III ZR 196/80, NJW 1983, 442» 443.
6 See also § 843(1).
7 BGH 19.6.1951 - I ZR 118/50, NJW 1951, 918; BGH 2.3.1988 - VIII ZR 380/86, NJW 1988, 2234,
2236.
364
U. Magnus
Lost profits 6-9 § 252
expenditures. Alternatively, the damage can be calculated concretely with the need to prove
the concrete lost profit.
2. Lost income of injured employees
If an employee has been injured the employer must pay full wages for the first six weeks of 6
incapacity.8 The employee’s damages claim against the person responsible for the injury
passes by cessio legis to the employer.9 After the six weeks the employee is entitled to
payment of full wages minus eventual savings (e.g. tax advantages etc.) due to the injury.10
Future in- and decreases of income must be taken into account if they are more likely than
not.11 In case of permanent full or partial incapacitation the probable retirement date must be
determined after which the income is usually reduced.12
3. Lost income of self-employed persons
Self-employed persons earn their income from the business they operate. If they are injured 7
they must prove a reduction of the profits of their business.13 For this purpose regularly the
business’s development of the last years before the damaging event must be shown. However,
the standard of proof must not be exaggerated. It is sufficient that reasonable indicia are given
which allow an estimation of the damage (§ 287 ZPO).14 The mere fact that the self-employed
person’s earning capacity as such was reduced does not constitute a recoverable damage.15
4. Lost income of children, beginners, etc.
If children, beginners of a professional career or unemployed persons are permanently 8
incapacitated their probable career and income can only be estimated (§ 287 ZPO). In the case
of a young child, besides its visible talents, success in school etc. also the education and
profession of the parents, the parents’ plans for the child, the position of eventual siblings have
to be taken into account.16 Unless their individual capacities indicate otherwise, for beginners it
can be assumed that their professional career would follow an average pattern with usual
promotions etc. but also with a discount for eventually remaining risks.17 In the case of a person
who was unemployed since recently or even since longer it can be assumed that he would have
found an employment whose kind is for the court to determine in the circumstances.18
III. Procedural aspects
Where the aggrieved party is permanently incapacitated the usual form of compensation is 9
an annuity.19 The amount fixed by a judgment can, however, be modified afterwards if the
circumstances have significantly changed,20 for instance an improvement or deterioration of
the claimant’s health and needs.
8 § 3 Entgeitfortzahlungsgesetz.
9 § 6 Entgeltfortzahlungsgesetz.
10 BGH 28.9.1999 - VI ZR 165/98, NJW 1999, 3711 (the Court accepted this so-called modified gross
wage method [modifizierte Bruttolohnmethode]).
11 BGH 22.2.1973 - VI ZR 15/72, NJW 1973, 701 (because of the injury the claimant could not finish
his university study but only an engineer’s school and work as an engineer with a lower income).
12 BGH 26.9.1995 - VI ZR 245/94, NJW 1995, 3313 (65 years also for women; now 67).
13 BGH 19.9.2017 - VI ZR 530/16, NJW 2018, 864 (mn. 14).
14 BGH 19.9.2017 - VI ZR 530/16, NJW 2018, 864 (mn. 16).
15 Again confirmed by BGH 19.9.2017 - VI ZR 530/16, NJW 2018, 864 (mn. 13); see also -> § 252
mn. 7.
16 BGH 5.10.2010 - VI ZR 186/08, NJW 2011, 1148.
17 BGH 9.11.2010-VI ZR 300/08, NJW 2011, 1145.
18 BGH 14.1.1997 - VI ZR 366/95, NJW 1997, 937.
19 See -> § 843(1).
20 See -* § 323 ZPO.
U. Magnus
365
§ 253 1-2
Division 1. Subject matter of obligations
§253
Intangible damage
(1) Money may be demanded in compensa¬
tion for any damage that is not pecuniary loss
only in the cases stipulated by law.
(2) If damages are to be paid for an injury
to body, health, freedom or sexual self-deter¬
mination, reasonable compensation in money
may also be demanded for any loss that is not
pecuniary loss.
§253
Immaterieller Schaden
(1) Wegen eines Schadens, der nicht Ver¬
mögensschaden ist, kann Entschädigung in
Geld nur in den durch das Gesetz bestimmten
Fällen gefordert werden.
(2) Ist wegen einer Verletzung des Körpers,
der Gesundheit, der Freiheit oder der sexuel¬
len Selbstbestimmung Schadensersatz zu leis¬
ten, kann auch wegen des Schadens, der nicht
Vermögensschaden ist, eine billige Entschädi¬
gung in Geld gefordert werden.
A. Function
1 § 253 limits the compensation in terms of money for any non-pecuniary damage. Where it is
possible to make good such immaterial damage by way of restitution in kind (e. g., revocation
of a wrong insulting fact) the victim is entitled to that restitution or exceptionally even to the
costs of the restitution (§ 249).1 However, monetary compensation for the immaterial loss as
such is only available if allowed by statute or, exceptionally, by the courts. There is a limited
number of provisions2 and cases3 that expressly allow pecuniary compensation for non-
pecuniary loss. The reluctance of German law towards the compensability of immaterial losses
is based on their difficult assessment, the lack of an objective standard and the fear that
compensation for feelings and other immaterial values would open the gate for a flood of
unjustified damages claims. The 2002 modernisation of the law of obligations transferred the
former provision on compensation for pain and suffering (former § 847) from the tort chapter
to the general part of the law of obligations of the BGB thereby generalising its application.
Now, Sub. 2 covers besides torts also contracts and precontractual relations as well as all strict
liabilities and other liabilities where damages can become due.
B. Explanation
I. Immaterial damage
2 Immaterial or non-pecuniary damage must be distinguished from pecuniary damage.4 The
latter is measurable by redress to market prices or other objective standards; its value can be
assessed on an inter-personal basis. By contrast, non-pecuniary damage has no objective and
precise value in terms of money, but depends on the individual and subjective feeling,
emotion etc. of the affected person. Its value can only be estimated and regularly concerns the
personal sphere, too. German law generally refuses to compensate the mere subjective
appreciation and affection (AJfektionsinteresse).5 However, where the subjective evaluation -
regularly of many people - leads to a market value as is the case with certain people’s
appreciation for, e. g., classic cars, idol articles etc. this market value is considered the correct
yardstick for compensation. In addition, German courts have recognised quite a number of
1 BGH 6.4.1976 - VI ZR 246/74, NJW 1976, 1198.
2 In the BGB only § 253(2), § 65lf(2) and § 844(3).
3 The most prominent example is the money compensation for infringements of the general personality
right (allgemeines Persönlichkeitsrecht).
•' See also -► § 249 mn. 11 et seq.
5 An exception is § 251(2) 2"d St. which takes account of the special affection of an owner for h*
injured pet.
366
U. Magnus
Intangible damage 3-6 § 253
positions as material which could be regarded as immaterial, such as the abstract possibility
to use a thing even if its loss does not cause any concrete financial disadvantage.6
The most important cases of recoverable immaterial damage are pain and suffering after 3
bodily injury and injured feelings after insults or defamation or like personality infringe¬
ments.7 On the contrary, no monetary compensation is owed for injured feelings if, for
instance, the joy to hunt is impaired,8 the injury hinders the hobby racer to participate in car
races9 or the bride is upset because the room booked for the marriage party is not free so that
the party must be cancelled.10 The loss or impairment of the - unexploited - earning capacity
is as such not a recoverable loss.11
IL Compensation for pain and suffering
Sub. 2 provides for compensation for the immaterial loss that is usually connected with an 4
injury to body, health, freedom or sexual self-determination and, as the courts added, to the
general personality right. According to the leading decision of the BGH12 the compensation
for pain and suffering (Schmerzensgeld) serves a double function: it shall compensate, as far
as money can do, for the victim’s pain and suffering and it shall give the victim satisfaction
(Genugtuung). This latter function has often been criticised,13 though it is still accepted.14 In
particular, such Genugtuung is considered necessary where the wrongdoer acted intentionally
or recklessly or where the personality right or the right of sexual self-determination has been
infringed. The monetary sanction shall compensate for the wrongdoer’s specific aggression
towards the victim’s rights and the attack on the victim’s self-esteem and the victim’s
estimation in society.
The Schmerzensgeld may also have a desirable though unintended preventive effect. This 5
function is, however, expressly activated in cases where mass media intentionally infringe the
general personality right of a person mainly aiming at higher profits through sensational
information. In order to prevent such conduct the courts allow the stripping of the gains as
damages.15
1. Preconditions
Under Sub. 2 Schmerzensgeld can only be awarded if one of the listed rights of the 6
aggrieved party has been injured and if the defendant is responsible for the injury. The
catalogue of rights comprises the personality rights in a wide sense and corresponds to the
same rights as protected in § 823(1) where they are discussed in detail. The provision does
not mention the Schmerzensgeld for infringements of the general personality right which the
courts developed. Today, damages for such infringements are directly based on § 823(1) in
conjunction with Art. 1 and 2 GG.16 Since 2017 persons close to a deceased for whose death
another person is liable are entitled to a reasonable indemnification of their hurt feelings
(§ 844(3)). A minimal negligent violation of the protected rights does not justify a Schmer¬
zensgeld.17
6 See * § 249 mn. 99.
7 See above mn. 1 at n. 3.
8 BGH 8.11.1990 - III ZR 251/89, NJW 1991, 1421.
9 OLG Hamm 5.2.1998 - 27 U 161/97, NJW 1998, 2292.
10 OLG Saarbrücken 20.7.1998 - 8 W 165/98/22, NJW 1998, 2912.
11 See ->§ 252 mn. 7.
12 BGH 6.7.1955 - GZS 1/55, BeckRS 1955, 30402368.
13 See, e.g., Palandt BGB/Grüneberg, § 253 BGB mn. 4.
14 See BGH 29.11.1994 - VI ZR 93/94, NJW 1995, 781; further, e.g., MüKo BGB/Oetker, § 253 BGB
mn. 13; Staudinger BGB/Schiemann, § 253 BGB mn. 28 et seq.
15 BGH 15.11.1994 - VI ZR 56/94, NJW 1995, 861.
16 See in detail -► § 823 mn. 26 et seq.
17 BGH 14.1.1992 - VI ZR 120/91, NJW 1992, 1043.
17. Magnus
367
§ 254 Division 1. Subject matter of obligations
2. Assessment of Schmerzensgeld
7 The Schmerzensgeld shall grant a reasonable compensation which the judge must estimate
(§ 287 ZPO) on the basis of all relevant facts. The main factors are the pain and suffering
which the victim had or still has to sustain. Insofar the gravity and endurance of bodily
injuries and the respective pains as well as lasting or even permanent consequences are of
primary relevance. Helpful in this respect are tables which collect judgments and assemble
comparable injuries and the respective amounts of Schmerzensgeld.™ Further factors are
whether the wrongdoer acted with intent or gross negligence or recklessness and whether the
injured party was contributorily negligent. Generally, the financial situation of the victim or
the wrongdoer is not a relevant factor.19 Also, the fact that the wrongdoer was sentenced in
criminal proceedings does usually not influence the amount of the Schmerzensgeld.20 On the
contrary, even if the victim is reduced to a comatose or mere vegetative status and cannot feel
any satisfaction the responsible person owes full Schmerzensgeld.21 In such cases of worst
injuries the courts award 300,000-650,000 euro.22 If the victim due to the injury dies after
some time he has a claim for Schmerzensgeld which the heirs inherit.23
8 Generally, the Schmerzensgeld is awarded as lump sum. Where the victim suffered a grave
injury with permanent consequences the courts often award both a lump sum and an annuity
in order to compensate the short-term and the long-term consequences of the injury.
III. Procedural aspects
9 The Schmerzensgeld claim is a single claim for one sum which cannot be split into different
parts covering different immaterial aspects. The claimant is not obliged to specify a precise
amount in the statement of claim. However, he must produce the facts which allow the court
to estimate the amount of the Schmerzensgeld. It is sufficient if a minimum (not less than
10,000 euro) or a range (between 20,000 and 50,000 euro) is formulated or if the amount is
left to the discretion of the court. In the latter case the claimant can appeal only if the court’s
assessment is outrageously low. The res judicata-effect of the judgment does not hinder a
further claim for Schmerzensgeld if unforeseeable later consequences cause further pains or
other immaterial effects.
§254
Contributory negligence
(1) Where fault on the part of the injured
person contributes to the occurrence of the
damage, liability in damages as well as the
compensation to be paid depend on the cir¬
cumstances, in particular to what extent the
damage is caused mainly by one or the other
party.
(2) ’This also applies if the fault of the
injured person is limited to failing to draw
the attention of the obligor to the danger of
§254
Mitverschulden
(1) Hat bei der Entstehung des Schadens ein
Verschulden des Beschädigten mitgewirkt, so
hängt die Verpflichtung zum Ersatz sowie der
Umfang des zu leistenden Ersatzes von den
Umständen, insbesondere davon ab, inwieweit
der Schaden vorwiegend von dem einen oder
dem anderen Teil verursacht worden ist.
(2) ’Dies gilt auch dann, wenn sich das
Verschulden des Beschädigten darauf be¬
schränkt, dass er unterlassen hat, den Schuld-
18 In particular Hacks/Wellner/Häcker, Schmerzensgeldbeträge 2018 (36th ed 2018)
19 BGH 11.5.2017 - 2 StR 332/15, BeckRS 2017, 114730. ‘ '
20 BGH 29.11.1994 - VI ZR 93/94, NJW 1995, 781.
21 BGH 13.10.1992 - VI ZR 201/91, NJW 1993. 781.
22 OLG Hamm 17.3.2015 - 26 U 108/13, NJW-RR 2015, 1304 (300,000 euro for spastic quadriple^
KG 16.2.2012 - 20 U 157/10, NJW-RR 2012, 920 (650,000 euro for full quadrfoleJia)
23 BGH 12.5.1998 - VI ZR 182/97, NJW 1998. 2741 (28,000 DM accepted for death 10 days in
after injury).
368
17. Magnus
Contributory negligence
1-3 § 254
unusually extensive damage, where the obli¬
gor neither was nor ought to have been aware
of the danger, or to failing to avert or reduce
the damage. 2The provision of § 278 applies
with the necessary modifications.
ner auf die Gefahr eines ungewöhnlich hohen
Schadens aufmerksam zu machen, die der
Schuldner weder kannte noch kennen musste,
oder dass er unterlassen hat, den Schaden
abzuwenden oder zu mindern. 2Die Vorschrift
des § 278 findet entsprechende Anwendung.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Scope of application 3
B. Explanation 4
I. Contribution to the occurrence of the damage 4
1. Causation 5
2. Accountability 6
3. Risk 7
IL Duty to warn 9
III. Duty to avert and minimise the damage 10
IV. Contributory negligence of third parties 12
V. Consequences 13
VI. Procedural aspects 16
A. Function
I. Purpose and underlying principle
§ 254 deals with the situation that both the aggrieved party and the liable party have 1
contributed to the damage which shall be compensated. The provision limits the amount of
damages in such a situation; the damage is shared between the aggrieved and the liable party.
The shares of the involved persons have to be weighed and the damages claim is proportionately
reduced, even down to zero. However, in most cases the defence of contributory negligence
leads to a percentage-wise reduction of the amount of damages claimed by the aggrieved party.
The underlying reason is that a person who was involved in creating the damaging event or
increasing its consequences shall not be able to claim full compensation of the damage from
others. The solution relies on the general principle of good faith in § 242 and more specifically
on the prohibition of self-contradicting conduct (venire contra factum proprium).' The injured
person is subject to the principle of justice that self-induced damage cannot be overburdened on
others. Under § 254, therefore, the borders must be defined within which an aggrieved party
who has contributed to the damage is still entitled to compensation. Since the aggrieved party is
in a way always participating when damage occurs (at least by its presence), § 254 in most cases
requires fault of that party. It is a special kind of fault, namely the imputable neglect of the duty
to protect the own interest (Obliegenheit). The duty cannot be positively enforced; its neglect
merely reduces or even excludes the aggrieved party’s damages claim.
In essence the victim who contributed to the own damage is dealt with like another author 2
of damage. Conduct which would make the claimant liable towards a third person but
contributes to damage to the claimant’s own rights and goods generally reduces the amount
of damages he is entitled to.
IL Scope of application
Formulated as a general principle that an aggrieved party shall not profit from own 3
negligence, § 254 has a very broad scope of application. It applies as partial or sometimes
1 BGH 14.3.1961 - VI ZR 189/59, NJW 1961, 655.
U. Magnus
369
§ 254 4-7 Division 1. Subject matter of obligations
total defence against all kinds of damages claims irrespective whether they follow from fault
or strict liability. § 254 is also applied in situations, often by analogy, where claimant and
defendant have both produced a certain result and their respective share in fault or
causation must be balanced as, for instance, the liability among joint tortfeasors or joint
debtors.2 § 254 plays a role even in public law.3 The cases where § 254 was applied are
infinite in number.
B. Explanation
I. Contribution to the occurrence of the damage
4 Sub. 1 concerns the injured party’s participation in the production of the damage. The
provision actually requires that the aggrieved party’s fault was an additional cause of his
damage. The fault is the neglect of the care a reasonable person would employ to preserve his
own sphere from damage. For instance, if a motorcyclist did not wear a crash-helmet which
in the concrete situation would have reduced the extent of the damage he can claim only a
reduced amount of damages.4 5 The same is true for failing to wear safety-belts with respect to
the damage the belt would have prevented in the circumstances? In both cases there is a
presumption that the helmet or the belt would have prevented the damage; but the injured
party can rebut this presumption. It is also contributory negligence if a guest leaves several
gold watches in his car in the hotel garage.6
1. Causation
5 The fault must have been an adequate cause of the damage.7 Also, the purpose of the
violated norm has to be taken into account. It is almost self-evident that, for instance, a
doctor who negligently injures the patient while treating the illness cannot invoke the fact
that the patient had negligently caused the own illness.8 Also, a fraudster can generally not
invoke that the defrauded party should not have believed him.
2. Accountability
6 Generally, the aggrieved party must be accountable in the sense of §§ 827, 828.9 This
entails that children under 7, and in traffic accidents children under 10, cannot be blamed for
contributory negligence. However, even without fault and irrespective of the accountable age,
the operational risk (Sach- und Betriebsgefahr) of involved goods for which the aggrieved
party would be strictly liable towards third persons may also lead to a reduction ot the
amount of damages actually owed. This is in particular the case with cars and animals. Their
holder bears the inherent risk that the own car or the animal has increased the damage. The
operational risk therefore reduces the damages amount unless the contribution of the
defendant clearly prevailed.
3. Risk
7 In rare cases courts will infer an implied exclusion of liability if the aggrieved person
accepted a high risk, for instance where during a test drive the potential buyer damages the
2 See BGH 13.5.1955 - 1 ZR 137/53, NJW 1955, 1314.
3 See, e.g., BGH 29.3.1971 - III ZR 98/69, NJW 1971, 1694.
4 BGH 25.1.1983 - VI ZR 92/81, NJW 1983, 1380.
5 BGH 29.9.1992 - VI ZR 286/91, NJW 1993, 53.
6 BGH 29.1.1969 - I ZR 18/67, NJW 1969, 789.
7 See -* § 249 mn. 29 et seq.
» BGH 21.9.1971 - VI ZR 122/70, NJW 1972, 334.
9 See the comment there.
370
U. Magnus
car intended for purchase.10 Generally, the acting at one’s own peril (Handeln auf eigene
Gefahr) does not lead to the exclusion of the liability of the responsible person but to an -
often considerable - reduction of the claimant’s damages claim. If a person knowingly goes
with a driver without driving licence11 or with an evidently drunk driver,12 the injured party
was contributorily negligent and his damages claim has to be reduced.
Particular rules apply with respect to participation in sports activities. Injuries as 8
consequence of an activity of another participant that conformed to the rules of the specific
sport are not wrongful and do not oblige the author. The same result applies in case of sports
with a considerable inherent risk of bodily injury (boxing, football, car racing etc.) and a
slight violation of the rules of the specific sport.13 Where the author of the damage acted with
gross negligence or even intent he is liable for the entire damage.14 In cases of medium
negligence the circumstances of the case decide whether a reduction of damages is justified
due to the conduct of the injured party.
IL Duty to warn
Sub. 2 1st St. 1st Alt. obliges the aggrieved party to warn the other party that an unusually 9
extensive damage may occur. It is a special case of omission to avert the damage or to reduce
at least its extent. The alternative requires that the defendant did not, and could not, know
the risk of a particularly high damage. It is, for instance, contributory negligence not to
inform the carrier of the special value of goods to be carried.15 However, it must be probable
close to certainty that the warning would have prevented the damage.
III. Duty to avert and minimise the damage
According to Sub. 2 1st St. 2nd and 3rd Alt. it constitutes contributory negligence if the 10
aggrieved party omitted to avert or minimise the damage. It is necessary but also sufficient if
the aggrieved takes those measures which a reasonable person would take in order to avoid the
damage or reduce its extent. Thus, a severely injured person must contact a doctor and follow
his (correct) advice.16 If an operation would improve the situation of the injured person a strict
refusal is contributory negligence only if the operation is simple, without risk and special pains
and will almost with certainty improve the health of the injured party.17 If the earning capacity
of the injured has been diminished he is nonetheless obliged to work and earn money as far as
possible and reasonable.18 Otherwise the injured person’s damages claim must be reduced by
the fictitious possible income. As the case may be, the injured party must change professions, if
necessary after occupational retraining.19 The defendant must bear the costs.
If a car has been reparably damaged, the aggrieved party must generally seek a garage 11
which charges reasonable costs for the repair although it must also be reasonably accessible
for the party. The repair costs of an expensive branded garage are fully recoverable only if the
car was regularly looked after by such a garage.20 With respect to the recoverability of an
actual or abstract loss of use21 the aggrieved party must take care that neither the repair nor a
10 BGH 7.6.1972 - VIII ZR 35/71, NJW 1972, 1363.
11 BGH 14.3.1961 - VI ZR 189/59, NJW 1961, 655.
12 BGH 31.5.1988 - VI ZR 116/87, NJW 1988, 2365.
13 BGH 1.4.2003 - VI ZR 321/02, NJW 2003, 2018 (car racing).
14 See, e.g., OLG Karlsruhe 27.9.2012 - 9 U 162/11, NJW-RR 2013, 596.
15 BGH 1.12.2005 - I ZR 265/03, NJW-RR 2006, 1108.
16 BGH 4.10.1963 - VI ZR 109/62, BeckRS 2009, 15985.
17 BGH 13.5.1953 - VI ZR 78/52, NJW 1953, 1098; BGH 15.3.1994 - VI ZR 44/93, NJW 1994, 1593.
18 BGH 13.5.1953 - VI ZR 78/52, NJW 1953, 1098.
19 BGH 13.5.1953 - VI ZR 78/52, NJW 1953, 1098; BGH 9.10.1990 - VI ZR 291/89, NJW 1991, 1413.
20 BGH 20.10.2009 - VI ZR 53/09, NJW 2010, 606; BGH 23.2.2010 - VI ZR 91/09, NJW 2010, 2118;
BGH 7.2.2017 - VI ZR 182/16, NJW 2017, 2182.
21 See thereto -► § 249 mn. 99.
U. Magnus
371
§ 254 12-14 Division L Subject matter of obligations
replacement are delayed.22 Otherwise, merely the indemnification for an objectively necessary
period of time is owed. If the aggrieved party sells the damaged car it is sufficient if the price
corresponds to the estimation of the expert. It is not contributory negligence if the aggrieved
party does not search for higher offers, for instance online.23
IV. Contributory negligence of third parties
12 Sub. 2 2nd St. regulates when the claimant is identified with contributory negligence of
third parties. It is communis opinio that the provision does not only apply to Sub. 2 but also
to Sub. I.24 The reference to § 278 is understood in the sense that the rules for the imputation
of acts of others in contract and tort law apply vice versa to the aggrieved party. This means
that this party’s damages claim is to be reduced because of the contributing negligence of
third parties only if a contract or another special, for instance precontractual relationship
with the person responsible for the damage exists.25 Where such relationship existed when
the damage occurred, the aggrieved party is identified with the contributory negligence of all
persons who had to take care for the rights and goods of this party including his personal
representative (parent).26 Where no such relationship existed, the provisions for the imputa¬
tion of acts of third persons in tort are applied (§§ 31, 831). They do not include the personal
representative; furthermore, § 831 provides that the aggrieved party is excused if the third
person (employee) was sufficiently carefully selected and controlled. Then, the latter’s
contributory negligence is not imputed. However, after the damage had occurred this factis
regarded as establishing a special relationship so that for the duty to avert and minimise the
damage the stricter imputation under § 278 is applicable.27
V. Consequences
13 If relevant contributory negligence has been established the reduction of the amount of
damages has to be fixed. For this purpose the concrete circumstances of the case must be
taken into account. In the first line, the weight of the respective causal contribution, in the
second, the degree of fault on both sides has to be assessed and weighed against each other.28
Also an operational risk (Sach- und Betriebsgefahr) is a relevant factor. The comparison of
the causal contributions refers to the different likelihood with which each party’s conduct
increased the probability of the damage.29 As far as the comparison of fault is concerned it is
recognised that the intent of the injuring party regularly, though not automatically excludes
the injured party’s mere negligence as contributory negligence.30
14 Generally, the damages amount will be reduced by a certain percentage. Insofar, the court
has certain discretion. Where the causal contribution or degree of fault of one side entirely
predominates that of the other, § 254 can entail either full liability or nil damages. The courts
usually do not take into account a contribution of the aggrieved party that would lead to a
reduction by 10 percent or less.31 With respect to the compensation for pain and suffering
(Schmerzensgeld) contributory negligence is a factor in the assessment of the Schmerzensgeld
as a whole. Here, no percentage reduction of the actual amount is applied.32
22 See Palandt BGB/Grüneberg, § 254 BGB mn. 44 with further references.
23 BGH 27.9.2016 - VI ZR 673/15, NJW 2017, 953.
24 BGH 8.3.1951 - III ZR 65/50, NJW 1951, 477; MüKo BGB/Oetker, § 254 BGB mn. 126; Palandt
BGB/Grüneberg, § 254 BGB mn. 48; Staudinger BGB/Schiemann, § 254 BGB mn 95
25 See BGH 1.3.1988 - VI ZR 190/87, NJW 1988, 2667.
26 See the text of § 278 1st St.
27 BGH 1.3.1988 - VI ZR 190/87, NJW 1988, 2667.
28 BGH 20.1.1998 - VI ZR 59/97, NJW 1998, 1137.
29 See BGH 4.11.2008 - VI ZR 171/07, NJW-RR 2009, 239.
30 BGH 8.7.1986 - VI ZR 47/85, NJW 1986, 2941.
31 See MüKo BGB/Oetker, § 254 BGB mn. 118; Palandt BGB/Grüneberg, § 254 BGB mn. 64.
32 BGH 5.6.1961 - III ZR 53/60, NJW 1961, 1532.
372
U. Magnus
Assignment of claims to compensation 1-2 § 255
If several persons have caused the damage of another who contributed thereto the courts 15
do not determine alone the amount of contributory negligence towards each single
wrongdoer. They finally apply a general perspective (Gesamtschau), If there are, for
instance, one contributing victim and three tortfeasors each of the four participants should
bear one quarter of the victim’s damage. However, the victim should finally receive three
quarters. If the three actors are joint tortfeasors (Mittäter) each of them is liable for three
quarters of the damage (and if one of them satisfied the victim, he has a redress claim
against the other two).33 If the three actors are independent tortfeasors (Nebentäter) the
single assessment towards each of them leads to a claim of 50 percent for which the three
are jointly liable. The remaining rest (25 percent) can be claimed merely pro rata
(8.33 percent) from each tortfeasor.34 Sometimes, two tortfeasors form a so-called liability
unit (Haftungseinheit), e.g., the holder and the driver of a car.35 They are regarded and
dealt with as one single tortfeasor.
VI. Procedural aspects
The defendant need not raise the defence of contributory negligence. If respective facts are 16
shown the defence must be taken into account ex officio. The liable party bears the burden of
proof for the relevant facts showing any contributory negligence of the claimant. However,
the latter must assist in the production of facts in his own sphere.
§255
Assignment of claims to
compensation
A person who must pay damages for the loss
of a thing or a right is only obliged to com¬
pensate in return for the assignment of the
claims which the person entitled to damages
holds against third parties on the basis of own¬
ership of the thing or on the basis of the right.
§255
Abtretung der Ersatzansprüche
Wer für den Verlust einer Sache oder eines
Rechts Schadensersatz zu leisten hat, ist zum
Ersatz nur gegen Abtretung der Ansprüche
verpflichtet, die dem Ersatzberechtigten auf
Grund des Eigentums an der Sache oder auf
Grund des Rechts gegen Dritte zustehen.
A. Function
I. Underlying principle
§ 255 is based on the principle that damages should not lead to an enrichment 1
(schadensrechtliches Bereicherungsverbot). It excludes double compensation for the obligee
claiming against the injuring party and a third party. The party entitled to compensation
must therefore assign particular claims that cover the claims to compensation against third
parties. Where the relationship between the injuring party and the third party is concerned,
the burden ultimately lies on the third party who, from the statutory perspective, is closer
to the damage.
IL Scope of application
The scope is very limited as broader and more specific provisions take priority (e.g. § 86(1) 2
WG). Above all, the rules on joint and severable liability often apply to the relationship
33 BGH 16.6.1959 - VI ZR 95/58, NJW 1959, 1772.
34 BGH 29.6.1959 - II ZR 3/58, BeckRS 1959, 31400416; also Palandt BGB/Grüneberg, § 254 BGB
mn. 69; differently MüKo BGB/Oetker, § 254 BGB mn. 121.
35 BGH 29.9.1970 - VI ZR 74/69, NJW 1971, 33.
Schulze
373
§ 256 Division 1. Subject matter of obligations
between numerous parties responsible for the harm; § 425 regulates the adjustment within the
internal relationship. As § 256 and § 426 exclude one another and the adjustment between a]]
equal-ranking obligors is subject to § 426, § 255 only applies in limited cases in which the
obligors are not considered equal to one another.
B. Explanation
I. Basis for liability
3 The provision requires a basis for liability (contractual or tortious) for an obligation to
pay damages. The damages must be owed because of the loss of a thing or right The loss of a
thing can comprise the loss of possession or ownership (especially if the thing is destroyed or
acquired by another according to § 932, though the latter is disputed). The loss of a right
concerns real rights, contractual rights and other rights. It is not necessary for the right to be
extinguished, but rather the loss of a right may arise through a limitation period or economic
devaluation.1
IL Assignment
4 § 255 does not result in the statutory assignment of the claim. It rather allows the injuring
party to demand assignment of the claim for damages from the injured party. The injuring
party can invoke the demand for assignment in the form of a right to retention under § 273
when the injured party claims damages. § 255 forms (beyond its wording) the basis for the
claim by the injuring parry to the subsequent assignment of the injured party’s claim to
damages against the third party if the injuring party has already paid compensation. The
injured party has to assign all claims available to him due to the ownership of the thing or by
virtue of a right e.g. claims for return from §§ 861, 1007, claims for damages from §§ 823(1),
989, 990, the claim from § 816 (the prevailing opinion), but not claims from an insurance
contract or other similarly independent contracts with regard to the thing. According to the
prevailing opinion, the party obliged to pay damages acquires ownership of the thing
according to §§ 929, 931 together with the assignment of the claim to return (though this is
disputed).
§256
Payment of interest on expenses
*A person who is obliged to reimburse
expenses must pay interest from the date of
the expense onwards on the amount ex¬
pended or, if other objects than money have
been expended, on the amount payable as
compensation for their value. 2Where ex¬
penses have been incurred on an object that
must be returned to the person liable in
damages, interest need not be paid for the
period of time for which the person entitled
to damages is unremunerated for the emolu¬
ments or fruits of the object.
§256
Verzinsung von Aufwendungen
’Wer zum Ersatz von Aufwendungen ver¬
pflichtet ist, hat den aufgewendeten Betrag
oder, wenn andere Gegenstände als Geld auf¬
gewendet worden sind, den als Ersatz ihres
Wertes zu zahlenden Betrag von der Zeit der
Aufwendung an zu verzinsen. 2Sind Aufwen¬
dungen auf einen Gegenstand gemacht wor¬
den, der dem Ersatzpflichtigen herauszuge¬
ben ist, so sind Zinsen für die Zeit, ftr
welche dem Ersatzberechtigten die Nutzun¬
gen oder die Früchte des Gegenstands ohne
Vergütung verbleiben, nicht zu entrichten.
• BGH 30.4.1952 - II ZR 143/51» NJW 1952, 869.
374
Schulze
Claim for release
1-4 § 257
§257
Claim for release
’A person who is entitled to demand reim¬
bursement of expenses he incurs for a specific
purpose may, if he assumes an obligation for
this purpose, demand release from the obliga¬
tion. 2If the obligation is not yet due, the
person liable in damages may provide secur¬
ity to him instead of releasing him from the
obligation.
§257
Befreiungsanspruch
’Wer berechtigt ist, Ersatz für Aufwendun¬
gen zu verlangen, die er für einen bestimmten
Zweck macht, kann, wenn er für diesen
Zweck eine Verbindlichkeit eingeht, Befrei¬
ung von der Verbindlichkeit verlangen. 2Ist
die Verbindlichkeit noch nicht fällig, so kann
ihm der Ersatzpflichtige, statt ihn zu befreien,
Sicherheit leisten.
A. Function
§§ 256 and 257 require a claim for reimbursement of expenses to exist and specify its 1
content in accordance with the prevailing opinion. Furthermore, § 257 2nd St. contains a
general legal concept also applied to contractual claims for release from an obligation and to
claims for damages in which the loss to be compensated exists in an obligation to performed
by the party liable in damages.
B. Explanation
I. Claim to reimbursement of expenses
The common requirement of each provision is a contractual or statutory claim to 2
reimbursement of expenses (e.g. from §§ 284, 304, 347(2), 503(2) 1st St., 536a(2), 637(1),
670, 683, 684 2nd St., 693, 970, 2124(2) 2nd St.). In general, the claim is aimed at monetary
compensation1 with compensation in kind only arising in exceptional cases under § 242.
Expenses are voluntary sacrifices of assets in the interest of another. These include outlays to
improve the thing (§§ 994 et seq.). The voluntary nature distinguishes the expense from
damages as involuntary loss.
II. Legal consequence
The obligation to pay interest on expenses is the legal consequence of § 256. This 3
obligation arises with the claim to reimbursement of expenses at the time of the expenses,
irrespective of a default by the obligor. The rate of interest is calculated according to § 246,
insofar as specific provisions do not apply. According to § 256 2nd St., the obligation to pay
interest on expenses for an object to be returned does not apply for the interest for the period
of time for which the person entitled to damages is unremunerated for the fruits (§ 99) or
emoluments (§ 100) of the object.
III. Release
§ 275 P’ St. entitles the liable party to demand release from the obligation if the expense 4
arose in assuming an obligation. The obligor of this claim for release (i.e. the person liable in
damages) can choose the form of release, e.g. performance as a third party to the obligee of
the obligation (§ 267) or assumption of debt (§ 414). If the obligation owed by the person
who is entitled to demand reimbursement of expenses to the third party is not due, the party
liable in damages has the power of aversion according to § 257 2nd St. However, this rule
only applies to contractual claims for release if the parties do not link the performance of
1 BGH 27.2.1952 - II ZR 191/51, NJW 1952, 697.
Schulze
375
§ 259 Division 1. Subject matter of obligations
d,im for release to the perform.»« of rhe main obligation.but toe»gr«d earl, ptrfoi.
mance (as established by § 257 2nd St. for the statutory claim for ).
§258
Right of removal
1 Anyone entitled to remove an installation
from a thing that he must return to another
person must in the event of removal restore
the thing to its previous condition at his own
expense. 2If the other person obtains posses¬
sion of the thing, he is obliged to permit the
installation to be removed; he may refuse
permission until he is provided with security
for the damage connected with the removal.
§258
Wegnahmerecht
>Wer berechtigt ist, von einer Sache, die er
einem anderen herauszugeben hat, eine Ein¬
richtung wegzunehmen, hat im Falle der
Wegnahme die Sache auf seine Kosten in den
vorigen Stand zu setzen. 2Erlangt der andere
den Besitz der Sache, so ist er verpflichtet, die
Wegnahme der Einrichtung zu gestatten; er
kann die Gestattung verweigern, bis ihm für
den mit der Wegnahme verbundenen Scha¬
den Sicherheit geleistet wird.
1 The provision requires a right of removal to have arisen by reason of contract or statute
(e.g. due to §§ 529(2), 581(2), 601(2) 2nd St., 997(1), 2125(2)) and only concerns the exercise
of a right of removal. Insofar as the person entitled to removal is in possession of the main
object, he has a right of separation as well as a right of appropriation with regard to a
material part.1 According to the first part of the 2nd St., following a change in possession, the
claim changes into permission to remove the installation. The person who is obliged to
tolerate the removal has a right of possession until the entitled party provides security
(2nd St.). In the event of removal, the entitled party has an obligation to restore the thing to
its previous condition (1st St.). The main thing is to be put into the condition it was in before
it was connected to the installation. The right of removal exists even if this is not possible;
however the entitled party has to pay monetary compensation. The second part of the 2nd St
provides the permitting party with a right to refuse performance (§ 273) until he is provided
with security for the damage (§§ 232 et seq.) connected with the removal.
§259
Extent of duty to render account
(1) A person who is obliged to render
account for management related to earnings
or expenses must provide the person entitled
with an account containing an orderly com¬
pilation of earnings or expenses and, where
receipts are customarily given, must submit
receipts.
(2) Where there is reason to assume that
the information on earnings contained in the
account has not been provided with the re¬
quisite care the person obliged must, upon
demand, declare for the record in lieu of an
oath that he has indicated the earnings as
completely as he is able to.
(3) In matters of minor importance there is
no duty to make a declaration in lieu of an
oath.
§259
Umfang der Rechenschaftspflicht
(1) Wer verpflichtet ist, über eine mit
Einnahmen oder Ausgaben verbundene Verwal-
tung Rechenschaft abzulegen, hat dem Berech¬
tigten eine die geordnete Zusammenstellung
der Einnahmen oder der Ausgaben enthaltende
Rechnung mitzuteilen und, soweit Belege erteilt
zu werden pflegen, Belege vorzulegen.
(2) Besteht Grund zu der Annahme, dass
die in der Rechnung enthaltenen Angaben
über die Einnahmen nicht mit der erforderli¬
chen Sorgfalt gemacht worden sind, so hat
der Verpflichtete auf Verlangen zu Protokoll
an Eides statt zu versichern, dass er nach
estem Wissen die Einnahmen so vollständig
angegeben habe, als er dazu imstande sei.
1 ) In Angelegenheiten von geringer Be-
e“tu"g besteht eine Verpflichtung zur Ab-
ga e er eidesstattlichen Versicherung nicht.
1 BGH 8.7.1981 - VIII ZR 326/80, NJW 1981, 2564.
376
Schulze
Modifying a declaration in lieu of an oath; costs
1 §261
§260
Duties when returning or
providing information on an
aggregate of objects
(1) A person who is obliged to return an
aggregate of objects or to provide informa¬
tion on the inventory of such an aggregate
must submit to the person entitled a list of
the inventory.
(2) Where there is reason to assume that
the list has not been prepared with the requi¬
site care, the person obliged must upon de¬
mand declare for the record in lieu of an oath
that to the best of his knowledge he has
indicated the inventory as completely as he is
able to.
(3) The provision of § 259(3) applies.
§261
Modifying a declaration in lieu of
an oath; costs
(1) The court may resolve to modify the
declaration in lieu of an oath according to the
circumstances.
(2) The costs of making the declaration in
lieu of an oath must be borne by the person
demanding the making of the declaration.
§260
Pflichten bei Herausgabe oder
Auskunft über Inbegriff von
Gegenständen
(1) Wer verpflichtet ist, einen Inbegriff von
Gegenständen herauszugeben oder über den
Bestand eines solchen Inbegriffs Auskunft zu
erteilen, hat dem Berechtigten ein Verzeich¬
nis des Bestands vorzulegen.
(2) Besteht Grund zu der Annahme, dass
das Verzeichnis nicht mit der erforderlichen
Sorgfalt aufgestellt worden ist, so hat der
Verpflichtete auf Verlangen zu Protokoll an
Eides statt zu versichern, dass er nach bestem
Wissen den Bestand so vollständig angegeben
habe, als er dazu imstande sei.
(3) Die Vorschrift des § 259 Abs. 3 findet
Anwendung.
§ 261
Änderung der eidesstattlichen
Versicherung; Kosten
(1) Das Gericht kann eine den Umständen
entsprechende Änderung der eidesstattlichen
Versicherung beschließen.
(2) Die Kosten der Abnahme der eidesstatt¬
lichen Versicherung hat derjenige zu tragen,
welcher die Abgabe der Versicherung ver¬
langt.
A. Function
§§ 259 and 260 regulate specific cases on the provision of information. They therefore 1
constitute a small segment of the broad area of information obligations - an area ever
gaining in importance due to modern means of communication and trade practices. Despite
this importance, the BGB does not contain comprehensive and coherent rules on the
distribution of information risks between the parties and information obligations. However,
such information obligations are provided for various different matters (e.g. in §§ 666, 681
2nd St., 687(2), 713, 740(2), 1370, 2027, 2127, 2314(1)). Furthermore, §§ 249(1) and 1004
contain an obligation to provide information that is necessary to remove the damage or
interference. In particular, § 242 can give rise to information obligations between parties to a
contract or from other legal relationships.1 In addition to these numerous other provisions,
§ 260(1) contains a specific information obligation regarding a list of the inventory for the
case of an obligation to return. In contrast, §§ 259, 260(2) do not serve as the basis for a
claim, but rather require the existence of a particular type of claim to information, namely
the claim to render account. The provisions only regulate individual modes of distributing
information. In order to secure the correct performance of the duties under §§ 259(1), 260(1),
§§ 259(2), 260(2) further provide an obligation to make a declaration in lieu of an oath.
§§ 259(2), 260(2) concern a substantive legal duty in contrast to a declaration in lieu of an
1 See -► § 242 mn. 2, 16.
Schulze
377
§ 261 2-4 Division 1. Subject matter of obligations
oath according to §§ 807, 883(2), (3), 899 ZPO. The duty can also arise with regard to
information obligations with content similar to §§ 259, 260, e.g. employer information
obligations according to § 615 2nd St.
B. Explanation
I. Duty to render account
2 The duty to render account under § 259(1) concerns a specific type of information which
also serves the assessment and justification of management related to earnings or expenses. It
requires the orderly compilation of the earnings and expenses and, as far is standard practice,
the submission of receipts. The information is to be drafted exactly and clearly in writing to
an extent that allows the entitled party to examine (without outside help) his claims and
obligations in order to determine the reason and extent. An estimation is to be provided
together with information on its basis for calculation. The entitled party may demand further
information if the account is misleading as it is incomplete.
II. Inventory
3 § 260(1) provides a claim to receipt of a list of the inventory when returning or providing
information on an aggregate of objects. Such an aggregate concerns multiple things and
rights which comprise a uniform legal transaction and where the entitled party is not in a
position to name each individual thing or right e.g. special assets such as an estate, groups of
assets (warehouse, library), assets from claims performed or still outstanding (rent payments,
income from sales). The inventory must contain the information required by the entitled
party in order to enforce his claim; where applicable, it must compare assets and liabilities.
The information must also be verifiable. If content or times are missing entirely, or they are
clearly incomplete or are based on fake documentation, the party has a claim to supplemen¬
tation of the inventory. According to § 260(1), information requires a written declaration by
the obligor, which does not necessarily have to satisfy the statutory requirements for written
form under § 126 (e.g. a signature may not be necessary).
III. Declaration in lieu of an oath
4 Due to its highly personal nature, only the person subject to the obligation may swear an
oath. The obligor is to make a declaration in lieu of an oath when there is reason to assume
that the information on the earnings in the accounts or the inventory was not compiled with
the requisite care. In contrast to the inventory, the oath regarding the accounts only concerns
the earnings as the incomplete presentation of the expenses is often a disadvantage for the
obligor himself. The obligation to make a declaration in lieu of an oath does not arise
according to §§ 259(3), 260(3) in matters of minor importance - this concerns the entire
matter and minor defects. In addition, under some circumstances there may be no interest in
legal protection when the entitled party can acquire comprehensive clarification by other
means (e.g. by reason of a claim to examine the books or through expert assessment). The
claim to information or account may also be linked in an action by stages (Stufenklage. §
ZPO) to the claim to make a declaration in lieu of an oath. The obligor can make a voluntary
declaration in lieu of an oath in the proceedings of the voluntary jurisdiction according t0
§§ 410 et seq. FamFG; a senior judicial officer is responsible according to § 3 No. 1(b) RptlG>
If the declaration in lieu of an oath is forced by reason of judicial decision, the Amtsgericht
(AG) is responsible as the enforcing court (the senior judicial officer’s functional responsi¬
bility is based on § 20 No. 17 RPflG). Pursuant to § 261(1), the court (including the enforcing
court* 2) may resolve to modify the declaration in lieu of an oath according to the circunv
2 cf. Winter, Abänderung der Eidesformel im Offenbarungseidverfahren, NJW 1969, 2244.
378
Schulze
Impossibility in case of alternative obligations §265
stances. The rule on costs in § 261(2) applies to the declaration in lieu of an oath in the
FamFG and in enforcement proceedings; it does not concern the costs of litigation surround¬
ing the claim to render a declaration, as well as the costs of the compulsory enforcement
proceedings according to §§ 889(2), 888 ZPO.
§262
Alternative obligation;
right of choice
Where more than one act of performance
is owed in such a manner that only the one or
the other is to be effected» then in case of
doubt, the obligor has the right of choice.
§263
Exercise of the right of choice;
effect
(1) The right of choice is exercised by
declaration to the other party.
(2) The performance chosen is deemed to
have been the only performance owed from
the beginning.
§262
Wahlschuld; Wahlrecht
Werden mehrere Leistungen in der Weise
geschuldet, dass nur die eine oder die andere
zu bewirken ist, so steht das Wahlrecht im
Zweifel dem Schuldner zu.
§263
Ausübung des Wahlrechts;
Wirkung
(1) Die Wahl erfolgt durch Erklärung ge¬
genüber dem anderen Teil.
(2) Die gewählte Leistung gilt als die von
Anfang an allein geschuldete.
§264
Default by the person entitled to
the right of choice
(1) If the obligor entitled to the right of
choice does not exercise that right prior to
the beginning of execution, the obligee, at his
choice, may direct execution to one perfor¬
mance or the other; however, as long as the
obligee has not received the performance
chosen, completely or in part, the obligor
may release himself from his obligation
through one of the other acts of performance.
(2) ’If the obligee entitled to the right of
choice is in default, the obligor may demand
that he exercises that right, specifying a rea¬
sonable period of time. 2At the end of the
period of time the right of choice passes to
the obligor, if the obligee does not undertake
the choice in good time.
§264
Verzug des Wahlberechtigten
(1) Nimmt der wahlberechtigte Schuldner
die Wahl nicht vor dem Beginn der Zwangs¬
vollstreckung vor, so kann der Gläubiger die
Zwangsvollstreckung nach seiner Wahl auf
die eine oder auf die andere Leistung richten;
der Schuldner kann sich jedoch, solange nicht
der Gläubiger die gewählte Leistung ganz
oder zum Teil empfangen hat, durch eine
der übrigen Leistungen von seiner Verbind¬
lichkeit befreien.
(2) ’Ist der wahlberechtigte Gläubiger im
Verzug, so kann der Schuldner ihn unter
Bestimmung einer angemessenen Frist zur
Vornahme der Wahl auffordern. 2Mit dem
Ablauf der Frist geht das Wahlrecht auf den
Schuldner über, wenn nicht der Gläubiger
rechtzeitig die Wahl vomimmt.
§265
Impossibility in case of alternative
obligations
'If one of the acts of performance is im¬
possible from the beginning or if it later
becomes impossible, the obligation is re¬
stricted to the other acts of performance.
zThere is no restriction if performance be-
§265
Unmöglichkeit bei Wahlschuld
’Ist eine der Leistungen von Anfang an
unmöglich oder wird sie später unmöglich,
so beschränkt sich das Schuldverhältnis
auf die übrigen Leistungen. 2Die Beschrän¬
kung tritt nicht ein, wenn die Leistung
Schulze
379
§ 265 1-4
Division 1. Subject matter of obligations
comes impossible due to a circumstance for
which the party who is not entitled to the
right of choice is responsible.
infolge eines Umstands unmöglich wird, de
der nicht wahlberechtigte Teil zu vertreten
hat.
A. Function
1 §§ 262-265 regulate the concept and the exercise of the alternative obligations. They
comprise only a section of the different types of alternatives common in practice and are to
be distinguished from the alternative obligations in the context of these provisions.
B. Explanation
I. Characteristics
2 Alternative obligations exist when different types of performances are due, yet only one
can be rendered after selection. The right of choice is a right to modify the legal relationship
(Gestaltungsrecht), It can arise via contract, a disposition mortis causa (§ 2154), or statute,
and can concern different objects of performance (e.g. right to choose between various
currencies or securities to be furnished), or the forms of performance (such as time or place
of performance). The right to choose is exercised by a unilateral declaration to be received
by the recipient (or exercise is implied by e.g. by an offer or acceptance of a chosen
performance or making a claim to a particular type of performance). Due to the legal fiction
of § 263(2), the exercise of the right to choose leads to a retrospective restriction of the
obligation to the chosen performance (Konzentration auf die gewählte Leistung - focus on the
chosen performance).
IL Legal consequences
3 § 264 stipulates the consequences if an obligor does not exercise in due time his right to
choose. In such cases, the obligee cannot force the exercise of the choice via legal action;
he can rather take action for performance only with a claim for alternative performance.
However, pursuant to § 264(1), he can decide to direct execution to a particular perfor¬
mance should the obligor not have exercised the right to choose before the beginning of
compulsory enforcement (Zwangsvollstreckung-, translated in § 264(1) as ‘execution’). The
obligor even retains his right of choice after compulsory enforcement has commenced
until the obligee has been fully or partially satisfied. However, during compulsory
enforcement the obligor can no longer exercise his right to choose via a declaration, but
only through actual performance (§ 264(1)). If the obligee is entitled to choose and is in
default with respect to the choice, the obligor may set a reasonable period of time in
which the right is to be exercised (§ 264(1) 1st St.). Should the obligee not exercise the
right within the time period, the right of choice passes to the obligor (§ 264(1) 2nd St.). If a
third party is entitled to choose and is in default, the performance can be determined
according to § 319(1) 2nd St. via a judgment.
III. Impossibility
4 The obligation is restricted according to § 265 1st St. to the other possible acts of
performance if one of the performances owed is impossible from the outset. According to
§ 265 2nd St., this also applies to subsequent impossibility that arises before the choice is
made and for which neither party nor the entitled party is responsible. In contrast if the
entitled obligee is responsible for the impossibility, the obligor can choose between the
possible performance (and, if applicable, damages) or the impossible performance (in the
380
Schulze
Part performance 1-2 § 266
latter case with the consequence that he is released from his obligation according to § 275,
but his counter-claim can still exist according to § 326(2)). If the obligor is responsible for
the impossibility and the obligee is entitled to choose, the latter has the choice whether to
demand the other possible performance or the impossible performance (and in this case
demand damages according to §§ 280(1), (3), 283-285).
IV. Distinctions
The consequences of other possibilities to choose are to be distinguished from the right 5
of choice under §§ 262-265. Numerous objects of the same kind come into consideration
for an obligation in kind according to § 243, whereas a right of choice under §§ 262-265
concerns the choice from numerous different types of individual objects. In a sale by
buyer’s specification according to § 375 HGB, the buyer reserves the right to determine
the type, size or other features of the object of sale. This is generally an unascertained sale,
but under exceptional circumstances may be framed as a right of choice. The obligee’s
possibility to choose between numerous claims or rights to modify the legal relationship
with different content (e.g. revocation, price reduction, and damages) is characterised as an
instrument of election (elektive Konkurrenz). In this case, the right of choice refers rather
to the different rights, not just different performances as alternative content of the claim.
Similarly, a distinction is to be drawn from a power of substitution (factus alternatva): in
contrast to the right of choice, a particular performance is necessary but a party has the
power to tender or demand an alternative to the primary obligation. This power of
substitution can arise via contract or statute - §§ 262 et seq. do not apply. A statutory
power of substitution for the obligor is provided in i.a. §§ 251(2), 528(1) 2nd St., 775(2),
2170(2), whereas §§ 249(2) 1st St., 340(2) and 843(3) afford the obligee with a power of
substitution. In contrast to the obligee’s alternative obligation provided in § 264(2), where
the obligee’s power of substitution is concerned the obligor may offer the performance and
place the obligee in default pursuant to §§ 293 et seq. without first waiting for the obligee to
make his choice.
§ 266
Part performance
The obligor is not entitled to render part
performance.
§266
Teilleistungen
Der Schuldner ist zu Teilleistungen nicht
berechtigt.
A. Function
I. Purpose
The provision shall protect the obligee from unreasonable inconvenience and increased 1
processing burdens arising from part performance.
IL Scope of application
The rule applies only to the obligor, whereas in principle the obligee is entitled to 2
demand part performance and make partial claims. It applies correspondingly to deposit
(§§ 372 et seq.) and to termination (e.g. § 314), but not to set-off (§§ 387 et seq.). The
scope of application is limited due to numerous overriding provisions, i.a. § 497(3) 2nd St.
BGB (default of the borrower); Art. 39(2) WG; Art. 34(2) ScheckG; judicial approval of
partial payments for civil proceedings is provided in §§ 1382 (deferment) and 2331a
(additional time) BGB, and § 757(1) ZPO. Part performance may also be permitted by
Schulze
381
§ 267 1 Division 1. Subject matter of obligations
party agreement or through completive interpretation of the contract (ergänzende Vertrags.
auslegung1) taking into account the nature of the obligation (e. g. in successive deliveries)
Furthermore, part performance may be admissible in the individual case by reason of good
faith (§ 242) insofar as it is reasonable for the obligee in consideration of his interests vis-a-
vis the obligor’s situation (e.g. a minimal outstanding amount2).
B. Explanation
I. Part performance
3 The concept of part performance covers all performances objectively incomplete in
relation to the performance owed. It does not cover an aluid (i.e. tendering a different
object) and requires the performance to be divisible, i.e. where division neither impedes
the purpose of the performance nor lowers the value (e.g. a monetary debt or an
obligation in kind, or the obligation to deliver numerous things or provide numerous
services).
II. Exceptions
4 Part performance does not apply to e.g. the payment of individual instalments in a loan
or monthly rental payments. In such instances the obligation gives rise to several
independent claims which may each be fulfilled in their entirety. This also applies to
collateral claims with an independent legal basis, such as contractual penalties and
default interest.
III. Breach
5 Breach entitles the obligee to reject impermissible part performance. The obligee does not
thereby fail to accept the performance tendered (§ 293). The obligor’s performance is rather
in default when the requirements of § 286 are fulfilled; compensation for resulting losses is
to be made in accordance with § 280(1), (2). The obligee may refuse to perform his part of
the performance under § 320 and, following an additional period, revoke the entire contract
pursuant to § 323(1). However, should the obligee accept the part performance despite
§ 266, he may only revoke the whole contract in accordance with § 323(1 )-(3), (5) 1st St. only
if he has no interest in part performance.
§267
Performance by third parties
(1) ’If the obligor need not perform in
person, then a third party may also render
performance. 2The consent of the obligor is
not required.
(2) The obligee may reject the performance
if the obligor objects.
§267
Leistung durch Dritte
(1) *Hat der Schuldner nicht in Person zu
leisten, so kann auch ein Dritter die Leistung
bewirken. 2Die Einwilligung des Schuldners
ist nicht erforderlich.
(2) Der Gläubiger kann die Leistung ableh¬
nen, wenn der Schuldner widerspricht.
A. Function
1 The provision is founded on the notion that the obligee’s interest regularly lies in the
receipt of the performance, not in the party performing the obligation.
1 See -► § 157 mn. 4 et seq.
2 OLG Bremen 15.3.1989 - 4 WF 14/89 (b), NJW-RR 1990, 6.
382
Schulze
Right of redemption of a third party
§268
B. Explanation
L Performance not in person
The obligor must not have to perforin in person. An obligation to perform in person (i. e. 2
personally) may arise through an agreement between the parties or due to the nature of the
obligation (e.g. in injunctions, and in circumstances in which the obligor’s individual abilities
or characteristics are material, such as a performance by a famous singer). In cases of doubt,
particular statutory rules on interpretation assume a personal obligation to perform, e.g.
§§ 268, 664(1), 1142, 1150, 1249.
IL Performance by third party
A further requirement is performance rendered by a third party. For the purposes of this 3
provision, a third party is only whosoever has the intention to perform another’s obligation
and not his own (Fremdtilgungswillen). However, the material element is not the third party’s
actual intention, but rather how the obligee perceives the behaviour.1 An obligation will
therefore not be performed by a third party when he believes he is performing his own
obligation. However, a dual purpose may be possible in order for the third party to perform
his own obligation as well as that of the obligor.2 Agents (§ 164), subcontractors (§ 278) as
well as persons acting in performance of their own obligations (such as a surety (§ 765), and
joint and several debtors (§ 421)) are therefore not considered third parties.
III. Consent
Sub. 1 2nd St. clarifies that the obligor need not consent. However, if the obligor expresses 4
his objection, the obligee is entitled to reject the performance by the third party (Sub. 2). The
obligor can make his objection to the obligee or the third party.
IV. Legal consequence
Insofar as the criteria under Sub. 1 are fulfilled and there is no objection pursuant to Sub. 2, 5
performance by the third party extinguishes the obligation (§ 362(1)). In the event of
retention of title in relation to the delivery of a good, ownership will be transferred as soon as
the third party has paid the outstanding amount. The obligee will be in default of acceptance
(§§ 293 et seq.) if he refuses the performance without declaring his objection pursuant to Sub. 2.
V. Right of recourse
The legal relationship between the third party and the obligor is material to the third party’s 6
right of recourse, e.g. mandate, a partnership, or agency without specific authorisation. If, in
relation to the obligor, the third party has performed without a legal basis, he may generally
demand compensation for value of the release from the obligation pursuant to § 818(2).
§268
Right of redemption of a
third party
(1) ’If the obligee effects execution which is
levied on an object belonging to the obligor,
anyone who risks losing a right in the object
§268
Ablösungsrecht des Dritten
(1) ’Betreibt der Gläubiger die Zwangsvoll¬
streckung in einen dem Schuldner gehören¬
den Gegenstand, so ist jeder, der Gefahr läuft,
1 BGH 26.10.1978 - VII ZR 71/76, NJW 1979, 157.
2 BGH 23.2.1978 - VII ZR 11/76, NJW 1978, 1375.
Schulze
383
§ 268 1-4
Division L Subject matter of obligations
due to execution is entitled to satisfy the
obligee. 2The possessor of a thing is entitled
to the same right if he risks losing possession
due to execution.
(2) The satisfaction may also take place by
deposit or by set-off.
(3) ’To the extent that the third party
satisfies the obligee the claim passes to him.
2The passing of ownership may not be as¬
serted to the disadvantage of the creditor.
durch die Zwangsvollstreckung ein Recht an
dem Gegenstand zu verlieren, berechtigt, den
Gläubiger zu befriedigen. 2Das gleiche Recht
steht dem Besitzer einer Sache zu, wenn er
Gefahr läuft, durch die Zwangsvollstreckung
den Besitz zu verlieren.
(2) Die Befriedigung kann auch durch Hin¬
terlegung oder durch Aufrechnung erfolgen.
(3) ’Soweit der Dritte den Gläubiger befrie¬
digt, geht die Forderung auf ihn über. 2Der
Übergang kann nicht zum Nachteil des Gläu¬
bigers geltend gemacht werden.
A. Function
1 The purpose of the provision is to protect third parties from the loss of a right in an
object or the possession of an object due to compulsory enforcement (Zwangsvollstreckung
translated in § 268 as execution). The third party therefore acquires his own right to satisfy
the obligee without the possibility for the obligor to object. To the extent that the third
party satisfies the obligee, he will be assigned the claim (statutory assignment). The
combination of a right of redemption and statutory assignment places the third party in a
better position than foreseen in general by § 267 (independent of the compulsory enforce¬
ment). Specific rights of redemption are provided by, e.g. §§ 1142, 1143, 1150, 1223(2),
1224, 1249.
B. Explanation
I. Compulsory enforcement
2 The right of redemption requires the obligee to pursue compulsory enforcement due to a
claim for payment (§§ 803 et seq. ZPO) and for the enforcement to be directed towards an
object owned by the obligor. It may suffice in particular cases for the obligor to have a right
of expectancy (Anwartschaftsrecht). Furthermore, the third party must be threatened with
the loss of a right over the object or the loss of possession. In principle such a right is only to
be considered a right in rem. Possession may concern direct or indirect possession (§§ 854,
868) thereby protecting e.g. lessees and usufructuary lessees. In addition to these objective
requirements, it is not necessary for an intention to avoid compulsory enforcement by means
of the right of redemption.
IL Satisfaction
3 Sub. 1 entitles the third party to satisfy the obligee i.e. the obligation is fulfilled and the
obligee can no longer seek compulsory enforcement against the obligor. Sub. 2 allows
satisfaction also by means of deposit (§ 372) or set-off (§§ 387 et seq.). In contrast to § 267(2),
an objection by the obligor does not entitle the obligee to refuse the performance by the
third party.
III. Operation of law
4 According to Sub. 3 1st St., if the third party satisfies the obligee the claim passes by
operation of law to the third party. Securities and accessory rights (§§ 412, 401) also pass to
the third party with the claim (in contrast to § 267). However, pursuant to Sub. 3 2nd St. the
obligee may not be placed in a more disadvantageous position than would arise b)
performance by the obligor himself. Should the third party only satisfy the obligee in part, a
384
Schulze
Place of petformance
1-3 § 269
security right (e. g. a mortgage) remaining with the obligee due to the non-satisfaction of the
debt will take priority over the right of the third party.
§269
Place of performance
(1) Where no place of performance has
been specified or is evident from the circum¬
stances, in particular from the nature of the
obligation, performance must be made in the
place where the obligor had his residence at
the time when the obligation arose.
(2) If the obligation arose in the commer¬
cial undertaking of the obligor, the place of
the commercial undertaking takes the place
of the residence if the obligor maintained his
commercial undertaking at another place.
(3) From the circumstance that the obligor
has assumed the costs of shipping it may not
be concluded that the place to which ship¬
ment is to be made is to be the place of
performance.
§269
Leistungsort
(1) Ist ein Ort für die Leistung weder be¬
stimmt noch aus den Umständen, insbeson¬
dere aus der Natur des Schuldverhältnisses,
zu entnehmen, so hat die Leistung an dem
Ort zu erfolgen, an welchem der Schuldner
zur Zeit der Entstehung des Schuldverhält¬
nisses seinen Wohnsitz hatte.
(2) Ist die Verbindlichkeit im Gewerbe¬
betrieb des Schuldners entstanden, so tritt,
wenn der Schuldner seine gewerbliche Nie¬
derlassung an einem anderen Ort hatte, der
Ort der Niederlassung an die Stelle des
Wohnsitzes.
(3) Aus dem Umstand allein, dass der
Schuldner die Kosten der Versendung über¬
nommen hat, ist nicht zu entnehmen, dass
der Ort, nach welchem die Versendung zu
erfolgen hat, der Leistungsort sein soll.
A. Function
I. Purpose
The rules on the place and time of performance in §§ 269, 270 concern crucial modes of 1
performance and are central to the general law of obligations. They are of considerable
practical importance for all contractual and statutory obligations. § 269 serves to determine
the place in which the obligor is to perform (Leistungsort, Erfüllungsort - place of perfor¬
mance). The obligor may only avoid a delay in performance by rendering the correct
performance at the correct place (§ 286), and thereby he can determine a delay in perfor¬
mance from the obligee (§§ 293 et seq.). Furthermore, the question whether the obligor has
performed at the correct place is necessary in order to ascertain the thing in an obligation in
kind (§ 243), for the other party’s right of retention (§§ 273, 320), and for the transfer of risk
(§§ 447, 664(2)).
II. Scope of application
§ 269 applies to all obligations, claims for omissions, and to proprietary claims (e.g. from 2
§ 995).
B. Context
The provision is not only of considerable importance for the jurisdiction of proceedings 3
(§ 29 ZPO) but also for the international jurisdiction. In the latter respect, Art. 7 No. lb
Brussels la provides for the place of performance to be determined autonomously. However,
according to Arts 4 et seq. Rome I, the place of performance is no longer the primary basis
for determining the applicable law.
Schulze
385
§ 269 4-8
Division 1. Subject matter of obligations
C. Explanation
I. Place of performance
4 The place of performance (Leistungsort) is to be distinguished from the place of the result
(Erfolgsort): whereas the obligor has to undertake performance at the place of performance,
the place of the result is where the result of the performance arises. The place of performance
and place of the result are one and the same if the obligee agrees to collect the performance
from the obligor’s place of residence. This is the general statutory rule. If particular statutory
provisions or the agreement between the parties stipulate that the obligor is to perform at the
obligee’s place of residence, the place of performance and the place of result are at the
obligee’s place of residence. However, if the obligor sends the performance from his place of
residence to the obligee’s place of residence, the place of performance is at the obligor’s
residence, whereas the place of the result is at the obligee’s residence. Important examples of
the latter are sales shipments (§ 447) and, under the traditional view, money debts.1
IL Determining place of performance
5 Determination of the place of performance refers principally to the individual obligation.
The place of performance in a contract with numerous different obligations therefore
requires the individual places of performance to be determined separately if a common place
of performance is not evident from the circumstances. However, the place of the primary7
performance obligation is often the place of performance for collateral obligations.
III. Specified
6 The specified place of performance is material according to Sub. 1. Such specification maybe
found in the agreement between the parties or in specific statutory provisions. The parties can
agree either expressly or impliedly (e. g. if they conclude the same types of contracts in a long¬
term relationship, but only specify the place of performance in the first contract). In
commercial transactions, the CIF-term (Cost-Insurance-Freight) determines the unloading
port as the place of performance, whereas the ship is the place of performance under a FOB-
term (Free On Board).2 If only a place of payment has been agreed (‘Price is to be paid in
Berlin’), this by itself does not change the place of performance. Mere agreements on transport
costs such as ‘free delivery’ often do not concern the place of performance. Sub. 3 rather
determines that the obligor’s assumption of the costs of shipping does not allow for the
conclusion that the place of performance is the place to which shipment is to be effected.
IV. Statutory provisions
7 Specific statutory provisions on the place of performance can be found in e.g. §§ 261(1)’
374(1), 604(1), 697, 700(1) 3rd St., 811(1), 1194, 1200(1); § 36 VVG; Art. 2(3), 75 No. 4,76(3)
WG; Art. 2(2) and (2) ScheckG.
V. Circumstances
8 According to Sub. 1, if the place of performance is not determined by the contract or by
specific statutory provisions, the circumstances, in particular the nature of the obligation, are
to be taken into account. Case law has considered whether there is a particular link between
numerous obligations and a particular place. It recognises a common place of performance
1 See -► § 270 mn. 2.
2 BGH 29.11.1972 - VIII ZR 122/71, NJW 1973, 189.
386
Schulze
Place of payment 1-2 § 270
(e.g. the place of a building for mutual obligations arising under the construction contract;3
the offices of a lawyer in a contract for legal services4).
VL Place of residence
Sub. 1 provides that the obligor’s place of residence is the place of performance if such 9
place cannot be determined either from a contractual or statutory provision or from the
circumstances. The obligor’s place of abode is the place of performance if he does not have a
residence. According to Sub. 2» if the obligation arose in the commercial undertaking of the
obligor, the place of the commercial undertaking takes the place of the residence. The
residence (or the place of abode or the place of the commercial undertaking) at the moment
at which the obligation arises is always material (even in long-term obligations).
§270
Place of payment
(1) In case of doubt the obligor must
transfer money at his own risk and his own
expense to the obligee at the residence of the
latter.
(2) If the obligation came about in the
commercial undertaking of the obligee, then,
if the obligee has his business establishment
in another place, the place of the commercial
undertaking takes the place of the residence.
(3) If, as the result of a change in the
obligee's residence or business establishment
occurring after the obligation arises, the costs
or risk of transmission increase, the obligee
must in the former case bear the extra costs
and in the latter case the risk
(4) The provisions on the place of perfor¬
mance are unaffected.
§270
Zahlungsort
(1) Geld hat der Schuldner im Zweifel auf
seine Gefahr und seine Kosten dem Gläubiger
an dessen Wohnsitz zu übermitteln.
(2) Ist die Forderung im Gewerbebetrieb
des Gläubigers entstanden, so tritt, wenn der
Gläubiger seine gewerbliche Niederlassung an
einem anderen Ort hat, der Ort der Nieder¬
lassung an die Stelle des Wohnsitzes.
(3) Erhöhen sich infolge einer nach der
Entstehung des Schuldverhältnisses eintreten¬
den Änderung des Wohnsitzes oder der ge¬
werblichen Niederlassung des Gläubigers die
Kosten oder die Gefahr der Übermittlung, so
hat der Gläubiger im ersteren Falle die Mehr¬
kosten, im letzteren Falle die Gefahr zu tra¬
gen.
(4) Die Vorschriften über den Leistungsort
bleiben unberührt.
A. Function
The provision concerns the allocation of the risk of loss or a delay, and the costs, when the 1
obligor transfers money to the obligee. § 270 applies to all types of money debt. The wording
in case of doubt in Sub. 1 provides that the rule is simply interpretative in nature. It therefore
does not apply if statute or party agreement provide otherwise.
B. Context
Although the provision has been part of the BGB since its inception, the modern under- 2
standing requires consideration of EU legislation on delayed payment (EU Late Payment
Directives 2000 and 2011). New doctrine therefore casts increasing doubt on the previous
prevailing opinion that money debts often involve sending the performance to the obligee
(Schickschuld). According to this traditional view, § 270 regulates two features which allow
’ BGH 5.12.1985 - I ARZ 737/85, NJW 1986, 935.
4 BGH 31.1.1991 - III ZR 150/88, NJW 1991, 3095.
Schulze
387
§ 270 3-4 Division 1. Subject matter of obligations
money debts to become ‘qualified1 Schickschulden (namely the costs of transfer and the risk
of loss during the transfer). In contrast, the new view considers money debts (at least in the
scope of the EU Late Payment Directive) as the agreement by the obligor to take the money
to the obligee (Bringschuld). According to Art. 3(1) EU Late Payment Directive 2011, the
obligee is entitled to interest for late payment if (i) he has fulfilled his contractual and legal
obligations and (ii) he has not received the amount due on time, unless the debtor is not
responsible for the delay. In payments via bank transfer the obligor therefore has to make the
transfer in due time in order for the amount to be paid into the obligee’s account during the
time period for payment.1 In this respect, an interpretation of this rule of German law in
conformity with the Directive extends the scope not only to bank transfers but also to all
types of transfers of money debts within the scope of the EU Late Payment Directive (Le.
when it concerns debts between undertakings or between undertakings and public author¬
ities, and the payment of interest is at issue). According to BGH case law, where the EU Late
Payment Directive does not apply (in particular in B-C contracts), the obligor’s performance
will continue to be honest if he has taken the steps (or another act was undertaken judicially)
for the obligee to receive payment on time, even though payment was delayed.2 In contrast,
part of legal doctrine seeks to avoid this split interpretation and desires uniformity both
inside and outside of the scope of the EU Late Payment Directive in order to ensure
consistency within German civil law by classifying money debts as a Bringschuld} Such
classification accords with Art. 57 CISG, Art. 7:101(1 )(b) PECL, and the majority of other
national laws. It therefore offers the advantage of assimilation of German law to the
international development.
C. Explanation
I. Transfer
3 In case of doubt, Sub. 1 obliges the obligor to transfer the money to the obligee’s residence
(or place of abode, if the obligee does not have a place of residence). Sub. 2 stipulates that the
place of the commercial undertaking takes the place of the residence in commercial money
debts. In contrast to § 269, the new place of residence or place of commercial undertaking is
material if there has been a change after the obligation has arisen. Sub. 3 protects the obligor
against an increase in risk or increased transfer costs. The obligor may determine the type of
transfer in the absence of an agreement on such matter (e.g. cash, cheque, bank transfer or
other forms of cashless payment).
IL Risk
4 According to Sub. 1, in case of doubt the obligor bears the risk of loss during the transfer.
He is therefore obliged to make repayment if the money is lost during the transfer (even it he
is not responsible for the loss). This risk also covers the risks of devaluation and seizure.
However, the risk does not encompass those risks that arise solely from the obligee’s own
sphere of influence (e. g. bankruptcy) as well as most unusual interferences in rare cases.
Whether the performance is timely depends on (controversial) BGH case law concerning the
application of the EU Late Payment Directive. The obligor bears the risk of delay in cases in
■
1 CJEU C-306/06 0/057 Telecom ECLI:EU:C:2008:l87.
2 BGH 5.10.2016 - VIII ZR 222/15, NJW 2017, 1596.
’Gsell, Rechtzeitigkeit der Zahlung per Banküberweisung und Verzugsrichtlinie - Zugleich eine
Besprechung von EuGH, Urt. v. 3.4.2008, C-306/06 - 01051 Telecom GmbH gegen Deutsche Telekon’
AG, GPR 2008, 165, 168, Knopper, Rechtzeitigkeit der Leistung bei Geldschulden? - Prämienzahlung;
NJW-Spezial 2009, 105; cf Herresthal, Das Ende der Geldschuld als sog. qualifizierte Schickschuld,
2008, 259, 266.
4 § 242, BGH 6.10.1953 - 1 ZR 185/52, NJW 1953, 1911.
388
Schulze
Time of performance § 271
which the Directive applies, whereas the obligee bears the risk in cases in which the Directive
does not apply. The obligor bears the burden of proving timely performance and the arrival
of the money.5 Payment will be assumed if a money order is presented (but evidence of
registered delivery will not suffice by itself).
III. Costs
In case of doubt, Sub. 1 obliges the obligor to bear the costs of transfer. These include 5
the costs of delivery, but not the account management fees the obligee has to pay to
his bank.
§ 270a
Agreements on payments for the
use of cashless payment means
’An agreement by which the obligor is
obliged to pay a charge for the use of a
SEPA Core direct debit, a SEPA busines-to-
business direct debit, a SEPA transfer or a
payment card, is ineffective. 2Sentence 1 ap¬
plies only for the use of payment cards in
payment transactions with consumers when
Chapter II of the Regulation (EU) 2015/751
of the European Parliament and of the Coun¬
cil of 29 April 2015 on interchange fees for
card-based payment transactions (OJ L 123
from 19.5.2015, p. 1) is applicable to such
transactions.
§ 270a
Vereinbarungen über Entgelte für
die Nutzung bargeldloser
Zahlungsmittel
’Eine Vereinbarung, durch die der Schuld¬
ner verpflichtet wird, ein Entgelt für die Nut¬
zung einer SEPA-Basislastschrift, einer SEPA-
Firmenlastschrift, einer SEPA-Überweisung
oder einer Zahlungskarte zu entrichten, ist
unwirksam. 2Satz 1 gilt für die Nutzung von
Zahlungskarten nur bei Zahlungsvorgängen
mit Verbrauchern, wenn auf diese Kapitel II
der Verordnung (EU) 2015/751 des Europä¬
ischen Parlaments und des Rates vom 29. April
2015 über Interbankenentgelte für karten¬
gebundene Zahlungsvorgänge (ABI. L 123
vom 19.5.2015, S. 1) anwendbar ist.
§ 270a serves to protect the obligor from charges for the use of means of cashless payment 1
by rendering such agreements ineffective under particular circumstances. § 270a entered into
force on 13 January 2018 and serves to transpose Art. 62(4) PSD2. The 1st St. refers to
transfers or payments according to the EU SEPA Regulation. The 1st and 2nd St. concern
payment instruments according to Chapter II Interchange Fee Regulation (in particular the
common credit and debit cards) when these are used by consumers.
§271
Time of performance
(1) Where no time for performance has
been specified or is evident from the circum¬
stances, the obligee may demand perfor¬
mance immediately, and the obligor may ef¬
fect it immediately.
(2) Where a time has been specified, then
in case of doubt it must be assumed that the
°bligee may not demand performance, but
the obligor may effect it prior to that time.
§271
Leistungszeit
(1) Ist eine Zeit für die Leistung weder
bestimmt noch aus den Umständen zu ent¬
nehmen, so kann der Gläubiger die Leistung
sofort verlangen, der Schuldner sie sofort
bewirken.
(2) 1st eine Zeit bestimmt, so ist im Zweifel
anzunehmen, dass der Gläubiger die Leistung
nicht vor dieser Zeit verlangen, der Schuldner
aber sie vorher bewirken kann.
5 BGH 27.5.1957 - II ZR 132/56, NJW 1957, 1230.
Schulze
389
§ 271 1-4
Division 1. Subject matter of obligations
A. Function
I. Purpose
1 § 271 uses two different legal instruments to regulate two different scenarios. Sub. 1 is a
default provision for instances in which the time for performance has not been deter¬
mined by the parties or statute. In contrast, Sub. 2 provides an interpretative rule for
cases in which the parties have specified a time, but the interpretation of this agreement
is unclear.
IL Scope of application
2 § 271 applies to obligations of all types. However, e.g. § 474(3) contains specific rules for
consumer sales, and § 500 provides specific rules on early repayment of consumer credit
B. Explanation
I. Performance
3 The provision concerns the time for performance in two respects. Firstly, Subs 1 and 2
determine the moment from which the obligee is entitled to demand performance (time at
which performance is due; Fälligkeit). Rules regarding the time of performance are necessary
to allow the obligor to be in delay, to allow the obligee to claim performance, and to allow
limitation periods to commence. The second aspect of each subsection concerns the point in
time from which the obligor can effect performance (Erfüllbarkeit). As long as the
performance can be fulfilled, the obligee must accept it if he does not wish to be in delay
under §§ 293 et seq. However, a claim for payment may often be satisfied before perfor¬
mance is due (e.g. in instalment contracts under § 504). The concept of verhaltene Ansprüche
is used to describe circumstances in which the due date precedes the ability to perform, Le.
the obligor cannot perform on his own initiative, but the obligee can demand performance at
any time, e.g. in claims arising from §§ 285, 695, 696 2nd St.
IL Time for performance
4 The provision assumes that party agreement may foremost determine the time for
performance. In this respect, common contract terms include, e.g. ‘receipt of the invoice
(whereby the obligor has to perform irrespective of whether he has already received
delivery1 and ‘payment against documents’ (whereby payment is due on receipt of the
documents, often proof of loading). Agreements with imprecise wording (e.g. ‘as soon as
possible’, ‘shortly’) are to be interpreted in accordance with good faith (§ 242) - the exact
time is determined by § 242 so that the obligor may not perform at an inappropriate time
of day; § 358 HGB provides that the obligor has to observe business hours in commercial
transactions. A deferral postpones the due date for an obligation; the obligation however
remains performable for the obligor. The deferral can be agreed either expressly or
impliedly and, in particular cases, may arise from completive interpretation of contract or
from good faith (§ 242). The deferral is to be distinguished from a pactum de non petendo
Such an agreement obliges the obligee not to enforce the claim for a period of time or not
at all. The obligor can use this as a defence in proceedings; the due date however remain*
until this defence is raised. The parties may also agree that one of them receives the pm^r
to determine the time for performance by unilateral declaration. Such a power for the
obligee exists e.g. in sales on call; § 242 however obliges the obligee to call within an
appropriate time.
390
Schulze
Time periods for payment, examination, or acceptance
§ 271a
III. Statutory provisions
§§ 488(3), 556b, 608, 614, 641(1), 695, 721, 1361(4) 2nd St., 1585(1) 2nd St, 1612(3) 3rd St., 5
2181 BGB contain specific statutory provisions on the time of performance.
IV. Circumstances
Where a time tor performance is not stipulated in the agreement between the parties or in 6
statute, Sub. 1 provides that consideration is to be given to the circumstances, in particular
the nature of the obligation (as under § 269), the type and purpose of the performance,
customary practice (§ 157) and trade practices.
V. Immediate performance
Sub. 1 provides that performance is due and effective immediately if the time for 7
performance cannot be concluded from the circumstances. Immediate means that the obligor
has to undertake the required act within a period of time that is necessary according to
objective consideration of the performance due and the other circumstances for effecting
performance (in contrast to without undue delay according to § 121)
VI. Legal consequences
The interpretative rule under Sub. 2 only favours the obligor: he is entitled to effect 8
performance before the due date; the obligee will be liable for non-acceptance should he not
accept performance. However, case law does not apply this rule if, by reason of early
performance, the obligee would lose or breach a contractual right (e.g. interest on a loan;
and claims on land charges, mortgages or exchanges1).
§ 271a
Agreements on time periods for
payment, examination, or
acceptance
(1) ’An agreement, according to which the
obligee can request payment only after a
period exceeding 60 days following receipt of
the consideration, is effective only if it is
made expressly and is not grossly unfair with
regard to the concerns of the obligee. 2If the
obligor receives an invoice or equivalent
statement of payment after receipt of the
consideration, the point in time of receipt of
consideration as referred to in sentence 1 is
substituted by the point in time at which the
invoice or equivalent statement of payment is
received. 3Unless proven otherwise, it will be
presumed that the time of receipt of the
invoice or statement of payment is at the
time of receipt of the consideration; if the
obligee has named a later point in time, this
replaces the point at which the consideration
is received.
§ 271a
Vereinbarungen über Zahlungs-,
Überprüfungs- oder
Abnahmefristen
(1) ’Eine Vereinbarung, nach der der Gläu¬
biger die Erfüllung einer Entgeltforderung erst
nach mehr als 60 Tagen nach Empfang der
Gegenleistung verlangen kann, ist nur wirk¬
sam, wenn sie ausdrücklich getroffen und im
Hinblick auf die Belange des Gläubigers nicht
grob unbillig ist. 2Geht dem Schuldner nach
Empfang der Gegenleistung eine Rechnung
oder gleichwertige Zahlungsaufstellung zu,
tritt der Zeitpunkt des Zugangs dieser Rech¬
nung oder Zahlungsaufstellung an die Stelle
des in Satz 1 genannten Zeitpunkts des Emp¬
fangs der Gegenleistung. 3Es wird bis zum
Beweis eines anderen Zeitpunkts vermutet,
dass der Zeitpunkt des Zugangs der Rechnung
oder Zahlungsaufstellung auf den Zeitpunkt
des Empfangs der Gegenleistung fallt; hat der
Gläubiger einen späteren Zeitpunkt benannt,
so tritt dieser an die Stelle des Zeitpunkts des
Empfangs der Gegenleistung.
1 See BGH 15.1.1970 - III ZR 212/66, NJW 1970, 603.
Schulze
391
§ 271a 1
Division I. Subject matter of obligations
(2) ’In derogation from subsection (1), if
the obligor is a contracting authority within
the meaning of § 99 Nos 1-3 Act Against
Restraints of Competition,
1. an agreement, by which the obligor can
request payment only after a period exceed¬
ing 30 days after receipt of the consideration,
is effective only if made expressly and if this
is objectively justified due to the particular
nature or characteristics of the obligation;
2. an agreement by which the obligee can
request payment only after a period exceed¬
ing 60 days after receipt of the consideration,
is ineffective.
2Subsection 1 Sentence 2 and 3 applies with
the necessary modifications.
(3) If a request for payment can be made
only after examination or acceptance of the
consideration, an agreement by which the
time for examination or acceptance of the
consideration is more than 30 days after re¬
ceipt of the consideration, is effective only if
made expressly and if this is not grossly un¬
fair with regard to the concerns of the obli¬
gee.
(4) If an agreement according to
subsections (l)-(3) is ineffective, the remain¬
der of the contract remains effective.
(5) Subsections (l)-(3) do not apply to
1. an agreement to staggered payments or
payments by instalments as well as
2. an obligation whereby remuneration is
owed by a consumer
(6) Subsections (1)—(3) do not affect other
provisions in which limitations result for
agreements on periods of time for payment,
examination, or acceptance.
(2) ’Ist der Schuldner ein öffentlicher Auf
traggeber im Sinne von § 99 Nummer 1 bis 3
des Gesetzes gegen Wettbewerbsbeschränkun¬
gen, so ist abweichend von Absatz 1
1. eine Vereinbarung, nach der der Gläubi¬
ger die Erfüllung einer Entgeltforderung erst
nach mehr als 30 Tagen nach Empfang der
Gegenleistung verlangen kann, nur wirksam,
wenn die Vereinbarung ausdrücklich getrof¬
fen und aufgrund der besonderen Natur oder
der Merkmale des Schuld Verhältnisses sach¬
lich gerechtfertigt ist;
2. eine Vereinbarung, nach der der Gläubi¬
ger die Erfüllung einer Entgeltforderung erst
nach mehr als 60 Tagen nach Empfang der
Gegenleistung verlangen kann, unwirksam.
2Absatz 1 Satz 2 und 3 ist entsprechend
anzuwenden.
(3) Ist eine Entgeltforderung erst nach
Überprüfung oder Abnahme der Gegenleis¬
tung zu erfüllen, so ist eine Vereinbarung,
nach der die Zeit für die Überprüfung oder
Abnahme der Gegenleistung mehr als 30 Tage
nach Empfang der Gegenleistung beträgt, nur
wirksam, wenn sie ausdrücklich getroffen und
im Hinblick auf die Belange des Gläubigers
nicht grob unbillig ist.
(4) Ist eine Vereinbarung nach den Absät¬
zen 1 bis 3 unwirksam, bleibt der Vertrag im
Übrigen wirksam.
(5) Die Absätze 1 bis 3 sind nicht anzuwen¬
den auf
1. die Vereinbarung von Abschlagszahlun¬
gen und sonstigen Ratenzahlungen sowie
2. ein Schuldverhältnis, aus dem ein Ver¬
braucher die Erfüllung der Entgeltforderung
schuldet.
(6) Die Absätze 1 bis 3 lassen sonstige Vor¬
schriften, aus denen sich Beschränkungen für
Vereinbarungen über Zahlungs-, Überprüfungs¬
oder Abnahmefristen ergeben, unberührt.
A. Function
I. Purpose
1 § 271a supplements the provisions of § 270 on the time of performance by limiting the
effectiveness of agreements on the due date for particularly long payment, examination or
acceptance periods. It therefore serves to transpose the EU Late Payment Directive, which
aims to improve payment discipline in commercial transactions. In accordance with the
Directive, the provision subjects the effectiveness of agreements on such periods to two
criteria: made expressly and not grossly unfair. In principle this applies to periods
greater than 60 days (though lowered to 30 days for contracting authorities if there is
express agreement and no objective justification due to the particular nature or character¬
istics of the contractual obligation). However, these provisions do not apply when the obligof
is a consumer or to agreements to staggered payments or payments by instalments (Suh- ’)•
392
Schulze
Interim interest
§272
II. Scope of application
The provision applies only to agreements on payment requests.1 2
B. Explanation
I. Express agreement
Agreements providing for longer payment periods must be made expressly. Implied 3
agreements are therefore ineffective. Written form is not necessary.
IL Grossly unfair
Such an express agreement may not be grossly unfair with regard to the concerns of the 4
obligee. In accordance with the criteria of Art. 7(1) EU Late Payment Directive 2011, the
examination of this requirement demands a comprehensive balance of interests which consider
all circumstances of the case (in particular, the nature of the product or service; whether the
obligor has any objective reason to deviate from the statutory rate of interest for late payment;
possible gross deviations from good commercial practice). According to Recital 13 EU Late
Payment Directive 2011, a longer period for payment is not grossly unfair when the obligee has
set the period in order to encourage the sale of his goods or provision of his services.
III. Contracting authority
In deviation from Sub. 1, the 30-day period under Sub. 2 applies to contracting authorities. 5
The express agreement must be objectively justified due to the particular nature or
characteristics of the contractual obligation. The 60-day period is a maximum limit. The
notion of contracting authority covers, by reason of the reference to the Gesetz gegen
Wettbewerbsbeschränkungen (GWB; Act Against Restraints of Competition2), all regional
and local authorities (§ 99 No. 1 GWB), other legal persons under public or private law
which were established for the specific purpose of meeting non-commercial needs in the
general interest (and which fulfil the other requirements under § 99 No. 2 (a)-(c) GWB), and
associations whose members fall under § 99 No. 1 or No. 2 GWB.
IV. Legal consequences
The request for payment is due immediately according to § 271(1) if an agreement on the 6
payment period is ineffective according to these standards. The remainder of the contract
remains effective according to Sub. 4 because the obligee (as a rule the seller of a good or a
service provider) should be protected. Sub. 6 clarifies that an agreement, which is not
ineffective under § 271a, may be ineffective for other reasons (e.g. due to §§ 138, 242 or
standard business terms by reason of §§ 307, 308 No. la, lb).
§272
Interim interest
If the obligor pays an interest-free debt
prior to its falling due, he is not entitled to
any deduction for interim interest.
§272
Zwischenzinsen
Bezahlt der Schuldner eine unverzinsliche
Schuld vor der Fälligkeit, so ist er zu einem
Abzug wegen der Zwischenzinsen nicht be¬
rechtigt.
1 See -► § 286 mn. 14.
2 An English translation of the GWB is available under www.gcsetzc-im-internet.de.
Schulze
393
§273
Division 1. Subject matter of obligations
A. Function
1 The obligor of an interest-free debt should not be entitled to a deduction of interim
interest in making an early repayment because he performs by reason of his own free
decision (even if done so in error, § 813(2)).
B. Explanation
2 Interim interest refers to the interest due on the amount between the moment of payment
to the date of repayment.1 The obligor may therefore also not unilaterally deduct a discount
from the amount due because of a cash payment. However, § 272 excludes the deduction for
interim interest by an obligor who pays before the due date only insofar as there is neither a
deviating agreement between the parties nor a deviating statutory provision. The obligor is
therefore entitled to a deduction of interim interest i.a. under §§ 1133 3rd St, 1217(2) 2nd St;
in addition for damages for future detriments.2
§273
Right of retention
(1) If the obligor has a claim that is due
against the obligee under the same legal re¬
lationship as that on which the obligation is
based, he may, unless the obligation leads to a
different conclusion, refuse the performance
owed by him, until the performance owed to
him is rendered (right of retention).
(2) A person who is obliged to return an
object has the same right, if he is entitled to a
claim that is due on account of outlays for the
object or on account of damage caused to
him by the object, unless he obtained the
object by means of an intentionally com¬
mitted tort.
(3) ’The obligee may avert the exercise of
the right of retention by providing security.
2The providing of security by guarantors is
excluded.
§273
Zurückbehaltungsrecht
(1) Hat der Schuldner aus demselben recht¬
lichen Verhältnis, auf dem seine Verpflich¬
tung beruht, einen fälligen Anspruch gegen
den Gläubiger, so kann er, sofern nicht aus
dem Schuldverhältnis sich ein anderes ergibt,
die geschuldete Leistung verweigern, bis die
ihm gebührende Leistung bewirkt wird (Zu¬
rückbehaltungsrecht).
(2) Wer zur Herausgabe eines Gegenstands
verpflichtet ist, hat das gleiche Recht, wenn
ihm ein fälliger Anspruch wegen Verwendun¬
gen auf den Gegenstand oder wregen eines
ihm durch diesen verursachten Schadens zu¬
steht, es sei denn, dass er den Gegenstand
durch eine vorsätzlich begangene unerlaubte
Handlung erlangt hat.
(3) ’Der Gläubiger kann die Ausübung des
Zurückbehaltungsrechts durch Sicherheits¬
leistung abwenden. 2Die Sicherheitsleistung
durch Bürgen ist ausgeschlossen.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
C. Explanation 5
I. Reciprocity 5
II. Real connection 6
1 On calculation see BGH 10.10.1991 - III ZR 308/89, NJW 1991, 3274
2 BGH 10.10.1991 - III ZR 308/89, NJW 1991, 3274.
394
Schulze
Right of retention
1-4 § 273
III. Fully effective and due 7
IV. Exclusion 8
V. Return of an object 9
VI. Legal consequence 10
VII. Aversion 11
A. Function
I. Purpose and underlying principle
Sub. 1 contains a statutory definition of the right of retention. This right is based on the 1
notion that it would be a breach of good faith to allow a party to an obligation to demand
performance without rendering the agreed consideration.1 The right of retention allows the
obligor to secure his claim against the obligee and to exercise pressure on the obligee to
render performance to the obligor.2
IL Position within the BGB
The right of retention in § 273 is of general nature and is therefore to be distinguished 2
from other statutory rights of retention. In contrast to the right in § 273, the commercial
right of retention under §§ 369 et seq. HGB does not require a real connection (Konnexität)
between the claims; furthermore it includes a right of satisfaction for the entitled party. § 359
contains a particular right of retention for a consumer. The defence of unperformed contract
under § 320 is only applicable in the scope of a synallagmatic relationship. This defence
cannot be averted by exercising security (§ 320(1) 3rd St.), whereas this is possible for the
general right of retention (§ 273(3)). With regard to the relationship between the right to
refuse to perform pursuant to § 320 and § 273, the former is considered a stricter form of the
right of retention (though this is disputed). The rights of retention in § 1000 and § 2022 are
special cases vis-a-vis Sub. 2. In contrast to § 273, these two sections do not require the
counterclaim to be due. Furthermore, rights of satisfaction arise from these two sections
(§§ 1003; 2022(1) 2nd St.).
III. Scope of application
§ 273 applies to obligations of all kinds. In principle it may concern all types of 3
performances due (e. g. services, corrections to the Land Register, and observing obligations
of toleration or omission3). The provision also applies to claims in rem (e.g. under § 985).4
§ 273 applies in family law insofar as it is compatible.5 The parties may also agree on a
contractual right of retention with requirements deviating from § 273 (e.g. without the
requirements of real connection and performance being due).6
B. Context
Rights of retention are central not only to the German law on non-performance but also 4
feature in the contract law or the general law of obligations of almost all other legal systems.
However, they can take different forms and, unlike German law, are not necessarily based on
* RG 21.7.1936 - II 30/36.
2 BGH 10.6.2005 - V ZR 235/04, NJW 2005, 2622.
3 For omissions only insofar as the non-compliance would not frustrate the claim to an injunction;
BAG 25.11.1982 - 2 AZR 140/81, NJW 1983, 2897.
4 BGH 17.3.1975 - VIII ZR 245/73, NJW 1975, 1121.
5 On its application in matrimonal property law sec BGH 31.1.2007 - XII ZR 131/04, NJW 2007, 1879.
6 BGH 21.12.1984 - V ZR 204/83, NJW 1985, 849.
Schulze
395
§ 273 5-8 Division 1. Subject matter of obligations
the principle of good faith. The European sets of rules also contain rights of retention, in
particular: Art. 9:201 PECL, Art. 111.-3:401 DCFR, Art. 113 CESL (Draft).
C. Explanation
I. Reciprocity
5 The reciprocal nature of the claims is the fundamental requirement for the right of
retention under § 273. The retaining obligor must be the obligee of the counterclaim; the
obligee against whom the obligor exercises the right of retention, must be the obligor of this
counterclaim. In this regard, the obligee and obligor must be identical. It suffices for the
counterclaim is available to the obligor together with other persons.7 The obligor may,
according to § 404, may raise an objection to the right of retention against the assignee after
an assignment of the claim.
IL Real connection
6 A real connection (Konnexität) must exist between the claims. This is the case when the
obligee’s claim and the obligor’s counterclaim are based on the same legal relationship. This
requirement is subject to broad interpretation: it suffices for the basis of the claims to
inwardly contiguous, uniform and vitally related.8 The claims therefore do not need to be
based on the same contract or obligation. A real connection exists, for example, between
claims from different contracts within on-going business relationships so far as the temporal
or material context creates natural unity between the claims,9 or in claims from both parties
arising from the failed conclusion of contract.10
III. Fully effective and due
7 The obligor’s counterclaim must be fully effective and due. It suffices that the counterclaim
arises and is due with the performance that is rendered,11 12 e.g. the claims to receipt and return
of the certificate of indebtedness (§§ 370, 371). The right of retention may also be based on a
statute-barred claim if the claim was not yet statute-barred at the time when the right of
retention arose (§ 215). However, a right of retention does not arise with regard to future
claims, to claims subject to a defence, or claims based on gaming and betting (§ 762).
IV. Exclusion
8 Ultimately, the right of retention only arises insofar as the obligation does not lead to a
different conclusion (as expressed in Sub. 1). There can therefore be no recourse to the
right of retention if it is excluded by statute, contract, the nature of the obligation, or by
good faith. Statutory exclusions of the right of retention include i.a. §§ 175, 570, 578(1)»
581(2), 596(2); § 88a(2) HGB. The prohibitions of set-off in §§ 392, 394, 395 only exclude
the right of retention if the result of its exercise would amount to an inadmissible set-oft1'
However, applying § 393 by analogy excludes the right of retention with respect to claims
to damages arising from intentional acts. Contractual exclusion of the right of retention is
often implied through the agreement that the obligor is to make advance performance. An
7 BGH 24.10.1962 - V ZR 1/61, NJW 1963, 244.
8 BGH 3.7.1991 - VIII ZR 190/90, NJW 1991, 2645.
9 BGH 13.7.1970 - VII ZR 176/68, NJW 1970, 2019.
10 BGH 23.3.1990 - V ZR 233/88, NJW-RR 1990, 847; however only as long as the Siildothcoric do^s
not apply (see -► § 818 inn. 9).
n BGH 6.12.1991 - V ZR 229/90, NJW 1992, 556.
12 BGH 16.6.1987 - X ZR 61/86, NJW 1987, 3254.
396
Schulze
Right of retention 9-11 § 273
exclusion by reason of the nature of the obligation can arise in particular due to the
particular features of the object (e.g. perishables) and due to the particular need to protect
the obligee and the lesser need to protect the obligor (e.g. claims to income exempted from
attachment)» or claims to hand over documents of public importance (e.g. passport or
drivers license).13 The inadmissible exercise of a right as an element of bad faith14 may
exclude the right of retention if the obligor already possesses sufficient security for the
counterclaim (argument from Sub. 3)» or if he wants to retain valuable performance
with respect to a relatively minimal or unsecured claim (argument from § 320(2)15), but
always with consideration of the circumstances of the individual case and of the notion of
proportionality.
V. Return of an object
Sub. 2 guarantees a right of retention if the obligation consists of the return of an object. The 9
term object is to be understood in a broad sense and comprises things, rights, claims and also
the legal position arising from an incorrect entry in the Land Register.16 Furthermore, the
obligor must have a claim against the obligee due to the outlays for the object to be returned
(e.g. under §§ 304, 683, 994 et seq.) or he must be entitled to a claim against the obligee due to
damage caused by the object (also an animal). The object (for which the outlays were made)
and the object of the right of retention must be identical. Ultimately, the obligor may not have
acquired the object through an intentional tortious act he (or his agent) has committed. It is
disputed whether this also applies to intentional breaches of contract.17
VI. Legal consequence
The right of retention creates a right to refuse performance as a defence with suspensive 10
effect (aufschiebende Einrede). In principle the right is not considered ex officio in court
proceedings, but must be pursued expressly or tacitly by the obligor. The exercise of the right
of retention provides the obligee with the possibility, if applicable, to avert the exercise in
accordance with Sub. 3. This possibility is only available for as long as the performance has
not yet been rendered (or, for Sub. 2, the obligor is not yet in possession of the thing). The
exercise of the right of retention restricts the claims of the obligee: the obligor is now only
obliged to perform concurrently (§ 274). Furthermore, the exercise of the right excludes the
beginning of default (of the obligor, § 286) and the claim to interest during legal proceedings
(§291). However, the right of retention does not affect the maturity of the obligee’s claim18
and, in principle, does not suspend limitation periods. It provides the obligor with a right to
possession,19 but not of use.20
VII. Aversion
The aversion of the exercise of the right of retention (Sub. 3) requires the obligee to 11
actually provide (not merely offer) security. In principle the value of the obligor's counter¬
claim is material to the amount of security to be provided. The value of the retained object
will be material if it is of lower value than the value of the obligor’s counterclaim.21
13 For further examples see MüKo BGB/Krüger, § 273 BGB mn. 47 et seq.
14 See -► § 242 mn. 19.
15 BGH 13.7.1970 - VII ZR 176/68, NJW 1970, 2019.
16 BGH 5.10.1979 - V ZR 71/78, NJW 1980, 833.
17 BGH 22.1.1964 - V ZR 25/62, NJW 1964, 811; see however Palandt BGB/Grüneberg» § 273 BGB
mn. 16.
18 See however KG 10.1.1990 - 23 U 5932/88, NJW-RR 1990, 544.
19 BGH 25.9.1985 - VIII ZR 270/84, NJW-RR 1986, 282.
20 BGH 2.7.1975 - VIII ZR 87/74, NJW 1975, 1733.
21 RG 9.7.1932 - VI 205/32.
Schulze
397
§275
Division 1. Subject matter of obligations
§274
Effects of the right of retention
(1) In comparison to a legal action by the
obligee, assertion of the right of retention
only has the effect that the obligor is to be
ordered to render performance in return for
receiving the performance owed to him (con¬
current performance).
(2) On the basis of such an order the
obligee may pursue his claim by way of ex¬
ecution, without effecting the performance he
owes, if the obligor is in default of accep¬
tance.
§274
Wirkungen des
Zurückbehaltungsrechts
(1) Gegenüber der Klage des Gläubigers hat
die Geltendmachung des Zurückbehaltung^
rechts nur die Wirkung, dass der Schuldner
zur Leistung gegen Empfang der ihm gebüh¬
renden Leistung (Erfüllung Zug um Zug) zu
verurteilen ist.
(2) Auf Grund einer solchen Verurteilung
kann der Gläubiger seinen Anspruch ohne
Bewirkung der ihm obliegenden Leistung im
Wege der Zwangsvollstreckung verfolgen,
wenn der Schuldner im Verzug der Annahme
ist.
1 The provision regulates the effects of the link between claim and counterclaim through
the exercise of the right of retention (§ 273) in legal action and in compulsory enforcement
(Zwangsvollstreckung1). In contrast to other suspensive defences, the exercise of the right of
retention does not lead to dismissal of the claim but rather to concurrent judgment The
defendant (obligor) is also to be ordered to render concurrent performance if he is already
in default of acceptance.2 A ‘double concurrent judgment’ (doppelte Zug um Zug-Verurtei¬
lung) will arise if the obligee’s performance is dependent on the obligor’s counter-perfor¬
mance (e.g. payment of a subsidy for repair work).3 Only the court’s decision on the
obligor’s performance obligation will be legally valid, not how the court assesses the
counterclaim.4 The concurrent judgment only serves the obligee as an instrument for the
compulsory enforcement. The compulsory enforcement on this basis requires either satis¬
faction of the obligor, for the obligor to be in default of acceptance (Sub. 2), or for the
obligee to make, at the same time as the enforcement, an offer to perform concurrently
(§§ 756, 765 ZPO).
§275
Exclusion of the duty of
performance
(1) A claim for performance is excluded to
the extent that performance is impossible for
the obligor or for any other person.
(2) ‘The obligor may refuse performance to
the extent that performance requires expense
and effort which, taking into account the
subject matter of the obligation and the re¬
quirements of good faith, is grossly dispro¬
portionate to the interest in performance of
the obligee. 2When it is determined what
efforts may reasonably be required of the
§275
Ausschluss der Leistungspflicht
(1) Der Anspruch auf Leistung ist aus¬
geschlossen, soweit diese für den Schuldner
oder für jedermann unmöglich ist.
(2) lDer Schuldner kann die Leistung Ver'
weigern, soweit diese einen Aufwand erfor¬
dert, der unter Beachtung des Inhalts des
Schuldverhältnisses und der Gebote von Treu
und Glauben in einem groben Missverhältnis
zu dem Leistungsinteresse des Gläubige^
steht. 2Bei der Bestimmung der dem Schul
ner zuzuniutcnden Anstrengungen ist au*
1 Translation note: compulsory enforcement is a more appropriate translation of the term Zh^»^.
Streckung as execution and is therefore favoured here. Such translation is also favoured in the Engh^
translation of the ZPO available under www.geselze-im-internet.de.
2 BGH 6.12.1991 - V ZR 229/90, NJW 1992, 556.
3 BGH 22.3.1984 - VII ZR 286/82, NJW 1984, 1679.
4 BGH 19.12.1991 - IX ZR 96/91, NJW 1992, 1172.
398
Schulze
Exclusion of the duty of performance
1 § 275
obligor, it must also be taken into account
whether he is responsible for the obstacle to
performance.
(3) In addition, the obligor may refuse
performance if he is to render the perfor¬
mance in person and, when the obstacle to
the performance of the obligor is weighed
against the interest of the obligee in perfor¬
mance, performance cannot be reasonably
required of the obligor.
(4) The rights of the obligee are governed
by §§ 280, 283 to 285, 311a and 326.
zu berücksichtigen, ob der Schuldner das
Leistungshindernis zu vertreten hat.
(3) Der Schuldner kann die Leistung ferner
verweigern, wenn er die Leistung persönlich
zu erbringen hat und sie ihm unter Abwä¬
gung des seiner Leistung entgegenstehenden
Hindernisses mit dem Leistungsinteresse des
Gläubigers nicht zugemutet werden kann.
(4) Die Rechte des Gläubigers bestimmen
sich nach den §§ 280, 283 bis 285, 311a und
326.
Contents
mn.
A. Function 1
B. Context 2
C. Explanation 3
I. Genuine impossibility 3
1. Objective impossibility 4
a) Purpose 5
b) Attainment of purpose 6
c) Supernatural powers 7
d) Legal impossibility 8
e) Lapse of time 9
2. Subjective impossibility 10
3. Partial and qualitative impossibility 11
IL Factual impossibility 12
TIL Personal impossibility 14
IV. Legal consequence 15
A. Function
The provision is based on the principle that nobody can be bound to do the impossible 1
(nemo potest ad impossibile obligari). Accordingly, the provision stipulates that the obligor is
released from his original (primary) performance obligation in the event performance thereof
is impossible. However, the release from the primary obligation does not prevent secondary
duties from arising due to the requirements of other provisions. In particular, the obligor
may be obliged to pay damages, reimburse expenses or to render restitution pursuant to the
provisions listed in Sub. 4. For example, the obligee can demand compensation pursuant to
§§ 280(1) and (3), and 283 if the performance has become impossible due to the obligor’s
negligent destruction of the object owed. The obligor’s claim to counter-performance no
longer applies according to § 326(1) if, pursuant to § 275, the obligor does not need to
perform due to impossibility. Subs 1-3 comprise three different types of impossibility.
Genuine impossibility (impossibility in the narrow sense) pursuant to Sub. 1 exists when, in
an actual or legal respect, performance is not possible in the long term. It excludes the
obligor’s performance obligation automatically. In comparison, Subs 2 and 3 concern
scenarios in which performance is theoretically possible. Sub. 2 requires unreasonable effort
by the obligor (factual impossibility), whereas Sub. 3 stipulates that the obligor’s performance
in person cannot be reasonable required in consideration of the factors listed in Sub. 3
(personal impossibility). In contrast to the genuine impossibility in Sub. 1, factual impossi¬
bility and personal impossibility neither always nor automatically exclude the obligation to
perform. The obligor rather has the right to refuse to perform. In such instances, he may
Schulze
399
§ 275 2-7 Division 1. Subject matter of obligations
therefore decide whether he wants to perform despite the disproportionate effort or the
unreasonableness of performance in person.
B. Context
2 Impossibility gained a new role in the German law of obligations since the modernisation
of the law of obligations in 2002. Unlike the previous law, impossibility is no longer the
starting point for damages claims or revocation due to non-performance, but its function is
limited mostly to the exclusion of the (primary) performance obligation. The provisions on
impossibility therefore no longer directly concern the obligee’s potential rights against the
obligor due to non-performance or non-conforming performance. These rights are instead
regulated in specific provisions that, for damages, are linked to a breach of duty, and a
presumed fault by the obligor (§§ 280 et seq.) and, for revocation, to non-performance or
non-conforming performance (§§ 323 et seq.)
C. Explanation
I. Genuine impossibility
3 Pursuant to Sub. 1, genuine impossibility comprises objective and subjective impossibility.
1. Objective impossibility
4 Objective impossibility concerns the situation in which nobody (neither the obligor nor
another person) can perform the obligation. It is necessary to distinguish between several
groups of cases that take account of the causes of the impossibility: physical or natural
impossibility arises when performance is not possible due to naturally occurring circum¬
stances (e. g. the cancellation of a concert due to the death of the singer).
5 a) Purpose. An important subcategory concerns circumstances in which the purpose of
the performance ceases to exist (e. g. the house to be renovated is destroyed by fire, or the
patient to receive treatment dies). A similar scenario exists whereby the value of the subject-
matter of the contract has decreased due to the development of the technical environment in
which it was to be used (e.g. the software to be provided is rendered useless by the
technological developments1).
6 b) Attainment of purpose. A further subcategory concerns attainment of the purpose: the
outcome of the performance has already been achieved without involvement by the obligor.
The obligor could still perform, but his actions would no longer result in the promised
outcome (e. g. the patient recovers before the doctor provides treatment). However, it is
necessary to draw a distinction to an interference with the purpose of the performance:2 this
is not a subcategory of impossibility, but is considered an interference with the basis of the
transaction pursuant to § 313. The obligor could perform and achieve the promised outcome
in such instances, however the obligee is no longer interested in the outcome (e.g. when the
obligee rents a room for the purpose of watching a procession and the procession is
subsequently cancelled).3
7 c) Supernatural powers. Problematic cases concern the use of ‘supernatural powers’ in
performance (e.g. fortune telling through the use of playing cards; magic in general, or
parapsychology). Such performance will often be considered impossible. However, this does
, . _
' OLG Frankfurt a.M. 4.7.1997 - 24 U 215/95. NJW 1998, 84.
2 See ► §313mn. 14.
3 Sec also § 313 inn. 16.
400
Schulze
Exclusion of the duty of performance 8-12 § 275
not apply in cases in which the performance is directed foremost at providing general advice
or entertainment (e.g. tarot reading at a fair). It is disputed whether impossibility exists if the
parties agree on the creation of an astrological survey corresponding to particular practices
and traditions. Furthermore, even if performance is impossible, the circumstances of the
individual case may require counter-performance insofar as the parties have agreed to
exclude the application of § 326( 1 ).4 5
d) Legal impossibility. Under legal impossibility the performance becomes impossible due 8
to legal reasons, in particular, it ownership cannot be transferred because the buyer already
owns the good; if the performance aims to achieve an illegal outcome (e.g. due a breach of
§§ 134, 138 or a prohibition of assignment); if an authority does not grant the permission
necessary for performance; if an authority confiscates the thing to be delivered or lawfully
expropriates the land to be conveyed.
e) Lapse of time. Impossibility through lapse of time may arise when the parties have 9
agreed a time period for performance, but it is clear that the obligee is no longer interested in
receiving performance after this time (absolutes Fixgeschäft; ‘time is of the essence’), e.g.
booking a trip during holiday time. Furthermore, impossibility through lapse of time is also
present if the time for performance expires in time-limited continuing obligations (e. g. lease,
employment).
2. Subjective impossibility
Subjective impossibility (inability) arises if performance can be rendered by another, but 10
not by the obligor. However, it does not arise if the obligor is readily able to secure or recover
the object owed3 from a third party, or to encourage performance by a third party on whom
performance depends, through legal or actual influence.6 As objective impossibility, subjec¬
tive impossibility may be based on actual or legal reasons (e.g. with regard to the former if
the same thing is leased twice, or the thing has been irrecoverably stolen; with regard to the
latter, if someone has sold the same object twice and accordingly cannot transfer ownership
to one of the two buyers). The lack of the obligor’s ability to make payment is not, however,
considered subjective impossibility under § 275.7 The provisions on default apply if the
obligor does not have the necessary financial means to perform his obligations.
3. Partial and qualitative impossibility
Sub. 1 also includes partial impossibility for cases in which performance is divisible.8 11
Furthermore, Sub. 1 also comprises qualitative impossibility for cases in which the seller
delivers a defective thing (§ 434), yet neither the repair nor replacement (subsequent perfor¬
mance; § 439) is not possible. Such instances entitle the buyer to immediate revocation (§§ 326
(5), 437 No. 2, 434(1) 1st St.), compensation (§ 283 or § 31 la(2)) or to price reduction (§§ 441
(1), 326(5), 437 No. 2, 434(1) 1st St.). This also applies, with the necessary modifications, to
contracts to produce a work (Werkvertrag) when subsequent performance is not possible.
IL Factual impossibility
In contrast to genuine impossibility (in both its objective and subjective forms), Sub. 2 12
concerns factual impossibility, i.e. it is theoretically possible for the obligor to perform.
However, the provision grants the obligor a right to refuse performance if the effort required
4 BGH 13.1.2011 - III ZR 87/10, NJW 2011, 756, also containing distinctions.
5 BGH 1.10.1992 - V ZR 36/91, NJW 1992, 3224.
6 BGH 22.11.1995 - VIII ARZ 4/95, NJW 1996, 515.
7 BGH 28.2.1989 - IX ZR 130/88, NJW 1989, 1276.
8 See § 266 mn. 3.
Schulze
401
§ 276 Division 1. Subject matter of obligations
is grossly disproportionate to the obligee’s interest in performance. This provision is only
tailored to extreme cases, e.g. if a ring falls into a lake before delivery and its recovery would
require the lake to be drained, or if the cost of repairing a thing greatly exceeds its value
(wirtschaftlicher Totalschaden - constructive total loss9). The effort required in order to
perform is to be balanced against the objective interest in performance of the obligee; this
may arise from the content of the contract and the agreed or required purpose of the
performance in consideration of good faith. If the obligor is responsible for the obstacle to
performance pursuant to §§ 276 et seq., Sub. 2 2nd St. provides that he must make increased
efforts to overcome the obstacle. For example, a seller, who through his own fault has sold
the good to a second buyer, must offer the second buyer a price far higher than the market
price in order to acquire the object from the second buyer.
13 Factual impossibility is to be distinguished from economic impossibility, which is
considered an interference with the basis of the transaction (§ 313). Economic impossibility
exists where the efforts required for performance are significantly disproportionate to the
obligor’s own interests. In contrast to factual impossibility, the question of disproportionate
effort in instances of economic impossibility takes the obligor’s own interests as the reference
point. § 313, not § 275(2), applies in such cases.
III. Personal impossibility
14 Personal impossibility pursuant to Sub. 3 requires the link between performance and the
specific obligor (‘personal duty’), as is often the case in employment contracts and other
service contracts (§613). Furthermore, it must be unreasonable for the obligor to perform,
an outcome that first requires consideration of the obligor’s personal circumstances together
with the obligee’s interest in the performance. According to Sub. 3, the right to refuse
performance arises e.g. when a singer is contractually-bound to perform, but has a child
suffering from a life-threatening illness who requires his care, or when an employee cannot
work due to illness, or urgently needs to visit the doctor during working hours. In contrast to
Sub. 2 2nd St., it is irrelevant under Sub. 3 whether the obligor is responsible for the obstacle.
IV. Legal consequence
15 Impossibility in each of the aforementioned forms releases the obligor from his original
performance obligation: through direct, statutory release under Sub. 1, through exercise of
the right to refuse performance under Subs 2 and 3. Sub. 4 clarifies the obligee’s rights
should the obligor be released from his performance obligation by virtue of Subs 1-3.
§276
Responsibility of the obligor
(1) 'The obligor is responsible for intention
and negligence, if a higher or lower degree of
liability is neither laid down nor to be inferred
from the other subject matter of the obliga¬
tion, including but not limited to the giving of
a guarantee or the assumption of a procure¬
ment risk. 2The provisions of §§ 827 and 828
apply with the necessary modifications.
(2) A person acts negligently if he fails to
exercise reasonable care.
(3) The obligor may not be released in
advance from liability for intention.
§276
Verantwortlichkeit des Schuldners
(1) !Der Schuldner hat Vorsatz und Fahr¬
lässigkeit zu vertreten, wenn eine strengere
oder mildere Haftung wTeder bestimmt noeh
aus dem sonstigen Inhalt des Schuldverhält¬
nisses, insbesondere aus der Übernahme einer
Garantie oder eines Beschaffungsrisikos zu
entnehmen ist. 2Die Vorschriften der §§
und 828 finden entsprechende Anwendung-
(2) Fahrlässig handelt, wer die im Verkehr
erforderliche Sorgfalt außer Acht lasst.
(3) Die Haftung w’egen Vorsatzes kann dem
Schuldner nicht im Voraus erlassen werden.
<> BGH 26.9.1990 - VIII ZR 205/89, NJW-RR 1991. 204.
402
Schulze
Responsibility of the obligor 1-5 § 276
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Scope of application 2
B. Context 4
I. Historical and legal 4
II. Comparative 5
C. Explanation 6
I. Responsibility 6
II. Accountability 7
III. Intention 8
IV. Negligence 9
V. Absence of fault 11
VI. Exclusion 12
A. Function
I. Purpose and underlying principles
The purpose of the provision is to regulate in general terms the standard of liability in 1
the law of obligations, once such liability is established under other provisions. Statutory
provisions prescribing a higher (e.g. § 347(1) 2nd St.) or lower standard of liability take
precedence, as do contractual stipulations, in accordance with the principle of freedom of
contract,1 but the latter are limited by public policy (§ 138) and the principle of good faith
(§ 242). Higher or lower standards of liability can also be inferred from the subject-matter
of the obligation.
IL Scope of application
As a rule within the General Law of Obligations, § 276 applies to all obligations 2
(contractual and statutory, including unjustified enrichment). The provision may apply in
public law relationships to the extent that these establish obligations and there are no
regulations to the contrary. § 276 does not apply in criminal law.
§ 276 applies in conjunction with all provisions in which liability is conditional on the 3
obligor being responsible (e.g. § 275(2) 2nd St.), i.e. where liability is not strict.
B. Context
I. Historical and legal
In terms of the historic and legal context, the responsibility for intention and negligence 4
has featured since the BGB entered into force on 1 January 1900. The 2002 SMG changed
Sub. 1 by including higher or lower degrees of liability by means of express reference or
inference. By adding guarantees and assumptions of procurement risks, the reform also
shifted § 276 from a predominantly fault-based liability towards the allocation of risks.
II. Comparative
From a comparative perspective, § 276 is at odds with the principle of strict contractual 5
liability under English law and under Art. 1231-1 French Code civil, but well reconcilable with
the French notion of obligations de moyen (as opposed to strict liability for obligations de
resultat). Art. 111.-3:104 DCFR intermediates through a system of exceptions from strict
1 e.g. BGH 25.6.1991 - XI ZR 257/90, NJW 1991, 2414.
Schulze
403
§ 276 6-9 Division 1. Subject matter of obligations
contractual liability. The largely objective standard which § 276 applies to fault, instances of
strict liability and of responsibility without fault reduce much of the remaining gap.
C. Explanation
I. Responsibility
6 Sub. 1 reflects the broad concept of responsibility (Vertretenmüssen), which includes, but is
not limited to, the notion of fault in its different forms. Sub. 1 refers expressly to intention
and negligence as forms of personal fault. Strict liability foreseen in statutory provisions
serves as an exception; an interesting example is § 536a where the lessor is strictly liable for
initial defects and responsibility based liable for subsequent defects. The necessary require¬
ments for responsibility are for the obligor to have objectively behaved in a manner that is
unlawful or in violation a duty, and his accountability.2 In contract law, the unlawful
behaviour corresponds to an unjustifiable objective breach of contractual duty such as
through a breach of contract (e.g. non-performance) or a failure to observe expected
standards of conduct (e.g. in giving financial advice3). Tort law provisions (§§ 823 et seq.)
regulate conduct which is unlawful in tort, including in particular the violation of a third
party’s right or statutory-protected interest under § 823. The behaviour may however be
justified by e.g. self-defence (§ 227), necessity (§ 228) and self-help (§§ 229-231).
IL Accountability
7 Sub. 1 2nd St. stipulates the requirement of accountability for contractual responsibility
through reference to tort law provisions on exclusion and reduction of responsibility (§ 827)
and minors (§ 828).
III. Intention
8 In line with criminal and public law notions, intention covers dolus directus in the first
and second degree (if the obligor purposefully behaved unlawfully), and dolus eventualis (if
the obligor accepted that the behaviour might be unlawful).4 Intention is understood as a
mental and voluntary element (‘to know and to want’) that in each case must extend to the
unlawfulness of the breach, but need not cover the resulting harm or loss.5 The mental
element lacks in the event of a mistake of law or fact.6 If the mistake is avoidable, the obligor
is liable for negligence; liability is excluded if the mistake was unavoidable.
IV. Negligence
9 Sub. 2 defines the concept of negligence for the whole of private law. In order for a person
to act negligently, the harm or loss must have been foreseeable and avoidable. While the
applicable standard of care is objective (i.e. not based on the personality of the obligor),
particular circumstances of the situation giving rise to liability are taken into account, such as
the nature of the circumstances (e.g. horse-riding lesson7) and the parties typically involved
(e.g. medical practice standards8). Simple and gross negligence fall under Sub. 2; statutory’
provisions may limit the standard of negligence required for liability (e.g. § 300(1)).
—-—
2 See also BeckOK BGB/Unberath, § 276 BGB mn. 8.
3 BGH 7.10.2008 - XI ZR 89/07, N|W 2008, 3700.
«e.g. BGH 15.10.2013 - VI ZR 124/12, NJW 2014, 1380,
5 e.g. BGH 8.2.1965 - III ZR 170/63, NJW 1965, 962.
6 e.g. BGH 19.12.2006 - XI ZR 56/05, NJW 2007, 1876.
7 OLG Koblenz 16.3.2006 - 5 U 1708/05, BeckRS 2006, 3688.
8 BGH 29.11.1994 - VI ZR 189/93, NJW 1995, 776.
404
Schulze
Standard of care in one's own affairs 1 § 277
Gross negligence requires an especially serious breach of the required standard of care. This 10
is particularly the case in circumstances in the person did not recognise a need to take care to
prevent harm that would have been apparent to any other person in the same situation,9 or failed
to make obvious and simple considerations, or acts with reckless disregard for concerns which
would certainly have been imposed due to the typical indications of the danger.10 In comparison
to simple negligence, gross negligence not only requires consideration of the objective standard
regarding the particular extent of the breach but also comprises a subjective standard, whereby
the individual characteristics are also to be considered (e.g. low cognitive faculty).11 As a general
rule, grossly negligently acts include driving under the influence,12 failing to stop at a red traffic
light,13 or firing a weapon in jest though without first checking whether it is loaded.14 15
V. Absence of fault
Since 2002, the wording of § 276 expressly recognises responsibility which is not based on 11
fault, namely where this arises from the subject matter of the obligation. This applies in
particular to generic obligations, in particular payment obligations (previously covered under
§ 279). § 276 now names the risk of procurement (of goods or services) as possible
responsibility of a party who is without fault, and also guarantees given by the obligor. A
number of other obligations, including the contractor’s obligation to produce the promised
work under § 631, have also been understood as strict.
VI. Exclusion
Under Sub. 3, an advance exclusion of liability for intentional non-performance is 12
ineffective.1:> The restriction does not apply to liability for intentional acts by legal represen¬
tatives and persons used to perform the obligation (§ 278 2n<1 St.\
§277
Standard of care in one’s own
affairs
A person who owes only the care that he
customarily exercises in his own affairs is not
released from liability for gross negligence.
§277
Sorgfalt in eigenen
Angelegenheiten
Wer nur für diejenige Sorgfalt einzustehen
hat, welche er in eigenen Angelegenheiten
anzuwenden pflegt, ist von der Haftung we¬
gen grober Fahrlässigkeit nicht befreit.
The provision concerns the standard of care in one’s own affairs (eigenübliche Sorgfalt; 1
diligentia quam in suis). This standard is only applied when provided either by statute or in
the party’s agreement on the obligation concerned (in contrast to ordinary negligence1). This
applies in particular personal relationships (for instance, in partnerships, § 708; between
spouses, § 1359; for parents, § 1664; for prior heirs vis-ä-vis subsequent heirs, 2131; also in
§§ 346(1) l5t St. No. 3, 347(1) 2nd St., 690). The obligor is liable in such instances for his own
standard of care according to a subjective standard because his typical, individual behaviour
is decisive. However, this subjective standard only limits the liability and does not extend it
with respect to the general standard of negligence. Anyone whose own standard of care is
9 BAG 12.11.1998 - 8 AZR 221/97, NJW 1999, 966.
10 BAG 5.2.1974 - VI ZR 195/72, NJW 1974, 949.
" BGH 30.1.2001 - VI ZR 49/00, NJW 2001, 2092.
12 BGH 23.1.1985 - IVa ZR 128/83, NJW 1985, 2648.
13 BGH 8.7.1992 - IV ZR 223/91, NJW 1992, 2418.
H OLG Hamm 28.9.1982 - 27 U 253/81, BeckRS 2009, 12184.
15 For exemption clauses in standard terms see also § 309 No. 7(b).
1 See ■> §276 mn. 9.
Schulze
405
§ 278 1-2 Division 1. Subject matter of obligations
beyond the level reasonably expected is therefore not liable beyond the standard in § 276(2)
However, the statutory or contractual limitations on liability to one s own standard of care
shall not release the obligor from liability should he act with gross negligence. As such, § 277
determines that the limitation of liability to one’s own standard only applies to ordinary
negligence. Anyone who, in a significant manner, does not observe the necessary standard of
care and therefore acts with gross negligence2 must therefore assume liability for fault, even if
he acts with gross negligence in his own affairs.
§278
Responsibility of the obligor for
third parties
’The obligor is responsible for fault on the
part of his legal representative, and of per¬
sons whom he uses to perform his obligation,
to the same extent as for fault on his own
part. 2The provision of § 276(3) does not
apply.
§278
Verantwortlichkeit des Schuldners
für Dritte
’Der Schuldner hat ein Verschulden seines
gesetzlichen Vertreters und der Personen, de¬
ren er sich zur Erfüllung seiner Verbindlich¬
keit bedient, in gleichem Umfang zu vertreten
wie eigenes Verschulden. 2Die Vorschrift des
§ 276 Abs. 3 findet keine Anwendung.
A. Function
1 The provision regulates the obligor’s liability for acts by his legal representative and his
‘assistants’ (Gehilfe) towards the obligee. With respect to the legal representative, the
provision is based on the notion of vicarious liability: the person, whose participation in
legal acts is only made possible by acts of another, should also be responsible for their acts.
Where assistants are concerned, the provision reflects the notion that a person must also
undertake the accompanying responsibility towards his business partners when utilising the
advantages of work distribution in order to expand his business activities.
B. Explanation
I. Existing obligation
2 The provision requires an existing obligation (Schuldverhältnis; indicated by the use of the
word obligor (Schuldner) in the 1st St.) within which the obligor uses a legal representative or
assistant in order to perform. The obligation may be based on a contractual or statutory’
requirement, and be regulated in the Law of Obligations or in another part of civil law. It
encompasses e.g. the pre-contractual obligations (§311(2), (3)), the relationship between
finder and a person entitled to receive (§ 971), the relationship between owner and possessor
(§ 990), the relationship between apartment owners, and the relationship between insolvency
administrators and creditors.* 1 § 278 also applies to claims from third parties from contracts for
the benefit of third parties (§ 328) or from contracts protecting third parties.2 The obligation
must already exist at the moment in time in which the legal representative or the assistant
breaches the obligor’s duty towards the obligee (liability within an existing obligation). A
strict distinction is to be drawn to liability outside of an existing obligation. In particular, § 278
does not apply if there was no obligation prior to the breach, but an obligation (in the form ot a
claim to damages) first arises through the breach. Attribution under § 278 is excluded; the tort
law provisions on liability for third parties apply instead (§§ 831 et seq.).
2 See ► § 276 mn. 10.
1 BGH 17.1.1985 - IX ZR 59/84, NJW 1985, 1161.
2 See -* § 328 mn. 8 et seq.
406
Schulze
Responsibility of the obligor for third parlies
3-6 § 278
II. Legal representative
Broad interpretation is given to the notion of a legal representative under § 278. It applies 3
to all persons who may act on behalf of another by virtue of statutory provisions. This applies
in particular to parents (§§ 1626 et seq.), guardians (§§ 1793 et seq.), custodians (§ 1902) and
curators (§ 1915), testamentary executors, estate administrators, insolvency administrators
and forced administrators.3 According to the prevailing opinion, liability for legal persons for
organs is subject to 31, 89.
III. Assistant
For the purposes of § 278, an assistant is anyone who under the actual circumstances acts 4
with the knowledge of the obligor in the performance of the obligation (Erfüllungsgehilfe -
‘contractual assistant’4).5 The wording persons whom he uses to perform his obligation
excludes the attribution to the obligor of acts of another if the obligor did not want or
approve such acts. However, a contract or other obligation between the obligor and assistant
is not necessary; pure real cooperation will suffice.6 7 § 278 also applies to independent
contractors engaged by the obligor (e.g. the bank when making a transfer, architects, lawyers,
tax advisors). It is not necessary for the assistant to act with the knowledge and intention to
perform an obligation for the obligor (unbewusster Erfüllungsgehilfe - ‘unwitting contractual
assistant’ ). § 278 may also apply to assistants of the assistant if they act with the obligor’s
express or tacit consent (mittelbare Erfüllungsgehilfen - ‘indirect contractual assistants’8);
their actions are not attributable to the obligor in the absence of his consent. However, the
primary contractual assistant is often at fault for the unauthorised inclusion of his own
assistants and is therefore responsible and liable under § 278 for their actions.9
IV. Type of obligation
The legal representative or assistant must act in the performance of the obligor’s obligation 5
(Verbindlichkeit). This encompasses the performance of all types of obligation, i.e. primary
and collateral obligations, and (according to the prevailing opinion) obligations to abstain.10 11
For example, with regard to a lessee’s duties to exercise care and protection, the contractual
assistant is anybody who the lessee’s permits to use the leased property and thereby opening
the possibility to influence the lessor’s property, e.g. family members, guests, subtenants
(§ 540(2)), household staff, couriers, and workmen.11 It must, however, concern an obligation
for the obligor, not of another person. For example, the carrier in a sales shipment
(Versendungskauf) is not the seller’s assistant because the seller’s obligations only consist of
handing over the goods to the carrier. According to the prevailing opinion, § 278 applies to a
sales shipment if the seller allows the good to be transported by his own employee.
V. Performance
The legal representative or assistant must act in the performance of the obligation. 6
According to the prevailing opinion, the relevant act must be directly and objectively related
3 BGH 10.2.1958 - II ZR 292/56, NJW 1958, 670.
4 See The German Law of Contract, p. 364.
s BGH 21.4.1954 - VI ZR 55/53, NJW 1954, 1193.
6 BGH 20.6.1984 - VIII ZR 137/83, NJW 1985, 914.
7 BGH 9.10.1986 - I ZR 138/84, NJW 1987, 1323.
8 BGH 30.3.1988 - I ZR 40/86, NJW 1988, 1907.
9 LG Frankfurt a.M. 22.4.1996 - 2/24 S 254/95, NJW-RR 1996, 1425.
10 BGH 30.3.1988 - I ZR 40/86, NJW 1988, 1907.
11 BGH 14.4.1976 - VIII ZR 288/74, NJW 1976, 1315.
Schulze
407
§ 280 Division 1. Subject matter of obligations
to the tasks assigned to the representative or assistant with regard to performance of the
contract.12 Such acts are to be distinguished from mere ‘opportune acts of performance’,
which should not be attributed to the obligor. § 278 therefore applies e.g. to an employee
who, when carrying out repairs in a customer’s home, inadvertently damages an item of
furniture or causes a fire;13 it would not apply if the employee were, however, to use the
opportunity to steal from the customer. An alternative view provides the additional criterion
whether the assigned task greatly increases the risk of harm to the obligee.14 Contrary to the
prevailing opinion, the obligor would therefore be liable for the theft by his employee because
the assigned task of repair work affords the assistant access to the obligee’s home and thus
created the specific risk.
VI. Liability
7 If the act by the legal representative or assistant is attributable to the obligor under § 278,
the obligor is liable to the same as extent as for fault on his own part in accordance with the
legal basis for the claim by the obligee. The demand by the obligor for compensation from his
legal representative or assistant depends on their legal relationship to each other. Claims
from the obligee against the obligor’s legal representative or assistant are often non¬
contractual in nature (in tort or under particular circumstances in §§ 280(1), 241(2), 311(3)).
§279
(repealed)
§279
(weggefallen)
§280
Damages for breach of duty
(1) !If the obligor breaches a duty arising
from the obligation, the obligee may demand
damages for the damage caused thereby.
2This does not apply if the obligor is not
responsible for the breach of duty.
(2) Damages for delay in performance may
be demanded by the obligee only subject to
the additional requirement of § 286.
(3) Damages in lieu of performance may be
demanded by the obligee only subject to the
additional requirements of §§281, 282 or
283.
§280
Schadensersatz wegen
Pflichtverletzung
(1) 1 Verletzt der Schuldner eine Pflicht aus
dem Schuldverhältnis, so kann der Gläubiger
Ersatz des hierdurch entstehenden Schadens
verlangen. 2Dies gilt nicht, wenn der Schuld¬
ner die Pflichtverletzung nicht zu vertreten
hat.
(2) Schadensersatz wTegen Verzögerung der
Leistung kann der Gläubiger nur unter der
zusätzlichen Voraussetzung des § 286 verlan¬
gen.
(3) Schadensersatz statt der Leistung kann
der Gläubiger nur unter den zusätzlichen
Voraussetzungen des § 281, des § 282 oder
des § 283 verlangen.
Contents
mn.
A. Function 1
I. Purpose 1
II. Underlying principle 2
HI. Scope of application 3
12 BGH 14.2.1957 - VII ZR 287/56, NJW 1957, 709.
13 BGH 15.12.1959 - VI ZR 222/58, NJW 1960, 669.
m HK-BGB/Schulze, § 278 BGB mn. 11; Medicus/Lorenz, Schuldrecht 1 AT (21st edn, C.H.Beck 2015L
mn. 382.
408
Schulze
Damages for breach of duty
1-4 § 280
B. Context 4
C. Explanation 5
I. Structure 5
II. Delay 6
III. Requirements 8
1. Breach 9
2. Responsibility 10
IV. Legal consequence 11
A. Function
I. Purpose
The provision contains the fundamental rules for claims to damages when there is a breach 1
of a duty arising from the obligation. The broad notion of breach forms the core of this
provision. It encompasses all forms of breach of performance duties (§ 241(1)) and duties of
protection (Schutzpflichtem § 241(2)), and primary and collateral duties. It therefore applies
in cases of non-performance, late performance, and non-conforming performance (place,
quantity, quality, or other deviations from the agreement). Initial impossibility is regulated
separately in § 311a.
IL Underlying principle
A modified principle of fault forms the basis for the link in § 280 between the concept of 2
breach and damages as the legal consequence: the claim to damages requires not only breach
but also fault by the obligor. However, this fault is presumed (as apparent from Sub. 1
2nd St.). If the obligor is in breach (which, in principle, is for the obligee to prove), he must
prove that he is not responsible in order to avoid the obligation to pay damages.
III. Scope of application
The provision applies to all contractual and other obligations (including pre-contractual, 3
pursuant to §§ 241(2), 311(2), (3)). § 280 also applies to contracts in which statute law does
not contain express provisions on the consequences of defective performance (e.g. service
contracts, § 611; mandate, § 662; partnership agreement, § 705). However, specific provisions
contain additional requirements for individual types of contract (especially §§ 434 et seq. for
sales contracts, §§ 634 et seq. for contracts to produce a work). Furthermore, numerous
provisions refer to § 280 (e.g. §§ 275(4). 346(4); §§ 357(2) 1st St. HGB)
B. Context
The 2002 SMG introduced the broad, uniform notion of breach in § 280. Previously, the 4
various different types of irregularities performance were regulated in numerous individual
provisions or had been developed through case law (e. g. default and compensation for breach
of contractual obligations - positive Vertragsverletzung1). The overarching concept of breach
is based on the model of breach of contract in the CISG, but also includes the breach of
duties from other obligations (in accordance with the concept of the General Law of
Obligations, which encompasses contractual and statutory obligations2). It forms the founda¬
tion not only for the obligee’s claims to compensation but also for the right of revocation
(§§ 323 et seq.), the right to price reduction in a sales contract (§441) and in several other
1 For further detail see The German Law of Contract, p. 379 et seq.
2 See > § 24] mn. 3.
Schulze
409
§ 280 5-9 Division 1. Subject matter of obligations
types of contract. In contrast to the CISG and to the new BGB provisions on revocation, the
German legislator retained the principle of fault for the claim to damages, but restricted this
requirement with presumed responsibility for breach. § 280 may therefore be understood as a
compromise between the strict principle of fault under earlier German law and the strict
liability for breach foreseen by the CISG, as influenced by the common law.
C. Explanation
I. Structure
5 Sub. 1 contains the basic rule for all claims to damages due to a breach of a duty from the
obligation. Subs 2 and 3 concern circumstances in which the claim for damages will only
arise under additional requirements and refer to further provisions with regard to such
requirements: damages for delay pursuant to § 286 and damages in lieu of performance
pursuant to §§ 281-283. The obligee can base his claim solely on Sub. 1 if Subs 2 or 3 do not
apply.
II. Delay
6 The distinction between Subs 1, 2 and 3 is, however, disputed. According to the
prevailing opinion, damages in lieu of performance under Sub. 1 in conjunction with
Sub. 3 and §§281 et seq. only apply to those losses arising from the ultimate absence of
performance because the claim to damages in lieu of performance should take the place of
the primary performance obligation. For example, the buyer may demand damages in lieu
of performance if the seller has destroyed the good before delivery and therefore does not
deliver (§§ 280(1), 283). A claim under Sub. 1 or under Sub. 1 in conjunction with Sub. 2
and § 286 will instead come into consideration insofar as the loss does not result from the
ultimate absence of performance or has already occurred irrespective thereof. The parti¬
cular function of § 286 is decisive in order to distinguish between these two possibilities:
whereas the claim from Sub. 1 in conjunction with Sub. 2 and § 286 covers all losses from
the delay in performance, Sub. 1 only covers the others losses which are not based on the
delay in performance. Pursuant to §§ 280(1), (2), 286, the seller must therefore pay
damages for the losses which the buyer has suffered as a result from late delivery after the
warning notice (see § 286(1) 1st St.). In contrast, if the seller damages the buyer’s furniture
when delivering the goods, he must pay compensation for damages pursuant to Sub. 1 (in
conjunction with § 241(2); the additional requirements, such as the notice under § 286, are
not necessary.
7 A further disputed issue concerns the requirements applicable to compensation of the loss
suffered by the buyer as a result of the loss of production in the time needed to repair a
defective good (e.g. a machine) supplied by the seller (Betriebsausfallschaden). According to
the prevailing opinion, Subs 1 and 2 in conjunction with § 286 do not apply: only Sub. 1
applies and therefore the buyer can demand compensation for loss even if he has not given
not issued a warning notice pursuant to § 286(1).
III. Requirements
8 An effective (contractual or statutory) obligation must have existed between the oblige
and the obligor at the time of breach. § 280 often does not apply if the contract is void
(except in the event of a pre-contractual claim under §§ 280(1), 241(2), 311(2)).
1. Breach
9 The obligor must have breached a duty to the obligee which arises from the obligation. For
example, the obligor breaches a primary performance duty if he does not perform on tinted
410
Schulze
Damages for breach of duty 10-12 § 280
if the performance is not in conformity with the quantity, quality or other characteristic
agreed in the contract. If the seller or the contractor breaches his duty to perform in
conformity with the contract, the buyer or customer may demand not only subsequent
performance pursuant to Sub. 1 (§§ 439(1); 635(1)) but also compensation of the consequen¬
tial losses resulting from the defective performance (e.g. injuries sustained by the buyer
because the car’s defective brakes resulted in an accident). In this respect, the material breach
with regard to the harm to health arises in the breach of the contractual duty to perform in
accordance with the contract (disputed; under the alternative view the harm to health results
from a breach of a protective duty pursuant to § 241(2)). The breach of collateral duties may
also concern the performance (e.g. if the obligor delivers a machine with incomplete
instructions or does not provide sufficient information on the risks of use3). However, § 280
also covers the breach of duties that do not concern the performance, but are qualified as
protective duties pursuant to § 241(2). For example, Sub. 1 may be applied if a service
provider or contractor causes a fire when working in a customer’s home;4 when a car is
damaged by a car wash;5 if a customer is injured by inappropriate safety measures in a store
or if a party7 breaches duties of confidentiality.6
2. Responsibility
Sub. 1 1st St. excludes the claim for damages if the obligor is not responsible for the 10
breach. The standard of responsibility arises from §§ 276 et seq. A limitation of liability
through general business terms is only possible within the boundaries of § 309 No. 7. The
presumption of the obligor’s responsibility is rebuttable pursuant to Sub. 1 1st St., thus
placing the burden on the obligor to prove he is not responsible for the breach.
IV. Legal consequence
Sub. 1 provides a claim to damages as the legal consequence of breach. It comprises 11
compensation of all disadvantages resulting from the breach, in accordance with the standard
under §§ 249 et seq., including all consequential damages insofar as these are not beyond the
scope of the protective purpose underpinning the obligation that has been breached. If the
claim is not based on Sub. 3, but on either Sub. 1 or Subs 1 and 2, the claim may be made in
addition to the claim for performance (Schadensersatz neben der Leistung - ‘damages
alongside performance’). In contrast, the claim for performance is excluded as soon as the
obligee has demanded damages in lieu of performance (§ 281 (4)7).
A claim under Sub. 1 also arises, for in the following cases: (i) costs of litigation, if the 12
measures undertaken by the obligee were pertinent at the time in order to enforce his right,8
this includes e.g. costs for warnings (Mahnungen) which arose after the breach but before
court proceedings began, not however costs for the warning notice under § 286(1); costs for
objectively appropriate legal advice;9 court and enforcement costs insofar as they are not
subject to the overriding rules on costs in the ZPO. (ii) Loss in value (Wertverlust) of a thing
to be returned and loss through currency devaluation in a foreign currency obligation, if
they arise from the breach.10 (iii) Lost profits according to the general rule under § 252, e.g.
for late delivery of a thing or late completion of rented property.11
3 BGH 5.4.1967 - VIII ZR 32/65, NJW 1967, 1805; BGH 13.3.1996 - VIII ZR 333/94, NJW 1996, 1537.
4 BGH 23.9.1975 - VI ZR 62/73, BeckRS 1975 30404205.
5 OLG Düsseldorf 16.12.2003 - 21 U 97/03, NJW-RR 2004, 962.
6 BGH 3.10.1962 - VIII ZR 34/62, NJW 1962, 2198.
7 See -> § 281 mn. 11.
8 See BGH 16.1.2009 - V ZR 133/08, NJW 2009, 1262.
9 BGH 1.6.1959 - III ZR 49/58, NJW 1959, 1631.
10 BGH 18.2.1976 - VIII ZR 162/74, NJW 1976, 848.
11 BGH 14.1.1993 - VII ZR 185/91, NJW 1993, 2674.
Schulze
411
§281
Division 1. Subject matter of obligations
§281
Damages in lieu of performance
for nonperformance or failure to
render performance as owed
(1) ‘To the extent that the obligor does not
render performance when it is due or does
not render performance as owed, the obligee
may, subject to the requirements of § 280(1),
demand damages in lieu of performance, if he
has without result set a reasonable period for
the obligor for performance or cure. 2If the
obligor has performed only in part, the ob¬
ligee may demand damages in lieu of com¬
plete performance only if he has no interest
in the part performance. 3If the obligor has
not rendered performance as owed, the ob¬
ligee may not demand damages in lieu of
performance if the breach of duty is imma¬
terial.
(2) Setting a period for performance may
be dispensed with if the obligor seriously and
definitively refuses performance or if there
are special circumstances which, after the
interests of both parties are weighed, justify
the immediate assertion of a claim for da¬
mages.
(3) If the nature of the breach of duty is
such that setting a period of time is out of the
question, a warning notice is given instead.
(4) The claim for performance is excluded
as soon as the obligee has demanded damages
in lieu of performance.
(5) If the obligee demands damages in lieu
of complete performance, the obligor is en¬
titled to claim the return of his performance
under §§ 346 to 348.
§281
Schadensersatz statt der Leistung
wegen nicht oder nicht wie
geschuldet erbrachter Leistung
(1) 1 Soweit der Schuldner die fällige Leis¬
tung nicht oder nicht wie geschuldet erbringt,
kann der Gläubiger unter den Voraussetzun¬
gen des § 280 Abs. 1 Schadensersatz statt der
Leistung verlangen, wenn er dem Schuldner
erfolglos eine angemessene Frist zur Leistung
oder Nacherfüllung bestimmt hat 2Hat der
Schuldner eine Teilleistung bewirkt, so kann
der Gläubiger Schadensersatz statt der ganzen
Leistung nur verlangen, wenn er an der Teil¬
leistung kein Interesse hat 3Hat der Schuld¬
ner die Leistung nicht wie geschuldet bewirkt,
so kann der Gläubiger Schadensersatz statt
der ganzen Leistung nicht verlangen, wenn
die Pflichtverletzung unerheblich ist
(2) Die Fristsetzung ist entbehrlich, wenn
der Schuldner die Leistung ernsthaft und
endgültig verweigert oder wenn besondere
Umstände vorliegen, die unter Abwägung
der beiderseitigen Interessen die sofortige
Geltendmachung des Schadensersatzan¬
spruchs rechtfertigen.
(3) Kommt nach der Art der Pflichtverlet¬
zung eine Fristsetzung nicht in Betracht, so
tritt an deren Stelle eine Abmahnung.
(4) Der Anspruch auf die Leistung ist aus¬
geschlossen, sobald der Gläubiger statt der
Leistung Schadensersatz verlangt hat
(5) Verlangt der Gläubiger Schadensersatz
statt der ganzen Leistung, so ist der Schuld¬
ner zur Rückforderung des Geleisteten nach
den §§ 346 bis 348 berechtigt.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Obligation 4
II. Performance 5
III. Responsibility 6
IV. Reasonable period 7
1. Length 8
2. Exception 9
V. Warning notice 10
VI. Legal consequences 11
1. Expectation interest 12
2. Assessment 13
412
Schulze
Non-performance or failure to render owed performance 1-3 § 281
a) Entire non-performance 14
b) Partial non-performance 15
c) Non-conforming performance 16
3. Return of performance 17
A. Function
L Purpose and underlying principle
The provision concerns cases in which the obligor does not perform (Nichtleistung - 1
non-performance), or fails to render performance as owed e.g. under the contract
{Schlechtleistung - non-conforming performance). In such instances, the provision entitles
the obligee, in lieu of his original claim to performance in natura, to demand monetary
compensation in lieu of performance. In addition to the requirements under § 280(1),
Sub. 1 requires the obligee to have set a reasonable period for the obligor for performance
or cure, whereby the obligee has not received a result. In this respect § 281 (as § 323) is
based on the principle that the obligor who does not render performance, or fails to do so
as agreed, should be given a second chance before the obligee can enforce a different right
instead of the claim to performance. Accordingly, § 280(3) in conjunction with § 281
extends the general requirement set by § 280(1) for a claim to damages in order to provide
the additional requirement of an unsuccessful period for performance or cure, which
applies to cases of damages in lieu of performance. §§ 280(1), (3) and §281 therefore
together form the basis of the obligee’s claim for damages in lieu of performance and thus it
is necessary to examine the requirements of both provisions. In contrast, the requirements
of § 280(1) will suffice if the obligee claims damages alongside performance (e.g. for a loss
of production1).
IL Scope of application
In principle § 281 applies to all contractual and statutory obligations. § 281 is extended by 2
specific provisions with respect to particular types of contract, in particular purchase
(§§ 434-435), lease (§§ 536 et seq.) and contracts to produce a work (§§ 633 et seq.).
However, § 281 does not apply to cases of non-conforming performance under the types of
contract where there is no specific liability regime for defective performance; only § 280(1)
applies.2 An additional period for performance would be of no avail if, pursuant to § 275, it is
impossible for the obligor to perform at all or as owed (especially if the defect is irreparable).
§281 does not apply to such cases, but rather §§ 283, 311a, which provide a claim to
damages without the requirement of an additional period. § 281 also does not apply if the
obligee demands compensation for the damages resulting from the delay in performance;
§ 280(2), 286 are relevant in addition to § 280(1).
B. Context
The provision is part of the new system of remedies introduced in 2002 by the SMG. 3
The CISG and the EU Consumer Sales Directive provided sources of inspiration for
the German legislator who, however, developed more extensive provisions (especially
with regard to the EU Consumer Sales Directive, which does not contain rules on
damages).
1 See * § 280 mn. 7.
2 See -► § 280 mn. 3.
Schulze
413
§281 4-7
Division 1, Subject matter of obligations
C. Explanation
I. Obligation
4 The provision requires an effective obligation to exist between the parties (Sub. 1 1st St.3).
The obligor must have breached a duty from this obligation through non-performance or
non-conforming performance. According to the prevailing opinion, the claim must also be
enforceable (i.e. no defences). It is not necessary for performance to be due if the obligor has
already seriously and definitively refused to preform or it is obvious that he will not perform
either at all or correctly (see also § 323(4)).
IL Performance
5 Application of the provision further requires the non-performance of the duty or
performance not rendered as owed. The notion of non-performance concerns the circum¬
stance in which no performance is made at the moment it is due. It is not necessary for the
obligor to be in default in accordance with § 286. Accordingly, the warning notice under
§ 286( 1) is not a requirement for the claim to damages in lieu of performance. Conversely,
however, the additional period for performance or subsequent performance under Sub. 1 is
to be viewed as a demand for performance that is at the same time classified as a warning
notice in the sense of § 286(1). The obligor required to pay damages pursuant to §§ 280(1),
(3), 281(1), is therefore often in default.4 The performance is not as owed if its content or the
manner deviates from the contractual or statutory requirements, also in consideration of
§ 242 (non-conforming performance). This covers e.g. the breach of an advisory duty
through false information on the properties of the good,5 deliveries with incomplete instruc¬
tions,6 defects resulting from poor packaging,7 and missing information on the risks from
using an object.8 However, it must always concern the breach of a (primary or collateral)
duty that relates to the performance. In contrast, the breach of duties of protection (§ 242(2))
does not fall under § 281 but rather under § 282.
III. Responsibility
6 The obligor must also be responsible for the non-performance or non-conforming
performance in accordance with the standards in §§ 276 et seq. (Sub. 1 in conjunction with
§ 280(1)).
IV. Reasonable period
7 After performance is due, the obligee must have set the obligor a reasonable period for
performance or subsequent performance; this period must expire without a result. Setting a
reasonable period means the demand to perform within a sufficiently determined or at least
determinable period. However, the obligee need not stipulate an exact final date - expres¬
sions such as ‘promptly’ (umgehend). ‘immediately’ (sofort). or ‘without delay’ (unverzüglich
will suffice.9 The demand must always be clear and sufficiently specific.10 Furthermore, the
3 See ► § 280 mn. 8.
4 BT-Drs. 14/6040 of 145.2001, p. 138.
5 BGH 31.1.1962 - VIII ZR 120/60, NJW 1962, 1196.
6 BGH 5.4.1967 - VIII ZR 32/65, NJW 1967, 1805.
7 BGH 7.3.1983 - VIII ZR 331/81, NJW 1983, 1496.
8 BGH 13.3.1996 - VIII ZR 333/94, NJW 1996, 1537.
9 BGH 12.8.2009 - VIII ZR 254/08, NJW 2009, 3153.
10 See ► § 286 mn. 6.
414
Schulze
Non-performance or failure to render owed performance 8-10 § 281
demand must be made after performance was due otherwise it will be ineffective if made
beforehand.
1. Length
Whether a period is reasonable will depend on the circumstances of the individual case 8
and especially on the interests of each party. Greater efforts and quicker actions may be
expected from the obligor after the period has been set because he did not meet his original
performance duty to a sufficient extent. Under the circumstances, the period should be long
enough to afford the obligor the chance to finish something that he has nearly completed.11
However, if the obligor has not yet commenced with performance, the period need not be so
long to allow the obligor to begin with and complete performance.12 A short period is often
reasonable in circumstances of a money debt because the obligor should not be relieved from
his own financial difficulties to the disadvantage of the other party.13 The period is not
ineffective if it is too short, but will rather be replaced by reasonable period unless the obligee
has made clear that the short time period is of importance to him.14 A particular issue of
debate concerns multiple non-conformities: it is disputed in whether the obligee has to set
another reasonable period for each non-conformity before he is eligible to claim damages in
lieu of performance.15 A further issue concerns whether the obligee’s claim to damages is
extinguished if he again demands performance after the period has expired without result.16
2. Exception
Sub. 2 1st St. provides that setting a reasonable period may be dispensed with if the obligor 9
seriously and definitively refuses performance.17 Furthermore, Sub. 2 1st St. opens the
possibility for a claim to damages without setting a reasonable period if there are special
circumstances which, after considering the interests of both parties, justify the immediate
assertion of a claim for damages. This concerns e.g. cases in which a further wait would most
likely lead to a considerable increase in damage (such as the impending destruction of a
defective good18 19) or in ‘just-in-time’ contracts which provide for delivery at a particular point
in time in order to allow the obligee to continue with production - here the obligee must
have the immediate possibility to find a substitute).
V. Warning notice
According to Sub. 3, a warning notice will be given if a period of time is out of the 10
question because of the nature of the breach (in particular, if the obligor’s primary duty
consists of an omission, such as under a non-compete clause or contractual ban on
construction, but also if a collateral duty is directed towards an omission, such as the duty
of a commercial agent to refrain from undertaking activities with competitors). The provision
does not apply, however, to duties of protection by which the obligor is to refrain from
undertaking acts which endanger the obligee’s interest in the integrity of his rights and
interests (Integritätsinteresse);^ such interests fall under § 282.
11 BGH 10.2.1982 - V1H ZR 27/81, NJW 1983, 1279.
12 BGH 31.10.1984 - VIII ZR 226/83, NJW 1985, 320.
13 BGH 21.6.1985 - V ZR 134/84, NJW 1985, 2640.
14 BT-Drs. 14/6040 of 14.5.2001, p. 138.
15 See, in favour of an additional period for further non-conformitics, OLG Düsseldorf 18.2.2014 - 1-23
U 62/13, NJW 2014, 2802, MüKo BGB/Ernst, § 280 BGB mn. 88; against Dauner-Lieb/Langen BGB/
Dauner-Lieb, § 280 BGB mn. 28.
16 OLG Celle 17.5.2005 - 16 U 232/04, NJW 2005, 2094; for criticism see HK-BGB/Schulze, § 281 BGB
mn. 11.
17 See ♦ § 323 mn. 7 et seq.
'» BGH 22.6.2005 - VIII ZK 1/05, NJW 2005, 3211.
19 See The German Law of Contract, p. 471.
Schulze
415
§281 11-14
Division 1. Subject matter of obligations
VI. Legal consequences
11 If the reasonable period passes without result, the obligee may choose between whether to
uphold his claim for performance or to claim damages in lieu of performance. Both claims
are available in principle, though the extent of the principle of election is disputed.20
However, the claim to performance is excluded as soon as the obligee has demanded
damages in lieu of performance (Sub. 4). This provision serves to prevent the situation from
arising whereby the obligor has to make arrangements (potentially long-term) for perfor¬
mance as well as damages.21 There are no formal requirements with regard to the obligee’s
demand for damages instead of performance. The decisive aspect is rather the clear
expression of his intent to just claim damages (e.g. by enforcing a claim in court).
1. Expectation interest
12 The claim to damages is directed towards the obligee’s expectation interest (positives
Interesse). He is therefore to be placed in the position he would have been in had the obligor
performed correctly.22 The point in time in which the conforming performance ought to
have been rendered is therefore relevant to calculate the amount of damages to be paid.
However, this is disputed: according to another view, the moment at which the reasonable
period expires is decisive;23 whereas under a third view the relevant time is the moment at
which the obligee demands damages.24 25 The claim is often directed at a monetary payment,
though in some instances it may concern the acquisition of substitutes of equal value.23 The
compensation is to cover ail losses arising from the ultimate failure to perform (e.g. the costs
of a replacement or repair and the reduced value after a repair).
2. Assessment
13 The extent of the damages may greatly depend on whether the obligor’s breach is an entire
non-performance, partial non-performance or non-conforming performance.
14 a) Entire non-performance. In the event of entire non-performance, the claim to damages
will take the place of the claim to performance. The obligee can choose between two methods
in order to assess the amount of damages. The ‘concrete method’ (konkrete Schadensbe¬
rechnung) requires a comparison between the obligee’s actual financial situation and the
hypothetical financial situation which, in light of the actual circumstances of the case, would
arise in the event of conforming performance. The ‘abstract method’ (abstrakte Schaden¬
berechnung) on the basis of § 252 is typical in B2B contracts. It eases the burden of proof tor
the obligee as it is based on a presumption of loss to be rebutted by the obligor. This method
of assessment often presumes that the obligee would have made a profit from the contract.
For example, in a sales contract the buyer’s presumed loss is the difference between the
market or resale value and the contract value; the seller’s presumed loss is the difference
between his acquisition or production costs (or the corresponding market value) and the
price agreed in the contract. Further relief for the obligee is provided by a presumption ot
minimum loss: if the obligee has already given consideration (in particular payment of the
price), there is a presumption in his favour that this is not at least of equal value to the
obligor’s non-performance or non-conforming performance. The corresponding amount is
therefore viewed as his minimum loss.
2,J Bressler, Selbstvornahnie ini „Schwebezustand" nach Ablauf der Nacherfullungsfrist, NJW 2014, 3382.
21 BT-Drs. 14/6040 of 14.5.2001, p. 140.
22 BGH 11.2.2009 - VIII ZR 328/07, BeckRS 2009, 6498.
23 Jauernig BGB/Stadler, § 281 BGB nin. 19.
2,1 MüKo BGB/Ernst, § 281 BGB nin. 116-117.
25 BGH 27.9.1971 - II ZR 43/70.
416
Schulze
Breach of a duty under § 241(2)
§282
b) Partial non-performance. Partial non-performance concerns e.g. the delivery of some 15
of the goods, whereas the remaining goods are not delivered also within the reasonable
period set by the obligor. In such instances, the damages in lieu of performance generally
only apply to the part of performance that has not been rendered (kleiner Schadensersatz).
Pursuant to Sub. 1 2nd St., the obligee may demand damages in lieu of the entire
performance (großer Schadensersatz) if he has no interest in receiving part performance.26
§§ 434(3), 633(2) 3rd St. contain particular aspects for purchase contracts and contracts to
product a work because the delivery of a lesser quantity is a material defect. If the
performance is incomplete, but the obligor thereby intended to perform in full, the
performance is non-conforming under § 281 and Sub. 1 3rd St. will apply. Contrastingly,
Sub. 1 2nd St. is relevant if the obligor's performance only represents part performance
(e.g. delivery of half of the goods with the note that the rest will be delivered as soon
as possible).27
c) Non-conforming performance. In the case of non-conforming performance the obligee 16
may choose between kleiner Schadensersatz pursuant to Sub. 1 1st St., and großer Schaden¬
sersatz according to Sub. 1 3rd St. In the former instance, the obligee retains the defective
thing and demands merely the difference in value between the defective and conforming
thing (Minderwert - reduced value). The claim to großer Schadensersatz is directed towards
compensation of the entire performance in lieu thereof. However, the obligee may only claim
compensation to this extent if the breach is not immaterial (unerheblich; Sub. 1 3rd St.).
Whether the breach is immaterial will depend on the circumstances and will take into
account the content and purpose of the respective obligation, e. g. if the rental car is in full
working order, apart from the cigarette lighter. In comparison, the delivery of hard- and
software without the necessary instruction manual has been deemed material.28
3. Return of performance
The obligor is entitled to claim return of performance rendered if the obbgee demands 17
compensation in lieu of the entire performance (großer Schadensersatz). This is stipulated in
Sub. 5, which refers to the provisions on the legal consequences in §§ 346 et seq. The effects
of revocation and of großer Schadensersatz have similar effects on the parties’ original
performance obligations under the contract, thus allowing for the cross-reference to §§ 346
et seq. The obligor shall therefore be accordingly entitled to claim return of the performance
rendered, as he would be in the event of revocation by the obligee.
§282
Damages in lieu of performance
for breach of a duty under
§241(2)
If the obligor breaches a duty under
§ 241(2), the obligee may, if the requirements
of § 280(1) are satisfied, demand damages in
lieu of performance, if he can no longer
reasonably be expected to accept performance
by the obligor.
§282
Schadensersatz statt der Leistung
wegen Verletzung einer Pflicht
nach § 241 Abs. 2
Verletzt der Schuldner eine Pflicht nach
§ 241 Abs. 2, kann der Gläubiger unter den
Voraussetzungen des § 280 Abs. 1 Schadens¬
ersatz statt der Leistung verlangen, wenn ihm
die Leistung durch den Schuldner nicht mehr
zuzumuten ist.
26 See > § 323 mn. 14.
27 Disputed; Palandt BGB/Grüneberg, § 281 BGB mn. 36 et seq. states that Sub. 1 3rd St. always applies
whereas Lorenz/Riehm state that Sub. 1 2nd St. always applies, see Lorenz/Richm, Lehrbuch zum neuen
Schuldrecht (C.H.Beck 2002), mn. 219.
BGH 4.11.1992 - VIII ZR 165/91, NJW 1993, 461. For further examples sec ► § 323 mn. 5.
Schulze
417
§ 282 1-4 Division 1. Subject matter of obligations
A. Function
I. Purpose and underlying principle
1 By virtue of §§ 280( 1), (3), 282 the obligee may demand damages in lieu of performance if
the obligor has breached duties of protection (Schutzpflichten) with regard to the obligee’s
rights, legal interests and other interests. The relationship between § 282 and § 281 is based
on the distinction between duties regarding the performance and protective duties under
§ 241. Whereas § 281 concerns damages in lieu of performance for the breach of perfor¬
mance obligations, § 282 applies to the duties of protection. The obligor has correctly
performed the statutory or contractual obligation in such cases, but has not given due care
to the obligee’s rights, legal interests and other interests to such an extent that it would be
unreasonable for the obligee to continue with the agreement. § 280(1) allows the obligee to
claim compensation for the loss arising from the breach of the duties of protection, however
§ 280(2) provides him with the additional possibility to distance himself from the perfor¬
mance of the contract and claim damages in lieu of the performance.
II. Scope of application
2 § 282 does not apply if the obligor has breached primary or collateral obligations or if the
breach of a collateral obligation, which is not related to the performance, affects the primary
obligation in such a manner that it cannot be performed in conformity with the contract-
only § 281 will apply in such cases.1 Furthermore, § 282 does not apply to breaches ofpre-
contractual obligations (§ 311(2), (3)) because there is no claim to performance in a pre-
contractual relationship. The expression damages in lieu of performance presupposes the
existence of a claim to performance.2
B. Explanation
I. Requirements
3 The obligor must have breached a duty of protection pursuant to § 241(2) within under a
valid obligation.3 Pursuant to § 280(1) 2nd St., fulfilment of these requirements results in the
presumption that the obligor is responsible for the breach within the meaning of §§ 276 et
seq. Furthermore, the performance by the obligor must have become unreasonable for the
obligee due to the breach of the protective duty. This arises when the breach impairs the
relationship between the parties to such an extent that, by reason of the principle of good
faith, it would not be reasonable for the obligee to maintain the contract. The breach must
therefore carry significant weight. The assessment requires consideration of the circum¬
stances of the individual case, in particular the extent of the harm, the frequency of breach,
the degree of fault (negligence or gross negligence), as well as possible warnings issued by the
obligee to the obligor. Contracts aimed at long-term cooperation between the parties will be
subject to stricter requirements than e.g. a contract for the single delivery of goods.
II. Legal consequence
4 Satisfaction of the requirements of §§ 280(1), (3), 282 may entitle the obligee to demand
damages in lieu of performance. The claim to performance is excluded by analog^
application of § 281(4).4
1 BT-Drs. 14/6040 of 14.5.2001, p. 141.
2 BT-Drs. 14/7052 of 9.10.2001, p. 186.
3 See -> § 280 mn. 4.
'i See § 280 mn. 11.
418
Schulze
Damages in lieu of performance
1-3 § 283
III. Common examples
Typical cases concern serious unreliability in the performance of the contract, insulting 5
the obligee,5 and serious injuries to the obligee’s property or person in performing the
contract. For example, if a decorator has already painted part of the customer’s home, but has
caused considerable damage to multiple pieces of furniture, the customer may not only
demand compensation for the damage (§ 280(1)), but can also demand damages in lieu of
performance (§§ 280(1), (3), 282) in order to pay another decorator to finish painting the
customer’s home.
§283
Damages in lieu of performance
where the duty of performance is
excluded
1If, under § 275(1) to (3), the obligor is not
obliged to perform, the obligee may, if the
requirements of § 280(1) are satisfied, de¬
mand damages in lieu of performance.
2§ 281(1) sentences 2 and 3 and (5) apply
with the necessary modifications.
§283
Schadensersatz statt der Leistung
bei Ausschluss der Leistungspflicht
‘Braucht der Schuldner nach § 275 Abs. 1
bis 3 nicht zu leisten, kann der Gläubiger
unter den Voraussetzungen des § 280 Abs. 1
Schadensersatz statt der Leistung verlangen.
2§ 281 Abs. 1 Satz 2 und 3 und Abs. 5 findet
entsprechende Anwendung.
A. Function
As § 281, § 283 concerns damages in lieu of performance, however as a specific 1
provision for cases in which the obligor is not obliged to perform due to impossibility
(§ 275). It would be pointless in such cases if the obligee had to first set a reasonable
period for the obligor for performance or cure (§ 281(1)) before he could claim damages in
lieu of performance. Accordingly, § 283 stipulates that a reasonable period is not required
where performance is impossible; the requirements of § 280(1) will suffice in order to
claim damages in lieu of performance. However, the provision does not apply if the
obstacle to performance was already present at the time the contract was concluded
(anfängliche Unmöglichkeit - ‘initial impossibility’); § 311a applies in such cases for
damages in lieu of performance.
B. Explanation
I. Requirements
The obligor must have breached a duty arising from the obligation (§ 280(1)) and not be 2
required to perform this duty due to the provisions on impossibility pursuant to § 275, i.e.
either genuine impossibility (§ 275(1)), factual impossibility (§ 285(2)), or personal impossi¬
bility (§ 275(3)). The obligor must have exercised his right to refuse performance in the latter
two instances.1 Furthermore, the obligor must not be responsible for the breach of duty,
otherwise the claim will be excluded (§ 280(1) 2nd St.).
If the obligor is only partially exempted from his performance obligation, the obligee may 3
only assert the claim for damages instead of the whole performance (großer Schadensersatz-
5 RG 27.5.1933 - I 16/33.
‘See * § 275 mn. 12, 14.
Schulze
419
§ 284 1 Division 1. Subject matter of obligations
anspruch) provided he is no longer interested in receiving part performance,2 as arises from
the cross-reference to § 281(1) 2nd St. In cases of non-conforming performance, the breach
must not be immaterial (§ 281(1) 3rd St.3).
II. Legal consequences
4 According to the 1” St., the obligor may demand damages in lieu of performance (i.e. the
expectation interest '). Pursuant to the 2nd St. in conjunction with § 281(5), the obligor is
entitled to claim the return of his performance under §§ 346 et seq.
§284
Reimbursement of futile expenses
In place of damages in lieu of perfor¬
mance, the obligee may demand reimburse¬
ment of the expenses which he has made and
in all fairness was entitled to make in reli¬
ance on receiving performance, unless the
purpose of the expenses would not have
been achieved, even if the obligor had not
breached his duty.
§284
Ersatz vergeblicher Aufwendungen
Anstelle des Schadensersatzes statt der
Leistung kann der Gläubiger Ersatz der Auf¬
wendungen verlangen, die er im Vertrauen
auf den Erhalt der Leistung gemacht hat und
billigerweise machen durfte, es sei denn,
deren Zweck wäre auch ohne die Pflichtver¬
letzung des Schuldners nicht erreicht wor¬
den.
A. Function
I. Purpose and underlying principle
1 As an alternative to damages in lieu of performance pursuant to §§281 et seq., § 284
affords the obligee the right to demand reimbursement of the futile expenses he has made.
The obligee therefore has the possibility to choose between whether he would prefer
compensation of his expectation interest through damages or compensation of his reliance
interest through reimbursement of expenses made. However, he must choose between these
alternatives and cannot claim both the großer Schadensersatz according to §§ 281 et seq.1 and
reimbursement of expenses according to § 284. Kleiner Schadensersatz pursuant to § 281(1)
2nd and 3rd St.2 may be available alongside the claim to reimbursement of expenses insofar as
the expenses only relate to the performance that has not been received. If the obligee has
relied on the performance and has made futile expenses, the problem arises that these costs
would have arisen in the event of conforming performance i.e. irrespective of the breach.
They are therefore not attributed (or readily attributable) to the obligee’s expectation interest
However, case law does consider such expenses as compensable losses, albeit to a certain
extent. In particular, the so-called ‘presumption of profitability’ (Rentabilitätsvemiutun^)
presumes that the expenses would have resulted in a profit from the expected performance to
the amount of the expenses.3 According to this presumption, reimbursement of futile
expenses only comes into consideration if the obligee has intended to make a financial gain
that would at least cover his expenses; however the presumption does not apply to non-
pecuniary benefits.4
2 See •> §281 mn. 15.
3 See -► § 281 mn. 16.
4 See * § 281 mn. 12.
1 See -► § 281 mn. 15-17.
2 See -* § 281 mn. 15-17.
3 BGH 21.4.1978 - V ZR 235/77, NJW 1978, 1805.
4 BT-Drs. 14/6040 of 14.5.2001, p. 142.
420
Schulze
Reimbursement of futile expenses
2-6 § 284
IL Scope of application
In principle» § 284 applies to all futile expenses made within contractual and statutory 2
obligations irrespective of whether the statutory provisions for such obligations made express
reference to § 284 (e.g. §§ 31 la(2) 1st St.» 437 No. 3» 634 No. 4).
B. Explanation
I. Damages in lieu of performance
The requirements for a claim to damages in lieu of performance as stated in §§ 280(1), (3), 3
281-283 must be satisfied. Where applicable, specific provisions such as §§ 434 et seq.
(purchase contracts), § 536a(l) (lease aggrements) and §§631 et seq. (contract to product a
work) will apply in conjunction with §§ 280(1), (3), 281-283.
IL Expenses
The obligee must have also incurred expenses. The notion expenses comprises all assets 4
sacrificed by the obligee either after instructed to do so by the obligor or voluntarily (e.g.
particular car parts purchased by the buyer in reliance on the existence of the contract;5 travel
and accommodation costs for a concert). Efforts made by the obligee are to be reimibursed if
the efforts belong to the obligee's business or profession. It is, however, disputed whether
they are also to be reimbursed if this is not the case. An agrument in favour for this approach
is the opinion that the obligee should not, in principle, be put in a worse position than if he
had engaged a third party to perform the act in question.6
III. Reliance
The obligee must have incurred such expenses in reliance on receipt of the performance 5
from the obligor. The following different groups of cases are to be distinguished in light of
the case law on the ‘presumption of profitability’:7 compensation is due for the costs of
conclusion and performance of the contract as these generally serve the receipt of
performance (e.g. the costs of notarial recording or brokerage fee). In contrast, the costs of
renovating the house that has been purchased or the costs for fire protection insurance for a
house that has been purchased, and costs for use of the contract (Vertragsverwertung) are to
be reimbursed by the obligor. However, this does not apply if the obligor can prove that such
expenses would have not achieved their purpose regardless of the breach (Zweckverfehlung),
e.g. if the lessor unjustifiably terminates a contract for the lease of a hall to be used for an
event which, as would become apparent later, the obligee would have had cancelled anyway
due to a low number of participants. With regard to this example, reimbursement is not due
for the advertising costs for the event and the speakers’ fees. The obligee cannot claim the
costs of unwinding the contract as the reimbursement of expenses, but rather only as
damages in lieu of performance.
IV. Fairness
Purusant to § 284, the obligee may only demand reimbursement for those expenses made 6
in all fairness. In particular, this does not apply if the obligee makes expenses despite an
5 BGH 20.7.2005 - VIII ZR 275/04, NJW 2005, 2«48.
6 See Reim, Der Ersatz vergeblicher Aufwendungen nach § 284 BGB, NJW 2003, 3664; for a contrasting
view see Faust in Huber/Faust, Schuldrechtsmodernisierung (C.H.Beck 2002), § 4 mn. 12.
7 BVerwG 11.6.1991 - 7 C 1/91, BeckRS 999«, 38426.
Schulze
421
§ 285 1-2 Division 1, Subject matter of obligations
awareness of indications that the contract would fail. However, this does not mean that the
obligee must, as a precaution, always wait until the latest possible moment before making hj$
expenses - he may presume that the obligor will fulfil his obligations if there are no
indications to the contrary.
V. Legal consequences
7 The obligor can demand reimbursement of all expenses that satisfy the aformentioned
criteria. In contrast, he cannot demand compensation for other reliance damages. For
example, reimbursement of an expense under § 284 does not apply to the loss of the chance
for the obligee to conclude a more beneficial contract with a third party because he believed
to be already bound by the contract with the obligor.
§285
Return of reimbursement1
(1) If the obligor, as a result of the circum¬
stance by reason of which, under § 275(1) to
(3), he has no duty of performance, obtains
reimbursement or a claim to reimbursement
for the object owed, the obligee may demand
return of what has been received in reimbur¬
sement or an assignment of the claim to
reimbursement.
(2) If the obligee may demand damages in
lieu of performance, then, if he exercises the
right stipulated in subsection (1) above, the
damages are reduced by the value of the
reimbursement or the claim to reimburse¬
ment he has obtained.
§285
Herausgabe des Ersatzes
(1) Erlangt der Schuldner infolge des Um¬
stands, auf Grund dessen er die Leistung nach
§ 275 Abs. 1 bis 3 nicht zu erbringen braucht,
für den geschuldeten Gegenstand einen Ersatz
oder einen Ersatzanspruch, so kann der Gläu¬
biger Herausgabe des als Ersatz Empfangenen
oder Abtretung des Ersatzanspruchs verlan¬
gen.
(2) Kann der Gläubiger statt der Leistung
Schadensersatz verlangen, so mindert sich
dieser, wenn er von dem in Absatz 1 be¬
stimmten Recht Gebrauch macht, um den
Wert des erlangten Ersatzes oder Ersatz¬
anspruchs.
A. Function
1 The obligee may not demand performance if it is impossible for the obligor to perfom
(§ 275). However, § 285 provides that the obligee shall instead receive that which the
obligee has received in place of the absent performance (i.e. the surrogate benefit gained by
the obligor, the so-called stellvertretende commodum). The provision thus results in a
balance with regard to an incorrect distribution of assets. It applies to all contractual and
statutory obligations insofar as there are no contrary provisions (e.g. in unjust enrichment.
§818(2), (3)).
B. Explanation
I. Object
2 The obligor must have originally had a claim to performance with regard to an object. For
the purposes of this provision, an object may be things as well as rights and intangibles, but
not acts and omissions. The object must be definite. Accordingly" this does not apply t0
_ **
’ Translation note: the translation of § 285 provided under www.gesetze-im-intemet.de is misleading
with regard to the translation of the term Ersatz. Whereas Ersatz may be translated as reinibursetne^'*
more accurate translation in the context of § 285 is replacement, which will therefore be used in
following.
422
Schulze
Return of reimbursement 3-7 § 285
obligations in kind before ascertainment (§ 243)» unless the impossibility concerns the entire
supply of a limited obligation in kind.2 3
II. Release
The obligor must have been released from his performance obligation by reason of § 275 3
(l)-(3). Partial impossibility also applies under § 275(1)? Where § 275(2) and (3) are
concerend, the obligor must have actually raised the defence.
III. Replacement
The obligor must have acquired a replacement or a claim to replacement for the object 4
owed. This will be satisifed by each economic advantage which has taken the place of the
performance originally owed (e.g. damages from third parties due to tortious acts, due to
damage to the thing to be delivered, or corresponding claims for damages against third
parties; the proceeds from a compulsory auction of the thing to be delivered,4 the release
from an obligation5).
IV. Result of circumstances
The obligor must have acquired the replacement or claim to replacement as a result of the 5
circumstances in which the obligor does not have to perform according to § 275. There must
therefore be an adequate causal link (adäquat kausal) between the event leading to the
extinction of the perfomance obligation and the replacement or claim to replacement.6 § 285
therefore also covers the payment which the obligor has received from the respective legal
transaction (commodum ex negatione).7
V. Identity
The obligor must have received a replacement for the object that he owed and whose 6
performance is excluded by § 275 (Identität von geschuldetem und ersetztem Gegenstand -
‘same identity of the owed and replacement object’). This identity is lacking e.g. if the
obligor demands replacement for things from which the object owed is to be first
manufactured. The obligor must accordingly only provide replacement for the property
if he owes the creation thereof; however, he is not obliged to do so if he only owes
the transfer of possession. For example, if the owner has rented out a thing, which was
destroyed by a third party and for which the owner has acquired a replacement, the
lessor cannot demand the transfer of the right to use this replacement object by reason
of § 285.
VI. Legal consequence
Sub. 1 stipulates a claim to return the replacement or an assignment of the claim to 7
replacement. This claim is directed towards a contractual surrogate; as a claim to compen¬
sation in kind it is to be distinguished from claims to damages and claims due to unjust
enrichment (§§ 812 et seq.). The claim does not arise by law, but only once enforced by the
obligee. It comprises everything that the obligor has actually acquired as a result of the
circumstances leading to the impossibility. If the obligor has sold an object, he must therefore
2 RG 18.2.1919 - Rep. II. 369/18. See ► § 243 mn. 5.
3 BGH 10.3.1995 - V ZR 7/94, NJW 1995, 1737.
4 BGH 21.5.1987 - IX ZR 77/86.
5 RG 24.3.1928 - I 3/28.
6 BGH 10.2.1988 - IV a ZR 249/86, NJW-RR 1988, 903.
7 BGH 27.10.1982 - V ZR 24/82, NJW 1983, 930.
Schulze
423
§286 Division 1. Subject matter of obligations
return not only its customary value but also the entire proceeds from the sale including a
profit. The obligor must also return any emoluments.8
VII. Relationship to damages claims
8 Sub. 2 clarifies the relationship to damages claims under §§ 283, 311: the claim to return
under § 285 does not exlcude these claims to damages but is offset against such claims. The
claims are competing.9 The set-off under Sub. 2 leads to a reduction of the claim to
damages by the value of the acquired replacement or claim to replacement. The provision
serves to avoid an unjustified increase in value with regard to the obligee. However, it
is disputed whether the set-off does not apply if, following assignment, the claim to
replacement proves unenforceable.10 § 326(3) applies to the counterperformance in reci¬
procal contracts.
§286
Default of the obligor
(1) ’If the obligor, following a warning
notice from the obligee that is made after
performance is due, fails to perform, he is in
default as a result of the warning notice.
2Bringing an action for performance and ser¬
ving a demand for payment in summary debt
proceedings for recovery of debt have the
same effect as a warning notice.
(2) There is no need for a warning notice if
1. a period of time according to the calen¬
dar has been specified,
2. performance must be preceded by an
event and a reasonable period of time for
performance has been specified in such a
way that it can be calculated, starting from
the event, according to the calendar,
3. the obligor seriously and definitively
refuses performance,
4. for special reasons, weighing the inter¬
ests of both parties, the immediate com¬
mencement of default is justified.
(3) ’The obligor of a claim for payment is
in default at the latest if he does not perform
within thirty days after the due date and
receipt of an invoice or equivalent statement
of payment; this applies to an obligor who is
a consumer only if these consequences are
specifically referred to in the invoice or state¬
ment of payment. 2If the time at which the
invoice or payment statement is received by
the obligor is uncertain, an obligor who is
not a consumer is in default at the latest
thirty days after the due date and receipt of
the consideration.
§286
Verzug des Schuldners
(1) 'Leistet der Schuldner auf eine Mah-
nung des Gläubigers nicht, die nach dem
Eintritt der Fälligkeit erfolgt, so kommt er
durch die Mahnung in Verzug. 2Der Mah¬
nung stehen die Erhebung der Klage auf die
Leistung sowie die Zustellung eines Mahn¬
bescheids im Mahnverfahren gleich.
(2) Der Mahnung bedarf es nicht, wenn
1. für die Leistung eine Zeit nach dem
Kalender bestimmt ist,
2. der Leistung ein Ereignis vorauszugehen
hat und eine angemessene Zeit für die Leis¬
tung in der Weise bestimmt ist, dass sie sich
von dem Ereignis an nach dem Kalender
berechnen lässt,
3. der Schuldner die Leistung ernsthaft und
endgültig verweigert,
4. aus besonderen Gründen unter Abwä¬
gung der beiderseitigen Interessen der sofor¬
tige Eintritt des Verzugs gerechtfertigt ist
(3) ’Der Schuldner einer Entgeltforderung
kommt spätestens in Verzug, wenn er nicht
innerhalb von 30 Tagen nach Fälligkeit und
Zugang einer Rechnung oder gleichwertigen
Zahlungsaufstellung leistet; dies gilt gegen¬
über einem Schuldner, der Verbraucher ist,
nur» wenn auf diese Folgen in der Rechnung
oder Zahlungsaufstellung besonders hinge¬
wiesen worden ist. 2Wenn der Zeitpunkt des
Zugangs der Rechnung oder Zahlungsaufstel¬
lung unsicher ist» kommt der Schuldner, der
nicht Verbraucher ist» spätestens 30 Tage
nach Fälligkeit und Empfang der Gegenleis¬
tung in Verzug.
« BGH 27.10.1982 - V ZR 24/82, NJW 1983, 930.
9 See ► § 262-265 mn. 5.
10 See Palandt BGB/Grüneberg, § 285 BGB mn. 11.
424
Schulze
Default of the obligor
1-2 § 286
(4) The obligor is not in default for as long
as performance is not made as the result of a
circumstance for which he is not responsible.
(5) § 271a(l)-(5) applies with the neces¬
sary modifications to an agreement on the
beginning of default which deviates from
subsections (l)-(3).
(4) Der Schuldner kommt nicht in Verzug,
solange die Leistung infolge eines Umstands
unterbleibt, den er nicht zu vertreten hat.
(5) Für eine von den Absätzen 1 bis 3
abweichende Vereinbarung über den Eintritt
des Verzugs gilt § 271a Absatz 1 bis 5 ent¬
sprechend.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Explanation 3
I. Non-performance 3
II. Claim to performance 4
III. Warning notice 5
1. Content 6
2. Scope 7
3. Equivalents 8
4. Exceptions 9
a) Specified period 10
b) Prior event 11
c) Refusual 12
d) Default 13
e) Agreement 14
IV. 30-day period 15
V. Consumer 16
VI. Receipt of consideration 17
VII. Fault 18
VIII. Agreement 20
IX. Legal consequence 21
X. Effect on default 22
A. Function
I. Purpose
§§ 286-288 regulate default by the obligor. This notion refers to the non-conforming delay 1
in performance due to a reason for which the obligor is responsible. Subs 1-5 contain the
individual requirements for default.
IL Scope of application
In principle §§ 286-288 apply to all statutory and contractual obligations. However, they 2
only concern the damage arising from the delay in performance. Pursuant to § 286,
compensation for such losses is only due if, in addition to the general requirements under
§ 280, the obligee has warned the obligor or other particular requirements are satisfied. In
contrast, compensation is due for losses that have not arisen due to the delay pursuant to the
general requirements of § 280(1) or § 280(3), 281 et seq. According to the prevailing opinion,
payment of damages for loss of production therefore does not require fulfilment of the
criteria under § 286.1
1 See -► § 280 mn. 7.
Schulze
425
§ 286 3-6
Division 1. Subject matter of obligations
B. Explanation
I. Non-performance
3 The obligor can only be in default if he has not already rendered performance (see
§§ 362 et seq.); the performance may not be impossible (see § 275(1 )-(3)). The perfor¬
mance will be impossible and not delayed if it cannot be made at a later time, i.e. is
permanently not possible.2 Default will no longer apply if the performance subsequently
becomes impossible. In such instances the obligor’s liability arises according to § 275(4)
from §§ 280, 283-285, 311a, 326 including tighter liability according to § 287 2nd St
In addition to the claim to damages in lieu of performance pursuant to §§ 280(1), (2), 286,
the obligee also has a claim to damages with regard to the losses caused by the delay
but before impossibility: he may, however, not make two claims for the same head of
damage.
II. Claim to performance
4 The obligee must have an effective, enforceable and mature claim to performance. A
claim is not enforceable (and therefore default is excluded) if the obligor has a lasting or
suspensive objection (e.g. under §§ 214, 438(4), 821, 853). If the defence of an unperformed
contract is available to the obligor pursuant to § 320, he will first be in default if he does not
perform although the obligee has offered performance in a manner justifying a default in
acceptance (§§ 293 et seq.).3 In contrast to the defence under § 320, the availability of a right
of retention (§ 273) does not by itself suffice to exclude a default: the obligor must actually
exercise this right.4 § 271 contains the criteria for time of performance. There will be no
default if the delay arises if the obligee fails to perform a duty of cooperation that is necessary'
to effect performance.5
III. Warning notice
5 Sub. 1 1st St. stipulates the requirement of a warning notice. Such notice must be made
after performance is due. The obligee can, however, combine the warning with the act
establishing that performance is due, e.g. asking for delivery of the goods.6 A warning notice
will be ineffective if it is made before performance is due.
1. Content
6 The warning is a specific and clear demand from the obligee to the obligor to render
performance. According to its warning function, the obligor must be able to recognise that
there will be consequences for non-performance.7 However, it is not necessary7 to use a
particular phrase or state particular legal consequences.8 The warning may also be made by
implication if this is sufficiently clear (this depends on the circumstances, e.g. sending*1
completed remittance slip, but not sending the first invoice).
2 BGH 16.9.1987 - IVb ZR 27/86, NJW 1988, 251.
3For more detail see BGH 18.1.1996 - IX ZR 69/95, NJW 1996, 9">4
* BGH 26.6.2001 - X ZR 231/99, NJW 2001, 3115.
5 BGH 19.3.1986 - VIII ZR 81/85, NJW 1986, 1746.
6 BGH 14.7.1970 -VIII ZR 12/69, BeckRS 2014, 21448 (prevailing opinion)
7 BGH 10.3.1998 - X ZR 70-96, NJW 1998, 2132; see however Palandt BGB/Grüneberg § -st> Bb
mn. 17. .
» BGH 10.3.1998 - X ZR 70-96, NJW 1998, 2132; on the warning notice in verse form s* 1
Frankfurt a.M. 17.2.1982 - 2/22 O 495/81, NJW 1982, 650.
426
Schulze
Default of the obligor
7-13 § 286
2. Scope
If the warning notice concerns a lesser amount that is due (Zuwenigtnahnung), the default 7
will only concern this lesser amount.9 In principle good faith does not render a warning notice
concerning a slight excess amount (Zuvielmahnung) ineffective.10 With regard to claims for
pain and suffering and similar claims which do not require a determined amount, it will
suffice tor the warning notice to contain sufficiently specific facts which are material for the
amount of the claim instead of stating the exact amount.11 If the warning notice is subject to a
time-limited condition precedent, default arises when the time limit expires. However, accord¬
ing to the prevailing opinion, there will be no default if a warning notice is conditional.
3. Equivalents
According to Sub. 1 2nd St., bringing an action for performance (§§ 253-254 ZPO) or 8
serving a demand for payment (§§ 693 et seq. ZPO) have the same effect as the warning
notice with respect the default. It will suffice for the obligee to raise the claim to performance
as an auxiliary action, in the scope of an action in stages (Stufenklage) or a countercharge
(Widerklage).
4. Exceptions
Sub. 2 Nos 1-4 stipulate various scenarios in which a warning notice is not necessary. 9
a) Specified period. Pursuant to Sub. 2 No. 1, the warning notice is not necessary if a 10
period of time according to the calendar has been specified. The period of time may arise
from statutory provisions, a judgment, or contractual agreement. A specific calendar day
must at least be specified indirectly as the time for performance (e.g. ‘as of 10 April’, ‘Friday
of week 30’, ‘14 days from date of order’ (when stated)).
b) Prior event. According to Sub. 2 No. 2, the warning is also not necessary if the time for 11
performance depends on a prior event that can be calculated according to the calendar.
Such an event may be e.g. the delivery of the goods, issuance of the invoice, or a cancellation.
The prior event must be the starting point which allows the time for performance to be
calculated according to the calendar (e.g. ‘one month after delivery of the goods’, ‘one week
after order’, ‘10 days after receipt of invoice’). Furthermore, the time from the event to
performance must be reasonable.12
c) Refusual. Sub. 2 No. 3 stipulates that the warning notice is also not necessary if the 12
obligor seriously and definitively refuses performance. A warning would clearly be pointless
in such instances (as is similarly provided in §§ 281(2) and 323(2)).
d) Default. Sub. 2 No. 4 provides that the immediate commencement of default may be 13
justified in light of special reasons when weighing the interests of both parties. This
particularly concerns cases in which the urgency in performance is apparent from the
content and purpose of the contract (e.g. calling a car breakdown service in an emergency
or calling a plumber due to burst water pipe). Furthermore, it also concerns cases in which
the obligor purposely avoids the warning,13 or in which he renders a warning unnecessary by
9 BGH 26.5.1982 - IV b ZR 715/80, NJW 1982, 1983, 1985.
10 BGH 18.1.1991 - V ZR 315/89, NJW 1991, 1822; see however for §38(1) VVG. BGH 9.4.1963 - VI
ZR 54/62, NJW 1963, 1155.
11 BGH 6.5.1981 - Iva ZR 170/80, NJW 1981, 1729; BGH 9.4.1963 - VI ZR 54/62, NJW 1963, 1155.
12 On the disputed question whether, and in which manner, this provision is compatible with Art. 3(3)
(b) EU Late Payment Directive see MüKO BGB/Ernst, § 286 BGB mn. 58 with further references.
13 OLG Köln 30.1.1998 - 25 WF 216/97, NJW-RR 1999. 4.
Schulze
427
§ 286 14-17 Division 1, Subject matter of obligations
stating the date of performance (so-called Selbstmahnung}4). The provision also extends to
cases in which the obligor is obliged to return a thing which he removed from the entitled
party through a tortious act (corresponding to the principle fur semper in mord).
14 e) Agreement. The parties may agree to exclude the requirement of a warning notice (but
only in individually negotiated terms15).
IV. 30-day period
15 Sub. 3 1st St. simplifies default with regard to a claim for payment: the obligor will be in
default after 30 days - a warning notice pursuant to Sub. 1 1st St. is neither necessary nor
must the requirements under Sub. 1 2nd St. and Sub. 2 be satisfied. The only requirements
are for the payment to have been due, the invoice or equivalent statement to have been
received as well as the expiry of a 30-day period after these two aforementioned criteria
have been fulfilled. Claims for payment are demands for monetary satisfaction of perfor¬
mance within an exchange of performances. They must be the consideration for perfor¬
mance rendered or to be rendered by the obligee,16 e.g. claims for payment of the purchase
price, wages or rent. In contrast, claims to damages, claims arising from contractual
penalties, and unjust enrichment claims (§§ 812 et seq.) are not claims for payment. § 271
is relevant for the time of performance; contractual agreements on the time for perfor¬
mance are also to be taken into consideration. The invoice requires a proper invoice to
clearly show, at least in text form (§ 126b), the amount due (where applicable, on the basis
of a breakdown of individual items) as payment for a particular performance, in order for
the obligor to make verification. The equivalent statement of payment must allow, in a
corresponding manner, the obligor to ascertain what the obligee is demanding of him.
However, in comparison to the warning notice, the obligor need not be able to recognise
the threat of legal consequences. In principle, the communication of the claim will suffice.
The 30 days of the time limit, which begin when the performance is due and the invoice
has been received, are to be counted (and therefore are to be distinguished from a one
month-period or a four-week period).
V. Consumer
16 Default pursuant to Sub. 3 1st St. is subject to an additional requirement if the obligor is a
consumer (§ 13): the receipt or equivalent statement of payment must inform the consumer
of the consequences stipulated in this provision. The general purpose of Sub. 3, namely
protection of the obligee, is restricted for the benefit of consumer protection. The informa¬
tion for the consumer must be given in the invoice or statement of payment. It will not
suffice for the obligee to emphasise that payment is due or is urgent, but rather an additional,
independent statement is necessary which allows the consumer to clearly recognise that he
will be in default if he does not make payment at the latest within 30 days following receipt of
the invoice or statement of payment.
VI. Receipt of consideration
17 According to Sub. 3 2nd St., an obligor who is not a consumer is in default at the latest
30 days after the due date and receipt of the consideration if the time at which he receives
the invoice or payment statement is uncertain. The receipt of the consideration (e.g-the
purchased good) takes the place of the receipt of the invoice or statement of payment
in order to determine the start of the 30-day period. This alleviation for the obligee appheS
—
‘4 BGH 13.7.2013 - V ZR 94/11, NJW 2012, 2955.
15 See -* § 309 mn. 4.
ib BGH 21.4.2010 - XII ZR 10/08, NJW 2010, 1872.
428
Schulze
Default of the obligor 18-22 § 286
beyond the wording of the provision uncertainties whether an invoice has been received.17
As is clear from Sub. 3 2nd St.» this rule does not apply if the obligor is a consumer.
VII. Fault
In addition to the requirements under Subs 1-3, Sub. 4 expresses the principle of fault 18
(Verschuldensprinzip). By reason of its negative wording Sub. 4 is drafted as an exception to
Subs 1-3: satisfaction of the criteria under Subs 1-3 gives rise to the presumption that the
obligor is responsible for the default. This corresponds to the general rule in § 280(1), (2) and
therefore only serves as a clarification insofar as the obligor claims damages due to the
default. However, the provision has an independent meaning for the further consequences of
default pursuant to the following provisions.
Sub. 4 requires the obligor not to be responsible for the circumstance giving rise to non- 19
performance. In addition, it is necessary that neither he nor his legal representative or
assistant (§ 278) is at fault (pursuant to §§ 276 et seq.) for causing the circumstance to arise.
This is often the case (depending on the individual circumstances) e.g. for natural events or
serious illness which prevent performance. Legal obstacles to performance also come into
consideration (for instance temporary restrictions on payment transactions or the introduc¬
tion or delay of approval from the authorities, where the application was timely and correct).
In some instances, a mistake in law may also arise without fault and exclude default of the
obligor,18 e.g. if the obligor has carefully examined the legal position but there is a surprising
change in the case law.
VIII. Agreement
Sub. 5 stipulates that § 271a(l)—(5) will apply with the necessary modifications to a 20
agreement on the begin of default deviating from § 271a(l)-(3) (see §§ 271a on the
requirements for an ineffective agreement on time periods of more than 60 days or more
than 30 days with respect to a public authority).
IX. Legal consequence
According to §§ 280(1), (2), 286 the obligor has to pay compensation to the obligee with 21
regard to the damages arising from the delay. This also includes the costs of litigation.19
Further consequences of default arise from §§ 287 and 288.
X. Effect on default
The default of the obligor will be extinguished with ex nunc effect (Heilung - cure) if one 22
of the requirements no longer applies. This mostly occurs through subsequent performance
by the obligor. An offer of performance in a manner justifying default in acceptance
(§§ 293 et seq.) will end the default. It suffices if the obligor offers the performance
originally due, but not also the compensation for damages caused by the default and
default interest (disputed). This opinion is favoured by virtue of the further claims being
additional demands based on additional legal bases, not as part of the main demand. The
delay will also end with a permanent defence from the obligor, in particular through
limitation periods,20 deferral,21 the loss of the claim through impossibility, through revoca¬
tion22 or avoidance of the contract, and with the retraction of warning notice or the
17 BT-Drs. 14/7052 of 9.10.2001, p. 283.
18 BGH 7.3.1972 - VI ZR 169/70, NJW 1972, 1045.
19 See § 280 mn. 12.
20 BGH 16.3.1988 - VIII ZR 184/87, NJW 1988, 1778.
21 BGH 24.10.1990 - VIII ZR 305/89, NJW-RR 1991, 822.
22 BGH 21.9.1983 - VIII ZR 233/82, NJW 1984, 43.
Schulze
429
§ 287 1-3 Division 1. Subject matter of obligations
action.23 However, the consequences of delay that have already arisen will continue to exist
after the delay has ended. A waiver agreement between the parties is necessary in order to
recant these consequences.24
§287
Liability during default
’While he is in default, the obligor is re¬
sponsible for all negligence. 2He is liable for
performance in the case of chance as well,
unless the damage would have occurred even
if performance had been made in good time.
§287
Verantwortlichkeit während des
Verzugs
’Der Schuldner hat während des Verzugs
jede Fahrlässigkeit zu vertreten. 2Er haftet
wegen der Leistung auch für Zufall, es sei
denn, dass der Schaden auch bei rechtzeitiger
Leistung eingetreten sein würde.
A. Function
1 The provision extends the obligor’s liability in two respects if he is in default (§ 286): a
stricter level of liability (1st St.) and liability for chance (2nd St.). The liability for chance
places the risks arising from the default upon the obligor because he is responsible for the
delay (see § 286(4)) and because the risks would not have arisen from the obligor’s domain
had he performed on time.
B. Explanation
I. Negligence
2 According to the 1st St., the obligor is responsible for all negligence whilst in defaut. He is
therefore liable for simple negligence if in principle he is only responsible for a standard of
care exercised in his own affairs (§ 277).
3
II. Chance
The liability for chance under the 2nd St. requires the obstacle to performance to have
arisen during the delay and to be based on chance. The latter will apply if neither part)' is
responsible for the obstacle to performance (e. g. natural phenomena, other instances of
force majeure, or an act by a third party). Causation between the default and the chance
event is not necessary. However, the liability for chance only concerns performance
obligations pursuant to § 241(1) (not duties of protection according to § 241(2)). aS
is apparent from the wording/or performance. This concerns non-performance as well as
the other breaches of the obligation, in particular damage or other deterioration of the
object of performance. Pursuant to the second part of the 2nd St., liability for chance is
excluded if the damage would have occured even if performance had been made in
time (e. g. if a car would have exploded also after timely deliver}’ to the buyer)- The
obligor may thus invoke a hypothetical harmful event, but is subject to the burden »
proof. If the requirements of the 2nd St. are satisfied, and there is no such exception.
obligor must pay damages in lieu of performance (§§ 280(1), (3), 281, 283) irrespecn'e
of fault.
23 BGH 17.9.1986 - IV b ZR 59/85, NJW 1987, 1546.
24 BGH 22.3.1995 - XII ZR 20/94, NJW 1995, 2032.
430
Schulze
Default interest and other damages from default
1 § 288
§288
Default interest and other
damages from default
(1) 'Any money debt must bear interest
during the time of default. 2The default rate
of interest per year is five percentage points
above the basic rate of interest.
(2) In the case of legal transactions to
which a consumer is not a party the rate of
interest for claims for payment is nine per¬
centage points above the basic rate of inter¬
est.
(3) The obligee may demand higher inter¬
est on a different legal basis.
(4) The assertion of further damage is not
excluded.
(5) lThe obligee of a claim to payment has,
on default of an obligor who is not a con¬
sumer, additionally a claim for payment of a
lump sum in the amount of 40 euro. 2This
also applies if the claim to payment constitu¬
tes a part payment or other instalment pay¬
ment. 3The lump sum under sentence 1 is to
be credited against compensation owed to the
extent that the damage is founded in the costs
of prosecuting rights.
(6) 'An agreement made in advance which
excludes the claim to default interest by the
obligee of a claim to payment is ineffective.
2The same applies to an agreement which
limits this claim or excludes or limits the
claim of the obligee of a payment claim to
the lump sum under subsection (5) or to
compensation of the damage which are
founded in the costs of prosecuting rights, if
is grossly unfair with regard to the concerns
of the obligee. 3In cases of doubt, an agree¬
ment on the exclusion of the lump sum under
subsection (5) or of the compensation of da¬
mages which are founded in the costs of
prosecuting rights is to be regarded as grossly
unfair. 4Sentences 1 to 3 do not apply if the
claim is made against a consumer.
§288
Verzugszinsen und sonstiger
Verzugsschaden
(1) 'Eine Geldschuld ist während des Ver¬
zugs zu verzinsen. 2Der Verzugszinssatz be¬
trägt für das Jahr fünf Prozentpunkte über
dem Basiszinssatz.
(2) Bei Rechtsgeschäften, an denen ein Ver¬
braucher nicht beteiligt ist, beträgt der Zins¬
satz für Entgeltforderungen neun Prozent¬
punkte über dem Basiszinssatz.
(3) Der Gläubiger kann aus einem anderen
Rechtsgrund höhere Zinsen verlangen.
(4) Die Geltendmachung eines weiteren
Schadens ist nicht ausgeschlossen.
(5) 'Der Gläubiger einer Entgeltforderung
hat bei Verzug des Schuldners, wenn dieser
kein Verbraucher ist, außerdem einen An¬
spruch auf Zahlung einer Pauschale in Höhe
von 40 Euro. 2Dies gilt auch, wenn es sich bei
der Entgeltforderung um eine Abschlagszah¬
lung oder sonstige Ratenzahlung handelt.
3Die Pauschale nach Satz 1 ist auf einen ge¬
schuldeten Schadensersatz anzurechnen, so¬
weit der Schaden in Kosten der Rechtsverfol¬
gung begründet ist.
(6) 'Eine im Voraus getroffene Verein¬
barung, die den Anspruch des Gläubigers ei¬
ner Entgeltforderung auf Verzugszinsen aus¬
schließt, ist unwirksam. 2Gleiches gilt für eine
Vereinbarung, die diesen Anspruch be¬
schränkt oder den Anspruch des Gläubigers
einer Entgeltforderung auf die Pauschale nach
Absatz 5 oder auf Ersatz des Schadens, der in
Kosten der Rechtsverfolgung begründet ist,
ausschließt oder beschränkt, wenn sie im Hin¬
blick auf die Belange des Gläubigers grob
unbillig ist. 3Eine Vereinbarung über den Aus¬
schluss der Pauschale nach Absatz 5 oder des
Ersatzes des Schadens, der in Kosten der
Rechtsverfolgung begründet ist, ist im Zweifel
als grob unbillig anzusehen. 4Die Sätze 1 bis 3
sind nicht anzuwenden, wenn sich der An¬
spruch gegen einen Verbraucher richtet.
A. Function
L Purpose and underlying principle
The provision grants the obligee of a money debt a claim to default interest (at the rate set 1
in Subs 1 and 2). It is based on the irrebuttable statutory presumption that the obligee has
suffered at least this loss through the default. It is irrelevant whether the obligee has actually
suffered this loss. The determination of an objective minimum loss should ease the
Schulze
431
§ 288 2-6 Division 1. Subject matter of obligations
settlement of loss caused by the delay and, furthermore, serve as an incentive for the obligor
to fulfil his payment duties on time.1 However, the provision does not prevent the obligee
from claiming a higher amount of interest due to another legal basis (such as a contract). ]n
addition, it does not prevent the obligee from claiming for further loss beyond the minimum
in § 288 by reason of §§ 280(1), (2) as damages for default. In contrast to the minimum loss
under § 288, the obligee will however have to prove the further loss.
IL Scope of application
2 The rules on default interest in § 288 apply to all types of money debt, and also to claims
to damages (including claims to damages for pain and suffering), to an advance on costs
(§ 637(3)), and to claims for monetary restitution (such as § 667 2nd Alt.); § 288 does not
apply to donation (§ 522).
B. Explanation
I. Requirement
3 The claim under Subs 1 and 2 requires the obligor of a money debt to be in default.
Whether the obligee was able to demand interest according to the underlying obligation is
not relevant.2
IL Legal consequence
4 Sub. 1 entitles the obligee to claim default interest at a rate of five percentage points above
the basic rate of interest for the duration of the default. Pursuant to Sub. 2, the rate of interest
increases to nine percentage points in legal transactions to which a consumer (§ 13) is not a
party. § 247 contains the rules on the concept of basic interest and the mode of calculation.
The basic rate of interest on 1 July 2019 lay at -0.88 percent
III. Agreed interest rate
5 Pursuant to Sub. 3, a higher rate of interest agreed contractually by the parties takes
precedence over the statutory rates in Subs 1 and 2. However, contractual agreement on
default interest in general business terms is only possible in accordance with §§ 307, 309
Nos 5, 6. Default interest in consumer real estate loan contracts is calculated in accordance
with § 497(4) and, pursuant to § 512, there may be no deviation from provisions on
consumer loan contracts in §§ 491 et seq. to the consumer’s disadvantage.
IV. Further loss
6 In accordance with Sub. 4, the obligee may have recourse to §§ 280(1), (2), 286 in order to
claim for further losses regarding interest. This is particularly the case if the obligee has taken
out a loan during the period of default and has to pay a higher rate of interest than the
minimum provided in Subs 1 and 2. The damage under Sub. 4 may also arise in the loss of
interest from an investment. In such cases, the default prevented the obligee to enter into a
better investment opportunity. In principle the obligee must specify and prove the lost
interest.3
1 BGH 20.5.1985 - VII ZR 266/84, NJW 1985, 2325.
2 BGH 20.5.1985 - VII ZR 266/84, NJW 1985, 2325.
J BGH 9.4.1981 - IVa ZR 144/80, NJW 1981, 1732; on the application of § 287 ZPO and the poJSibM
of abstract calculation of damages according to § 252 2nd St. for banks see BGH 28.4.1988 - III ZR ? ’
NJW 1988, 1967; on abstract calculation for high amounts BGH 8.5.2012 - XI ZR 262/10, NJW 20
2427.
432
Schulze
Interest on compensation for value
§290
V. Lump sum
Sub. 5 entitles the obligee (consumer and business) to claim an additional lump sum in the 7
amount of 40 euro if the matter concerns a claim to payment, the obligor is not a consumer
and is in default.
VI. Protection of the obligee
Sub. 6 limits private autonomy in the interest of protecting the obligee; in turn, Sub. 6 8
4th St. restricts private autonomy in the interest of consumer protection.
§289
Prohibition of compound interest
1 Default interest is not to be paid on inter¬
est. 2The right of the obligee to compensation
for damage caused by the default remains
unaffected.
§289
Zinseszinsverbot
!Von Zinsen sind Verzugszinsen nicht zu
entrichten. 2Das Recht des Gläubigers auf
Ersatz des durch den Verzug entstehenden
Schadens bleibt unberührt.
A. Function
The 1st St. expands the prohibition of compound interest under § 248 to default interest 1
foreseen under § 288(1) and (2).
B. Explanation
Default interest may not be paid on interest. The provision does not apply to the 2
commercial current account (§ 355 HGB). According to the 2nd St., the prohibition of
compound interest does not affect the obligee’s claim to compensation due to late
payment of the interest owed by the obligor under § 280(1), (2), 286, 288(4) (further
damages from default). The obligee can therefore receive interest from default interest
when due to the outstanding default interest he has effectively put the obligor in default
according to the requirements of § 286 and there is corresponding interest damage. This
interest damage is calculated according to the same standards as under § 288(4) (including
the possibility of abstract calculation of damages).1 However, the specific provision under
§ 497(2) 2nd St. applies to credit agreements with consumers with the consequence that the
credit provider may only claim interest to the amount of the statutory interest rate as
default damages.
§290
Interest on
compensation for value
JIf the obligor is obliged to compensate for
the value of an object that has been destroyed
during a period of default or cannot be re¬
turned for a reason occurring during a period
of default, the obligee may demand interest
on the amount to be paid as compensation
§290
Verzinsung des Wertersatzes
'1st der Schuldner zum Ersatz des Wertes
eines Gegenstands verpflichtet, der während
des Verzugs untergegangen ist oder aus ei¬
nem während des Verzugs eingetretenen
Grund nicht herausgegeben werden kann,
so kann der Gläubiger Zinsen des zu erset-
1 On the burden of proof see BGH 10.12.1990 - 11 ZR 256/89, NJW 1991, 844.
Schulze
433
§ 291 1-2
Division 1. Subject matter of obligations
from the point of time onwards on which the
determination of the value is based. 2The
same applies if the obligor is obliged to com¬
pensate for the reduction in value of an ob¬
ject that deteriorates during the period of
default.
zenden Betrags von dem Zeitpunkt an ver-
langen, welcher der Bestimmung des Wertes
zugrunde gelegt wird. 2Das Gleiche gyt
wenn der Schuldner zum Ersatz der Min¬
derung des Wertes eines während des Ver¬
zugs verschlechterten Gegenstands verpflich.
tet ist.
1 § 290 provides that the obligee may demand interest for a claim to compensation for value
arising as a result of default (§ 286). The compensation for value covers all objects listed in
the 1st and 2nd St. In such instances § 290 places the obligee in the position as though the
obligor was also in default with regard to the substitute performance. As for default of a
money debt, he may also demand compensation of statutory interest as minimum damage1
and high interest damages according to § 288(4).
§291
Interest during legal proceedings
’The obligor must pay interest on a money
debt from the date when litigation is pending
onwards, even if he is not in default; if the
debt only falls due later, interest must be paid
from its due date onwards. 2The provisions of
§ 288(1) sentence 2, (2) and (3) and § 289
sentence 1 apply with the necessary modifica¬
tions.
§291
Prozesszinsen
’Eine Geldschuld hat der Schuldner von
dem Eintritt der Rechtshängigkeit an zu ver¬
zinsen, auch wenn er nicht im Verzug ist;
wird die Schuld erst später fällig, so ist sie
von der Fälligkeit an zu verzinsen. 2Die Vor¬
schriften des § 288 Abs. 1 Satz 2, Abs. 2,
Abs. 3 und des § 289 Satz 1 finden entspre¬
chende Anwendung.
A. Function
1 The provision obliges the obligor to pay interest from the date when litigation is pending
onwards (interest during legal proceedings), irrespective of whether he is in default (§ 286(1)
2nd St.). As he will often already be in default from the date when litigation is pending (§ 286
(1) 2nd St.) and thus already has to pay default interest under § 288(1), (2), this provision is
actually of little importance by itself. It is limited to cases in which the obligor is not
responsible for the delay in performance and is thus not in default (§ 86(4)), as well as to
claims for future performance (§ 291 1st St.). Furthermore, the provision gains significance
though references in other provisions (e.g. § 818(4)). § 291 applies to all types of money
debts. However, where costs and provisions for bills of exchange are concerned, it is however
excluded by Art. 48 WG.
B. Explanation
2 The submission of a claim to the court does not suffice. Litigation must rather be
pending (often through serving the claim to the respondent according to § 253(1) ZPO of
the service of the payment order according to § 693 ZPO). Furthermore, the claim to the
money debt must have reached maturity and be enforceable. There is therefore no claim to
interest during legal proceedings, e.g. in the case of a deferral or a right of retention
(§ 273). § 291 2nd St. provides that the standards in §§ 288, 289 apply for die extent of the
interest.
1 See -► § 288 mn. 1.
434
Schulze
Liability in the case of a duty to return
1-3 § 292
§292
Liability in the case of a
duty to return
(1) If the obligor must return a specific
object, then, from the date when litigation is
pending, the claim to damages of the obligee
for deterioration, destruction or for impossi¬
bility of return for another reason is deter¬
mined under the provisions that apply to the
relationship between an owner and a posses¬
sor from the date when litigation on a claim
to ownership is pending, except where the
obligation or the default of the obligor leads
to a different conclusion in favour of the
obligee.
(2) The same applies to the claim of the
obligee to the return or payment of emolu¬
ments and to the claim of the obligor to
compensation for outlays.
§292
Haftung bei Herausgabepflicht
(1) Hat der Schuldner einen bestimmten
Gegenstand herauszugeben, so bestimmt sich
von dem Eintritt der Rechtshängigkeit an der
Anspruch des Gläubigers auf Schadensersatz
wegen Verschlechterung, Untergangs oder ei¬
ner aus einem anderen Grunde eintretenden
Unmöglichkeit der Herausgabe nach den
Vorschriften, welche für das Verhältnis zwi¬
schen dem Eigentümer und dem Besitzer von
dem Eintritt der Rechtshängigkeit des Eigen¬
tumsanspruchs an gelten, soweit nicht aus
dem Schuldverhältnis oder dem Verzug des
Schuldners sich zugunsten des Gläubigers ein
anderes ergibt.
(2) Das Gleiche gilt von dem Anspruch des
Gläubigers auf Herausgabe oder Vergütung
von Nutzungen und von dem Anspruch des
Schuldners auf Ersatz von Verwendungen.
A. Function
L Purpose
The provision sets the minimum liability as a consequence of pending litigation if the 1
obligor is obliged to return a specific object. Greater liability due to default (§ 285) or due to
the nature of the obligation (e.g. §§ 819(1), 848) continues to remain. The provision gains
significance through references in other provisions (e.g. § 818(4)).
IL Scope of application
§ 292 covers contractual claims to return (whereas §§ 987 et seq. apply to proprietary 2
claims to return). A specific object may not only be a physical object (§ 90) but also rights
over assets. However, it does not suffice if a thing is only owed by reason of its kind.
Litigation must be pending for the claim for return.1
B. Explanation
If the requirements of § 292 are fulfilled, the provisions directly concerning the claim in rem 3
in the owner-possessor relationship from the date when litigation is pending will apply. The
obligor is liable from this date onwards for damages if by reason of his fault (in default: also
coincidence) the object is destroyed, deteriorates or cannot be returned for another reason
(§ 989). The obligor must return to the owner the emoluments that he receives after litigation
is pending. (§ 987(1)). If the obligor fails after litigation is pending to take emoluments that he
could take under the rules of proper management, he is obliged to reimburse the obligee to the
extent that he is at fault (§§ 987(2), 287 1st St.). He may demand reimbursement of necessary
outlays to the extent provided in §§ 994(2), 995. He only has the right of removal (§ 997) in
relation to useful outlays (§ 996). §§ 1000-1003 apply with the necessary modifications.
1 § 291 mn. 2.
Schulze
435
§ 293 1-3
Division 1. Subject matter of obligations
Title 2
Default by the obligee
Titel 2
Verzug des Gläubigers
§293
Default in acceptance
The obligee is in default if he does not
accept the performance offered to him.
§293
Annahmeverzug
Der Gläubiger kommt in Verzug, wenn er
die ihm angebotene Leistung nicht annimmt.
A. Function
I. Purpose
1 Default in acceptance arises when there is a delay in performance because the obligee does
not accept the performance offered to him or because he does not undertake an act of co¬
operation (Mitwirkungshandlung) that is necessary for the obligor to perform. In principle
the acceptance of the performance is not perceived as an obligation for the obligee, rather just
as an entitlement.1 If the obligee refrains from accepting he therefore does not breach an
obligation in the strictest sense, but only a lesser form of obligation (Obliegenheit2): default in
acceptance does not oblige the obligee to pay compensation, it only improves the obligor’s
legal position by other means (e.g. that he is not liable for slight negligence, § 300(1)). The
individual requirements for default in acceptance are regulated in §§ 293-299, the legal
consequences in §§ 300-304.
IL Scope of application
2 The provisions on default in acceptance apply in principle to all statutory and contractual
obligations insofar as the object of the legal relationship is an obligation to perform whose
fulfilment depends on an act of co-operation by the obligee. However, particular features
arise when the acceptance of the performance exceptionally forms the content of the obligee’s
performance obligation due to the specific content of the legal relationship or in accordance
with good faith (§ 242) (e.g. the acceptance of the good by the purchaser in accordance with
§§ 433(2); 640(1); § 375 HGB; also when the parties have agreed a sale on call (Kauf auf
Abruf). In such cases, if the acceptance of the performance or another act is (as an exception)
a genuine obligation for the obligee, the non-performance results in the application of the
provisions on default by the obligor (§§ 280(1), (2), 286). In this respect, default in
acceptance and default by the obligor can coincide (and a claim to damages under §§ 280
(1), (3), 281(1), (2) may arise in individual cases).
B. Explanation
I. Requirements
3 The first requirement for default in acceptance is an effective claim by the obligee and the
demand can already be fulfilled (i.e. the obligor must be entitled to perform, § 271). A further
basic requirement under § 293 is for the obligor to have already offered the performance to the
obligee exactly as it is to be rendered. According to the requirements of § 295, a verbal offer w®
suffice (this may even be dispensed with should the obligee agree to collect the performant
_ -—
1 BGH 27.4.1988 - VIII ZR 84/87, NJW 1988, 2465.
2 See -► § 242 mn. 26.
436
Schulze
Verbal offer § 295
(Holschuld)). Furthermore, at the time of the offer to perform the obligor must be ready and in a
position to perform. Default in acceptance is thus excluded when the performance is objectively
or subjectively impossible in the long-term (§ 275(1)) or, in accordance with § 275(2), (3), the
obligor does not have to perform. Ultimately, default in acceptance under § 293 requires the
non-acceptance of the performance offered by the obligee. The obligee’s failure to perform an
act of co-operation is to be considered the same as a failure to accept. With regard to
concurrent performance, the obligee is in default when he does not offer the counter¬
performance (even when he is prepared to accept, § 298). Generally, it does not matter for the
default in acceptance whether the obligee is responsible for not accepting performance.
IL End of default
The default in acceptance ceases if one of the aforementioned requirements ends, e. g. if the 4
performance becomes impossible after default in acceptance, the obligee’s claim ceases
according to § 275 and the default in acceptances ends. If the obligee seeks to end the default
he must not only accept performance but offer, where applicable, compensation for extra
expenses (§ 204).
§294
Actual offer
The obligee must actually be offered per¬
formance exactly as it is to be rendered.
§294
Tatsächliches Angebot
Die Leistung muss dem Gläubiger so, wie sie
zu bewirken ist, tatsächlich angeboten werden.
A. Function
The provision expresses the rule that an actual offer is necessary and thereby specifying the 1
requirement that the obligor must actually offer the performance (§ 293). §§ 295 and 296
contain the exceptions.
B. Explanation
An actual offer requires the obligor to have taken all measures that are possible without co- 2
operation from the obligee. The obligor must have undertaken the performance to the extent
that allows the obligee to merely seize the opportunity and accept performance. In Bringschulden
and Schickschulden,1 the obligor must therefore have not only sent the thing, but offered it at the
destination. The requirement that the obligor must actually offer performance exactly as it is to
be rendered requires the obligor to render the correct performance at the correct time (§ 271)
and at the correct place (§§ 269, 270), in the correct condition, and complete. Part performance
is not permitted. The obligee may refuse to accept and demand subsequent performance without
being in default if the performance is burdened with material or legal defects.
§ 295
Verbal offer
'A verbal offer by the obligor suffices if the
obligee has declared to him that he will not
accept the performance, or if effecting the
performance requires an act by the obligee,
§295
Wörtliches Angebot
’Ein wörtliches Angebot des Schuldners ge-
nügt, wenn der Gläubiger ihm erklärt hat, dass
er die Leistung nicht annehmen werde, oder
wenn zur Bewirkung der Leistung eine Hand-
1 See -► § 270 mn. 2.
Schulze
437
§ 296 1-2
Division 1. Subject matter of obligations
in particular if the obligee must collect the
thing owed. Equivalent to an offer of perfor¬
mance is a demand to the obligee to under¬
take the action required.
lung des Gläubigers erforderlich ist, insbeson¬
dere wenn der Gläubiger die geschuldete Sache
abzuholen hat. 2Dem Angebot der Leistung
steht die Aufforderung an den Gläubiger gleich
die erforderliche Handlung vorzunehmen.
A. Function
1 The provision concerns two cases in which - in deviation from § 294 - a verbal offer will
suffice instead of an actual offer. In one such case the obligee has already declared that he will
not accept the performance. The declaration may also be implied, but it must be unambiguous
e. g. revocation, termination or the claim by the obligee that no contract exists will represent
the refusal to accept performance. The second case concerns the collection of the thing owed
by the obligee (Holschuld) or another act by the obligee that is necessary to effect performance
(e.g. when the obligee has to exercise the right of choice according to § 263(1), or accept the
work according to § 640(1), or demand the goods in a sale on call). A verbal offer will suffice
beyond these cases when the obligee is prepared to accept the obligors performance concur¬
rently with his own, yet has refused to perform (see also § 298).1
B. Explanation
2 The verbal offer is an act resembling a legal transaction (geschäftsähnliche Handlung). The
provisions on capacity (§§ 104 et seq.), delivery and receipt of declarations of intent {§§ 130 et
seq.) and agency (§§ 164 et seq.) therefore apply accordingly. A specific form is not provided
in statute for the verbal offer. The word ‘offer’ must not actually be used; it will suffice if the
obligor’s intention to perform can be ascertained from his declaration.
§296
Dispensability of the offer
4f a period of time has been specified
according to the calendar for the act that the
obligee is to undertake, the offer is only
necessary if the obligee undertakes the act in
good time. 2The same applies if the act must
be preceded by an event and a reasonable
period of time is specified for the act in such
a way that it can be calculated from the event
onwards according to the calendar.
§296
Entbehrlichkeit des Angebots
'1st für die von dem Gläubiger vorzuneh¬
mende Handlung eine Zeit nach dem Kalender
bestimmt, so bedarf es des Angebots nur, wenn
der Gläubiger die Handlung rechtzeitig vor¬
nimmt. 2Das Gleiche gilt, wenn der Handlung
ein Ereignis vorauszugehen hat und eine ange¬
messene Zeit für die Handlung in der Weise
bestimmt ist, dass sie sich von dem Ereignis an
nach dem Kalender berechnen lässt.
A. Function
1 The provision serves to supplement the rule in § 295 1st St. when an act by the oblige lS
necessary to effect performance.
B. Explanation
2 If a period of time has been specified according to the calendar for the act that the oblige1S
to undertake, the obligee will be in default of acceptance without an offer being necessary d
1 BGH 15.11.1996 - V ZR 292/95, NJW 1997, 581.
438
Schulze
Concurrent performance 1-2 § 298
has not undertaken the act in good time (1st St.). The same applies when the date for the act
can be calculated in the manner provided in the 2nd St. (e.g. if the parties have agreed that
obligor is to deliver the goods in two working days following the order by the obligee; cf the
corresponding rule for default of the obligor1). Case law has, however, developed particular
principles for an employment relationship. An employer, who unjustifiably terminates the
employment relationship, will be in default even if the employee does not offer performance,
but only objects to the termination.2 Default by the obligee occurs in such instances of
ordinary termination once the notice period has expired.
§297
Inability of the obligor
The obligee is not in default if the obligor
at the time of the offer or, in the case of
§ 296, at the time determined for the action
of the obligee, is not in a position to effect
performance.
§297
Unvermögen des Schuldners
Der Gläubiger kommt nicht in Verzug,
wenn der Schuldner zur Zeit des Angebots
oder im Falle des § 296 zu der für die Hand¬
lung des Gläubigers bestimmten Zeit außer¬
stande ist, die Leistung zu bewirken.
The provision serves to clarify that the obligor must be prepared and able to effect 1
performance at the time of the actual or verbal offer (§§ 294, 295) or at the time determined
for the action of the obligee (§ 296). The negative wording has the effect that the obligee
bears the burden of proving that such requirements were not fulfilled.
§298
Concurrent performance
If the obligor is only obliged to perform in
return for an act of performance by the ob¬
ligee, the obligee is in default if, although he is
willing to accept the performance offered, he
does not offer the consideration demanded.
§ 298
Zug-um-Zug-Leistungen
Ist der Schuldner nur gegen eine Leistung
des Gläubigers zu leisten verpflichtet, so
kommt der Gläubiger in Verzug, wenn er zwar
die angebotene Leistung anzunehmen bereit ist,
die verlangte Gegenleistung aber nicht anbietet.
A. Function
The provision supplements § 294 by clarifying that, in an obligation of concurrent perfor- 1
mance, the obligee’s failure to offer consideration (counter-performance) is to be equated with
non-acceptance of the performance tendered by the obligor. It applies not only to obligations
of concurrent performance in reciprocal contracts (§ 320) but also to cases of a right of
retention (e.g. § 273).
B. Explanation
The provision requires the obligor to have offered this performance correctly and to have 2
demanded the consideration; the obligors offer to perform is restricted by the demand for
consideration. The obligee will be in default if he does not accept the obligor’s offer to
perform. Fault by the obligee is neither necessary nor is an express declaration of refusal to
1 § 286 mn. 10.
2 BAG 27.1.1994 - 2 AZR 584/93, NJW 1994, 2846.
Schulze
439
§ 302 Division 1. Subject matter of obligations
render the consideration. However, if the obligee is responsible for his non-performance, he
will not only be in default of acceptance but will also be in default according to § 286 with
regard to his counter-performance, i. e. the consideration.
§ 299
Temporary prevention of
acceptance
If the time of performance is not specified
or if the obligor is entitled to provide perfor¬
mance before the specified time, the obligee is
not in default merely because he is tempora¬
rily prevented from accepting the perfor¬
mance offered, unless the obligor notifies
him of the performance a reasonable time in
advance.
§299
V oriibergehende
Annahmeverhinderung
Ist die Leistungszeit nicht bestimmt oder ist
der Schuldner berechtigt, vor der bestimmten
Zeit zu leisten, so kommt der Gläubiger nicht
dadurch in Verzug, dass er vorübergehend an
der Annahme der angebotenen Leistung ver¬
hindert ist, es sei denn, dass der Schuldner
ihm die Leistung eine angemessene Zeit vor¬
her angekündigt hat.
1 In light of the principle of good faith, § 299 takes account of the circumstance that the
obligee cannot be expected to be continuously prepared to accept performance if the time for
performance is not specified or the obligor is entitled to early performance. However, it only
excludes default of acceptance when the obligor has not announced the performance in a
reasonable time prior to the (actual or verbal) offer of performance. The obligee bears the
burden of proof for the temporary prevention of acceptance; the obligor has to prove the
timely announcement of performance.
§300
Effects of default by the obligee
(1) The obligor is, during the period of the
default of the obligee, only responsible for
intent and gross negligence.
(2) If a thing designated only by class is
owed, the risk passes to the obligee at the
time when he is in default by not accepting
the thing offered.
§300
Wirkungen des Gläubigerverzugs
(1) Der Schuldner hat während des Verzugs
des Gläubigers nur Vorsatz und grobe Fahr¬
lässigkeit zu vertreten.
(2) Wird eine nur der Gattung nach be¬
stimmte Sache geschuldet, so geht die Gefahr
mit dem Zeitpunkt auf den Gläubiger über,
in welchem er dadurch in Verzug kommt,
dass er die angebotene Sache nicht annimmt.
§301
Cessation of interest
During the period of default by the obligee,
the obligor need not pay interest on an inter¬
est-bearing money debt.
§301
Wegfall der Verzinsung
Von einer verzinslichen Geldschuld hat der
Schuldner während des Verzugs des Gläubi¬
gers Zinsen nicht zu entrichten.
§302
Emoluments
If the obligor must return or reimburse the
emoluments of an object, his obligation is
limited, for the period of default by the ob¬
ligee, to the emoluments he takes.
§302
Nutzungen
Hat der Schuldner die Nutzungen eines
Gegenstands herauszugeben oder zu ersetzen,
so beschränkt sich seine Verpflichtung wah'
rend des Verzugs des Gläubigers auf die Nut¬
zungen, welche er zieht.
440
Schulze
Compensation for extra expenses
1-3 § 304
§303
Right to abandon possession
JIf the obligor is obliged to surrender a
plot of land or a registered ship or ship under
construction, he may abandon possession
after the obligee is in default. 2The obligee
must be threatened with abandonment be¬
forehand, unless the threat is impracticable.
§303
Recht zur Besitzaufgabe
Hst der Schuldner zur Herausgabe eines
Grundstücks oder eines eingetragenen Schiffs
oder Schiffsbauwerks verpflichtet, so kann er
nach dem Eintritt des Verzugs des Gläubigers
den Besitz aufgeben. 2Das Aufgeben muss
dem Gläubiger vorher angedroht werden, es
sei denn, dass die Androhung untunlich ist.
§304
Compensation for extra expenses
If the obligee is in default, the obligor may
demand reimbursement of extra expenses he
was obliged to incur for the futile offer as
well as for safekeeping and preservation of
the object owed.
§304
Ersatz von Mehraufwendungen
Der Schuldner kann im Falle des Verzugs
des Gläubigers Ersatz der Mehraufwendungen
verlangen, die er für das erfolglose Angebot
sowie für die Aufbewahrung und Erhaltung
des geschuldeten Gegenstands machen musste.
A. Function
§§ 300-304 determine the legal consequences of a default in acceptance.
1
B. Explanation
I. Effects of default
According to § 300(1), the obligor’s legal position is improved as he is only liable for intent 2
and gross negligence if the object owed is destroyed or deteriorates during the default in
acceptance. However, this only concerns the object owed, whereas the liability for breach of
contractual obligations that do not refer the object (e.g. duties of protection, § 241(2)) is not
limited. Furthermore, the risk of destruction or deterioration passes to the obligee in an
obligation in kind (§ 300(2)); the obligor will therefore be released from his obligation to
perform when he has ascertained the object, offered it to no avail, and the object is then
destroyed or deteriorates through coincidence or his mere negligence. According to § 294, an
actual offer by the obligor however often contains an ascertainment according to § 243(2).
The importance of the former provision in relation to the latter is therefore minimal; it
mostly concerns money debts (§ 270(1)) and cases in which a verbal offer (§ 295) has given
rise to default in obligations to bring or deliver the performance (Bringschuld, Schickschuld).
IL Interest and abandonment
The obligor’s legal position in default of acceptance is considerably improved by the 3
release from an agreed or statutory obligation to pay interest on a money debt (§ 301). In
contrast, he will not be released from the obligation to return or reimburse emoluments of an
object used during the period of default; § 302 however limits this obligation to the
emoluments he has taken. Furthermore, § 303 entitles the obligor to abandon possession of
a plot of land (or registered ship/ship under construction) if the obligee has threatened
abandonment beforehand. However, this entitlement only concerns the abandonment of
possession (§ 856), not ownership (§ 928). The prior threat is impracticable and therefore not
necessary if it would cause disproportionate costs or an unreasonable delay.
Schulze
441
§305
Division 2. Standard business terms
III. Expenses
4 The obligor may demand compensation for extra expenses that he has incurred for the futile
offer as well as for the safekeeping and preservation of the object owed. This claim only concerns
the extra expenses that were objectively necessary, as is apparent from the wording was obliged to
incur.1 Such extra expenses include e.g. the costs of the futile first offer (but not of the successful
second offer), of a reminder, of transport and insurance premiums arising from safekeeping and
preservation. The obligor has a right of retention under § 273 due to this claim for compensa¬
tion. If applicable, claims arising from agency without specific authorisation (§§ 677, 683) may
come into consideration for the unnecessary extra expenses not covered by § 304.
Division 2
Drafting contractual obligations
by means of standard business
terms
§305
Incorporation of standard
business terms into the contract
(1) Standard business terms are all con¬
tract terms pre-formulated for more than two
contracts which one party to the contract (the
user) presents to the other party upon the
entering into of the contract. 2It is irrelevant
whether the provisions take the form of a
physically separate part of a contract or are
made part of the contractual document itself,
what their volume is, what typeface or font is
used for them and what form the contract
takes. 3Contract terms do not become stan¬
dard business terms to the extent that they
have been negotiated in detail between the
parties.
(2) Standard business terms only become a
part of a contract if the user, when entering
into the contract,
1. refers the other party to the contract to
them explicitly or, where explicit reference, due
to the way in which the contract is entered into,
is possible only with disproportionate diffi¬
culty, by posting a clearly visible notice at the
place where the contract is entered into, and
2. gives the other party to the contract, in
an acceptable manner, which also takes into
reasonable account any physical handicap of
the other party to the contract that is discern¬
ible to the user, the opportunity to take
notice of their contents,
Abschnitt 2
Gestaltung rechtsgeschäftlicher
Schuldverhältnisse durch
allgemeine Geschäftsbedingungen
§305
Einbeziehung Allgemeiner
Geschäftsbedingungen in den
Vertrag
(1) 1 Allgemeine Geschäftsbedingungen sind
alle für eine Vielzahl von Verträgen vorformu¬
lierten Vertragsbedingungen, die eine Ver¬
tragspartei (Verwender) der anderen Vertrags¬
partei bei Abschluss eines Vertrags stellt
Gleichgültig ist, ob die Bestimmungen einen
äußerlich gesonderten Bestandteil des Vertrags
bilden oder in die Vertragsurkunde selbst auf¬
genommen werden, welchen Umfang sie ha¬
ben, in welcher Schriftart sie verfasst sind und
welche Form der Vertrag hat. Allgemeine Ge¬
schäftsbedingungen liegen nicht vor, soweit die
Vertragsbedingungen zwischen den Vertrags¬
parteien im Einzelnen ausgehandelt sind.
(2) Allgemeine Geschäftsbedingungen wer¬
den nur dann Bestandteil eines Vertrags
wenn der Verwender bei Vertragsschluss
1. die andere Vertragspartei ausdrücklich
oder, wenn ein ausdrücklicher Hinweis wegen
der Art des Vertragsschlusses nur unter unver¬
hältnismäßigen Schwierigkeiten möglich ist»
durch deutlich sichtbaren Aushang am Orte
des Vertragsschlusses auf sie hinweist und
2. der anderen Vertragspartei die Möglich
keit verschafft, in zumutbarer Weise, die auch
eine für den Verwender erkennbare körper
liehe Behinderung der anderen Vertragspartei
angemessen berücksichtigt, von ihrem Inh t
Kenntnis zu nehmen,
i BGH 14.2.1996 - VIII ZR 185/94, NJW 1996, 1464.
442
Fries
Incorporation of standard business terms
1-2 § 305
and if the other party to the contract agrees
to their applying.
(3) The parties to the contract may, while
complying with the requirements set out in
subsection (2) above, agree in advance that
specific standard business terms are to govern
a specific type of legal transaction.
und wenn die andere Vertragspartei mit
ihrer Geltung einverstanden ist.
(3) Die Vertragsparteien können für eine
bestimmte Art von Rechtsgeschäften die
Geltung bestimmter Allgemeiner Geschäfts¬
bedingungen unter Beachtung der in Absatz 2
bezeichneten Erfordernisse im Voraus verein¬
baren.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
C. Explanation 5
I. Definition 5
1. Conditions 6
2. Pre-formulated 7
3. Presented 8
II. Valid part 9
III. Battle of the forms 10
IV. Framework contract 11
A. Function
I. Purpose and underlying principle
§§ 305 et seq. are the basis for the legal examination of standard business terms. The BGB 1
generally grants freedom of contract so that in many respects, individuals can agree on what
they like. However, a problem arises where the complexity of an offer of contract makes the
other party ignore some of its terms or refrain from concluding a mutually beneficial contract
at all. In economic terms: reading and digesting standard terms are transaction costs that can
easily become prohibitive even though the contract would have increased the individual
welfare of both parties. Thus, in an attempt to correct this market failure, the law invalidates
surprising and biased terms so that parties to a contract face only minor disadvantages if
accepting the proposed terms without resistance.1 With the same rationale, one could argue
for a complete invalidation of standard terms by law. However, §§ 305 et seq. have chosen
the gentle way. To a large extent, the provisions of §§ 305 et seq. serve the goal of consumer
protection by preventing traders from using their market power in order to push self-serving
conditions and make consumers face a Hobson’s choice. At least with regard to e-commerce,
it is questionable whether this analysis still applies, as in recent years, online marketplaces
and rating platforms have snatched considerable market power from the traders.
IL Position within the BGB
The legal test of standard business terms does not follow the sequence of §§ 305 et seq. 2
Instead, German lawyers begin by checking the scope of application (§ 310), then they ask
whether a certain clause or set of clauses are indeed standard business terms (Sub. 1), and
whether they have become part of the contract (Sub. 2, §§ 305a, 305c(l)). It is only after all of
1 The economic rationale of legal boundaries to standard business terms is examined by Hatzis, in:
Collins (ed.), Standard Contract Terms in Europe (Wolters Kluwer 2008), p. 43 et seq.
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443
§ 305 3-7 Division 2. Standard business terms
these questions are answered in the affirmative that the legal test regarding the content of the
clause is performed (§§ 307-309). If a term is deemed ineffective, or did not become part of
the contract, the final step is to determine the legal consequences (§ 306).
III. Scope of application
3 The scope of application of §§ 305 et seq. extends far beyond contracts for the sale of
goods or services. For example, the terms and conditions of loan contracts (§§ 488 et seq.),
tenancy agreements (§§ 535 et seq.), employment contracts (§ 61 la, but see § 310(4) 2nd St.),
contracts governing medical treatment (§§ 630a et seq.), and insurance contracts (Versiche¬
rungsvertragsgesetz, VVG - Insurance Contracts Act) have to meet the requirements of
§§ 305 et seq. The scope of application is further specified in § 310.
B. Context
4 The provisions of §§ 305 et seq. were originally enacted as a special AGB-Gesetz (Gesetz
zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen, AGBG - Act on standard
business terms), which entered into force as of 1977 and was integrated into the BGB with
the 2002 reform of the German law of obligations.2 It was one of the archetypes of the EU
Unfair Terms Directive. At the same time, some of the provisions of §§ 305 et seq. bear the
signature of that and other European directives.3 The Acquis Principles contain similar
provisions in Art. 6 ACQP.4
C. Explanation
I. Definition
5 Sub. 1 provides a definition of standard business terms. Key elements are the pre¬
formulation of conditions to the contract and their presentation by the user.
1. Conditions
6 Standard terms are deemed conditions to the contract if they cover side issues of the
contract but not the essentialia negotii. For example, if a locksmith proposes a standard
hourly rate to his customer, this is the core of the services contract and thus cannot be a
condition to the contract. On the other hand, if the locksmith service imposes clauses
establishing additional fees or mitigating liability, those would be considered conditions to
the contract and thus potential standard business terms.
2. Pre-formulated
7 Conditions to the contract are pre-formulated to be used in more than two contracts if the
user has drafted them and put them in writing to be, at least potentially, used in cases other
than the contract in question. It is important to note that it is not necessary that the user has
already used his terms prior to the contract in question. In addition, the law does not require
the terms to be eventually used in further cases; the crucial point is, rather, the intention ot
2 See the lucid explanation by Zimmermann, in: Reimann/Zekoll (eds), Introduction to German Law
(2nd edn, Kluwer 2005), p. 1, 14 et seq.
3 More details on the European approach towards the regulation of standard business terms in the earl)'
21s’ century are given by Bernitz, in: Vogenauer/Weatherill (eds), The Harmonisation of European
Contract Law, (Hart 2006), p. 185 et seq. As to initial experience with that Directive, see Collins. in¬
Collins (ed.), Standard Contract Terms in Europe (Wolters Kluwer 2008), p. 1 et seq.
4 See Acquis Group, Contract I, 2007, p. 213 et seq.
444
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Incorporation of standard business terms 8-11 § 305
the user for a possibly repeated application. In consumer contracts, §§ 305c(2), 306, 307, 308,
and 309 are applicable even if the terms were formulated only for single use; this follows
from §310(3) No. 2.
3. Presented
Standard terms are considered as presented if the user introduces them as conditions to the 8
conclusion of the contract. Usually, such presentation is done by adding the terms as fine print
to the draft contract or - especially with regard to e-commerce - by providing a link to a sub¬
page where the terms are listed. It is important to note that the standard terms have to be
presented by the user. Thus, if some third party such as a notary or a sharing economy
platform (e.g. Snappear or Airbnb) provides standard terms, this does not satisfy the require¬
ments of Sub. 1. On the other hand, if the third party only drafts the standard terms (as is now
common with modern online contract generators) that are subsequently brought in by one
party, this can make his standard business terms. A special rule applies with regard to
consumer contracts: standard terms are legally deemed to be presented by the trader according
to § 310(3) No. 1 as long as it is not evident that they were put forward by the consumer. This
is indeed the only option for a customer on one of the sharing platforms mentioned above. In
attempting to invalidate the standard terms, the customer has to prove that his counterpart is a
trader and not a consumer because only then will § 310(3) No. 1 apply.
IL Valid part
If one party to the contract has made use of standard business terms, the next question is 9
whether these terms have, in fact, become a valid part of the contract. According to Sub. 2,
this requires a visible reference to the terms and confirmation by the other party. The
reference can take many different forms, e.g., a notice placed at a counter or a submission in
paper. There is considerable case law with regard to this issue, however, its practical
importance is limited as more and more business is shifting online and here, a link to a
sub-page of a website, possibly combined with a confirmation checkbox, certainly satisfies the
requirements of Sub. 2.5 The worrying legal policy question is, rather, why the law urges
customers to confirm something they have not read. In addition, one should bear in mind
that, according to § 310(1) 1st St., Subs 2 and 3 are not applicable in B2B contracts.
III. Battle of the forms
Especially in B2B relationships, it is possible that both parties present their own standard 10
business terms and that these terms partly contradict each other. Sub. 2 does not solve the
question of whose terms should then prevail. Whereas one could think about letting the first
or the last mover prevail (first shot/last shot), it is more convincing to invalidate the
respective terms as far as they are inconsistent with each other (knock-out rule).6
IV. Framework contract
If both parties enter into contracts on a regular basis, Sub. 3 gives them an opportunity to 11
agree on a framework contract including standard business terms that then prevail for any
contract within the given framework. For example, a food delivery service might establish its
standard business terms every time an account is created so that they do not have to be
repeated whenever a customer places an order. See, however, § 312i( 1) 1st St. No. 4 for e-
commerce contracts.
5 von dem Bussche/Klein, E-Commerce Law in Germany (C.H.Beck 2015), p. 42 et seq., with further
references.
6 For details see MuKo BGB/Basedow, § 305 BGB mn. 102-108.
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445
§ 305b 1
Division 2. Standard business terms
§ 305a
Incorporation in special cases
Even without compliance with the require¬
ments cited in § 305(2) Nos 1 and 2, if the
other party to the contract agrees to their
applying the following are incorporated,
1. the tariffs and regulations of the railways
issued with the approval of the competent
transport authority or on the basis of inter¬
national conventions, and the terms of trans¬
port approved under the Passenger Transport
Act [Personenbeförderungsgesetz], of trams,
trolley buses and motor vehicles in regular
public transport services,
2. the standard business terms published in
the gazette of the Federal Network Agency for
Electricity, Gas, Telecommunications, Post
and Railway [Bundesnetzagentur für Elektri¬
zität, Gas, Telekommunikation, Post und Ei¬
senbahnen] and kept available on the busi¬
ness premises of the user,
a) into transport contracts entered into off
business premises by the posting of items in
postboxes,
b) into contracts on telecommunications,
information services and other services that
are provided direct by the use of distance
communication and at one time and without
interruption during the supply of a telecom¬
munications service, if it is disproportio¬
nately difficult to make the standard business
terms available to the other party before the
contract is entered into.
§ 305a
Einbeziehung in besonderen Fällen
Auch ohne Einhaltung der in § 305 Abs. 2
Nr. 1 und 2 bezeichneten Erfordernisse wer¬
den einbezogen, wenn die andere Vertrags¬
partei mit ihrer Geltung einverstanden ist,
1. die mit Genehmigung der zuständigen
Verkehrsbehörde oder auf Grund von inter¬
nationalen Übereinkommen erlassenen Tarife
und Ausführungsbestimmungen der Eisen¬
bahnen und die nach Maßgabe des Perso¬
nenbeförderungsgesetzes genehmigten Be¬
förderungsbedingungen der Straßenbahnen,
Obusse und Kraftfahrzeuge im Linienverkehr
in den Beförderungsvertrag,
2. die im Amtsblatt der Bundesnetzagentur
für Elektrizität, Gas, Telekommunikation,
Post und Eisenbahnen veröffentlichten und
in den Geschäftsstellen des Verwenders be-
reitgehaltenen Allgemeinen Geschäftsbedin¬
gungen
a) in Beforderungsverträge, die außerhalb
von Geschäftsräumen durch den Einwurf von
Postsendungen in Briefkästen abgeschlossen
werden,
b) in Verträge über Telekommunikations-,
Informations- und andere Dienstleistungen,
die unmittelbar durch Einsatz von Fernkom¬
munikationsmitteln und während der Erbrin¬
gung einer Telekommunikationsdienstleistung
in einem Mal erbracht werden, wenn die All¬
gemeinen Geschäftsbedingungen der anderen
Vertragspartei nur unter unverhältnismäßigen
Schwierigkeiten vor dem Vertragsschluss zu¬
gänglich gemacht werden können.
1 § 305a contains special rules for the inclusion of standard business terms into a contract,
the general provision being § 305(2). § 305a takes into account that certain types of contracts
are entered on the move where it is impracticable to display lengthy standard terms. Thus,
for example, public transportation services do not have to decorate their trams with their
standard terms, and postal institutions do not have to display their terms at every post box.
§ 305b
Priority of individually agreed
terms
Individually agreed terms take priority
over standard business terms.
§ 305b
Vorrang der Individualabrede
Individuelle Vertragsabreden haben Vor¬
rang vor Allgemeinen Geschäftsbedingungen.
A. Function
1 If a contract entails terms individually agreed on by the parties, it is assumed that these
terms were not forced through by the stronger party, but negotiated on a level playing field-
Hence, there is no reason to check or invalidate such clauses.
446
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Surprising and ambiguous clauses
1-2 § 305c
B. Explanation
Whereas contradicting standard terms are offset against each other,* 1 an individually 2
agreed term prevails over a standard term. This especially applies to standard clauses
requiring changes of the contractual terms to be in writing. As soon as the parties orally
agree to amend the contract, they can do so as such an amendment will always include the
effective, implied agreement to set aside the written form requirement. And even if the form
requirement wants to be applied to itself so that amendments to this requirement would
have to be in writing, such a clause would be invalid according to § 305b.
§ 305c
Surprising and ambiguous clauses
(1) Provisions in standard business terms
which in the circumstances, in particular with
regard to the outward appearance of the con¬
tract, are so unusual that the other party to
the contract with the user need not expect to
encounter them, do not form part of the
contract.
(2) Any doubts in the interpretation of
standard business terms are resolved against
the user.
§ 305c
Überraschende und mehrdeutige
Klauseln
(1) Bestimmungen in Allgemeinen Ge¬
schäftsbedingungen, die nach den Umstän¬
den, insbesondere nach dem äußeren Erschei¬
nungsbild des Vertrags, so ungewöhnlich
sind, dass der Vertragspartner des Verwen¬
ders mit ihnen nicht zu rechnen braucht,
werden nicht Vertragsbestandteil.
(2) Any doubts in the interpretation of
standard business terms are resolved against
the user.
A. Function
§ 305c is a consequence of the regulatory goal to protect market actors from concealing 1
self-serving or cloudy clauses in their standard business terms and, thus, deceiving their
contractual partner.1 Similar to § 305a, Sub. 1 serves as a special provision concerning the
inclusion of standard business terms into a contract. The general provision is offered in § 305
(2). Sub. 2 presupposes the standard terms are part of the contract, and provides a guideline
how to interpret a term in case of doubt.
B. Explanation
I. Surprising
Sub. 1 excludes surprising standard terms from being part of the contract. Of course, a 2
clause can only surprise the counterpart where he has not verifiably paid notice to this
particular term. Aside from that, it depends on the specifics of the particular case and the
viewpoint of a typical counterpart whether a clause is deemed surprising. Hence, a certain
clause might be regarded as surprising if used for consumer contracts but not surprising in
the context of an on-going B2B supply relationship. As Sub. 1 expressly states, the outward
appearance of the contract may play a decisive role. Against this background, the BGH has,
e.g., invalidated a standard term allowing for a payment in return for an entry in an online
directory where such an entry is usually provided free of charge.2 On the other hand, a clause
‘See ► § 305 mn. 10.
1 See § 305 mn. 1.
2 BGH 26.6.2012 - VII ZR 262/11, NJW 2012, 3427.
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447
§ 306 1-2
Division 2. Standard business terms
shortening the statute of limitation in a B2B second-hand car sale from 2 years to 6 months
was held non-surprising and thus permissible.3
IL Doubt
3 According to Sub. 2, any doubts as to the reasonable interpretation of a standard
business term are for the account of the user. Hence, if a standard term leaves reasonable
doubt as to whether, under the prevailing circumstances, the other party shall enjoy a
cancellation right or shall be entitled to get a promise of insurance coverage, these
provisions are interpreted to the disadvantage of the user. At the same time, it is important
to note that Sub. 2 does not necessarily lead to an interpretation that favours the counter¬
part of the user in the first place. For example, if a contract entails a standard penalty clause
in favour of the user and the scope of this clause is doubtful, Sub. 2 can be applied to widen
the scope for the benefit of the user if this, in a second step, leads to a disproportion
between violation and penalty and thus the invalidation of the clause in support of the
contractual partner.4
§306
Legal consequences of non¬
incorporation and ineffectiveness
(1) If standard business terms in whole or
in part have not become part of the contract
or are ineffective, the remainder of the con¬
tract remains in effect.
(2) To the extent that the terms have not
become part of the contract or are ineffective,
the contents of the contract are determined
by the statutory provisions.
(3) The contract is ineffective if upholding
it, even taking into account the alteration
provided in subsection (2) above, would be
an unreasonable hardship for one party.
§306
Rechtsfolgen bei
Nichteinbeziehung und
Unwirksamkeit
(1) Sind Allgemeine Geschäftsbedingungen
ganz oder teilweise nicht Vertragsbestandteil
geworden oder unwirksam, so bleibt der Ver¬
trag im Übrigen wirksam.
(2) Soweit die Bestimmungen nicht Ver¬
tragsbestandteil geworden oder unwirksam
sind, richtet sich der Inhalt des Vertrags
nach den gesetzlichen Vorschriften.
(3) Der Vertrag ist unwirksam, wenn das
Festhalten an ihm auch unter Berücksichti¬
gung der nach Absatz 2 vorgesehenen Ände¬
rung eine unzumutbare Härte für eine Ver¬
tragspartei darstellen würde.
A. Function
1 § 306 covers the legal effects of Standard business terms which, according to §§ 305(2),
305c(l), have not become part of the contract or, according to §§ 305b, 307, 308, 309, were
deemed invalid.
B. Context
2 The general provision regarding partly ineffective contracts is § 139. It states that in the
absence of special circumstances, the ineffectiveness of any part of a contract infects the
remainder and, thus, damns the contract as a whole. Sub. 1 is an exception to that rule, Sub. 3
is an exception to that exception.
3 BGH 27.9.2017 - VIII ZR 99/16, NJW 2018, 387.
4 BGH 31.8.2017 - VII ZR 308/16, NJW 2017, 3145.
448
Fries
Prohibition of circumvention
1 § 306a
C. Explanation
L Effectiveness of main contract
Sub. 1 states that the main contract remains effective if standard business terms have not 3
become part of the contract, or are ineffective for whatever reason. Hence, by introducing
standard terms, the user risks to be left with contractual side conditions he never intended to
agree on, the only limit being Sub. 3, according to which upholding the contract would mean
an unreasonable penalty for one party.
IL Effectiveness of clause
If the reason for invalidation concerns only one clause or a part of one clause, the 4
remainder of that clause as well as the other standard terms may remain effective as long as
they make sense without the cancelled part or clause (so-called ‘blue pencil rule*1). For
example, if a tenancy agreement contains a provision conferring a right to terminate at any
time with immediate effect to the landlord, such a clause would, inter alia, be ineffective
according to § 305c(l). However, the other standard terms would be upheld unless they
themselves give cause for an invalidation.
IIL Inappropriate measure
If a clause entails an inappropriate measure, it is not allowed to reduce that measure until 5
appropriate. For example, if a standard term in a contract on the sale of a used car reduces
the statute of limitations from two years to nine months, this measure cannot be adapted to
the legally possible period of one year (§ 476(2)) as this would leave the user without any
sanction for introducing an illegitimate clause and provide an incentive to boost any such
measures far out of proportion.
IV. Default provisions
According to Sub. 2, the gap which is left by standard terms that have not come into effect is 6
closed by the default provisions of the applicable statute law. If the standard terms have
stipulated a cascade according to which the ineffectiveness of the favourite standard term leads
to the application of an auxiliary rule, such a provision can, for reasons of protection of the
other party, be followed if the auxiliary rule makes him better off than the applicable statute
law.2 If the applicable statute law does not entail a rule for the situation that the invalidated
clause was meant to cover, the court will close the gap by implying what the parties would have
agreed on had they foreseen that the respective issue still required clarification (so-called
ergänzende Vertragsauslegung - completive interpretation of contract3).
§ 306a
Prohibition of circumvention
The rules in this division apply even if they
are circumvented by other constructions.
§ 306a
Umgehungsverbot
Die Vorschriften dieses Abschnitts finden
auch Anwendung, wenn sie durch anderwei¬
tige Gestaltungen umgangen werden.
§ 306a serves to render §§ 305 et seq. more effective. Originally, the provision followed the 1
example of §§512 2nd St., 655e(l) 2nd St. concerning circumventing provisions in loan
‘ BAG 21.2.2017 - 3 AZR 297/15, NJW 2017, 1628.
2 BGH 20.7.2017 - VII ZR 259/16, NJW 2017, 2762.
3 See -► § 154 mn. 4 et seq.
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449
§307 Division 2. Standard business terms
contracts. However, its application in practice is limited as most circumventions can be
captured by pure interpretation of the respective clauses. One of the rare examples of an
application of § 306a concerned a lump-sum fee for overdrawing the customer’s bank
account, which, according to the BGH, circumvented the prohibition of a minimum charge
for consumer loans.
§307
Test of reasonableness of contents
(1) ‘Provisions in standard business terms
are ineffective if, contrary to the requirement
of good faith, they unreasonably disadvantage
the other party to the contract with the user.
2An unreasonable disadvantage may also
arise from the provision not being clear and
comprehensible.
(2) An unreasonable disadvantage is, in
case of doubt, to be assumed to exist if a
provision
1. is not compatible with essential princi¬
ples of the statutory provision from which it
deviates, or
2. limits essential rights or duties inherent
in the nature of the contract to such an extent
that attainment of the purpose of the contract
is jeopardised.
(3) ‘Subsections (1) and (2) above, and
§§ 308 and 309 apply only to provisions in
standard business terms on the basis of which
arrangements derogating from legal provi¬
sions, or arrangements supplementing those
legal provisions, are agreed. 2Other provi¬
sions may be ineffective under subsection (1)
sentence 2 above, in conjunction with
subsection (1) sentence 1 above.
§307
Inhaltskontrolle
(1) 'Bestimmungen in Allgemeinen Ge-
schäftsbedingungen sind unwirksam, wenn
sie den Vertragspartner des Verwenders ent¬
gegen den Geboten von Treu und Glauben
unangemessen benachteiligen. 2Eine unange¬
messene Benachteiligung kann sich auch da¬
raus ergeben, dass die Bestimmung nicht klar
und verständlich ist.
(2) Eine unangemessene Benachteiligung
ist im Zweifel anzunehmen, wenn eine Be¬
stimmung
1. mit wesentlichen Grundgedanken der
gesetzlichen Regelung, von der abgewichen
wird, nicht zu vereinbaren ist oder
2. wesentliche Rechte oder Pflichten, die
sich aus der Natur des Vertrags ergeben, so
einschränkt, dass die Erreichung des Ver¬
tragszwecks gefährdet ist.
(3) ‘Die Absätze 1 und 2 sowie die §§308
und 309 gelten nur für Bestimmungen in
Allgemeinen Geschäftsbedingungen, durch
die von Rechtsvorschriften abweichende oder
diese ergänzende Regelungen vereinbart wer¬
den. 2Andere Bestimmungen können nach
Absatz 1 Satz 2 in Verbindung mit Absatz 1
Satz 1 unwirksam sein.
Contents
mn.
A. Function 1
1. Purpose 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Unreasonable disadvantage 4
II. Transparency 5
III. Applicable default law 6
IV. Limitation of essential rights and duties 7
V. Examples 8
1. Sales contracts 9
2. Loan contracts 10
3. Tenancy agreements 11
4. Employment contracts 12
5. Medical treatment 13
6. Construction contracts 14
450
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Test of reasonableness of contents
1-5 § 307
A. Function
I. Purpose
Whereas §§ 305-306a mainly deal with the question of whether standard business terms 1
become part of a contract and what the legal effects of inappropriate standard terms are,
§§ 307-309 rule on the content of standard business terms. § 307 contains a general provision,
while §§ 308 and 309 prohibit several types of clauses that are illegal in any case.1 Thus, a lawyer
would usually start by checking §§ 308 and 309 before applying the general provision of § 307.
IL Scope of application
According to Sub. 3, Sub. 1 1st St. and Sub. 2, 308, and 309 are applicable only insofar as the 2
standard business terms amend or deviate from existing legal provisions. In other words, if a
standard term contains further details on the product or service sold, the test of reasonableness is
not performed as long as the clause does not curtail the legal rights of the other party. For
example, if in a domestic dog purchase, the seller gives additional details about the breed and
previous owners in standard terms, Sub. 1 1st St. and Sub. 2, 308, and 309 are not applicable. The
same holds true for details on pricing modalities. An example is the so-called data automatism in
mobile data contracts, automatically topping up the data volume once the original volume is
exhausted.2 With regard to consumer contracts, one should, however, keep in mind that special
information duties like the ones set out in §§ 312a(3), 312d, 312j(2) might apply.
B. Context
Before being included in the BGB, the provisions set out in § 307 were stipulated in §§ 8, 9 3
AGBG. § 307 corresponds to Arts 3 and 4 EU Unfair Terms Directive.
C. Explanation
I. Unreasonable disadvantage
Sub. 1 1st St. stipulates that standard terms are invalid if they result in an unreasonable 4
disadvantage for the other party. Whereas most standard terms will lead to some advantage for
the user and thus a disadvantage for the other side, such a disadvantage is only unreasonable if it
is far away from the rules that would normally govern the contract.3 For example, if the law sets
out strict liability, a standard term may limit the user’s liability to negligent behaviour, whereas a
restriction to liability only in cases of intentional behaviour would usually be unreasonable and
infringe upon the principle of good faith. At the same time, a decision about the reasonableness
of a certain disadvantage always depends on the circumstances of individual cases. Moreover, a
clause that entails a significant disadvantage for the other party might be counterbalanced if it is
accompanied by some sort of compensation which puts the drawback in a more concerted
perspective. It is important to note that in consumer contracts, according to § 310(3) No. 3, the
unreasonable disadvantage can also result from aspects around the conclusion of the contract.
IL Transparency
Sub. 1 2nd St. provides an example for an unreasonable disadvantage by setting out a 5
transparency requirement. For example, if the core content of a clause is hidden behind
1 An easy read for this regulatory approach is von dem Bussche/Klein, E-Commerce Law in Germany
(C.H.Beck 2015), p. 42, 43 et seq.
2 BGH 5.10.2017 - III ZR 56/17, NJW 2018, 534.
3 A similar explanation is provided by Mann, Commercial Contracts in Germany (C.H.Beck 2015), p. 13.
Fries
451
§ 307 6-9 Division 2, Standard business terms
lengthy phrases, or if the wording is so technical that the reader hardly gets the crucial
message, this can qualify as an unreasonable disadvantage. Such a violation of the transpar-
ency requirement was affirmed in a case where a standard term contained a consent to an
email advertisement from certain sponsors and the sponsors were listed only on a website but
not within the standard terms.4 Another example is a clause that allows a freight carrier to
deliver the goods to neighbours if the addressee is unavailable, but fails to specify who would
be considered as his neighbour.5
III. Applicable default law
6 Sub. 2 No. 1 contains an additional example of an unreasonable disadvantage: if the
standard term in question unduly deviates from the intention of applicable default law,
such clause should be considered unreasonable. An example of considerable importance is
the common practice for banks to include a lump-sum handling fee (usually amounting to
around 1 percent of the amount borrowed) in their loan contracts with consumers and
businesses. This fee was deemed inappropriate as the related services (e.g., a solvency check)
were performed in the self-interest of the bank and, according to the legislative intention, do
not justify an additional payment.6
IV. Limitation of essential rights and duties
7 Sub. 2 No. 2 gives another example of an unreasonable disadvantage. It ties in with the
purpose of the contract and deems clauses invalid that limit essential rights and duties in a way
that interferes with the core contractual goals. For example, it is unreasonable for a theft
insurance company to use standard terms that oblige the policyholder to secure his belongings
in a theft-proof manner, as the nature of such insurance is to deal with the risk of personal items
being subject to a certain risk of theft. Indeed, many of the cases dealing with Sub. 2 No. 2
concern standard business terms of insurance companies. Another example here is a clause in a
building insurance contract exempting mould damages from the insurance cover. Such a term is
unreasonable as mould damage is one of the main problems landlords are forced to deal with
and are thus one of the crucial motivations to take out building insurance in the first place.7
V. Examples
8 § 307 has triggered splendid examples of case law that a short commentary cannot
exhaustively report. However, the following overview of some clauses typical of the contract
categories specified in the BGB, including their lawfulness, illustrate the general approach of
the courts to apply § 307 to standard business terms.
1. Sales contracts
9 One of the most typical standard terms in sales contracts (§§ 433 et seq.) is the title
retention (Eigentumsvorbehalt) clause which allows the seller to retain his proprietary rights
regarding the sold item until the purchase price is paid by the seller. In its extended version
(verlängerter Eigentumsvorbehalt), the clause allows the buyer to resell the purchased good
and at the same time makes him transfer his own purchase price claim to the seller. As
German law, with its principle of separation (Trennungsprinzip), differentiates between the
contractual right to claim property and the property right itself, and regards the one as
independent from the other (Abstraktionsprinzip - principle of abstraction) there is no
dogmatic difficulty in deferring the property shift until the payment is made8 However,
4 BGH 14.3.2017 - VI ZR 721/15, NJW 2017, 2119.
5 BGH 25.1.2017 - I ZR 113/15.
6 BGH 4.7.2017 - XI ZR 562/15, NJW 2017, 2986.
7 BGH 12.7.2017 - IV ZR 151/15, NJW 2017, 2831.
8 See Introduction mn. 40-42,
452
Fries
Test of reasonableness of contents 10-12 § 307
courts have often been asked whether it is inappropriate to hide a title retention in standard
terms. Such a clause would be generally regarded effective in B2B contracts, but tend to be
considered invalid in consumer contracts.
2. Loan contracts
Standard terms in loan contracts (§§ 488 et seq.) often entail clauses allowing the bank to 10
charge the borrower with various fees. When running the test of reasonableness according to
§ 307, the courts usually assess if these fees are justified by any service to the customer
beyond the main contractual duties. For example, it is an unreasonable disadvantage for the
customer if a clause obliges his to pay 1 percent of the amount borrowed as compensation of
obtaining a sub-market interest rate.9 Another common clause requires the borrower to
transfer all his trade accounts to his bank as a security for redeeming the loan. This type of
blanket assignment of receivables (Globalzession) might extend disproportionally beyond the
value of the secured claim. The courts assume such a disproportion if the value of the security
amounts to more than 110 percent of the value of the collateralised receivable (so-called
Deckungsgrenze - limit of cover). If the disproportion already existed when the security was
conferred (anfängliche Übersicherung), the provision of security will usually be determined to
be immoral and thus void according to § 138(1). If, however, the disproportion develops only
after the provision of security (nachträgliche Übersicherung), the provision is effective. In the
latter case, the courts grant the borrower a claim for the release of the security as soon as the
value of the security amounts to more than 150 percent of the value of the collateralised
receivable. Any limitation of this claim by standard business terms means an unreasonable
advantage for the borrower and is thus deemed ineffective according to Sub. I.10
3. Tenancy agreements
German courts have created ample case law regarding tenancy agreements (§§ 535 et seq.), 11
especially if the tenant is a private individual, i.e., a consumer. An illustrative example is the
case law on aesthetic repairs which, over the years, became more and more consumer¬
friendly. Many tenancy agreements contain a standard term obliging the tenant to paint the
walls of the apartment before moving out. Such a clause is deemed inappropriate as many
tenants terminate the contract before the walls really need repair. Thus, many landlords used
a schedule to fix the repair intervals and gave the tenants the opportunity to pay a certain
portion at their move-out if the respective interval was not yet reached. The courts held these
clauses effective as long as the schedule was not rigid (starrer Fristenplan) and left the tenant
the option to show that the apartment was in better condition than assumed by the schedule
(flexibler Fristenplan). However, the BGH has recently invalidated even the latter clauses on
the grounds that a tenant will never be able to prove the better condition of his apartment.11
Thus, the vast majority of standard terms on aesthetic repairs is ineffective, resulting in a
legal situation in which, according to § 306(2), most tenants do not have to do such repairs at
all as, according to §§ 535(1) 2nd St., 538, any renovations are within the responsibility of the
landlord.
4. Employment contracts
Similar to many other consumer contracts, the bulk of most employment contracts 12
(§ 611a) consists of standard business terms. Such terms often entail provisions about
termination of the contract, restraints on competition, and details concerning the legal effects
of violation. The employee typically finds himself in a take it or leave it situation and is thus
tempted to agree to unfavourable side conditions hoping that these clauses will never be
9 BGH 17.10.2017 - XI ZR 157/16, NJW 2018, 383.
10 See MüKo BGB/Wurmnest, § 307 BGB mn. 236-238 with further references.
11 BGH 18.3.2015 - VIII ZR 242/13, NJW 2015, 1871.
Fries
453
§ 308 Division 2. Standard business terms
applied. One of the harshest consequences an employment contract can account for js a
contractual penalty. Hence, the courts keep an eye on possible unreasonable disadvantages
and, if need be, invalidate excessive penalty clauses according to Sub. 1, 306(2). For example
a minimum penalty amounting to a multiple of the monthly salary triggered by almost any
considered violation of contractual duties was seen as not justified by the legitimate interest
of the employer and thus deemed ineffective.12
5. Medical treatment
13 Typical topics of standard business terms in contracts governing medical treatment
(§§ 630a et seq.) are liability limitations, and information on medical risks and surgical
procedures. According to § 630e(2) 1st St. No. 1, some obligatory information must not be
given in standard terms but in a one-on-one meeting. However, the hospital might still try to
specify details of the treatment in standard terms. For those patients who have opted (and
paid) for a treatment by the head physician, many hospitals attempt to open a certain leeway
for shifting responsibilities to senior physicians through standard terms. Against the back¬
ground of Sub. 2, this is deemed appropriate only if the clause names one substitute
physician and, if in case of personal incapability, by the head physician, the patient can still
opt for the standard treatment at the standard price.13
6. Construction contracts
14 A typical trait of construction contracts (§§ 650a et seq.) is the rise and fall of material
costs. Thus, a standard term permanently fixing the prices mentioned in the initial offer of
the constructor is deemed an unreasonable disadvantage for him and thus ineffective
according to Sub. I.14
§308
Prohibited clauses with the
possibility of evaluation
In standard business terms the following
are in particular ineffective
1. (Period of time for acceptance and perfor¬
mance) a provision by which the user reserves
to himself the right to unreasonably long or
insufficiently specific periods of time for ac¬
ceptance or rejection of an offer or for render¬
ing performance; this does not include the
reservation of the right not to perform until
after the end of the period of time for with¬
drawal under § 355 subsections (1) and (2);
la. (Period for payment) a provision by
which the user reserves to himself an unrea¬
sonably long period of time for the perfor¬
mance of a payment claim of the other party
to the contract; if the user is not a consumer,
in cases of doubt it is to be assumed that a
period is unreasonably long if it exceeds
30 days after receipt of the consideration, or
if after receiving the consideration the obli-
§308
Klauselverbote mit
Wertungsmöglichkeit
In Allgemeinen Geschäftsbedingungen ist
insbesondere unwirksam
1. (Annahme- und Leistungsfrist) eine Be¬
stimmung, durch die sich der Verwender un¬
angemessen lange oder nicht hinreichend be¬
stimmte Fristen für die Annahme oder
Ablehnung eines Angebots oder die Erbrin¬
gung einer Leistung vorbehält; ausgenommen
hiervon ist der Vorbehalt, erst nach Ablauf
der Widerrufsfrist nach § 355 Absatz 1 und 2
zu leisten;
la. (Zahlungsfrist) eine Bestimmung, durch
die sich der Verwender eine unangemessen
lange Zeit für die Erfüllung einer Entgeltior-
derung des Vertragspartners vorbehält; ist der
Verwender kein Verbraucher, ist im Zweife
anzunehmen, dass eine Zeit von mehr als
30 Tagen nach Empfang der Gegenleistung
oder, wenn dem Schuldner nach Empfang der
Gegenleistung eine Rechnung oder gleicher
12 BAG 4.3.2004 - 8 AZR 344/03.
11 BGH 20.12.2007 - III ZR 144/07, NJW 2008, 987.
14 BGH 20.7.2017 - VII ZR 259/16, NJW 2017, 2762.
454
Fries
Prohibited clauses with the possibility of evaluation § 308
gor receives an invoice or equivalent state¬
ment of payment, 30 days after receipt of this
invoice or statement of payment.
lb. (Examination and acceptance period)
a provision by which the user reserves to
himself to fulfil the payment claim of the
other party to the contract only after an
unreasonably long period of time for the
examination or acceptance of the considera¬
tion; if the user is not a consumer, in cases of
doubt it is to be assumed that a period of
time exceeding 15 days after receipt of the
consideration is unreasonably long;
2. (Additional period of time) a provision
by which the user, contrary to legal provi¬
sions, reserves to himself the right to an
unreasonably long or insufficiently specific
additional period of time for the performance
he is to render;
3. (Reservation of the right to revoke) the
agreement of a right of the user to free
himself from his obligation to perform with¬
out any objectively justified reason indicated
in the contract; this does not apply to con¬
tinuing obligations;
4. (Reservation of the right to modify) the
agreement of a right of the user to modify the
performance promised or deviate from it,
unless the agreement of the modification or
deviation can reasonably be expected of the
other party to the contract when the interests
of the user are taken into account;
5. (Fictitious declarations) a provision by
which a declaration by the other party to the
contract with the user, made when undertak¬
ing or omitting a specific act, is deemed to
have been made or not made by the user
unless
a) the other party to the contract is granted
a reasonable period of time to make an ex¬
press declaration, and
b) the user agrees to especially draw the
attention of the other party to the contract to
the intended significance of his behaviour at
the beginning of the period of time;
6. (Fictitious receipt) a provision providing
that a declaration by the user that is of special
importance is deemed to have been received
by the other party to the contract;
7. (Reversal of contracts) a provision by
which the user, to provide for the event that
a party to the contract revokes the contract or
gives notice of termination of the contract,
may demand
a) unreasonably high remuneration for en¬
joyment or use of a thing or a right or for
performance rendered, or
tige Zahlungsaufstellung zugeht, von mehr als
30 Tagen nach Zugang dieser Rechnung oder
Zahlungsaufstellung unangemessen lang ist;
lb. (Überprüfungs- und Abnahmefrist)
eine Bestimmung, durch die sich der Verwen¬
der vorbehält, eine Entgeltforderung des Ver¬
tragspartners erst nach unangemessen langer
Zeit für die Überprüfung oder Abnahme der
Gegenleistung zu erfüllen; ist der Verwender
kein Verbraucher, ist im Zweifel anzuneh¬
men, dass eine Zeit von mehr als 15 Tagen
nach Empfang der Gegenleistung unangemes¬
sen lang ist;
2. (Nachfrist) eine Bestimmung, durch die
sich der Verwender für die von ihm zu be¬
wirkende Leistung abweichend von Rechts¬
vorschriften eine unangemessen lange oder
nicht hinreichend bestimmte Nachfrist vor¬
behält;
3. (Rücktrittsvorbehalt) die Vereinbarung
eines Rechts des Verwenders, sich ohne sach¬
lich gerechtfertigten und im Vertrag angege¬
benen Grund von seiner Leistungspflicht zu
lösen; dies gilt nicht für Dauerschuldverhält¬
nisse;
4. (Änderungsvorbehalt) die Vereinbarung
eines Rechts des Verwenders, die verspro¬
chene Leistung zu ändern oder von ihr abzu¬
weichen, wenn nicht die Vereinbarung der
Änderung oder Abweichung unter Berück¬
sichtigung der Interessen des Verwenders für
den anderen Vertragsteil zumutbar ist;
5. (Fingierte Erklärungen) eine Bestim¬
mung, wonach eine Erklärung des Vertrags¬
partners des Verwenders bei Vornahme oder
Unterlassung einer bestimmten Handlung als
von ihm abgegeben oder nicht abgegeben gilt,
es sei denn, dass
a) dem Vertragspartner eine angemessene
Frist zur Abgabe einer ausdrücklichen Erklä¬
rung eingeräumt ist und
b) der Verwender sich verpflichtet, den
Vertragspartner bei Beginn der Frist auf die
vorgesehene Bedeutung seines Verhaltens be¬
sonders hinzu weisen;
6. (Fiktion des Zugangs) eine Bestimmung,
die vorsieht, dass eine Erklärung des Verwen¬
ders von besonderer Bedeutung dem anderen
Vertragsteil als zugegangen gilt;
7. (Abwicklung von Verträgen) eine Be¬
stimmung, nach der der Verwender für den
Fall, dass eine Vertragspartei vom Vertrag
zurücktritt oder den Vertrag kündigt,
a) eine unangemessen hohe Vergütung für
die Nutzung oder den Gebrauch einer Sache
oder eines Rechts oder für erbrachte Leistun¬
gen oder
Fries
455
§ 308 1-4
Division 2. Standard business terms
b) unreasonably high reimbursement of
expenses;
8. (Unavailability of performance) the
agreement, admissible under No. 3, of the
reservation by the user of a right to free
himself from the duty to perform the con¬
tract in the absence of availability of perfor¬
mance, if the user does not agree to
a) inform the other party to the contract
without undue delay, of the unavailability, and
b) reimburse the other party to the con¬
tract for consideration, without undue delay.
b) einen unangemessen hohen Ersatz von
Aufwendungen verlangen kann;
8. (Nichtverfügbarkeit der Leistung) dje
nach Nummer 3 zulässige Vereinbarung eines
Vorbehalts des Verwenders, sich von der
Verpflichtung zur Erfüllung des Vertrags bei
Nichtverfügbarkeit der Leistung zu lösen,
wenn sich der Verwender nicht verpflichtet,
a) den Vertragspartner unverzüglich über
die Nichtverfügbarkeit zu informieren und
b) Gegenleistungen des Vertragspartners
unverzüglich zu erstatten.
A. Function
I. Purpose
1 §§ 308 and 309 provide two lists of examples for typical standard terms that often, if not
always, are accompanied by an unreasonable disadvantage to the other party. Thus, §§ 308
and 309 are examined before checking the general provision of § 307; however, § 307 and
§ 308 can eventually both be applied. The difference between § 308 and § 309 is that the
former allows the courts to apply their discretion about the unreasonableness of the
disadvantage to the other side, whereas the latter already entails a terminal legislative
decision that such clauses do result in an unreasonable disadvantage to the other party.
IL Scope of application
2 It is important to note that, according to § 310(1) and (2), No. 1 and Nos 2-8 as well as
§ 309 are not applicable in B2B contracts, and in some other special constellations. However,
according to § 310(1) 2nd St., the clauses mentioned in No. 1 and Nos 2-8 and § 309 can.
even in B2B contracts, still be ineffective according to § 307. In this context, the courts
ascribe an indicative effect to the rationale of No. 1 and Nos 2-8 and § 309 even though
those provisions are not directly applicable.1 Hence, the main difference between B2C and
B2B contracts is that a clause mentioned in §§ 308 or 309 is necessarily invalid if presented to
a consumer, whereas in B2B contracts a court might find a reason to make an exemption.
B. Context
3 § 308 was preceded by § 10 AGBG. The provision corresponds to Art. 3 EU Unfair Terms
Directive and the list given in its Annex. However, whereas §§ 308 and 309 are fairly clear
regarding the leeway they give to courts and their evaluation, the EU Unfair Terms Directive
remains ambiguous as to the extent the Member States courts should be bound by the
assessment made in the Annex to the Directive. After all, it seems reasonable to attach an
indicative effect to a type of clause being mentioned in the Annex to the Directive.
C. Explanation
I. Reasoning
4 Unlike with § 309, when applying § 308 to a certain clause, the courts still have to oft«
reasons why the respective term results in an unreasonable disadvantage for the other par*}’-
1 Mann, Commercial Contracts in Germany (C.H.Beck 2015), p. 15.
456
Fries
Prohibited clauses without the possibility of evaluation § 309
However, the reasoning requirements tend to be lower when compared to the application of
§ 307. The law gives a hint that the types of clauses mentioned in § 308 might come along
with such a disproportion.
IL Time periods
Nos 1, la, lb, and 2 cover periods of time that unreasonably favour the user of standard 5
business terms if they are set to an excessive length, or if they are insufficiently specific. As a
rule of thumb, the reasonable length of time for acceptance, examination, payment or other
performance, will generally be deemed unreasonable if it exceeds 2-4 weeks. A clause will be
held sufficiently specific if the other party does not need the assistance of the user to calculate
the end of the respective period.
III. Reservations
Nos 3, 4, and 8 limit the possibilities for the user to make reservations to the rights and 6
duties accruing from the contract. As German law does not follow the principle of efficient
breach of contract, but adheres to an inherent value of maintaining the contractual obliga¬
tions (pacta sunt servanda), parties to a contract should not be allowed to distance themselves
from the agreement for any reasons other than the ones approved by law or by individually
negotiated contract terms. Especially in the field of employment law, it is usually not
permissible for the employer to dismiss someone in order to make him accept new
conditions to the employment contract.
IV. Fictions
Nos 5 and 6 cover fictions of declarations and receipts. These provisions protect the silent 7
counterpart of the user against unfortunate legal effects he has not foreseen. For example, if
someone agrees to a two-year contract with a fitness centre, a clause interpreting customer
inactivity as approval of a contract prolongation would be unreasonable according to No. 5.
However, if the customer continues to walk in after two years, this might be an implied offer
to extend the contract. In addition, if the original contract specified the two years not as the
total duration but as the minimum duration of the contract, No. 5 is not applicable as there is
no need to assume consent by the customer as, in this case, he has accepted the prolongation
already when the contract was initiated.
V. Unreasonable advantages
No. 7 covers unreasonable advantages the user of standard business terms grants himself 8
in case the other party terminates the contract. This could be, e.g. a clause in a loan contract
that establishes a prepayment penalty which does not account for unscheduled repayment
options.2
§309
Klauselverbote ohne
Wertungsmöglichkeit
Auch soweit eine Abweichung von den ge¬
setzlichen Vorschriften zulässig ist, ist in All¬
gemeinen Geschäftsbedingungen unwirksam
1. (Kurzfristige Preiserhöhungen) eine Be¬
stimmung, welche die Erhöhung des Entgelts
§309
Prohibited clauses without the
possibility of evaluation
In standard business terms the following
are in particular ineffective
1. (Price increases at short notice) a provi¬
sion providing for an increase in payment for
2 BGH 19.1.2016 - XI ZR 388/14. NJW 2016. 1382.
Fries
457
§ 309 Division 2. Standard business terms
goods or services that are to be delivered or
rendered within four months of the entering
into of the contract; this does not apply to
goods or services delivered or rendered in
connection with continuing obligations;
2. (Right to refuse performance) a provi¬
sion by which
a) the right to refuse performance to which
the other party to the contract with the user
is entitled under § 320, is excluded or re¬
stricted, or
b) a right of retention to which the other
party to the contract with the user is entitled
to the extent that it is based on the same
contractual relationship, is excluded or re¬
stricted, in particular made dependent upon
acknowledgement of defects by the user;
3. (Prohibition of set-off) a provision by
which the other party to the contract with the
user is deprived of the right to set off a claim
that is uncontested or has been finally and
non-appealably established;
4. (Warning notice, setting of a period of
time) a provision by which the user is ex¬
empted from the statutory requirement of
giving the other party to the contract a warn¬
ing notice or setting a period of time for the
latter to perform or cure;
5. (Lump-sum claims for damages) the
agreement of a lump-sum claim by the user
for damages or for compensation of a de¬
crease in value if
a) the lump sum, in the cases covered,
exceeds the damage expected under normal
circumstances or the customarily occurring
decrease in value, or
b) the other party to the contract is not
expressly permitted to show that damage or
decrease in value has either not occurred or is
substantially less than the lump sum;
6. (Contractual penalty) a provision by
which the user is promised the payment of a
contractual penalty in the event of non-accep¬
tance or late acceptance of the performance,
payment default or in the event that the other
party to the contract frees himself from the
contract;
7. (Exclusion of liability for injury to life,
body or health and in case of gross fault)
a) (Injury to life, body or health) any ex¬
clusion or limitation of liability for damage
from injury to life, body or health due to
für Waren oder Leistungen vorsieht, die in¬
nerhalb von vier Monaten nach Vertrags-
Schluss geliefert oder erbracht werden sollen;
dies gilt nicht bei Waren oder Leistungen, die
im Rahmen von Dauerschuldverhältnissen
geliefert oder erbracht werden;
2. (Leistungsverweigerungsrechte) eine Be¬
stimmung, durch die
a) das Leistungsverweigerungsrecht, das
dem Vertragspartner des Verwenders nach
§ 320 zusteht, ausgeschlossen oder einge¬
schränkt wird oder
b) ein dem Vertragspartner des Verwen¬
ders zustehendes Zurückbehaltungsrecht, so¬
weit es auf demselben Vertragsverhältnis be¬
ruht, ausgeschlossen oder eingeschränkt,
insbesondere von der Anerkennung von Män¬
geln durch den Verwender abhängig gemacht
wird;
3. (Aufrechnungsverbot) eine Bestimmung,
durch die dem Vertragspartner des Verwen¬
ders die Befugnis genommen wird, mit einer
unbestrittenen oder rechtskräftig festgestell¬
ten Forderung aufzurechnen;
4. (Mahnung, Fristsetzung) eine Bestim¬
mung, durch die der Verwender von der ge¬
setzlichen Obliegenheit freigestellt wird, den
anderen Vertragsteil zu mahnen oder ihm
eine Frist für die Leistung oder Nacherfullung
zu setzen;
5. (Pauschalierung von Schadensersatz¬
ansprüchen) die Vereinbarung eines pauscha¬
lierten Anspruchs des Verwenders auf Scha¬
densersatz oder Ersatz einer Wertminderung,
wenn
a) die Pauschale den in den geregelten
Fällen nach dem gewöhnlichen Lauf der
Dinge zu erwartenden Schaden oder die ge¬
wöhnlich eintretende Wertminderung über¬
steigt oder
b) dem anderen Vertragsteil nicht aus¬
drücklich der Nachweis gestattet wird, ein
Schaden oder eine Wertminderung sei über¬
haupt nicht entstanden oder wesentlich nied¬
riger als die Pauschale;
6. (Vertragsstrafe) eine Bestimmung, durch
die dem Verwender für den Fall der Nicht¬
abnahme oder verspäteten Abnahme der Leis¬
tung, des Zahlungsverzugs oder für den Fall,
dass der andere Vertragsteil sich vom Vertrag
löst, Zahlung einer Vertragsstrafe verspro¬
chen wird;
7. (Haftungsausschluss bei Verletzung von
Leben, Körper, Gesundheit und bei grobem
Verschulden)
a) (Verletzung von Leben, Körper, Gesund-
eit) ein Ausschluss oder eine Begrenzung
der Haftung für Schäden aus der Verletzung
458
Fries
Prohibited clauses without the possibility of evaluation
negligent breach of duty by the user or inten¬
tional or negligent breach of duty by a legal
representative or a person used to perform an
obligation of the user;
b) (Gross fault) any exclusion or limitation
of liability for other damage arising from a
grossly negligent breach of duty by the user
or from an intentional or grossly negligent
breach of duty by a legal representative of the
user or a person used to perform an obliga¬
tion of the user;
letters (a) and (b) do not apply to limita¬
tions of liability in terms of transport and
tariff rules, authorised in accordance with the
Passenger Transport Act [Personenbeförder¬
ungsgesetz], of trams, trolley buses and mo¬
tor vehicles in regular public transport ser¬
vices, to the extent that they do not deviate to
the disadvantage of the passenger from the
Order on Standard Transport Terms for
Tram and Trolley Bus Transport and Regular
Public Transport Services with Motor Vehi¬
cles [Verordnung über die Allgemeinen
Beförderungsbedingungen für den Straßen¬
bahn- und Obusverkehr sowie den Linienver¬
kehr mit Kraftfahrzeugen] of 27 February
1970; letter (b) does not apply to limitations
on liability for state-approved lotteries and
gaming contracts;
8. (Other exclusions of liability for
breaches of duty)
a) (Exclusion of the right to free oneself
from the contract) a provision which, where
there is a breach of duty for which the user is
responsible and which does not consist in a
defect of the thing sold or the work, excludes
or restricts the right of the other party to free
himself from the contract; this does not apply
to the terms of transport and tariff rules
referred to in No. 7 under the conditions set
out there;
b) (Defects) a provision by which in con¬
tracts relating to the supply of newly produced
things and relating to the performance of work
aa) (Exclusion and referral to third parties)
the claims against the user due to defects in
their entirety or in regard to individual parts
are excluded, limited to the granting of
claims against third parties or made depen¬
dent upon prior court action taken against
third parties;
bb) (Limitation to cure) the claims against
the user are limited in whole or in regard to
§309
des Lebens, des Körpers oder der Gesundheit,
die auf einer fahrlässigen Pflichtverletzung
des Verwenders oder einer vorsätzlichen oder
fahrlässigen Pflichtverletzung eines gesetzli¬
chen Vertreters oder Erfüllungsgehilfen des
Verwenders beruhen;
b) (Grobes Verschulden) ein Ausschluss
oder eine Begrenzung der Haftung für sons¬
tige Schäden, die auf einer grob fahrlässigen
Pflichtverletzung des Verwenders oder auf
einer vorsätzlichen oder grob fahrlässigen
Pflichtverletzung eines gesetzlichen Vertre¬
ters oder Erfüllungsgehilfen des Verwenders
beruhen;
die Buchstaben a und b gelten nicht für
Haftungsbeschränkungen in den nach Ma߬
gabe des Personenbeförderungsgesetzes ge¬
nehmigten Beförderungsbedingungen und
Tarifvorschriften der Straßenbahnen, Obusse
und Kraftfahrzeuge im Linienverkehr, soweit
sie nicht zum Nachteil des Fahrgasts von der
Verordnung über die Allgemeinen Beförde¬
rungsbedingungen für den Straßenbahn- und
Obusverkehr sowie den Linienverkehr mit
Kraftfahrzeugen vom 27. Februar 1970 ab¬
weichen; Buchstabe b gilt nicht für Haftungs¬
beschränkungen für staatlich genehmigte Lot¬
terie- oder Ausspiel Verträge;
8. (Sonstige Haftungsausschlüsse bei Pflicht¬
verletzung)
a) (Ausschluss des Rechts, sich vom Ver¬
trag zu lösen) eine Bestimmung, die bei einer
vom Verwender zu vertretenden, nicht in
einem Mangel der Kaufsache oder des Werkes
bestehenden Pflichtverletzung das Recht des
anderen Vertragsteils, sich vom Vertrag zu
lösen, ausschließt oder einschränkt; dies gilt
nicht für die in der Nummer 7 bezeichneten
Beförderungsbedingungen und Tarifvor¬
schriften unter den dort genannten Voraus¬
setzungen;
b) (Mängel) eine Bestimmung, durch die
bei Verträgen über Lieferungen neu her¬
gestellter Sachen und über Werkleistungen
aa) (Ausschluss und Verweisung auf Drit¬
te) die Ansprüche gegen den Verwender we¬
gen eines Mangels insgesamt oder bezüglich
einzelner Teile ausgeschlossen, auf die Ein¬
räumung von Ansprüchen gegen Dritte be¬
schränkt oder von der vorherigen gericht¬
lichen Inanspruchnahme Dritter abhängig
gemacht werden;
bb) (Beschränkung auf Nacherfüllung) die
Ansprüche gegen den Verwender insgesamt
Fries
459
Division 2. Standard business terms
§309
individual parts to a right to cure, to the
extent that the right is not expressly reserved
for the other party to the contract to reduce
the purchase price, if the cure should fail or,
except where building work is the object of
liability for defects, at its option to revoke the
contract;
cc) (Expenses for cure) the duty of the user
to bear the expenses necessary for the pur¬
pose of cure according to § 439(2) and (3) or
§ 635(2) is excluded or limited;
dd) (Withholding cure) the user makes
cure dependent upon prior payment of the
entire fee or a portion of the fee that is
disproportionate taking the defect into ac¬
count;
ee) (Cut-off period for notice of defects)
the user sets a cut-off period for the other
party to the contract to give notice of non-
obvious defects which is shorter than the
permissible period of time under double let¬
ter (ff) below;
ft) (Making limitation easier) the limitation
of claims against the user due to defects in the
cases cited in §438(1) No. 2 and §634a(l)
No. 2 is made easier, or in other cases a limita¬
tion period of less than one year reckoned
from the beginning of the statutory limitation
period is attained;
9. (Duration of continuing obligations) in
a contractual relationship the subject matter
of which is the regular supply of goods or the
regular rendering of services or work perfor¬
mance by the user,
a) a duration of the contract binding the
other party to the contract for more than two
years,
b) a tacit extension of the contractual re¬
lationship by more than one year in each case
that is binding on the other party to the
contract, or
c) a notice period longer than three months
prior to the expiry of the duration of the
contract as originally agreed or tacitly ex¬
tended at the expense of the other party to
the contract;
this does not apply to contracts relating to
the supply of things sold as belonging to¬
gether or to insurance contracts;
10. (Change of party to contract) a provi¬
sion according to which in the case of pur¬
chase, loan or service agreements or agree-
oder bezüglich einzelner Teile auf ein Recht
auf Nacherfüllung beschränkt werden, sofern
dem anderen Vertragsteil nicht ausdrücklich
das Recht Vorbehalten wird, bei Fehlschlagen
der Nacherfüllung zu mindern oder, wenn
nicht eine Bauleistung Gegenstand der Män¬
gelhaftung ist, nach seiner Wahl vom Vertrag
zurückzutreten;
cc) (Aufwendungen bei Nacherfiillung) die
Verpflichtung des Verwenders ausgeschlossen
oder beschränkt wird, die zum Zweck der
Nacherfüllung erforderlichen Aufwendungen
nach § 439 Absatz 2 und 3 oder § 635
Absatz 2 zu tragen oder zu ersetzen;
dd) (Vorenthalten der Nacherfullung) der
Verwender die Nacherfüllung von der vor¬
herigen Zahlung des vollständigen Entgelts
oder eines unter Berücksichtigung des Man¬
gels unverhältnismäßig hohen Teils des Ent¬
gelts abhängig macht;
ee) (Ausschlussfrist für Mängelanzeige) der
Verwender dem anderen Vertragsteil für die
Anzeige nicht offensichtlicher Mängel eine
Ausschlussfrist setzt, die kürzer ist als die
nach dem Doppelbuchstaben ff zulässige
Frist;
ff) (Erleichterung der Verjährung) die Ver¬
jährung von Ansprüchen gegen den Verwen¬
der wegen eines Mangels in den Fällen des
§ 438 Abs. 1 Nr. 2 und des § 634a Abs. 1
Nr. 2 erleichtert oder in den sonstigen Fällen
eine weniger als ein Jahr betragende Verjäh¬
rungsfrist ab dem gesetzlichen Verjährungs¬
beginn erreicht wird;
9. (Laufzeit bei Dauerschuldverhältnissen)
bei einem Vertragsverhältnis, das die regel¬
mäßige Lieferung von Waren oder die regel¬
mäßige Erbringung von Dienst- oder Werk¬
leistungen durch den Verwender zum
Gegenstand hat,
a) eine den anderen Vertragsteil länger als
zwei Jahre bindende Laufzeit des Vertrags,
b) eine den anderen Vertragsteil bindende
stillschweigende Verlängerung des Vertrags¬
verhältnisses um jeweils mehr als ein Jahr
oder
c) zu Lasten des anderen Vertragsteils eine
längere Kündigungsfrist als drei Monate vor
Ablauf der zunächst vorgesehenen oder still¬
schweigend verlängerten Vertragsdauer;
dies gilt nicht für Verträge über die Liefe¬
rung als zusammengehörig verkaufter Sachen
sowie für Versicherungsverträge;
10. (Wechsel des Vertragspartners) eine
Bestimmung, wonach bei Kauf-, Darlehens-*
Dienst- oder Werkverträgen ein Dritter an-
460
Fries
Prohibited clauses without the possibility of evaluation
§309
merits to produce a result a third party enters
into, or may enter into, the rights and duties
under the contract in place of the user, un¬
less, in that provision,
a) the third party is identified by name, or
b) the other party to the contract is granted
the right to free himself from the contract;
11. (Liability of an agent with power to
enter into a contract) a provision by which
the user imposes on an agent who enters into
a contract tor the other party to the contract
a) a liability' or duty of responsibility for
the principal on the part of the agent himself,
without any explicit and separate declaration
to this effect, or
b) in the case of agency without authority,
liability7 going beyond § 179;
12. (Burden of proof) a provision by which
the user modifies the burden of proof to the
disadvantage of the other party to the con¬
tract, in particular by
a) imposing on the latter the burden of
proof for circumstances lying in the sphere
of responsibility7 of the user, or
b) having the other party to the contract
confirm certain facts;
letter (b) does not apply to acknowledge¬
ments of receipt that are signed separately or
provided with a separate qualified electronic
signature;
13. (Form of notices and declarations) a
provision by which notices or declarations,
which are to be given to the users or a third
party, are subjected
a) to formal requirements more stringent
than the written form in a contract for which
notarial recording is prescribed by statute, or
b) to formal requirements more stringent
than the text form in contracts other than
those named under letter (a), or
c) to particular receipt requirements;
14. (Waiver of lawsuit)
a provision by which the other party to the
contract may enforce his claims against the
other party in court only after he has at¬
tempted to reach an amicable agreement
through extrajudicial dispute resolution;
15. (part payment and provision of secur¬
ity) a provision by which the user in a con¬
tract to produce a work
a) may demand from the other party to the
contract part payments for partial perfor¬
mance which are considerably higher than the
part payments to be made under § a( ) an
§650m(l), or
stelle des Verwenders in die sich aus dem
Vertrag ergebenden Rechte und Pflichten ein¬
tritt oder eintreten kann, es sei denn, in der
Bestimmung wird
a) der Dritte namentlich bezeichnet oder
b) dem anderen Vertragsteil das Recht ein¬
geräumt, sich vom Vertrag zu lösen;
11. (Haftung des Abschlussvertreters) eine
Bestimmung, durch die der Verwender einem
Vertreter, der den Vertrag für den anderen
Vertragsteil abschließt,
a) ohne hierauf gerichtete ausdrückliche
und gesonderte Erklärung eine eigene Haf¬
tung oder Einstandspflicht oder
b) im Falle vollmachtsloser Vertretung eine
über § 179 hinausgehende Haftung
auferlegt;
12. (Beweislast) eine Bestimmung, durch
die der Verwender die Beweislast zum Nach¬
teil des anderen Vertragsteils ändert, ins¬
besondere indem er
a) diesem die Beweislast für Umstände auf¬
erlegt, die im Verantwortungsbereich des
Verwenders liegen, oder
b) den anderen Vertragsteil bestimmte Tat¬
sachen bestätigen lässt;
Buchstabe b gilt nicht für Empfangs¬
bekenntnisse, die gesondert unterschrieben
oder mit einer gesonderten qualifizierten
elektronischen Signatur versehen sind;
13. (Form von Anzeigen und Erklärungen)
eine Bestimmung, durch die Anzeigen oder
Erklärungen, die dem Verwender oder einem
Dritten gegenüber abzugeben sind, gebunden
werden
a) an eine strengere Form als die schriftli¬
che Form in einem Vertrag, für den durch
Gesetz notarielle Beurkundung vorgeschrie¬
ben ist oder
b) an eine strengere Form als die Textform
in anderen als den in Buchstabe a genannten
Verträgen oder
c) an besondere Zugangserfordernisse;
14. (Klagcverzicht) eine Bestimmung, wo¬
nach der andere Vertragsteil seine Ansprüche
gegen den Verwender gerichtlich nur geltend
machen darf, nachdem er eine gütliche Eini¬
gung in einem Verfahren zur außergericht¬
lichen Streitbeiiegung versucht hat;
15. (Abschlagszahlungen und Sicherheits¬
leistung) eine Bestimmung, nach der der Ver¬
wender bei einem Werkvertrag
a) für Teilleistungen Abschlagszahlungen
vom anderen Vertragsteil verlangen kann,
die wesentlich höher sind als die nach § 632a
Absatz 1 und § 650m Absatz 1 zu leistenden
Abschlagszahlungen, oder
Fries
461
§ 309 1-5
Division 2. Standard business terms
b) is not required to provide security under b) die Sicherheitsleistung nach § 650m
§ 650m(2) or only a lesser amount. Absatz 2 nicht oder nur in geringerer Höhe
leisten muss.
A. Function
L Purpose
1 § 309 provides a list of standard terms which are deemed ineffective by law without any
exception. Thus, the courts can limit themselves to establish that there is such a clause in
the present case and do not have to examine their proportionality. However, the law
occasionally uses vague legal terms and thus leaves some leeway for an evaluation by the
courts.1
IL Scope of application
2 According to § 310(1) and (2), § 309 is not applicable in B2B contracts and in some other
special constellations.2
B. Context
3 § 309 was preceded by § 11 AGBG. From time to time, the list of inappropriate clauses
contained in § 309 has been slightly amended. Nos 14 and 15 came into force only in 2016
and 2018.3
C. Explanation
I. Amendments to the essentialia negotii
4 Nos 1, 9, and 10 prohibit the user to hide short-term price increases, excessive extensions
of the contract term, or a substitution of the user as party to the contract in the standard
business terms. Thus, it is impermissible according to No. 1 for the seller of a kitchen to use a
clause making the purchasing price contingent on the payment being processed at the day of
delivery.4 In addition, according to No. 9, a mobile service provider must not use a standard
term in order to extend the contract for another two years.5 Eventually, according to No. 10,
a standard term by a decorator that the contract might be transferred to another workman is
invalid if that third person is neither specified by name, nor the other party' to the contract is
granted the right to terminate the contract in that case.
IL Extension of user’s rights
5 A second sub-group of cases deals with inappropriate additional rights the user of standard
business terms grants himself. Such rights concern extended down payments and the
provision of a reduced security (No. 15), accelerated payments (No. 4), lump-sum damages
(No. 5), contractual penalties (No. 6), and claims against the agent of the other party of the
contract (No. 11). To give a few examples, pursuant to No. 4, it is not possible to use
1 See MüKo BGB/Wurninest, § 309 BGB mn. 2 with some examples
2 See > § 308 mn. 1-2.
’ On the parallels to Art. 3 EU Unfair Terms Directive and the list given in its Annex, see ► §
mn. 3.
‘ OLG Karlsruhe 22.7.15 - 7 U 20/15, BeckRS 2015, 13654.
5 See also § 308 mn. 7.
462 Fries
§310
Division 2. Standard business terms
§ 309; reasonable account must be taken of
the practices and customs that apply in busi¬
ness dealings. 3In cases coming under sen¬
tence 1, §307(1) and (2) as well as §308
Nos la and lb do not apply to contracts in
which the entire Award Rules for Building
Works, Part B [Vergabe- und Vertragsord¬
nung für Bauleistungen Teil B - VOB/B] in
the version applicable at the time of conclu¬
sion of the contract are included without
deviation as to their content, relating to an
examination of the content of individual pro¬
visions.
(2) ’§§ 308 and 309 do not apply to con¬
tracts of electricity, gas, district heating or
water suppliers for the supply of electricity,
gas, district heating or water from the supply
grid to special customers to the extent that
the conditions of supply do not derogate, to
the disadvantage of the customer, from or¬
ders on general conditions for the supply of
standard-rate customers with electricity, gas,
district heating and water. Sentence 1 applies
with the necessary modifications to contracts
for the disposal of sewage.
(3) In the case of contracts between an
entrepreneur and a consumer (consumer con¬
tracts) the rules in this division apply with
the following provisos:
1. Standard business terms are deemed to
have been presented by the entrepreneur, un¬
less they were introduced into the contract by
the consumer;
2. § 305c(2) and §§ 306 and 307 to 309 of
this Code and Article 46b of the Introductory
Act to the Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzbuche] apply to pre¬
formulated contract terms even if the latter
are intended only for non-recurrent use on
one occasion, and to the extent that the con¬
sumer, by reason of the preformuiation, had
no influence on their contents;
3. in judging an unreasonable disadvantage
under § 307(1) and (2), the other circum¬
stances attending the entering into of the
contract must also be taken into account.
(4) ’This division does not apply to con¬
tracts in the field of the law of succession,
family law and company law or to collective
agreements and private-sector works agree¬
ments or public-sector establishment agree¬
ments. 2When it is applied to employment
contracts, reasonable account must be taken
of the special features that apply in labour
Wirksamkeit von in § 308 Nummer 1, 2 bjs 8
und § 309 genannten Vertragsbestimmungen
führt; auf die im Handelsverkehr geltenden
Gewohnheiten und Gebräuche ist angemessen
Rücksicht zu nehmen. 3In den Fällen des
Satzes 1 finden § 307 Absatz 1 und 2 sowie
§ 308 Nummer la und 1b auf Verträge, in die
die Vergabe- und Vertragsordnung für Bau¬
leistungen Teil B (VOB/B) in der jeweils zum
Zeitpunkt des Vertragsschlusses geltenden
Fassung ohne inhaltliche Abweichungen ins¬
gesamt einbezogen ist, in Bezug auf eine
Inhaltskontrolle einzelner Bestimmungen
keine Anwendung.
(2) ’Die §§ 308 und 309 finden keine An¬
wendung auf Verträge der Elektrizitäts-, Gas-,
Fernwärme- und Wasserversorgungsunter¬
nehmen über die Versorgung von Sonder-
abnehmem mit elektrischer Energie, Gas,
Fernwärme und Wasser aus dem Versor¬
gungsnetz, soweit die Versorgungsbedingun¬
gen nicht zum Nachteil der Abnehmer von
Verordnungen über Allgemeine Bedingungen
für die Versorgung von Tarifkunden mit
elektrischer Energie, Gas, Fernwärme und
Wasser ab weichen. 2Satz 1 gilt entsprechend
für Verträge über die Entsorgung von Abwas¬
ser.
(3) Bei Verträgen zwischen einem Unter¬
nehmer und einem Verbraucher (Verbrau¬
cherverträge) finden die Vorschriften dieses
Abschnitts mit folgenden Maßgaben Anwen¬
dung:
1. Allgemeine Geschäftsbedingungen gelten
als vom Unternehmer gestellt, es sei denn,
dass sie durch den Verbraucher in den Ver¬
trag eingefuhrt wurden;
2. § 305c Abs. 2 und die §§ 306 und 307 bis
309 dieses Gesetzes sowie Artikel 46b des
Einführungsgesetzes zum Bürgerlichen Ge¬
setzbuche finden auf vorformulierte Vertrags¬
bedingungen auch dann Anwendung, wenn
diese nur zur einmaligen Verwendung be¬
stimmt sind und soweit der Verbraucher auf
Grund der Vorformulierung auf ihren Inhalt
keinen Einfluss nehmen konnte;
3. bei der Beurteilung der unangemessenen
Benachteiligung nach § 307 Abs. 1 und 2 sind
auch die den Vertragsschluss begleitenden
Umstände zu berücksichtigen.
(4) ’Dieser Abschnitt findet keine Anwen¬
dung bei Verträgen auf dem Gebiet des Erb';
Familien- und Gesellschaftsrechts sowie aut
Tarifverträge, Betriebs- und Dienstverein¬
barungen. 2Bei der Anwendung auf Arbeits¬
verträge sind die im Arbeitsrecht geltenden
Besonderheiten angemessen zu beriicksiehti
gen; § 305 Abs. 2 und 3 ist nicht anzuwenden.
464
Fries
Scope of application § 310
standard terms to allow for an immediate price reduction without notice of defect.6
Furthermore, a clause obliging a car sharing customer to pay a handling fee of 100 euro for
incurring a parking ticket would be deemed excessive and thus be in violation of No. 5. A
standard term obliging an employee to pay a penalty if he terminates the contract before the
first day of work would be ineffective according to No. 6. However, a clause set up by a
publishing house in a contract of publication obliging tardy authors of a commentary to pay
a penalty to those delivering on time would not infringe No. 6, as the penalty would not go to
the user, and delay penalties not referring to late acceptance or late payments are not subject
to the provision.
III. Limitation of rights of the other party
The third sub-group of prohibited standard terms covers limitations of rights of the other 6
party to refuse performance (No. 2), the exclusion of a set-off by the other party (No. 3),
liability exclusions in favour of the user (Nos 7 and 8), certain form requirements or
reversions of proof at the expense of the other party (Nos 12 and 13), or dispute resolution
clauses (No. 14). Against this background, it is, for example, impermissible for a contractor
to stipulate in standard business terms that his performance is deemed accepted 12 days after
performance notification, as this would impair the builder’s right of retention and thus
violate No. 2. In the same context, a clause assuming the builder to have collected every
necessary official approval for constructing a house is in violation of No. 12, as it is
accompanied by an unfortunate reversal of the burden of proof.7 Another frequently used
clause that unreasonably disadvantages the other party is a comprehensive liability exemp¬
tion in favour of the user. Pursuant to No. 7, it is, for example, not possible for a car seller to
exclude his liability by a standard term exempting him from liability for any kind of damage
even in cases of gross negligence.8 Whereas No. 7 is often applied by the courts, clauses
limiting statutory warranty rights are meanwhile subject to the special provisions of §§ 474 et
seq., thus No. 8 is only rarely applied in practice.9 This is different with regard to form
requirements that are set by the user of standard business terms to render termination of
contract more difficult, e.g., in the case of an online dating service.10 Such clauses regularly
arise in practice, but they are ineffective according to No. 12. Lastly, a standard term obliging
the other party to the contract to try alternative dispute resolution before bringing suit
(No. 14), is currently known rather from the US than from Germany. However, in the wake
of rising consumer dispute resolution, the law wants to stifle any impediments to an effective
access to justice right from the outset.
§310
Scope of application
(1) '§ 305(2) and (3), § 308 Nos 1, 2 to 8,
and § 309 do not apply to standard business
terms which are used in contracts with an
entrepreneur, a legal person under public
law or a special fund under public law.
307(1) and (2) nevertheless apply to these
cases in sentence 1 to the extent that this
leads to the ineffectiveness of the contract
provisions set out in § 308 Nos 1, 2 to 8, and
§310
Anwendungsbereich
(1) *§305 Absatz 2 und 3, §308
Nummer 1, 2 bis 8 und § 309 finden keine
Anwendung auf Allgemeine Geschäftsbedin¬
gungen, die gegenüber einem Unternehmer,
einer juristischen Person des öffentlichen
Rechts oder einem öffentlich-rechtlichen
Sondervermögen verwendet werden. 2§ 307
Abs. 1 und 2 findet in den Fällen des Satzes 1
auch insoweit Anwendung, als dies zur Un-
6 Ol G Köln 24 11 16 - 7 u 77/161 BeckKS 20161 1183()2-
7 Ol G Koblenz 2.3.17 - 2 U 296/16, BeckRS 2017, 111351.
* BGH 4.2.15 - VIII ZR 26/14, NJW-RR 2015, 738.
9 HK BGB/Schulte-Nolke, § 309 BGB mn. 2.
'»See BGH 14.7.16 - Hl ZR 387/15, NJW 2016, 2800.
Fries
463
Scope of application
1-6 §310
law; § 305(2) and (3) must not be applied.
'Collective agreements and private-sector
works agreements or public-sector establish¬
ment agreements are equivalent to legal pro¬
visions within the meaning of § 307(3).
3Tarifverträge, Betriebs- und Dienstverein¬
barungen stehen Rechtsvorschriften im Sinne
von § 307 Abs. 3 gleich.
A. Function
§ 310 defines the scope of application of §§ 305 et seq. When checking the lawfulness of 1
standard business terms, § 310 is thus the first rule to be taken into consideration.1
B. Context
§ 310 was preceded by §§ 23 et seq. AGBG. 2
C. Explanation
I. B2B contracts
Sub. 1 exempts B2B contracts, contracts with a legal person under public law, or with a 3
special fund under public law from the application of § 305(2) and (3), § 308 No. 1 and
Nos 2-8, and § 309. Thus, in these kinds of contracts, standard business terms become part
of the contract without explicit emphasis by the user, and they can be invalidated only
according to §§ 305c, 307, and 308 Nos la and lb.2 For building contracts subject to Part B
of the Award Rules for Building Works (Vergabe- und Vertragsordnung für Bauleistungen
Teil B, VOB/B), §§ 305 et seq. are completely inapplicable, as the VOB/B is a self-contained
regime whose assessments might be impaired if the BGB rules were applied.
IL Utilities
The supply of energy, heating, gas, and water is mostly governed by statutory law instead 4
of contractual rules so that §§ 305 et seq. do not apply.3 The few cases which are open to the
freedom of contract are subject to §§ 305 et seq., except that §§ 308 and 309 are applicable
only insofar as the contract conditions fall short of the conditions standard customers enjoy.
III. B2C contracts
According to Sub. 3, consumer contracts enjoy certain privileges that make it easier to 5
consider standard terms as part of the contract, and eventually deem them ineffective. This is
extremely helpful for consumers because it discharges them from bringing proof that the
terms were presented by the trader and that they were drafted for iterative use.
IV. Broader exceptions
Sub. 4 exempts contracts in the field of the law of succession, family law and company law, 6
collective agreements, private-sector works agreements and public-sector establishment
agreements from the application of §§ 305 et seq. Employment contracts, which were
previously exempted as well, are meanwhile subject to the test of reasonableness, even though
1 See * § 305 mn. 2.
2 See ► § 308 mn. 2.
3 See MuKo BGB/Basedow, § 310 BOB mn. 19-24.
Fries
465
§§311-360 1-3 Division 3. Contractual obligations
the characteristics of employment relationships and the special need for employee protection
in particular, should be considered.
Division 3 Abschnitt 3
Contractual obligations Schuldverhältnisse aus Verträgen
Introduction to §§ 311-360
1 The provisions in §§ 311-360 form a general contract law in the BGB’s book on the
Law of Obligations (Book II). Obligations may arise from legal transactions (Rechtsgeschäfte),
in particular from contracts or directly from statutory provisions. Whereas the first division
of the law of obligations (§§ 241-304) covers all of these obligations, §§ 311-360 specifically
address contractual legal relationships. They do not contain the entire law of contract, rather
only those general provisions that apply to all or at least to numerous types of contract. The
particular provisions for individual types of contract are to be found in the Specific Part of
the Law of Obligations in division 8 (§§ 433 et seq.). The rules on formation of contracts are
not contained in §§311 et seq., but rather in the General Part (Book I) in §§ 145 et seq. as
part of the provisions on legal transactions.
2 § § 311 et seq. proceed from the leading principle of freedom of contract for founding and
determining the content of contracts; however, this principle is not mentioned explicitly.
Freedom of contract is central to private autonomy,1 2 which is guaranteed by Art 2(1) GG?
The fundamental freedoms in Arts 28 et seq. TFEU and Arts 6 et seq. EU Charter of
Fundamental Rights form the basis for the application of EU fundamental rights in German
private law.3 They entitle individuals to be responsible for shaping their relationships with
one another through legally binding agreements. The freedom of contract covers the freedom
to conclude contracts and the freedom to determine the content and form. The freedom to
conclude contracts allows individuals to stipulate whether and with whom they wish to
contract (freedom to enter into or reject contracts; freedom to choose the contractual
partner). The freedom of content entitles the parties to determine the content of their
obligations as they so wish. It covers not only individual stipulations e.g. with regard to the
subject-matter, the circumstances surrounding performance or the price, but also gives the
parties the possibility to modify those contracts regulated by statute or to conclude contracts
of entirely different types (Typenfreiheit).
3 The limits of freedom of contract arise particularly from the need to restore balance to
interferences with contractual equality, inter alia from economic and social asymmetries, in
order to ensure the functions underlying freedom of contract and contract law. The
limitation can therefore be justified by the objective of protecting freedom of contract but
also through further constitutional protection of basic rights and the welfare state.4 Where
the freedom to conclude contracts is concerned, these limitations arise in particular fields
through a direct or indirect legal duty to contract (Kontrahierungszwangh whereas the
limitations on freedom of content arise from the existence of unilateral or bilateral manda¬
tory provisions (as can be observed with respect to information duties and rights ot
withdrawal) as well as from the judicial control of content due to general provisions ot
statute law.
1 BVerfG 7.2.1990 - 1 BvR 26/84, NJW 1990, 1469.
2 BVerfG 14.1.1987 - 1 BvR 1052/79, NZA 1987, 347.
J Herresthal, Grundrechtecharta und Privatrecht: Die Bedeutung der Charta der Grundrechte tür d*
europäische und das nationale Privatrecht, ZEuP 2014, 238.
‘ BVerfG 7.2.1990 - 1 BvR 26/84, NJW 1990, 1469; BVerfG 19.10.1993 - 1 BvR ^7/89, NJW 1994.30.
BVerfG 2.5.1996 - 1 BvR 696/96, NJW 1996, 2021.
466
Schulze
Introduction to $$311-360 4-9 §§311-360
The §§311 et seq. proceed also from the principle of freedom of form, which allows the 4
parties to conclude contracts without particular formal requirements. In principle neither
written nor oral form is provided; contracts may also be concluded impliedly. However,
deviations from this principle in favour of requirements of written form are provided e.g. in
§§ 550, 761, 766, 780, 781, 793; notarial authentication is required in e.g. §§ 31 lb(2), (3),
518,2371.
Several specific consumer rights (information rights, rights of return or withdrawal), which 5
are available in contracts concluded in a particular manner, are regulated in §§312 et seq.
These provisions are therefore part of consumer contract law. The scope of application is
determined by a combination of features relating to the persons, situation and contract type
involved. The personal requirement is generally the conclusion of a contract between an
entrepreneur (§ 13) and a consumer (§ 14). The features of the situation in which the
contract is concluded are a key characteristic of consumer contracts. Protected situations
are off-premises contracts (§ 312b) and distance contracts (§ 312c). §§ 312 et seq. apply to a
broad range of different types of contract, in particular to contracts for the delivery of goods
or the supply of services. The scope of application is regulated in § 312 and is partly
restricted to specific ty pes of contract.
The types of contract covered in Book II can be divided into various categories. 6
Obligations and dispositions (Verpßichtungs- und Verfügungsverträge): a contract subject
to obligations founds the obligation to perform and is thus the actual contract subject to the
law of obligations. In contrast, the disposition directly concerns a change, extinction or
transfer of an existing right or legal relationship. Dispositions belong primarily to property
law (Book III), but are also found in the law of obligations: forgiveness (§ 397), assignment
(§§ 398 et seq.), assumption of debt (§§ 414 et seq.) as well as amendment, and termination
agreements.
Contracts of obligation are, as a rule, also causal contracts because the promises to 7
performance also contain the agreement on the causa i.e. the legal ground for the
performance. In contrast, the legal reason does not form part of the contract in abstract
contracts thereby it is effective irrespective of the legal ground. All dispositions (including
those regulated in the law of obligations) are abstract contracts. Furthermore, several
obligations are abstract in nature, such as the promise to fulfil an obligation (§ 780),
acknowledgment of a debt (§ 781), acceptance of an order (§ 784) and the obligations arising
from bills of exchange, cheques and bearer bonds.
In contrast to property law, the law of obligations does not limit the parties to particular 8
types of contract that are named and regulated in statute (so-called Typenzwang). Various
further types of contracts have emerged in commercial practice alongside the types of
contract anchored in statute. Such contracts customary in practice have arisen in part
through the further development of statute-based contracts or by adopting foreign models,
and have become well established in civil law alongside the models contained in the BGB. For
the most part, they develop within the international context, are used in a similar manner in
various different legal systems, and use the English terminology (such as factoring, franchis¬
ing, leasing). In addition, various types of contract outlined in EU directives contribute to the
development of contract types in the European legal framework (in particular for consumer
contracts, e.g. the EU Consumer Credit Directive, EU Timeshare Directive, EU Consumer
Sales Directive, and in addition the EU Commercial Agents Directive).
The parties to a non-gratuitous contract aim for the exchange of performances and 9
therefore link in law performance and counter-performance. They can achieve such a link in
particular through the concept of contractual synallagma (e.g. §§ 433, 480, 525, 611, 621),
through the agreement of a condition (§ 158) or by stipulating that in each case a
performance shall form the legal ground for the other. In non-gratuitous contracts the
obligor is obliged to perform but does not receive counter-performance (e.g. §§ 516, 598,
662, 690), Many other forms of contract can not be attributed either to a statute-based type
Schulze
467
§§311-360 10-14 Division 3. Contractual obligations
or to a practice-based type and are therefore considered atypical. The name given to the
particular contract is not material for the classification as a particular type but rather the
objective consideration of the entire content of the contract.5 6 This classification is decisive in
determining which legislative provisions are (not) applicable, which practices are also to be
considered, and which case law is relevant.
10 Where contracts regulated by statute are concerned, the specific rules for the particular
type of contract take preference over the general provisions in the General Law of Obliga¬
tions and in the General Part. The BGB contains the specific rules for individual types of
contract in §§ 433 et seq. In addition, specific statutory provisions on individual types of
contract can also be found e.g. in the HGB (contracts of commission, §§ 383 et seq. HGB;
freight and freight forwarding contracts, §§ 407 et seq.), VVG and FernUSG. Such contracts
are often not used in their purest form but are frequently modified and mixed with other
types of contract. The parties can agree (either expressly or impliedly) the application of
statutory provisions for a different type of contract. However, due to the Leitbild function of
default law, § 307(2) No. 1 prevents the use of general terms to subject a contract to
provisions applicable to a different type of contract: the distribution of advantages, risks
and burdens by the statutory provisions on the contract law expresses the legislator’s balance
of interest and therefore the basic features should not unilaterally displaced in favour of the
user of the general terms.
11 The General Law of Obligations and the General Part of the BGB apply to contracts
customary in practice. In addition, the law for (in part) similar types of contract regulated in
statute can apply with the necessary modifications. The customs and outlooks in practice are to
be considered in light of § 157. Contracts customary in practice include e.g. exclusive distribu¬
tion contracts, vending-machine contracts, banking contracts, beer supply contracts, energy
supply contracts, factoring contracts, franchise contracts, guarantee contracts, nursing home
contracts, hotel reservation contracts, credit card contracts, leasing contracts and licences.
12 Alongside the General Law of Obligations and the General Part of the BGB, provisions tor
similar contracts regulated by statute can apply, with the necessary modifications, to atypical
contracts. There is no set borderline between atypical contracts and contracts customary’ in
practice. Such atypical contracts include e. g. a contract for sendees between close relatives,0 a
contract for gratuitous theatre use,7 and on the entitlement to install advertisements8.
Sponsoring agreements are currently in the process of developing from an atypical contract
to a contract customary in practice.9
13 Freedom of contract allows the parties to combine contracts and contract types. Many
contracts between the same parties are, in principle, legally independent of one another, even
though they may have an actual or economic link. However, a legally-relevant connection
between the contracts can be created by an agreement between the parties or by reason of
good faith. In particular, the performance of one contract may form the basis of the other e.g.
part-exchange10 or hire purchase.11
14 A broader form of connecting multiple contracts is the link to a uniform overall
agreement. Such combined or coupled contracts are characterised by the rise and fall of the
combined transactions.12 Simultaneous conclusion of the contract, a single document and a
legal connection (e.g. through a condition) may serve as a basis for a combination to form a
single contract. The economic unit is only indicative.13 Combinations forming a single
5 BGH 10.5.1979 ~ VII ZR 30/78, NJW 1979, 2207; BGH 1.2.1989 - IVa ZR 354/87, NJW 1989. 14"*
6 BGH 1.10.1985 - IX ZR 155/84, NJW-RR 1986, 155.
7 BGH 9.10.1991 - XU ZR 122/90, NJW 1992, 496.
« BGH 14.12.1951 - V ZR 5/50, NJW 1952, 620.
9 BGH 19.3.1992 - I ZR 64/90, NJW 1992, 2089.
10 BGH 21.4.1982 - VIII ZR 26/81, NJW 1982, 1700.
11 BGH 13.3.1991 - VIII ZR 34/90, N|W 1991, 1746.
12 BGH 26.10.1990 - V ZR 22/89, N|W 1991, 917.
13 BGH 30.10.1987 - V ZR 144/86, NIW-RR 1988, 348.
468
Schulze
Introduction to 311-360 15-17 §§ 311-360
contractual unit include e.g. contract for supply of beer and loan by a brewery,14 and under
some circumstances a contract for the sale of hardware and software licence.15 Formal
requirements concerning one part of the contract are material to the entire contract.16
According to § 139, detects in one part will void the entire contract. Combined contracts
are also to be considered as a single unit with regard to revocation (§ 346).17
If a transaction is split into two legally-independent contracts despite its common bond 15
and economic unity (in particular, a purchase contract and credit agreement for financing)
the separation may, under some circumstances, be irrelevant for interferences in perfor¬
mance. This may apply in some instances whereby a party concludes the two (legally-
independent) contracts with two different contract partners; an objection may be permis¬
sible.18 In addition to the particularly close connection between each contract, a further
requirement is formed by other additional circumstances which require increased protection
by reason of good faith (§ 242). §§ 358 and 359 regulate the effects of withdrawal from one
contract on the other and the objections in linked contracts with consumers.
A mixed contract refers to links between parts of different types of contracts in a manner 16
such that these first form a reasonable unit when considered in their entirety. The legal treatment
of mixed contracts is controversial. According to the absorption approach, only the law
pertinent to the main performance is to be applied. The combination approach and the analogy
approach either directly concern or apply with the necessary modifications to the particular
elements of the contract; the parties’ hypothetical intention applies should the approaches not
accord with each other. According to the prevailing opinion, neither of these approaches leads to
satisfactory results. One is rather to proceed primarily from the parties’ actual declared
intention, and - in the absence thereof - proceed from the hypothetical intention in
consideration of the interests, purposes of the contract and customary practices. As a rule, the
law applicable to the respective contract type will be applied to the different parts of the
contract.19 In the event of a clash between the potentially applicable rules, the law corresponding
to the contract type forming the legal or economic focus of the contract will be applied.20
Sales contracts or contracts dealing with the supply of movable things to be produced or 17
manufactured (Werklieferungsvertrag) often represent a particular type of contract when a
unified contract provides for obligations to perform in instalments. Such contracts for
successive deliveries (Sukzessivlieferungsverträge) can, from the outset, stipulate a total quantity
to be delivered (instalment contracts (so-called genuine contracts for successive deliveries;
echter Sukzessivlieferungsvertrag)). In such instalment contracts the performance obligations
(in particular the seller’s or service provider’s) are merely distributed over a period of time.
However, contracts for successive deliveries can be concluded without specification of a total
amount to be delivered over a (generally unspecified) long period of time (procurement
contract or long-term supply contract; Bezugs- or Dauerlieferungsvertrag). The latter case
concerns genuine continuing obligations (echtes Dauerschuldverhältnis); examples include
utility supply contracts or contracts between breweries and public houses for the supply of
beer. Such genuine continuing obligations have the particular feature that the obligor must
constantly be prepared to perform as the contract does not specific a total amount to be
delivered. This feature means that there is no specific rule on the termination of such
continuing obligations. In the event of a default in performance, the obligee’s rights are limited
in principle to the individual instalment and not to the entire contract.21 However, instead of
14 OLG München 11.1.1968 - 1 U 2037/67. NJW 1968, 650.
is BGH 25 3 1987 - VIII ZR 43/86. NJW-RR 1987. 1139.
16 BGH 6 12 1979 - VII ZR 313/78. NJW 1980, 829; BGH 6.11.1980 - VII ZR 12/80, NJW 1981, 274.
17 BGH 30.4.1976 - V ZR 143/7. NJW 1976, 1931.
1» BGH 5.5,1992 - XI ZR 242/91, NJW 1992, 2560.
19 In principle also for different types of collateral performances, BGH 9.12.1974 - VII ZR 182/73, N|W
1975, 592.
2,1 BGH 7 3 2002 - III ZR 12/01, NJW 2002, 1571; BGH 7.11.1994 - II ZR 270/93, NJW 1995, 326.
21 BGH 6.2.1985 - VIII ZR 15/84, NJW 1986, 124.
Schulze
469
§311 Division 3. Contractual obligations
the rights contained in §§ 323 et seq. (revocation), the obligee does have the possibility to
terminate the agreement (§ 314) and demand damages due to the obligor’s culpability giving
rise to the termination. An exclusive distribution agreement (Alleinvertriebsvertag) is a form
of genuine continuing obligations of considerable economic performance. Such an agreement
provides a contractual framework for the co-operation between the parties - one party, the
contract dealer (Vertragshändler), is obliged to sell goods to the other party (usually a
manufacturer or importer) in his own name and for his own account.
Title 1
Creation, subject matter and
termination
Titel 1
Begründung, Inhalt und
Beendigung
Subtitle 1
Creation
Untertitel 1
Begründung
§311
Obligations created by legal
transaction and obligations
similar to legal transactions
(1) In order to create an obligation by legal
transaction and to alter the contents of an
obligation, a contract between the parties
is necessary, unless otherwise provided by
statute.
(2) An obligation with duties under § 241
(2) also comes into existence by
1. the commencement of contract negotia¬
tions
2. the initiation of a contract where one
party, with regard to a potential contractual
relationship, gives the other party the possi¬
bility of affecting his rights, legal interests
and other interests, or entrusts these to him,
or
3. similar business contacts.
(3) ’An obligation with duties under § 241
(2) may also come into existence in relation to
persons who are not themselves intended to be
parties to the contract. 2Such an obligation
comes into existence in particular if the third
party, by laying claim to being given a parti¬
cularly high degree of trust, substantially in¬
fluences the pre-contract negotiations or the
entering into of the contract.
§311
Rechtsgeschäftliche und
rechtsgeschäftsähnliche
Sch uldverhältnisse
(1) Zur Begründung eines Schuldverhält¬
nisses durch Rechtsgeschäft sowie zur Ände¬
rung des Inhalts eines Schuldverhältnisses ist
ein Vertrag zwischen den Beteiligten erfor¬
derlich, soweit nicht das Gesetz ein anderes
vorschreibt.
(2) Ein Schuldverhältnis mit Pflichten nach
§241 Abs. 2 entsteht auch durch
1. die Aufnahme von Vertragsverhandlun¬
gen,
2. die Anbahnung eines Vertrags, bei wel¬
cher der eine Teil im Hinblick auf eine etwaige
rechtsgeschäftliche Beziehung dem anderen
Teil die Möglichkeit zur Einwirkung auf seine
Rechte, Rechtsgüter und Interessen gewährt
oder ihm diese anvertraut, oder
3. ähnliche geschäftliche Kontakte.
(3) ’Ein Schuldverhältnis mit Pflichten
nach § 241 Abs. 2 kann auch zu Personen
entstehen, die nicht selbst Vertragspartei wer¬
den sollen. 2Ein solches Schuldverhältnis ent¬
steht insbesondere, wenn der Dritte in beson¬
derem Maße Vertrauen für sich in Anspruch
nimmt und dadurch die Vertragsverhandlun¬
gen oder den Vertragsschluss erheblich beein¬
flusst.
Contents
mn.
A. Function I
I. Purpose and underlying principle 1
II. Position within the BGB 2
III. Scope of application 3
470
Schulze
Creation of contractual obligations 1-3 § 311
B. Context 5
L Culpa in contrahendo 5
II. Tort law 6
C. Explanation 7
I. Contract 7
II. Consequence of amendment 8
III. Termination agreements 9
IV. Novation 10
V. Pre-contractual obligations 11
VI. Third parties 12
VII. Agents and assistants 13
VIII. High degree of trust 14
IX. Prospectus liability 15
X. All circumstances 16
XI. Damages 17
A. Function
I. Purpose and underlying principle
§ 311 concerns two different matters. Sub. 1 contains the general rule that, in principle, a 1
contract is necessary in order to create an obligation by legal transaction and to alter the
contents of an obligation. The overarching principle of private autonomy forms the basis for
this approach. Subs 2 and 3 concern pre-contractual obligations. According to Sub. 2,
obligations can arise prior to the conclusion of a contract (culpa in contrahendo and duties
of protection between the parties are founded by § 242(2)). Sub. 3 further stipulates that such
pre-contractual obligations can exist with regard to third parties who are not themselves
intended to be parties to the contract. The pre-contractual obligations according to Subs 2,
and 3 are based on the protection of the trust/reliance between the parties. A relationship of
reliance arises between the parties when they initiate contact with a view to conclude a
contract (Vertragsanbahnung) and enter into negotiations. Such a relationship of reliance
leads to corresponding duties of care and protection for the parties.
IL Position within the BGB
The provision is at the beginning of Division 3 on contractual obligations because Sub. 1 2
contains the fundamental rule for the role of contract law in the law of obligations. Subs 2
and 3 are also included because they can concern the initiation of contracts of all types and
can transfer standards of contractual liability to the pre-contractual phase. However, they do
not actually concern obligations from contracts but rather establish a statutory obligation
concerning the initiation of contracts. Such a statutory obligation does not give rise to a
primary obligation to perform (§241(1)), but to duties of protection in accordance with
§ 241(2). Breach of these duties of protection gives rise to a claim for damages in accordance
with § 280(1). The obligor’s responsibility is presumed (§241(1) 2nd St.). The claim to
damages due to the breach of a pre-contractual obligation is therefore based on the
interaction between §§ 280(1), 311(2) (and if applicable, Sub. 3), and § 241(2). The claim
closes a gap arising between the (relatively weak) tortious liability and contract law with
regard to contract initiation.
III. Scope of application
Sub. 1 applies to all contracts in the law of obligations in contrast to the statutory 3
obligations.22 The provision requires the conclusion of a contract (§§ 145 el seq.) in order for
22 See * §241 mn. 4.
Schulze
471
§311 4-6 Division 3. Contractual obligations
obligations to arise via a legal transaction. Where a contract has not been concluded, obligations
can only arise via a (unilateral) legal transaction in cases foreseen in statute (e.g. a promise of a
reward under § 657; and also for foundations (§ 82) and legacy (§§ 1939, 2147 et seq.))
Moreover, Sub. 3 allows for unilateral promises to form the basis for reliance liability with
contractually-similar standards. According to Sub. 1, the unilateral amendment of an obligation
is also an exception alongside the unilateral creation of obligation. The former is permitted
when provided in statute (e.g. § 263(1)) or if the parties have established such a unilateral right
in a contract (in particular through so-called adaptation clauses) - the use of contractual
agreements in standard business terms is however subject to the controls in §§ 305 et seq.23
4 The provisions on pre-contractual liability in Subs 2 and 3 apply across the whole of
private law. Tortious liability (§§ 823 et seq.) or avoidance (§§ 119 et seq.) do not exclude
their application. However, their relationship to guarantee law (in particular in a purchase
contract) is disputed. According to the prevailing opinion, the provisions on pre-contractual
liability are only not excluded by guarantee law when the seller acts with intent24 25 However,
sales guarantee law excludes the application of the provisions on pre-contractual liability in
order to avoid that the specific rules for guarantees in purchase agreements would not take
effect (in particular the primär) of subsequent performance and §§ 438, 442, 445). The
seller’s liability for false information given before the conclusion of contract therefore does
not arise from the provisions on pre-contractual liability as far as sales guarantee law is
applicable and the breached obligation thus has a contractual basis.
B. Context
I. Culpa in contrahendo
5 The current version of § 311 results from the 2002 SMG. Whereas the wording of Sub. 1 is
identical to the corresponding provision in the former version of the BGB (§ 305(2)), Subs 2
and 3 are based on legal doctrine and case law on pre-contractual fault (culpa in contra¬
hendo), whose conceptual foundations were set in the 19th century by Rudolf von Jherin^
and further developed in the 20th century by Kurt Ballerstedt26 27 and Claus-Wilhelm Canaris1
from the perspective of reliance liability. These bases allowed legal doctrine and case law to
establish culpa in contrahendo as customary law,28 whose central aspects were codified in
Subs 2 and 3 during the 2002 SMG. However, it is still necessary to supplement these
provisions with the groups of cases specified in case law on pre-contractual obligations.
IL Tort law
6 In comparison to the provisions on pre-contractual laity in other legal systems, as well as
in Arts 2:301 to 2:302 PECL and Art. 11.-3:301 to 3:302 DCFR, liability under German law is
considerably broader in light of the weaknesses in tort law. The liability covers not only
breaches of good faith through breaking-off negotiations, or entering into negotiations with
no genuine intention of concluding a contract with the other party, or through breaches of
confidentiality (see Arts 2:301-302 PECL) but also damage to body, health, and proped)’
which arise through the breach of pre-contractual duties of protection (often competing with
23 See in particular §§ 308 No. 4. 309 No. 1.
24 BGH 27.3.2009 - V ZR 30/08, NJW 2009, 2120.
25 v. Jhering, Culpa in contrahendo oder Schadensersatz bei nichtigen oder nicht zur PeteM*»"
gelangten Verträgen in: Jahrbücher für die Dogmatik des heutigen römischen und deutschen R*ht>
(JherJb) Vol. 4(1861), 7.
» Ballerstedt, Zur Haftung für culpa in contrahendo bei Geschäftsabschluß durch Stellvertreter. I’1
AcP (1950/51), 501.
27 Canaris, Die Vertrauenshaftung im deutschen Privatrecht (C H Beck 1971)
2" BGH 11.5.1979 - V ZR 75/78, NJW 1979, 1983.
472
Schulze
Creation of contractual obligations 7-10 § 311
claims in tort), e.g. if a customer suffers physical injury due to the fault of a warehouse
employee (because of a falling roll of linoleum,29 or due to slipping on a banana skin,30 or a
car is damaged during a test drive31). Furthermore, the liability arising from §§ 280(1), 311
(2) and (3), 241(2), can also cover pure economic loss if a party breaches a pre-contractual
duty by giving the other party to the contract false or incomplete information and the other
party suffers loss due to the contract that is/is not formed. The provisions on pre-contractual
liability offer tor such cases an advantage over tort law as the former allow fault attributable
to assistants according to § 278 (whereas § 831 is much narrower with regard to assistants’
liability in tort). In contrast to claims in tort, the pre-contractual liability also does not
require the breach of an absolute right or protective legislation (§ 823) or intentional damage
contrary to public policy (§ 826); it also improves the injured party’s burden of proof
through the application of § 280(1) 2nd St.
C. Explanation
I. Contract
Sub. 1 concerns both the creation of an obligation as well as amendments to its content. In 7
principle both instances require a contract. An agreement on the amendment does not cause
the present obligation to no longer exist or change its identity, but rather simply amends its
content. The amendment can concern the contract type (e.g. changing a suretyship into a
loan), primary obligations, collateral obligations, modes of performance or the duration of
the contract. An amendment agreement requires the existence of the obligation (whereas an
extinguished obligation can only be recreated by concluding a new contract). The general
requirements for the conclusion of the agreement itself also apply to the amendment -
formal requirements for the original obligation also apply to the amendment agreement.
However, if the formal requirement is not statute-based, the parties can agree (also by
implication) not to apply the formal requirement to the amendment.
IL Consequence of amendment
The amendment results in a direct change to the content of the obligation. Security rights 8
remain unaffected because the amendment to the content does not remove the identity of the
obligation. Security rights do not extend to an extension via the amendment (§§ 767(2)
3rd St., 1210(1) 1st St.).
III. Termination agreements
Amendments are to be distinguished from termination agreements, which are not men- 9
tioned in Sub. 1 but are admissible due to freedom of contract. The conclusion of such an
agreement (in accordance with the general rules under §§ 145) allows the parties to
extinguish the obligations. The interpretation of the agreement will indicate whether the
contract is to be extinguished with ex nunc (de futuro) or ex tunc (ab initio) effect. Formal
requirements applicable in the creation of the obligation generally do not extend to the
termination agreement, unless agreed otherwise.
IV. Novation
Freedom of contract also allows the parties to combine the termination of an earlier contract 10
with the conclusion of a new contract in its place (Schuldnersersetzung), This is for instance the
29 RG 7.121911 - VI 240/11.
30 BGH 24 10.1961 -VI ZR 204/60, NJW 1962, 32.
31 BGH 215.1968 - VI ZR 131/67, NJW 1968, 1472.
Schulze
473
§ 311 11-13 Division 3. Contractual obligations
case in the renewal of a bill of exchange. The termination of the original obligation discontinues
security rights and objections from this obligation. However, under § 355 HGB, the recognition
of current account balances does not terminate the securities. Due to the radical consequence, a
novation agreement (and not simply an amendment agreement) is, however, only to be accepted
if there is clear intention from the parties.32 A conditional novation (kausale Novation-,
Schuldumschaffung i.e. re-dedication of the debt) refers to the circumstance whereby earlier
obligations are conditional for the creation of the new obligation. However, unconditional
novation may also apply where the new obligation is created independent of the existence of the
earlier obligation (abstrakte Novation; Schuldneuschaffung); §§ 280, 781 apply with regard to the
formal requirements (insofar as § 782, § 350 HGB do not apply).
V. Pre-contractual obligations
11 Sub. 2 stipulates that pre-contractual obligations also come into existence in three situations:
the commencement of contract negotiations (No. 1) always leads to pre-contractual obliga¬
tions with mutual duties of protection. The initiation of a contract (No. 2) also creates pre-
contractual obligations because the preparation of a potential contractual relationship is insofar
a relationship of trust/reliance that demands mutual duties of consideration. However, not every
social contact, which gives the other party the possibility of affecting his rights, legal interests or
other interests, will suffice. One party must rather give the other party the possibility of affecting
his rights or entrusted his rights, legal interests or other interests to him with regard to the
contractual relationship at stake. It is therefore necessary that the possibility for one party to
affect the other’s rights and their use by the other be in conjunction with the potential
conclusion of contract (e.g. entering commercial premises to seek information on a potential
purchase; a decision to purchase need not have been made). However, it does not suffice if there
is no commercial purpose behind the reason for entering the premises (e.g. to ask for
directions). Sub. 2 No. 3 also includes similar business contacts (e.g. contacts in preparation
for initiating a contract, such as acquiring information on a possible item to be purchased or the
relationships within communities of sellers which exists without a specific legal relationship'3)-
It is often not possible and even not necessary to draw a sharp distinction to initiating a
contract. However, a mere social link without reference to a possible legally-relevant transaction
will not suffice. It is rather disputed whether duties of protection (Schutzpflichten) can arise in
particular instances of such relationships (e. g. a rope team comprised of a group of friends); one
opinion justifies this through corresponding application of Sub. 2 No. 3.34
VI. Third parties
12 In principle the three circumstances covered by Sub. 2 entitle and oblige the parties to the
potential contract. However, third parties may also be entitled in accordance with the
principles of contracts with protective effects towards third parties (e.g. accompanying
family members35).
VII. Agents and assistants
13 The particular requirements of Sub. 3 result in the exceptional circumstance that third partii
may also be obliged under the pre-contractual relationship. This may particularly include agents
and other assistants who play an active role in the initiation of a contract. Despite the
classification as assistants, such third parties may, from an economic perspective, initiate the
planned contract, be the main beneficiary thereof, and lead the negotiations. Case law had
therefore long since recognised the pre-contractual liability of third parties when, in addition to
« BGH 4.6.1987 - IX ZR 31/86, NJW 1987, 3126.
33 BGH 7.7.1980 - II ZR 199/79, NJW 1980, 2464.
34 Canaris, Die Reform der Leistungsstörungen, JZ 2001, 499, 520.
35 BGH 28.1.1976 - VIII ZR 246/74, NJW 1976, 712. See § 328, mn 10 et seq.
474
Schulze
Creation of contractual obligations 14-17 § 311
the general requirements in Sub. 2, one of two requirements were fulfilled: the third party had a
considerable, direct economic interest in the conclusion of the contract that that he is involved
for his own caused or he laid claim to being given a particularly high degree of trust thereby
substantially influencing the negotiations?7 This second approach is included in Sub. 3 2nd St. as
a typical case for creating pre-contractual obligations with a third party. However, the addition of
‘in particular clarifies that third parties may also be liable in other types of cases.
VIII. High degree of trust
It is characteristic of the situation in Sub. 3 2nd St. that the third party lays claim to being 14
given a particularly high degree of trust from the other party during the contract negotia¬
tions. This may, in consideration of all circumstances, arise e.g. in declarations of a personal
guarantee for the successful performance of the contract?8 or for the seriousness of the
transaction, or due to a particular, prominent function and knowledge with regard to the
preparation and performance of the planned contract, or due to a corresponding professional
position.36 37 * 39 Experts may also be liable to the injured party for incorrect information and
appraisals in spite of contractual relationship.40
IX. Prospectus liability
Prospectus liability with regard to the distribution of capital investments is an important 15
aspect of Sub. 3 (alongside the specific statutory provisions for prospectus liability e.g. in
§§ 45 et seq. BörsG, § 17 VerkProsG). Managing directors, initiators and founders of an
investment company are liable to the investor if he has been designated for the conclusion of
a contract on the basis of incorrect or incomplete information in the prospectus. The
corresponding also applies to persons who support an investment company and exercise
decisive influence over its transactions (Hintermänner)41 and for the so-called guarantors of
the prospectus who, as auditors or due to a similar position, have created particular trust in
the accuracy’ of the prospectus.42 As such, a standardised reliance liability takes the place of
the requirement that under the particular circumstances a high degree of trust has been
placed and the causation has to be proven (though this is disputed in the details).
X. All circumstances
Due to the third party’s own significant economic interest, an obligation may arise under 16
Sub. 3 in consideration of all the circumstances, e.g. if a used car salesman sells a car taken as
payment from a customer,43 or if a transaction is concluded by the party’s spouse as if it were
his own.44 However, the expectation of a typical commission45 or the mere inclusion of a
spouse in the negotiations46 will not suffice.
XI. Damages
If a party to the pre-contractual relationship has a damages claim under Sub. 2 (or vis-i-vis a 17
third party from Subs 2 and 3) in conjunction with §§ 241(2), 280(1), according to §§ 249 et seq.
36 BGH 17.10.1989 - XI ZR 173/88, NJW 1990, 506.
37 BGH 28.1.1981 - VIII ZR 88/80, NJW 1981, 922.
3* BGH 13.6.2002 - VII ZR 30/0), NJW-RR 2002, 1309.
39 BGH 3.4.1990 - XI ZR 206/88, NJW 1990, 1907 for commercial restructuring experts; BGH
22.5.1985 - IV a ZR 190/83, NJW 1985, 2595 for insurance brokers.
40 BT-Drs. 14/6040 of 14.5.2001, p. 163; see MüKo BGB/Emmerich, § 311 BGB mn. 130 et seq., 156 et seq.
41 BGH 7.9.2000 - VII ZR 443/99, NJW 2001,436.
42 BGH 26.9.2000 - X ZR 94/98, NJW 200), 360.
43 BGH 28.1.198) - VIII ZR 88/80, NJW 1981, 922.
44 BGH 17.9.1954 - V ZR 32/53, NJW 1954, 1925.
45 BGH 17 10.1989 - XI ZR 173/88, NJW 1990, 506.
46 BGH 20.3.1987 - V ZR 27/86, NJW 1987 2511.
Schulze
475
§ 311a 1 Division 3. Contractual obligations
the injured party is to be put in the position he would be in had the damaging act not occurred.
The claim therefore often concerns the compensation of the reliance interest. Compensation for
the expectation interest may be granted under exceptional circumstances if the contract would
have been concluded effectively without the damaging behaviour or with more favourable
content.47 If the contract is void due to the fault of one of the parties because it does not satisfy
formal requirements (e.g. a purchase agreement for land has not been authenticated by a notary),
monetary damages are to be paid (the purchaser can also demand the price of a comparable piece
of law, though not the conclusion of the original purchase agreement and transfer of the
property48). As far as the damages arise in the formation of the disadvantageous contract, the
injured party can demand the termination of the contract.49 §§ 195, 199 apply to the limitation
periods, however in some circumstances other periods may apply depending on the type of
contract (e.g. according to §§ 438, 634, § 37a WpHG); an agreement between the parties on
shortened limitation periods may be considered with regard to liability for assistants.50
§311a
Obstacle to performance when
contract is entered into
(1) A contract is not prevented from being
effective by the fact that under § 275(1) to (3)
the obligor does not need to perform and the
obstacle to performance already exists when
the contract is entered into.
(2) ’The obligee may, at his option, de¬
mand damages in lieu of performance or
reimbursement of his expenses in the extent
specified in § 284. 2This does not apply if the
obligor was not aware of the obstacle to
performance when entering into the contract
and is also not responsible for his lack of
awareness. 3§ 281(1) sentences 2 and 3 and
(5) apply with the necessary modifications.
§311a
Leistungshindernis bei
Vertragsschluss
(1) Der Wirksamkeit eines Vertrags steht es
nicht entgegen, dass der Schuldner nach
§ 275 Abs. 1 bis 3 nicht zu leisten braucht
und das Leistungshindemis schon bei Ver¬
tragsschluss vorliegt.
(2) ’Der Gläubiger kann nach seiner Wahl
Schadensersatz statt der Leistung oder Ersatz
seiner Aufwendungen in dem in § 284 be¬
stimmten Umfang verlangen. 2Dies gilt nicht,
wenn der Schuldner das Leistungshindemis
bei Vertragsschluss nicht kannte und seine
Unkenntnis auch nicht zu vertreten hat
3§ 281 Abs. 1 Satz 2 und 3 und Abs. 5 findet
entsprechende Anwendung.
A. Function
I. Purpose
1 The provision refers to situations in which the obligor (under § 275(1), (2) or (3)) does not
have to perform because of impossibility and this impossibility existing at the time ot
formation of contract (anfängliche Unmöglichkeit - 'initial impossibility'). Sub. 1 clarities
that in such cases the release from the performance obligation does not result in the
avoidance of the contract. Sub. 2 stipulates that (and with which limitations) the obligee can
demand compensation for expenses or damages. The contractual promise to perform (which,
according to Sub. 1 is effective despite the impossibility) forms the basis for this claim. The
obligor is accused of accepting the obligation to perform even though he knew or ought to
have known that he cannot fulfil the obligation.1 He is not liable for the reliance interest, but
the expectation interest because he promised performance.2
47 BGH 25.11.1992 - VIII ZR 170/91, NJW 1993, 520.
48 BGH 29.1.1965 - V ZR 53/64, NJW 1965 369 (disputed).
49 BGH 22.12.1999 - VIII ZR 111/99, NJW 2000, 1254 (disputed).
50 BGH 23.2.1983 - VIII ZR 325/81, NJW 1983, 1607.
1 See BT-Drs. 14/7052 of 9.10.2001, p. 190.
2 Sec Knüttel, Zur Schuldrechtsreforin, NJW 2001, 2519, 2520.
476
Schulze
Obstacle to performance when contract is entered into 2-6 § 311a
IL Scope of application
The provision applies to all contracts that found an obligation to perform. Additional 2
requirements apply in sales law and in contracts to produce a work due to §§ 434 No. 3, 634
No. 4. § 536a(l) contains a special rule for lease agreements in order to protect the lessee.
B. Explanation
I. Impossibility
According to Sub. 1» the contract is effective with regard to both initial subjective and 3
initial objective impossibility. This also applies when the contract has, as its subject matter, a
generally nonsensical performance, such as the manufacture of a perpetual motion machine.3
In such instances the contract does not have a primary obligation that forms the basis of
claims for damages under Sub. 2 for eventual claims under § 285.
IL Avoidance
Sub. 1 does not exclude the contract from being void for other reasons (e.g. a breach of a 4
statutory prohibition under § 134). In principle, Sub. 1 does not exclude avoidance of the
contract.4
III. Damages
The claim to damages under Sub. 2 requires an effective obligation under Sub. 1 and for 5
the obligor to be released from his primary obligation according to § 275(1 )-(3). The
obstacle to performance must have existed at the time of formation of contract. However, this
claim to damages is excluded under Sub. 2 2nd St. if the obligor can prove that he was not
aware or could not have been aware of the obstacle. However, in principle it is not significant
whether he was at fault for the impossibility because, prior to the conclusion of contract, he
is not under a duty of care vis-ä-vis the thing. Greater liability can arise according to § 276(1)
1st St., in particular in assuming a guarantee (e.g. in ensuring characteristics of assuming
responsibility for the characteristics). Milder liability applies for several types of contracts
(e.g. §§ 521, 599, 690).
IV. In lieu of performance
The obligee can demand either damages in lieu of performance or compensation for 6
expenses. In the former case the accusation that the obligor has not upheld his promise
replaces the requirement under § 280(1), namely that the obligor is responsible for the
breach; apart from that, the structure of the claim under Sub. 2 corresponds to the structure
of the claim under §§ 280(1), (3), 281. The obligor must compensate the expectation
interest; however, he can demand return of performances tendered under the standards of
§§ 346 et seq. according to Sub. 2 3rd St. in conjunction with § 281(5). If the obligee demands
compensation for expenses, he can (under § 284) demand reimbursement of the expenses
which he has made and in all fairness was entitled to make in reliance on receiving
performance. He may also proceed under § 285.
3 See Canaris, Die Reform des Rechts der Leistungsstörungen, JZ 2001, 499, 505.
4 For limitations see MüKo BGB/Ernst, § 311a mn. 80. On the exception if the rescission only serves
the purpose to revoke claims for damages BGH 8.6.1988 - VHl ZR 135/87, NJW 1988, 2597.
Schulze
477
§ 311b
Division 3. Contractual obligations
V. Responsibility
7 Sub. 2 does not stipulate the consequences if the obligor is not responsible for not being
aware of the obstacle. The legislator expressly left this question open.5 A corresponding
application of § 122 comes into consideration, though this is controversial.6
§311b
Contracts on plots of land, assets
and an estate
(1) ’A contract by which one party agrees
to transfer or acquire ownership of a plot of
land must be recorded by a notary. 2A con¬
tract not entered into in this form becomes
valid with all its contents if a declaration of
conveyance and registration in the Land Reg¬
ister are effected.
(2) A contract by which one party agrees to
transfer his future property or a fraction of
his future property or to charge it with a
usufruct is void.
(3) A contract by which one party agrees to
transfer his present property or a fraction of
his present property or to charge it with a
usufruct must be recorded by a notary.
(4) ’A contract relating to the estate of a
third party who is still living is void. 2The
same applies to a contract relating to a com¬
pulsory portion or a legacy from the estate of
a third party who is still living.
(5) Subsection (4) above does not apply to
a contract entered into between future heirs
on intestacy relating to the hereditary share
on intestacy or the compulsory portion of
one of them. 2Such a contract must be re¬
corded by a notary.
§311b
Verträge über Grundstücke, das
Vermögen und den Nachlass
(1) ’Ein Vertrag, durch den sich der eine
Teil verpflichtet, das Eigentum an einem
Grundstück zu übertragen oder zu erwerben,
bedarf der notariellen Beurkundung. 2Ein
ohne Beachtung dieser Form geschlossener
Vertrag wird seinem ganzen Inhalt nach gül¬
tig, wenn die Auflassung und die Eintragung
in das Grundbuch erfolgen.
(2) Ein Vertrag, durch den sich der eine
Teil verpflichtet, sein künftiges Vermögen
oder einen Bruchteil seines künftigen Ver¬
mögens zu übertragen oder mit einem Nie߬
brauch zu belasten, ist nichtig.
(3) Ein Vertrag, durch den sich der eine
Teil verpflichtet, sein gegenwärtiges Ver¬
mögen oder einen Bruchteil seines gegenwär¬
tigen Vermögens zu übertragen oder mit ei¬
nem Nießbrauch zu belasten, bedarf der
notariellen Beurkundung.
(4) ’Ein Vertrag über den Nachlass eines
noch lebenden Dritten ist nichtig. 2Das Glei¬
che gilt von einem Vertrag über den Pflicht¬
teil oder ein Vermächtnis aus dem Nachlass
eines noch lebenden Dritten.
(5) ’Absatz 4 gilt nicht für einen Vertrag,
der unter künftigen gesetzlichen Erben über
den gesetzlichen Erbteil oder den Pflichtteil
eines von ihnen geschlossen wird. 2Ein sol¬
cher Vertrag bedarf der notariellen Beurkun¬
dung.
Contents
mn.
A. Function 1
B. Explanation 2
I. Cure 2
II. Transfer 3
III. Contracts for land 4
IV. Property in land 5
V. Effects of eure 6
VI. Incorrect recording 7
VII. Transfer of future property 8
5 BT-Drs. 14/6040 of 14.5.2001, p. 166.
6 MüKo BGB/Ernst, § 31 la mn. 41.
478
Schulze
Contracts on plots of land, assets and an estate 1-4 § 31 lb
VIII. Transfer of present property 9
IX. Estate 10
X. Future heirs on intestacy 11
A. Function
§ 31 lb collates numerous earlier provisions with varying content together in one provision. 1
Sub. 1 concerns contracts for land and stipulates a duty to record the contract by a notary. This
provision serves numerous purposes: to protect the parties from hasty and impetuous decisions
(warning function), to provide evidence of the agreement (evidentiary function), to provide the
appropriate advice to the parties (advisory function, § 17 BeurkG), to secure the validity of the
transaction (guarantee function). Even though the purpose of the provision is directed towards
the protection of the parties, the general formal requirement of recording by a notary exists
irrespective of whether the parties require protection in the individual case. § 128 and the
BeurkG (and also § 127a whereby the recording of declarations in a court replaces notarial
recording) contain more detailed provisions on notarial recording provided by Sub. 1 1st St. An
agreement is void under § 125 if it is subject to the formal requirement under Sub. 1 1st St. and
has not been notarially recorded. This avoidance is to be considered of the court’s own motion;
it also applies if the parties want to treat the contract as effective.
B. Explanation
I. Cure
Sub. 1 2nd St. provides for the possibility of cure if the formal requirement under Sub. 1 2
1st St. has not been observed. According to this provision, the transfer or acquisition of
ownership of the land may be, as an exception, permanent by reason of legal certainty if the
change to the legal position has been effected by a declaration of conveyance and registration
in the Land Register, even though there was no obligation under Sub. 1 1st St. (cure).
Moreover, case law applies Sub. 1 2nd St. analogously in several comparable circumstances
when contracts were not concluded in accordance with the required form: curing a
preliminary’ agreement by concluding a contract with corresponding content in the necessary
form;1 curing a brokerage contract by concluding a purchase agreement with notarial
recording;2 curing a purchase agreement for a plot of law abroad by acquiring ownership in
accordance with the national law of the country in question.3
IL Transfer
Sub. 2 concerns the avoidance of contracts on the transfer of future property and should 3
protect above against excessive restrictions of future economic courses of action. In contrast,
notarial recording under Sub. 3 concerns contracts for the transfer of present property and
serves to warn the affected party in light of the particularly extensive obligation in concluding
the contract and to ensure that appropriate advice is given. The final two subsections concern
contracts relating to inheritance. Sub. 4 is directed against the future estate of a third party
and declares such contracts void. Sub. 5 permits exceptions for contracts between future
heirs on intestacy and combines this with a duty to record the contract with a notary.
III. Contracts for land
The duty to record the contact with a notary according to Sub. 1 1M St. refers to contracts 4
containing an obligation to transfer or acquire land. Such contracts are e.g. purchase,
1 BGH J 8.12.1981 - V ZR 233/80, NJW 1982, 759.
2 BGH 28.1.1987 - IVa ZR 45/85, NJW 1987, 1628.
3 BGH 4.7.1969 - V ZR 69/66, NJW 1969, 1760.
Schulze
479
§ 311b5 Division 3, Contractual obligations
exchange, and donation. These are to be distinguished from the dispositions to transfer
property. The latter do not fall under Sub. 1 but are instead regulated by the particular formal
requirements in §§ 925, 873. The assignment of a claim to transfer ownership of land are not
subject to the formal requirement in Sub. 1 because it is to be considered a disposition (and
not an obligation). Sub. 1 also does not apply if the obligation to acquire or to dispose of land
is not founded by a legal transaction between the parties but rather by statute.4 In principle
Sub. 1 does not apply to the conferment of authority for the acquisition or disposal of land,
as results from § 167(2). However, if the authority is irrevocable, its conferment is subject to
the formal requirement in Sub. 1 because a binding obligation has arisen with respect to the
disposal or acquisition of the land.5 Furthermore, the formal requirement also applies to the
conferment of revocable authority if, due to the particular circumstances of the case, this
legally or actually binds the conferring party.6 The formal requirement in Sub. 1 also extends
to subsequent changes and supplements to the contract for the acquisition of land (except
when these changes do not intensify or expand the obligation to sell or purchase, or if they'
only ease the performance of the contract without changing the core of the obligation’s
content).7 Sub. 1 applies, with the necessary modifications (though the details are disputed)
to unilateral legal transactions such as the foundation (§ 82) and promise of a reward (§ 657).
IV. Property in land
5 The subject-matter of the contract must be property in land. The provision also applies to
co-owned parts and for rights of expectancy in land.8 Sub. 1 also applies with the necessary’
modifications to, inter alia, apartment ownership and to heritable building rights (§4(3)
WEG, § 11(2) ErbbauRG). The contract must establish the obligation to transfer or acquire
ownership (or one of the aforementioned corresponding rights) for at least for one party.
This obligation can be a primary contractual duty or a collateral duty and exists vis-ä-vis the
other party to the contract or a third party. The formal requirement also covers conditional
obligations to purchase or sell (but this is disputed for potestative conditions; for preliminary’
agreements which aim at the conclusion of a contract falling under Sub. I9); real rights of
pre-emption (but not for contractual rights of pre-emption), assumption of obligations
according to §§ 414 et seq.; and purchase rights in a sale-and-lease-back agreement If a
partnership agreement obliges a partner to bring land into the partnership, the partnership
is subject to the formal requirements of Sub. 1 insofar as the land is to be brought into the
partnership not by reason of its value or only for its use.10 Furthermore, the formal
requirement under Sub. 1 may be necessary if the contract does not stipulate a direct
obligation of acquisition or disposal but foresees such significant economic disadvantages
for the event that land is not acquired or disposed of that there exists de facto compulsion of
acquisition or disposal (e.g. through contractual penalties or through agreements with the
broker for high payments for reserving the land or for not acquiring or disposing of the
4 On the particular features of mandate or a management contract see BGH 5 11 1982 - V ZR 228 8Ü
NJW 1983, 566; BGH 2.5.1996 - III ZR 50/95, NJW 1996, I960.
5 BGH 22.4.1966 - V ZR 164/63, BeckRS 2016, 09558.
6 RG 19.3.1924 - V 427/22.; on the requirement of form in particular cases in which the authorin
part of the unified contract on the sale or acquisition, OLG Zweibrücken °0 6 1989 - 7 U 243/88, Nl'v
RR 1989, 1100; BGH 9.3.1990 - V ZR 244/88, NJW 1990, 1721; on”the extension of the fo^
requirement for the authority to the contract which forms the basis of said authority’, BayObL°
14.3.1996 - 2Z BR 121/95, NJW-RR 1996, 848.
7 BGH 5.5.1976 - IV ZR 63/75, NJW 1976, 1842; BGH 5.4.2001 - VII ZR 119/99, NJW 200L I932
(disputed).
» On the right of expectancy as being less than but similar to property, BGH 30,4.1982 - V ZR
NJW 1982, 1639. See ► § 925 mn. 14.
9 BGH 22.9.1977 - III ZR 144/76, NJW 1978, 212.
>» BGH 1.6.1967 - II ZR 198/65, WM 1967, 952. For further issues concerning the transfer of I*”*,n
partnership agreements see HK-BGB/Schulze, § 31 lb BGB mn. 8-9.
480
Schulze
Contracts on plots of land, assets and an estate 6-8 § 31 lb
land11). In contrast, the contract for the purchase of a prefabricated house only requires
notarial recording if the purchase of the house is firmly attached to the acquisition of the
land, or strong pressure to acquire the land arises.12 Sub. 1 does not apply to an agreement in
which one party only obliged to encumber a plot of land (except for a real right of pre¬
emption and heritable building rights according to § 11 ErbbauRG). The negative obligation
not to dispose ot or acquire land also does not require the formal requirement in Sub. I.13
V. Effects of cure
A contract (exceptionally) will be rendered effective by cure under Sub. 1 2nd St. although a 6
notary has not recorded it, as required by Sub. 1 1st St. However, cure only concerns this defect
in form and not other defects (e.g. lack of agreement, lack of authority or missing official
approval). It requires the effective declaration of conveyance of the land and the entry in the
Land Register. According to § 925, the declaration of conveyance must serve the performance of
the contract and therefore it must be declared at the same time or following the conclusion of
the contract, not before. According to § 873 (in conjunction with the entry in the Grundbu-
chordnung (GBO; Land Register Code)) the declaration must refer to the plot of land disposed
of. The entry, e.g. on an incorrect register, does not effect cure;14 15 the entry of a notice of
conveyance does not suffice. However, if the alienor has obtained an injunction on acquisition, a
subsequent entry is ineffective and does not effect cure by reason of analogous application of
§§ 135 and 136.1? According to the prevailing opinion, cure does not have retrospective effect
but renders the contract effective with the declaration of conveyance and entry in the Land
Register. It encompasses the entire content of the contract including collateral agreements.
VI. Incorrect recording
A distinction is to be drawn with regard to incorrect recording. The recorded contract will 7
void as a sham transaction (§ 117) if the parties have knowingly allowed false information
to be recorded (e.g. by entering a lower purchase price for tax purposes). The contract
actually intended (e.g. with the higher purchase price) is also void due to the defects in form
(Sub. 1 1st St. in conjunction with § 125). However, the contract actually intended may
become effective under the requirements of Sub. 1 2nd St. Although the contract is illicit in
nature, the acquiring party and alienor can each retain the property and purchase price,
respectively, after the declaration of conveyance and entry into the Land Register. In contrast,
if the parties have unwittingly given incorrect information on the content of the contract, the
contract is initially valid (falsa demonstratio non nocet; e.g. incorrect description of the
property line or an incorrect designation in the cadastre16).
VIL Transfer of future property
Sub. 2 stipulates that a contract by which one party agrees to transfer his future property 8
or a fraction of his future property or to charge it with a usufruct is void. This may apply to
purchase agreements, donations, and promises of life annuities but not, however, to
agreements under family and inheritance law e.g. according to §§ 1415 et seq., 1941, 2274
et seq. The provision refers only to the transfer of property as a whole or a fraction thereof;
obligations concerning individual items of property do not suffice. Sub. 2 thus does not
extend to an obligation to the assignment of all future claims or of pledgeable future
11 OLG München 12.11.1991 - 25 U 4121/91, NJW-RR 1992,818.
12 BGH 15.12.1993 - VIII ZR 157/92, NJW 1994, 722.
13 BGH 30.9.1959 - V ZR 66/58, NJW 1959, 2252.
14 RG 1.4.1905 - V 448/04.
15 OLG Hamm 30.1.1992 - 22 U 103/91, NJW-RR 1992, 1100.
16 BGH 14.7.1969 - V ZR 122/66, NJW 1969, 2043.
Schulze
481
§ 311c 1
Division 3. Contractual obligations
income from employment.17 The provision also applies to legal persons insofar as there are
no specific provisions.
VIII. Transfer of present property
9 The requirements under Sub. 3 are the same as for Sub. 2. with the exception that Sub 3
concerns present, not future, property. However, the provision does not stipulate that the
contract is void but rather requires the contract to be recorded by a notary. The contract for
present property will be void according to § 125 1st St. if such recording is lacking. According
to the prevailing opinion, cure is not possible through performance of the contract as
according to Sub. 1 2nd St.
IX. Estate
10 Sub. 4 stipulates that a contract relating to the estate (in whole or in part) of a third party,
who is still living, is void. The 2nd St. equates a compulsory portion and a legacy to the estate
under the 1st St. A contract for individual items from the estate is only subject to Sub. 4 if, at
the time of conclusion of contract, these in fact comprise the whole estate. The parties to the
contract must not include the future testator. Sub. 5 will apply if one of the parties belongs to
the possible heirs according to §§ 1924 et seq.
X. Future heirs on intestacy
11 Sub. 5 permits contracts (in the context of Sub. 4) between future heirs on intestacy with
regard to the distribution of the inheritance from a third party who is still living. Such
contracts are to be recorded by a notary; the contract will otherwise be void under § 125.
This formal requirement also applies if the testator has agreed to the contract According to
case law, the subject-matter of the contract can extend beyond the hereditary share on
intestacy or the compulsory portion to the hereditary share contained in the testament and
the legacy up to the amount of the hereditary share on intestacy’’.18 The parties to the contract
are the future heirs on intestacy if, at the time of conclusion of contract, they belong to the
possible entitled heirs according to §§ 1924 et seq. (irrespective of a renunciation of the
inheritance under § 234619). However, according to the prevailing opinion, the basis for
obligation undertaken ceases if the person obliged later becomes neither heir nor is entitled
to a compulsory portion.
§ 311c
Application to accessories
If a person agrees to dispose of or charge a
thing, that duty, in case of doubt, also applies
to accessories of the thing.
§3Uc
Erstreckung auf Zubehör
Verpflichtet sich jemand zur Veräußeru^
oder Belastung einer Sache, so erstreckt m
diese Verpflichtung im Zweifel auch aut a*
Zubehör der Sache.
1 The interpretative rule under § 311c applies to all obligations arising from contracts an,
unilateral legal transactions concerning the disposal of a thing (purchase, exchange, girt), a
on a thing and (with the necessary modifications) the grant of a right of use (lease, usufn"-^
lease, gratuitous loan). It is disputed whether the rule applies, with the necessary’ modified0”'
17 BGH 28.2.1989 - IX ZR 130/88, N|W 1989, 1276.
18 BGH 11.5.1988 - VIII ZR 96/87, NJW 1988, 2665.
•’ BGH 23.11.1994 - IV ZR 238/93, NJW 1995, 448.
482
Schulze
Scope of application
§312
to rights that form an economic unit with the object subject to disposal. The rule does not apply
to transactions tor immovable property or a legacy (rather §§ 926, 1031; 2164). In cases of doubt,
the obligation also applies to accessories according to §§ 97, 98 for those contracts to which
§ 311c applies. This applies irrespective of whether the obliged party is the owner. However,
counter-evidence that this is a rule of interpretation is admissible in judicial proceedings.
Subtitle 2
Principles applying to
consumer contracts;
particular types of sale
Untertitel 2
Grundsätze bei
Verbraucherverträgen und
besondere Vertriebsformen
Chapter 1
Scope of application and
principles applying to
consumer contracts
Kapitel 1
Anwendungsbereich und
Grundsätze bei
V erbraucherverträgen
§312
Scope of application
(1) The provisions of chapters 1 and 2 of
this subtitle apply only to consumer contracts
within the meaning of § 310(3) that have as
their subject matter the nongratuitous per¬
formance by the trader.
(2) Of the provisions set out in chapters 1
and 2 of this subtitle, solely §312a
subsections (1), (3), (4), and (6) applies to
the following contracts:
1. contracts that have been notarially re¬
corded
a) and that relate to financial services, where
such contracts are off-premises contracts,
b) and that do not constitute a contract
relating to financial services; this applies to
contracts, regarding which the law does not
require the contract or contract declaration
to be notarially recorded, solely in those cases
in which the notary instructs the parties that
the information requirements pursuant to
§ 312d(l) and the right of withdrawal pur¬
suant to § 312g( 1) have ceased to apply;
2. contracts relating to the creation, acqui¬
sition or transfer of ownership of plots of
land or other rights to same,
3. consumer construction contracts pur¬
suant to § 650i( 1),
4. (repealed)
5. contracts relating to the carriage of pas¬
sengers,
6. timeshare contracts, contracts relating to
long-term holiday products, brokerage con¬
tracts, and exchange system contracts pur¬
suant to §§ 481 to 481b,
§312
Anwendungsbereich
(1) Die Vorschriften der Kapitel 1 und 2
dieses Untertitels sind nur auf Verbraucher¬
verträge im Sinne des §310 Absatz 3 anzu¬
wenden, die eine entgeltliche Leistung des
Unternehmers zum Gegenstand haben.
(2) Von den Vorschriften der Kapitel 1 und
2 dieses Untertitels ist nur § 312a Absatz 1, 3,
4 und 6 auf folgende Verträge anzuwenden:
1. notariell beurkundete Verträge
a) über Finanzdienstleistungen, die außer¬
halb von Geschäftsräumen geschlossen werden,
b) die keine Verträge über Finanzdienst¬
leistungen sind; für Verträge, für die das
Gesetz die notarielle Beurkundung des Ver¬
trags oder einer Vertragserklärung nicht vor¬
schreibt, gilt dies nur, wenn der Notar darü¬
ber belehrt, dass die Informationspflichten
nach § 312d Absatz 1 und das Widerrufsrecht
nach § 312g Absatz 1 entfallen,
2. Verträge über die Begründung, den Er¬
werb oder die Übertragung von Eigentum
oder anderen Rechten an Grundstücken,
3. Verbraucherbauverträge nach § 650i
Absatz 1,
4. (weggefallcn)
5. Verträge über die Beförderung von Per¬
sonen,
6. Verträge über Teilzeit-Wohnrechte,
langfristige Urlaubsprodukte, Vermittlungen
und Tauschsysteme nach den §§ 481 bis 481b,
Fries
483
§312
Division 3. Contractual obligations
7. treatment contracts pursuant to § 630a,
8. contracts relating to the supply of food
products, beverages or other household ob¬
jects of everyday use which are supplied to
the residence, place of abode or place of
employment of a consumer by a trader in
the course of frequent and regular rounds,
9. contracts that are concluded with the use
of automatic vending machines and auto¬
mated business premises,
10. contracts for the use of public pay¬
phones that are concluded with telecommu¬
nications operators through such public pay¬
phones,
11. contracts concluded for the use of one
single connection by telephone, Internet or
fax established by a consumer,
12. off-premises contracts, in which the
performance is immediately rendered and
paid for at the conclusion of the negotiations
and the remuneration to be paid by the con¬
sumer does not exceed 40 euro, and
13. contracts relating to the sale of movable
things by way of an execution of judgment or
otherwise by authority of law.
(3) Solely the following of the provisions
set out in chapters 1 and 2 of this subtitle
apply to contracts relating to social services,
such as childcare and support of families and
persons permanently or temporarily in need,
including long-term care:
1. the definitions of off-premises contracts
and of distance contracts pursuant to §§ 312b
and 312c,
2. § 312a(l) regarding the disclosure obli¬
gation in the case of telephone calls,
3. § 312a(3) regarding the effectiveness of
an agreement directed towards obtaining ex¬
tra payment in addition to the remuneration
agreed upon for the principal performance,
4. §312a(4) regarding the effectiveness of
an agreement for fees for the use of means of
payment,
5. §312a(6),
6. § 312d(l) in conjunction with
Article 246a § 1 subsections (2) and (3) of
the Introductory Act to the Civil Code [Ein¬
führungsgesetz zum Bürgerlichen Gesetz¬
buche] regarding the obligation to inform
on the right of withdrawal, and
7. § 312g regarding the right of withdrawal.
(4) lOf the provisions made in chapters 1
and 2 of this subtitle, solely the stipulations set
7. Behandlungsverträge nach § 630a,
8. Verträge über die Lieferung von Lebens-
mitteln, Getränken oder sonstigen Haushalts¬
gegenständen des täglichen Bedarfs, die am
Wohnsitz, am Aufenthaltsort oder am Ar¬
beitsplatz eines Verbrauchers von einem Un¬
ternehmer im Rahmen häufiger und regelmä¬
ßiger Fahrten geliefert werden,
9. Verträge, die unter Verwendung von
Warenautomaten und automatisierten Ge¬
schäftsräumen geschlossen werden,
10. Verträge, die mit Betreibern von Tele¬
kommunikationsmitteln mit Hilfe öffentli¬
cher Münz- und Kartentelefone zu deren
Nutzung geschlossen werden,
11. Verträge zur Nutzung einer einzelnen
von einem Verbraucher hergestellten Telefon-,
Internet- oder Telefaxverbindung,
12. außerhalb von Geschäftsräumen ge¬
schlossene Verträge, bei denen die Leistung
bei Abschluss der Verhandlungen sofort er¬
bracht und bezahlt wird und das vom Ver¬
braucher zu zahlende Entgelt 40 Euro nicht
überschreitet, und
13. Verträge über den Verkauf beweglicher
Sachen auf Grund von Zwangsvollstreckungs¬
maßnahmen oder anderen gerichtlichen Ma߬
nahmen.
(3) Auf Verträge über soziale Dienstleis¬
tungen, wie Kinderbetreuung oder Unterstüt¬
zung von dauerhaft oder vorübergehend hilfe¬
bedürftigen Familien oder Personen,
einschließlich Langzeitpflege, sind von den
Vorschriften der Kapitel 1 und 2 dieses Un¬
tertitels nur folgende anzuwenden:
1. die Definitionen der außerhalb von Ge¬
schäftsräumen geschlossenen Verträge und
der Femabsatzverträge nach den §§ 312b
und 312c,
2. § 312a Absatz 1 über die Pflicht zur
Offenlegung bei Telefonanrufen,
3. § 312a Absatz 3 über die Wirksamkeit
der Vereinbarung, die auf eine über das ver¬
einbarte Entgelt für die Hauptleistung hi¬
nausgehende Zahlung gerichtet ist,
4. § 312a Absatz 4 über die Wirksamkeit
der Vereinbarung eines Entgelts für die Nut
zung von Zahlungsmitteln,
5. § 312a Absatz 6,
6. § 312d Absatz 1 in Verbindung tm
Artikel 246a § 1 Absatz 2 und 3 des Einhin-
rungsgesetzes zum Bürgerlichen Gesetzbuch*
über die Pflicht zur Information über
Widerrufsrecht und
7. § 312g über das Widerrufsrecht.
(4) ’Auf Verträge über die Vermietung'
Wohnraum sind von den Vorschriften «
484
Fries
Scope of application
1 § 312
out in subsection (3) Nos 1 through 7 apply to
contracts relating to the rental of accommoda*
tion for residential purposes. 2The stipulations
set out in subsection (3) Nos 1, 6, and 7 do not
apply» however» to the creation of a lease
relationship for accommodation serving resi¬
dential purposes if the lessee has previously
inspected the dwelling.
(5) ‘In the case of contractual relationships
relating to banking services and services of a
credit, insurance» personal pension, invest¬
ment or payment nature (financial services)»
that consist of an initial agreement with
transactions following upon it or a series of
separate transactions following upon it of the
same type that have a temporal connection,
the provisions made in chapters 1 and 2 of
this subtitle apply only to the first agreement.
2§ 312a subsections (1), (3), (4), and (6) addi¬
tionally applies to each transaction. 3Where
the transactions set out in sentence 1 follow
one another without such an agreement, the
provisions on the duties of a trader to pro¬
vide information apply only to the first trans¬
action. 4However, if no transaction of the
same type occurs for longer than one year,
the next transaction is deemed to be the first
transaction of a new series within the mean¬
ing of sentence 3.
(6) Of the provisions made in chapters 1 and
2 of this subtitle, solely § 312a subsections (3)»
(4), and (6) apply to contracts relating to
insurance policies as well as to contracts relat¬
ing to the brokerage of such policies.
(7) ‘From the provisions of this subtitle,
only § 312a(3) to (6), §§ 312i, 312j(2) to (5)
and § 312k apply to package travel contracts
pursuant to §§651a and 651c; these provi¬
sions also apply if the traveller is not a
consumer. 2If the traveller is a consumer,
§ 312g( 1) also applies to package travel con¬
tracts pursuant to §651a entered into off
business premises, unless the oral negotia¬
tions, which form the basis of the conclusion
of contract, were conducted on the consu¬
mer’s previous order.
Kapitel 1 und 2 dieses Untertitels nur die in
Absatz 3 Nummer 1 bis 7 genannten Bestim¬
mungen anzuwenden. 2Die in Absatz 3
Nummer 1, 6 und 7 genannten Bestimmun¬
gen sind jedoch nicht auf die Begründung
eines Mietverhältnisses über Wohnraum an¬
zuwenden, wenn der Mieter die Wohnung
zuvor besichtigt hat.
(5) ‘Bei Vertragsverhältnissen über Bank¬
dienstleistungen sowie Dienstleistungen im
Zusammenhang mit einer Kreditgewährung,
Versicherung» Altersversorgung von Ein¬
zelpersonen» Geldanlage oder Zahlung (Fi¬
nanzdienstleistungen), die eine erstmalige
Vereinbarung mit daran anschließenden auf¬
einanderfolgenden Vorgängen oder eine daran
anschließende Reihe getrennter» in einem zeit¬
lichen Zusammenhang stehender Vorgänge
gleicher Art umfassen» sind die Vorschriften
der Kapitel 1 und 2 dieses Untertitels nur auf
die erste Vereinbarung anzuwenden. 2§312a
Absatz 1, 3» 4 und 6 ist daneben auf jeden
Vorgang anzuwenden. 3Wenn die in Satz 1
genannten Vorgänge ohne eine solche Verein¬
barung aufeinanderfolgen, gelten die Vor¬
schriften über Informationspflichten des Un¬
ternehmers nur für den ersten Vorgang.
4Findet jedoch länger als ein Jahr kein Vor¬
gang der gleichen Art mehr statt» so gilt der
nächste Vorgang als der erste Vorgang einer
neuen Reihe im Sinne von Satz 3.
(6) Von den Vorschriften der Kapitel 1 und
2 dieses Untertitels ist auf Verträge über Ver¬
sicherungen sowie auf Verträge über deren
Vermittlung nur §312a Absatz 3, 4 und 6
anzuwenden.
(7) ‘Auf Pauschalreiseverträge nach den
§§ 651a und 651c sind von den Vorschriften
dieses Untertitels nur § 312a Absatz 3 bis 6,
die §§ 312i, 312j Absatz 2 bis 5 und § 312k
anzuwenden; diese Vorschriften finden auch
Anwendung» wenn der Reisende kein Ver¬
braucher ist. 2Ist der Reisende ein Verbrau¬
cher, ist auf Pauschal reiseverträge nach
§651a» die außerhalb von Geschäftsräumen
geschlossen worden sind» auch §312g
Absatz 1 anzuwenden, es sei denn, die münd¬
lichen Verhandlungen, auf denen der Ver¬
tragsschluss beruht» sind auf vorhergehende
Bestellung des Verbrauchers geführt worden.
A. Function
The purpose of § 312 is to define the scope of the following §§ 312a to 312k. These rules 1
set out special duties of businesses in B2C contracts as well as certain rights of consumers to
terminate such contracts. Accordingly, § 312 limits the application of these rules to consumer
Fries
485
§ 312a Division 3. Contractual obligations
contracts. Furthermore, the provision states a number of exceptions, i.e., types of contract
which §§ 312a to 312k cannot or only partially be applied to.
B. Context
2
Even though the 2002 reform of the German law of obligations already
consumer rights provisions, § 312 was added only in 2014 w en e gh
Directive was implemented into German law. § 312 corresponds to and in some respects
goes beyond Art. 3 EU Consumer Rights Directive.
C. Explanation
I. Scope
3 According to § 312, the consumer protection provisions of §§ 312a to 312k are applicable
only to consumer contracts as defined in § 310(3). In addition, they can be invoked only if the
contract obliges the consumer to give something to the trader in exchange for goods or services
delivered. It is important to note that, because of Art. 3(1) EU Consumer Rights Directive and
despite the unclear German term entgeltlich (literally: in return for payment), it is not necessary
that the consumer pays money for the goods or services he receives. For example, if a consumer
pays with his consent to the use of his personal data, this is already sufficient to confirm
nongratuitous performance by the trader and thus trigger the application of §§ 312a to 312k?
IL Exceptions
4 The exceptions stated in Subs 2-6 cover a wide range of contract types which are either
subject to special regulations or deemed inconsistent with extensive withdrawal rights.
§ 312a
General obligations and principles
applying to consumer contracts;
limits to the agreement of
remuneration
(1) Where the trader or a person acting in
his name or on his behalf makes a telephone
call to the consumer with a view to concluding
a contract with same, he shall, at the begin¬
ning of the conversation, disclose his identity
and, where applicable, the identity of the per¬
son on whose behalf he is making the call, as
well as the commercial purpose of the call.
(2) ‘The trader is obliged to inform the
consumer in accordance with the stipulations
of Article 246 of the Introductory Act to the
Civil Code [Einführungsgesetz zum Bürgerli¬
chen Gesetzbuches 2The trader may demand
that the consumer cover freight, delivery, or
postal charges and other costs only inasmuch
as he has informed the consumer of these
costs in accordance with the requirements
§ 312a
Allgemeine Pflichten und
Grundsätze bei
Verbraucherverträgen; Grenzen
der Vereinbarung von Entgelten
(1) Ruft der Unternehmer oder eine Per-
son, die in seinem Namen oder Auftrag han¬
delt, den Verbraucher an, um mit diesem
einen Vertrag zu schließen, hat der Anrufer
zu Beginn des Gesprächs seine Identität und
gegebenenfalls die Identität der Person, für
die er anruft, sowie den geschäftlichen Zweck
des Anrufs oftenzulegen.
(2) ‘Der Unternehmer ist verpflichtet, den
Verbraucher nach Maßgabe des Artikels 246
des Eintührungsgesetzes zum Bürgerlichen
Gesetzbuche zu informieren. 2Der Unterneh¬
mer kann von dem Verbraucher Fracht-, Lie-
er" °der Versandkosten und sonstige Kosten
nur verlangen, soweit er den Verbraucher
1 er diese Kosten entsprechend den Anforde¬
rungen aus Artikel 246 Absatz 1 Nummer 3
See MüKo BGB/Wendehorst, § 312 BGB
mn- 18-20 with further references.
486
Fries
Consumer contracts and agreements of remuneration
established in Article 246(1) No. 3 of the In¬
troductory Act to the Civil Code | Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche].
•Sentences 1 and 2 apply neither to off-pre¬
mises contracts nor to distance contracts nor
to contracts relating to financial services.
(3) ’A trader may conclude an agreement
with a consumer that is directed towards
obtaining extra payment from the consumer
in addition to the remuneration agreed upon
for the principal performance only if this is
done expressly. 2Where the trader and the
consumer conclude a contract in electronic
commerce, such an agreement will form part
of the contract only if the trader does not
bring about the agreement by means of a
default option.
(4) An agreement obligating a consumer to
pay a fee for the use of a certain means of
payment by way of fulfilling his contractual
obligations is ineffective if
1. no customary and reasonable payment
method is available to the consumer that is
free of charge, or
2. the fee agreed exceeds the cost borne by
the trader for the use of such means of pay¬
ment.
(5) ‘An agreement obligating a consumer
to pay a fee for those cases in which the
consumer contacts the trader via a telephone
line that the trader operates for the purpose
of answering questions or providing explana¬
tions regarding a contract concluded by the
parties is ineffective if the fee agreed upon
exceeds the fee charged for the use merely of
the telecommunication service as such.
2Where an agreement is ineffective pursuant
to sentence 1, the consumer is not bound to
pay a fee for the call to the telecommunica¬
tion services provider, either. 3The telecom¬
munication services provider has the right to
demand the fee for the use merely of the
telecommunication services from the trader
who has concluded the ineffective agreement
with the consumer.
(6) Where an agreement pursuant to
subsections (3) to (5) has not come to form
part of the contract or where it is ineffective,
the contract remains effective in all other
respects.
1 § 312a
des Einführungsgesetzes zum Bürgerlichen
Gesetzbuche informiert hat. 3Die Satze 1 und
2 sind weder auf außerhalb von Geschäfts¬
räumen geschlossene Verträge noch auf Fern¬
absatzverträge noch auf Verträge über Fi¬
nanzdienstleistungen anzuwenden.
(3) ’Eine Vereinbarung, die auf eine über
das vereinbarte Entgelt für die Hauptleistung
hinausgehende Zahlung des Verbrauchers ge¬
richtet ist, kann ein Unternehmer mit einem
Verbraucher nur ausdrücklich treffen.
Schließen der Unternehmer und der Ver¬
braucher einen Vertrag im elektronischen
Geschäftsverkehr, wird eine solche Verein¬
barung nur Vertragsbestandteil, wenn der
Unternehmer die Vereinbarung nicht durch
eine Voreinstellung herbeiführt.
(4) Eine Vereinbarung, durch die ein Ver¬
braucher verpflichtet wird, ein Entgelt dafür
zu zahlen, dass er für die Erfüllung seiner
vertraglichen Pflichten ein bestimmtes Zah¬
lungsmittel nutzt, ist unwirksam, wenn
1. für den Verbraucher keine gängige und
zumutbare unentgeltliche Zahlungsmöglich¬
keit besteht oder
2. das vereinbarte Entgelt über die Kosten
hinausgeht, die dem Unternehmer durch die
Nutzung des Zahlungsmittels entstehen.
(5) ’Eine Vereinbarung, durch die ein Ver¬
braucher verpflichtet wird, ein Entgelt dafür zu
zahlen, dass der Verbraucher den Unternehmer
wegen Fragen oder Erklärungen zu einem zwi¬
schen ihnen geschlossenen Vertrag über eine
Rufnummer anruft, die der Unternehmer für
solche Zwecke bereithält, ist unwirksam, wenn
das vereinbarte Entgelt das Entgelt für die
bloße Nutzung des Telekommunikationsdiens¬
tes übersteigt. 2Ist eine Vereinbarung nach
Satz 1 unwirksam, ist der Verbraucher auch
gegenüber dem Anbieter des Telekommunika¬
tionsdienstes nicht verpflichtet, ein Entgelt für
den Anruf zu zahlen. 3Der Anbieter des Tele¬
kommunikationsdienstes ist berechtigt, das
Entgelt für die bloße Nutzung des Telekom¬
munikationsdienstes von dem Unternehmer zu
verlangen, der die unwirksame Vereinbarung
mit dem Verbraucher geschlossen hat.
(6) Ist eine Vereinbarung nach den Absät¬
zen 3 bis 5 nicht Vertragsbestandteil gewor¬
den oder ist sie unwirksam, bleibt der Vertrag
im Übrigen wirksam.
A. Function
Whereas §§ 312b—312j define rules for three special types of consumer contracts - off- 1
premises contracts, distance contracts, and e-commerce contracts - § 312a sets out general
Fries
487
§ 312a 2-6 Division 3. Contractual obligations
provisions that can be applied to any consumer contract within the scope of § 312. The main
goal of § 312a is to provide protection for consumers where they suffer a situational
disadvantage. Here, § 312a obliges the trader to provide information on the basic terms of
the contract. Furthermore, the provision also protects consumers against unexpected pay.
ment duties.
B. Context
2 § 312a was introduced in 2014 in order to implement various requirements set out by the
EU Consumer Rights Directive and the EU Distance Marketing of Financial Services
Directive. Some elements of the provision, such the prohibition of supplementary fees in
Sub. 4, represent new rules, whereas others, such the identity disclosure obligation in Sub. 1,
were already in use, although only in the context of more special types of contracts.
C. Explanation
I. Disclosure requirements for phone calls
3 § 7(2) No. 2 UWG is the background to Sub. 1. This provision allows traders to make
marketing calls to consumers only after obtaining their explicit consent. Where the consumer
has given that consent, Sub. 1 states that traders have to initially disclose their identity and
the purpose of their call. Consumers shall therefore be made aware of the selling situation so
that they are not talked into a deal and can hang up if they are not interested. Ensuring
compliance with Sub. 1 in practice depends on competitors and consumer organisations who
have a right to bring action according to §§ 3, 3a, 5a(2) and (3) No. 2, 8(1) and (3) UWG.
IL Other disclosure requirements
4 Sub. 2 mainly rules on bricks and mortar businesses, as off-premises contracts, distance
contracts, and contracts relating to financial services are covered by leges speciales, namely
§ 312d. For the remaining scope of application, Sub. 2 stipulates further information duties
and therefore refers to Art. 246 EGBGB. Art. 246(1) and (3) EGBGB contain a list of
mandatory information including the essential characteristics of the item or sendee sold, its
price, and details about the mandatory withdrawal rights. If the trader does not comply with
these information duties, the contract remains effective. However, any additional charges
aside from the purchase price are void if they were not mentioned by the trader. It is
important to note that Art. 246(2) EGBGB excludes the application of the information duties
set out by Art. 246(1) EGBGB in contracts which involve day-to-day transactions (Geschäfte
des täglichen Lebens).Whereas this term lacks conceptual clarity, it definitely excludes most
routine business from the application of § 312a(2).
III. Additional charges
5 Sub. 3 essentially prohibits traders from planting additional services and the respective
charges inside the contract that will most likely be overlooked by the consumer. It is thus
inadmissible to include such clauses in the terms and conditions or - especially in e
commerce contracts - to use pre-checked checkboxes necessitating the consumer to actively
opt out of the extra payment. Agreements in violation of this provision are deemed void.
IV. Payment charges
6 Sub. 4 aims to prevent traders from specifying misleadingly low product prices by shitting
parts of the real product price to additional payment charges. Traders can pass on such
488
Fries
Off-premises contracts
§ 312b
charges to their customers, but must not gain profit from them. There has to be at least one
customary and reasonable payment option with no additional charge. A payment option will
not be reasonable if it requires the consumer to enter sensitive data into a money transfer
system operated by a third person.1
V. Hotline fees
Sub. 5 prohibits traders to charge their customers more than the customary call rate if they 7
call a company hotline because of contractual issues.2 The provision also invalidates similar
payment obligations to the provider of telecommunication services. In the latter case, the
provider is entitled to demand the fee for the use from the trader.
VI. Contract validity
Sub. 6 clarifies that in case any supplementary fee is deemed invalid according to Subs 3 to 8
5, the validity of the remaining contract remains unaffected.
Chapter 2
Off-premises contracts and
distance contracts
Kapitel 2
Außerhalb von Geschäftsräumen
geschlossene Verträge und
Fernabsatzverträge
§ 312b
Off-premises contracts
(1) ’Off-premises contracts are contracts
1. that are concluded with the simulta¬
neous physical presence of the consumer and
of the trader, in a place which is not the
business premises of the trader,
2. for which an offer was made by the
consumer in the same circumstances as re¬
ferred to in No. 1,
3. that are concluded on the business pre¬
mises of the trader or through any means of
distance communication, but where, immedi¬
ately prior to such conclusion, the consumer
had been personally and individually ad¬
dressed, in a place which is not the business
premises of the trader, in the simultaneous
physical presence of the consumer and the
trader, or
4. that are concluded during an excursion
organised by the trader or with the trader’s
assistance, with the aim of promoting goods
or services to the consumer and entering into
the corresponding contracts with him.
§ 312b
Außerhalb von Geschäftsräumen
geschlossene Verträge
(1) 'Außerhalb von Geschäftsräumen ge-
schlossene Verträge sind Verträge,
1. die bei gleichzeitiger körperlicher Anwe¬
senheit des Verbrauchers und des Unterneh¬
mers an einem Ort geschlossen werden, der
kein Geschäftsraum des Unternehmers ist,
2. für die der Verbraucher unter den in
Nummer 1 genannten Umständen ein Ange¬
bot abgegeben hat,
3. die in den Geschäftsräumen des Unter¬
nehmers oder durch Fernkommunikations¬
mittel geschlossen werden, bei denen der Ver¬
braucher jedoch unmittelbar zuvor außerhalb
der Geschäftsräume des Unternehmers bei
gleichzeitiger körperlicher Anwesenheit des
Verbrauchers und des Unternehmers persön¬
lich und individuell angesprochen wurde,
oder
4. die auf einem Ausflug geschlossen wer¬
den, der von dem Unternehmer oder mit
seiner Hilfe organisiert wurde, um beim Ver¬
braucher für den Verkauf von Waren oder die
Erbringung von Dienstleistungen zu werben
und mit ihm entsprechende Verträge abzu¬
schließen.
1 BGH 18.7.2017 - KZR 39/16, NJW 2017, 3289.
2 See CJEU C-568/15 comtech GmbH ECIJ:EU:C:2017:154.
Fries
489
Division 3. Contractual obligations
§ 312b 1-4
2Any persons acting in the trader’s name or
on his behalf are in a position equivalent to
that of the trader.
(2) ’Business premises within the meaning
of subsection (1) are any immovable retail
premises where the trader carries out his
activity on a permanent basis and any mova¬
ble retail premises where the trader carries
out his activity on a usual basis. 2Any retail
premises in which the person acting in the
trader’s name or on his behalf carries out his
activity on a permanent or usual basis are
equivalent to the premises of the trader.
2Dem Unternehmer stehen Personen
gleich, die in seinem Namen oder Auftrag
handeln.
(2) ’Geschäftsräume im Sinne des Absat¬
zes (1) sind unbewegliche Gewerberäume, in
denen der Unternehmer seine Tätigkeit dau¬
erhaft ausübt, und bewegliche Gewerberäu¬
me, in denen der Unternehmer seine Tätig¬
keit für gewöhnlich ausübt. 2Gewerberäume,
in denen die Person, die im Namen oder
Auftrag des Unternehmers handelt, ihre Tä¬
tigkeit dauerhaft oder für gewöhnlich ausübt,
stehen Räumen des Unternehmers gleich.
A. Function
1 Special or additional provisions exist for several types of consumer contracts. §§ 312d-312h
define trader obligations and consumer rights for off-premises contracts and distance contracts
as defined in §§ 312b and 312c. The rationale behind specific rules for off-premises contracts is
the situational disadvantage for the consumer in a selling situation where a contract is initiated
outside the business premises of the trader. There is a considerable risk that the trader v*ill
place the consumer under psychological pressure or take him by surprise, e.g. when the
contract is concluded on the consumer’s doorstep. The chosen regulatory approach, specified
in §§ 312d—312h, turns the consumer’s attention to the key elements of the deal and provides
him with additional options to withdraw from the contract.
B. Context
2 The present version of § 312b was enacted in 2014 in implementing the EU Consumer
Rights Directive. This Directive repeals the 1985 EU Doorstep Selling Directive, which was
first implemented into German law in separate legislation (Haustürwiderrufs&setz - Door¬
step Withdrawal Act) before being implemented in the BGB as part of the 2002 modemisa-
tion of the law of obligations. Accordingly, several rules on off-premises contracts were
already part of German law prior to the EU Consumer Rights Directive. The definition ofoff-
preimses contracts given in § 312b widely corresponds to the definition in Art 2(8) and (9)
EU Consumer Rights Directive.
C. Explanation
I. Premises
3
The definition of an off-premises contract decende m .4 ... r „ . .
is specified in Sub. 2, which expresses a broad concept o?P«mi i” °? ? ? 2
selling activities by agents. This concept is, however, hmited bv tL’ "dud'ng m°^ sh°P ■ _
to be used on a regularly basis. This is debatable, e.g, in case of st 0 the 1
5 * m Last ot stands at an annual trade tair.
II. Subcases
4
Sub. 1 contains an exhaustive list of subcases of
standard case that the contract was concluded outside^b^u*8 COntracts’ No‘ 1 coverS 1 J
k L * business premises ot the trader
1 See CJEU C-485/17 Verbratieherzcntnile Berlin ECLI FIbr
ZR 135/16, BeckRS 2017, 119840. <—018:642, referred by BGH 13.7.2017'1
490
Fries
Distance contracts
1-3 § 312c
with simultaneous physical presence of both parties. The standard case here is a doorstep
sale. According to Nos 2 and 3, the same legal effects apply if the consumer has only made
an otter or was only targeted in such a situation leading to the conclusion of a contract at a
later time and under different circumstances. Finally» No. 4 concerns a special provision on
Kaffeefahrten, i. e., selling events disguised as excursions. It is important to note that
such trips regularly go abroad; in these cases, German law remains applicable due to
Art. 6 Rome I.
§ 312c
Distance contracts
(1) Distance contracts are contracts for
which the trader, or a person acting in the
trader’s name or on his behalf, and the con¬
sumer exclusively avail themselves of means
of distance communication in negotiating
and concluding the contract, except where
the conclusion of the contract does not take
place in the context of a sales or service¬
provision scheme organised for distance sales.
(2) Means of distance communication
within the meaning of this Code are all
means of communication which can be used
to initiate or to conclude a contract, without
requiring the simultaneous physical presence
of the parties to the contract, such as letters,
catalogues, telephone calls, faxes, emails, text
messages sent via the mobile telephone ser¬
vice (SMS) as well as messages broadcast and
sent via teleservice.
§312c
Fernabsatzverträge
(1) Fernabsatzverträge sind Verträge, bei
denen der Unternehmer oder eine in seinem
Namen oder Auftrag handelnde Person und
der Verbraucher für die Vertragsverhandlun¬
gen und den Vertragsschluss ausschließlich
Femkommunikationsmittel verwenden, es sei
denn, dass der Vertragsschluss nicht im Rah¬
men eines für den Fernabsatz organisierten
Vertriebs- oder Dienstleistungssystems erfolgt.
(2) Fernkommunikationsmittel im Sinne
dieses Gesetzes sind alle Kommunikations¬
mittel, die zur Anbahnung oder zum Ab¬
schluss eines Vertrags eingesetzt werden
können, ohne dass die Vertragsparteien
gleichzeitig körperlich anwesend sind, wie
Briefe, Kataloge, Telcfonanrufe, Telekopien,
E-Mails, über den Mobilfunkdienst ver¬
sendete Nachrichten (SMS) sowie Rundfunk
und Telemedien.
A. Function
§ 312c defines the concept of distance contracts. The rationale behind special consumer 1
protection for these kind of contracts is fundamentally different from the reasons for the
protection in off-premises contracts: consumers shopping outside the business premises of
the trader but in the physical presence of the trader are not subject to the same pressure as
consumers shopping online or via a catalogue. However, the challenge with concluding
contracts over distance is to reliably assess the quality of the goods or services sold.
B. Context
Special protection for distance contracts was originally initiated by the EU Distance Selling 2
Directive. This Directive was implemented into German law in 2000 by means of the
Fernabsatzgesetz (Distance Contracts Act), and soon after integrated into the BGB as part
of the 2002 modernisation of the law of obligations. § 312c corresponds to Art. 2(7) EU
Consumer Rights Directive.
C. Explanation
The key requirement for a distance contract is that the contract was concluded within a 3
sales or service-provision scheme organised for distance sales and without both parlies
Fries
491
§ 312d 1-2 Division 3. Contractual obligations
,. • if ihn arties met in person before the contract was concluded, it is
meettng in person If the parties met p .fied as conduded over distance.* A
questionable whether the contract can s of the business towards
XT* over distance happens only in exce«ances,
this requirement is not met. However, as soon as the trader regularly accept ^orde s by phone
or email and maybe even encourages those orders through his website, this qual.fies as a
service-provision scheme. A much-debated case concerns lawyers who are hired by a phone
call or by email. In light of the legislative goal to provide effective consumer protection, their
acquisition will normally be regarded as a service provision scheme.
§ 312d
Information requirements
(1) ’In the case of off-premises contracts
and of distance contracts, the trader is obliged
to inform the consumer according to the sti¬
pulations of Article 246a of the Introductory
Act to the Civil Code [Einführungsgesetz zum
Bürgerlichen Gesetzbuche].2 * *Unless the parties
to the contract have expressly agreed other¬
wise, the information the trader provides by
way of fulfilling this obligation shall become
part of the contract’s subject matter.
(2) In the case of off-premises contracts
and of distance contracts for financial ser¬
vices, the trader is obliged, in derogation
from subsection (1), to inform the consumer
in accordance with the stipulations of
Article 246b of the Introductory Act to the
Civil Code [Einführungsgesetz zum Bürgerli¬
chen Gesetzbuche].
§ 312d
Informationspflichten
(1) ’Bei außerhalb von Geschäftsräumen
geschlossenen Verträgen und bei Fernabsatz¬
verträgen ist der Unternehmer verpflichtet,
den Verbraucher nach Maßgabe des Arti¬
kels 246a des Einführungsgesetzes zum Bür¬
gerlichen Gesetzbuche zu informieren. 2Die
in Erfüllung dieser Pflicht gemachten Anga¬
ben des Unternehmers werden Inhalt des Ver¬
trags, es sei denn, die Vertragsparteien haben
ausdrücklich etwas anderes vereinbart
(2) Bei außerhalb von Geschäftsräumen
geschlossenen Verträgen und bei Fernabsatz¬
verträgen über Finanzdienstleistungen ist der
Unternehmer abweichend von Absatz 1 ver¬
pflichtet, den Verbraucher nach Maßgabe des
Artikels 246b des Einfiihrungsgesetzes zum
Bürgerlichen Gesetzbuche zu informieren.
A. Function
1 § 312d concerns information duties for traders (entrepreneur as per § 14) for off-premises
rTaCJSrrnd d,StafnCe contracts-The corresponding general provision is ? 312a(2) 1* St. Due
to the different information duties, § 312d distinguishes between financial contracts (Sub. 2)
and other contracts (Sub. 1). § 312d itself does not sn^ri A, • c ... .
to Art. 246a and Art 246b FC RPR c k , P ty ,nformatlon obhgattons, but reters
tion aspects to the FCRCR ' j re8ldatory technique divests long lists of informa¬
tion aspects to the EGBGB m order to keep the BGB readable &
B. Explanation
I. Information duties
2
The information duties listed in Art .
provide details regarding the essential charaete ''r Art‘ 246b EGBGB oWi?e the trader W
sold, his o„„ L taSSJS*» •“*,h' o'«“ rnxluc* «
his customer about the mandatory withdrawal ri ,i , C®ntract-lhe trader also has t0 ,nl°,
traders with official model forms see i . lts, or tBis purpose, the EGBGB prow"
’ ^schedules 1 and 3 to the EGBGB?
1 See MüKo RGB/Wendehorst, § 312c BGB mn iq
1 Further details are provided by von denl Buss'h /vi"'’’1' fur,hcr re,erences. .
2015), p. 51 B—helKk,,,. u„ (C.H**
492
Fries
Copies and confirmations
§ 312f
II. Non-compliance
Failure to comply with the duty to provide such information, or incomplete or wrongful 3
information can result in serious consequences for the trader, such as the postponement of
the withdrawal period (§ 356(3) 1st St.). Even minor mistakes or potentially misleading
wording can cause the information to be legally incorrect. Recently in Germany, this legal
situation resulted in a wave of withdrawal from credit agreements by consumers who took
out a loan between September 2002 and June 2010 and later found out that their bank had
inadvertently provided them with slightly incorrect withdrawal information. As the with¬
drawal period in credit agreements first commenced upon the receipt of correct information,
the consumers had a so-called eternal withdrawal right which allowed them to effectively
retrieve their interest payments and inflict considerable losses on their banks.2
§312e
Violation of information
obligations as to costs
The trader may demand that the consumer
cover any freight, delivery, or postal charges
and other costs insofar as he has informed
the consumer of these costs in accordance
with the requirements set out in § 312d( 1) in
conjunction with Article 246a § 1(1) sentence
1 number 4 of the Introductory Act to the
Civil Code [Einführungsgesetz zum Bürgerli¬
chen Gesetzbuche].
§312e
Verletzung von
Informationspflichten über Kosten
Der Unternehmer kann von dem Verbrau¬
cher Fracht-, Liefer- oder Versandkosten und
sonstige Kosten nur verlangen, soweit er den
Verbraucher über diese Kosten entsprechend
den Anforderungen aus §312d Absatz 1 in
Verbindung mit Artikel 246a § 1 Absatz 1
Satz 1 Nummer 4 des Einführungsgesetzes
zum Bürgerlichen Gesetzbuche informiert
hat.
§ 312e implements Art. 6(6) EU Consumer Rights Directive in order to regulate addi- 1
tional charges in off-premises contracts and distance contracts. Parallel to § 312a(2) 2nd St.
as the general rule, § 312e makes additional payment charges by the trader dependent on
correct information regarding these surcharges. Accordingly, § 312e refers to Art. 246a § 1(1)
1st St. No. 4 EGBGB, which demands information on the price and all additional charges to
be provided to the consumer.
§ 312f
Copies and confirmations
(1) ’In the case of off-premises contracts,
the trader is obliged to forthwith provide the
consumer with the following documents on
paper:
1. a copy of a contract document signed by
the parties concluding the contract such that
their identity is recognisable, or
2. a confirmation of the contract reflecting
the contract’s content.
§312f
Abschriften und Bestätigungen
(1) ’Bei außerhalb von Geschäftsräumen
geschlossenen Verträgen ist der Unternehmer
verpflichtet, dem Verbraucher alsbald auf Pa¬
pier zur Verfügung zu stellen
1. eine Abschrift eines Vertragsdokuments,
das von den Vertragsschließenden so unter¬
zeichnet wurde, dass ihre Identität erkennbar
ist, oder
2. eine Bestätigung des Vertrags, in der der
Vertragsinhalt wiedergegeben ist.
2 Since 2014, § 356b contains a special provision for the withdrawal period in consumer credit
agreements. Since 2016, the delayed start of the withdrawal period concerning home loans is cut approx,
one year after the contract documents are provided to the borrower. However, for all other consumer loans,
the right of withdrawal remains eternal as long as the given information concerning this right is not correct.
Fries
493
Division 3. Contractual obligations
§ 312f 1
2If the consumer agrees, some other dur¬
able medium may be used for the copy or the
confirmation of the contract. 3The confirma¬
tion pursuant to sentence 1 must include the
information specified in Article 246a of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche]
unless the trader has provided the consumer
with such information on a durable medium,
by way of fulfilling his information require¬
ments pursuant to § 312d( 1), already prior to
concluding the contract.
(2) ‘In the case of distance contracts, the
trader is obliged to provide the consumer
with a confirmation of the contract, on a
durable medium, in which the content of the
contract is set out, and to do so within a
reasonable period of time after having con¬
cluded the contract, at the latest, however, at
the time of the delivery of the goods or before
the performance of the service. 2The confir¬
mation pursuant sentence 1 must include the
information specified in Article 246a of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche]
unless the trader has provided the consumer
with such information on a durable medium
prior to concluding the contract by way of
fulfilling his information requirements pur¬
suant to § 312d(l).
(3) In the case of contracts for the supply
of digital content that is not contained in a
tangible medium and that is produced and
made available in digital form (digital con¬
tent), the copy or the confirmation of the
contract pursuant to subsections (1) and (2)
is to likewise record, where appropriate, that
prior to the performance of the contract, the
consumer
1. has expressly consented to the trader
commencing with the performance of the
contract prior to expiry of the withdrawal
period, and
2. has acknowledged that, by his consent,
he will lose the right to withdraw from the
contract upon the performance of the con¬
tract having commenced.
(4) This provision does not apply to con¬
tracts relating to financial services.
2Wenn der Verbraucher zustimmt, kann
für die Abschrift oder die Bestätigung des
Vertrags auch ein anderer dauerhafter Daten¬
träger verwendet werden. 3Die Bestätigung
nach Satz 1 muss die in Artikel 246a des Ein¬
führungsgesetzes zum Bürgerlichen Gesetz¬
buche genannten Angaben nur enthalten,
wenn der Unternehmer dem Verbraucher
diese Informationen nicht bereits vor Ver¬
tragsschluss in Erfüllung seiner Informati-
onspflichten nach § 312d Absatz 1 auf einem
dauerhaften Datenträger zur Verfügung ge¬
stellt hat.
(2) ‘Bei Femabsatzverträgen ist der Unter¬
nehmer verpflichtet, dem Verbraucher eine
Bestätigung des Vertrags, in der der Vertrags¬
inhalt wiedergegeben ist, innerhalb einer an¬
gemessenen Frist nach Vertragsschluss, spä¬
testens jedoch bei der Lieferung der Ware
oder bevor mit der Ausführung der Dienst¬
leistung begonnen wird, auf einem dauerhaf¬
ten Datenträger zur Verfügung zu stellen.
2Die Bestätigung nach Satz 1 muss die in
Artikel 246a des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche genannten Anga¬
ben enthalten, es sei denn, der Unternehmer
hat dem Verbraucher diese Informationen
bereits vor Vertragsschluss in Erfüllung sei¬
ner Informationspflichten nach § 312d
Absatz 1 auf einem dauerhaften Datenträger
zur Verfügung gestellt.
(3) Bei Verträgen über die Lieferung von
nicht auf einem körperlichen Datenträger be¬
findlichen Daten, die in digitaler Form her¬
gestellt und bereitgestellt werden (digitale In¬
halte), ist auf der Abschrift oder in der
Bestätigung des Vertrags nach den Absätzen
1 und 2 gegebenenfalls auch festzuhalten,
dass der Verbraucher vor Ausführung des
Vertrags
1. ausdrücklich zugestimmt hat, dass der
Unternehmer mit der Ausführung des ^er'
trags vor Ablauf der Widerrufsirist beginnt,
und
2. seine Kenntnis davon bestätigt hat, dass
er durch seine Zustimmung mit Beginn der
Ausführung des Vertrags sein Widemifsreeht
verliert.
(4) Diese Vorschrift ist nicht anwendbar
aut Verträge über Finanzdienstleistungen.
1 § 312f implements Arts 7(2) and 8(7) EU Cmu.m,, n- >
trader to provide the consumer with the necess irv US Direetive in orcler t0 1 j
proof of what he has agreed to. § 312f covers ^£apenvork to £ive him confirmation an
distance contracts (Sub. 2) with only minor differP^^V Contracts (Sub* 0 as we „
financial services are excluded from the scone of ,however» contracts relating
submit the contract itself, as well as the manrk> apphcation (Sub. 4). The trader has to
mandatory information according to Art. 24N
494
Fries
Right of withdrawal §312g
EGBGB, as a hard copy. Other than a paper version, the documents can also be provided on
a durable medium (§ 126b). This includes any tangible media, e.g., a flash drive, but, quite
surprisingly, also an email.1
§ 312g
Right of withdrawal
(1) In the case of off-premises contracts
and of distance contracts, the consumer has
a right of withdrawal pursuant to § 355.
(2) Unless othenvise agreed by the parties,
the right of withdrawal shall not exist for the
following contracts:
1. contracts for the supply of goods that are
not pre-fabricated and the production of
which is governed by an individual choice of
or decision by the consumer, or that are
clearly tailored to personal needs of the con¬
sumer,
2. contracts for the supply of goods which
are highly perishable, or which may quickly
pass their expiration date,
3. contracts for the supply of sealed goods
which are not suitable for return due to
health protection or hygiene reasons, if such
goods were unsealed after delivery,
4. contracts for the supply of goods which,
according to their nature, are inseparably
mixed, after delivery, with other items,
5. contracts for the supply of alcoholic
beverages, the price of which has been agreed
upon at the time of the conclusion of the sales
contract, the delivery of which can only take
place at the earliest after thirty days following
the conclusion of the sales contract, and the
current value of which is dependent on fluc¬
tuations in the market which cannot be con¬
trolled by the trader,
6. contracts for the supply of sealed audio
or sealed video recordings or sealed computer
software, if they were unsealed after delivery,
7. contracts for the delivery of newspapers,
periodicals or magazines with the exception
of subscription contracts for the supply of
such publications,
8. contracts for the supply of goods or the
provision of services including the provision
of financial services, whose price is dependent
on fluctuations on the financial market which
cannot be controlled by the trader and which
§ 312g
Widerrufsrecht
(1) Dem Verbraucher steht bei außerhalb
von Geschäftsräumen geschlossenen Verträ¬
gen und bei Fernabsatzverträgen ein Wider¬
rufsrecht gemäß § 355 zu.
(2) Das Widerrufsrecht besteht, soweit die
Parteien nichts anderes vereinbart haben,
nicht bei folgenden Verträgen:
1. Verträge zur Lieferung von Waren, die
nicht vorgefertigt sind und für deren Herstel¬
lung eine individuelle Auswahl oder Bestim¬
mung durch den Verbraucher maßgeblich ist
oder die eindeutig auf die persönlichen Be¬
dürfnisse des Verbrauchers zugeschnitten
sind,
2. Verträge zur Lieferung von Waren, die
schnell verderben können oder deren Ver¬
fallsdatum schnell überschritten würde,
3. Verträge zur Lieferung versiegelter Wa¬
ren, die aus Gründen des Gesundheitsschut¬
zes oder der Hygiene nicht zur Rückgabe
geeignet sind, wenn ihre Versiegelung nach
der Lieferung entfernt wurde,
4. Verträge zur Lieferung von Waren, wenn
diese nach der Lieferung auf Grund ihrer
Beschaffenheit untrennbar mit anderen Gü¬
tern vermischt wurden,
5. Verträge zur Lieferung alkoholischer Ge¬
tränke, deren Preis bei Vertragsschluss ver¬
einbart wurde, die aber frühestens 30 Tage
nach Vertragsschluss geliefert werden können
und deren aktueller Wert von Schwankungen
auf dem Markt abhängt, auf die der Unter¬
nehmer keinen Einfluss hat,
6. Verträge zur Lieferung von Ton- oder
Videoaufnahmen oder Computersoftware in
einer versiegelten Packung, wenn die Versie¬
gelung nach der Lieferung entfernt wurde,
7. Verträge zur Lieferung von Zeitungen,
Zeitschriften oder Illustrierten mit Ausnahme
von Abonnement-Verträgen,
8. Verträge zur Lieferung von Waren oder
zur Erbringung von Dienstleistungen, ein¬
schließlich Finanzdienstleistungen, deren
Preis von Schwankungen auf dem Finanz¬
markt abhängt, auf die der Unternehmer kei-
1 See Art. 2(10) and Recital 23 EU Consumer Rights Directive. Eor more detail see ► § 126b mn. 3.
Fries
495
Division 3. Contractual obligations
§312g
may occur within the withdrawal period, in-
eluding in particular services in connection
with stock, with shares in open-ended invest¬
ment assets within the meaning of § 1(4) of
the Capital Investment Code [Kapitalanlage¬
gesetzbuch], and with other tradeable securi¬
ties, foreign currency, derivatives or money
market instruments,
9. contracts for the provision of services in
the fields of accommodation other than for
residential purposes, transport of goods, car
rental services, deliveries of food and bev¬
erages, or services related to leisure activities,
if the contract provides for a specific date or
period of performance,
10. contracts that are concluded in the
context of a method of sale where goods or
services are offered by the trader to consu¬
mers, who attend or are given the possibility
to attend the auction in person, through a
transparent, competitive bidding procedure
run by an auctioneer and where the successful
bidder is obliged to purchase the goods or
services (publicly accessible auction),
11. contracts where the consumer has spe¬
cifically requested a visit from the trader for
the purpose of carrying out urgent repairs or
maintenance; this shall not apply as regards
additional services provided on the occasion
of such visit that the consumer has not speci¬
fically requested, or as regards any goods
delivered on the occasion of such visit that
are not absolutely required as replacement
parts in carrying out the maintenance or in
making the repairs,
12. contracts for the provision of betting
and lottery services unless the consumer has
made his contract declaration by telephone or
the contract is an off-premises contract, and
13. contracts that are notarially recorded;
this shall apply to distance contracts relating
to financial services only in those cases in
which the notary confirms that the rights of
the consumer set out in § 312d(2) are safe¬
guarded.
(3) In addition, the right of withdrawal
does not exist for contracts regarding which
the consumer, under 495 and 506 to 513,
is already entitled to a right of withdrawal
under § 355, nor does it exist in the case of
nen Einfluss hat und die innerhalb der Wi¬
derrufsfrist auftreten können, insbesondere
Dienstleistungen im Zusammenhang mit
Aktien, mit Anteilen an offenen Investment¬
vermögen im Sinne von § 1 Absatz 4 des
Kapitalanlagegesetzbuchs und mit anderen
handelbaren Wertpapieren, Devisen, Deri¬
vaten oder Geldmarktinstrumenten,
9. Verträge zur Erbringung von Dienstleis¬
tungen in den Bereichen Beherbergung zu
anderen Zwecken als zu Wohnzwecken, Be¬
förderung von Waren, Kraftfahrzeugvermie¬
tung, Lieferung von Speisen und Getränken
sowie zur Erbringung weiterer Dienstleistun¬
gen im Zusammenhang mit Freizeitbetäti¬
gungen, wenn der Vertrag für die Erbringung
einen spezifischen Termin oder Zeitraum
vorsieht,
10. Verträge, die im Rahmen einer Ver¬
marktungsform geschlossen werden, bei der
der Unternehmer Verbrauchern, die persön¬
lich anwesend sind oder denen diese Möglich¬
keit gewährt wird, Waren oder Dienstleistun¬
gen anbietet, und zwar in einem vom
Versteigerer durch geführten, auf konkurrie¬
renden Geboten basierenden transparenten
Verfahren, bei dem der Bieter, der den Zu¬
schlag erhalten hat, zum Erwerb der Waren
oder Dienstleistungen verpflichtet ist (öffent¬
lich zugängliche Versteigerung),
11. Verträge, bei denen der Verbraucher
den Unternehmer ausdrücklich aufgefordert
hat, ihn aufzusuchen, um dringende Repara¬
tur- oder Instandhaltungsarbeiten vorzuneh¬
men; dies gilt nicht hinsichtlich weiterer bei
dem Besuch erbrachter Dienstleistungen, die
der Verbraucher nicht ausdrücklich verlangt
hat, oder hinsichtlich solcher bei dem Besuch
gelieferter Waren, die bei der Instandhaltung
oder Reparatur nicht unbedingt als Ersatz¬
teile benötigt werden,
12. Verträge zur Erbringung von Wett-
und Lotteriedienstleistungen, es sei denn,
dass der Verbraucher seine Vertragserklärung
telefonisch abgegeben hat oder der Vertrag
außerhalb von Geschäftsräumen geschlossen
wurde, und
13. notariell beurkundete Verträge: dies
gilt für Fernabsatzverträge über Finanz¬
dienstleistungen nur, wenn der Notar bestä¬
tigt» dass die Rechte des Verbrauchers aus
§ 312d Absatz 2 gewahrt sind.
(3) Das Widerrufsrecht besteht ferner nicht
bei Verträgen, bei denen dem Verbraucher
bereits auf Grund der §§ 495, 506 bis 513 ein
iderrufsrecht nach § 355 zusteht» und nicht
e außerhalb von Geschäftsräumen geschk*’
496
Fries
Termination and power of attorney to terminate
§ 31211
off-premises contracts regarding which the
consumer is already entitled to a right of
withdrawal pursuant to § 305 subsections (1)
to (6) of the Capital Investment Code
[Kapitalanlagegesetzbuch].
senen Verträgen, bei denen dem Verbraucher
bereits nach § 305 Absatz 1 bis 6 des Kapital¬
anlagegesetzbuchs ein Widerrufsrecht zu¬
steht.
A. Function
§ 312g grants consumers the right to withdraw from an off-premises contract or a distance 1
contract without any reason.1 § 312g has to be read in conjunction with § 355. Whereas
§ 312g limits itself to conferring a withdrawal right, § 355 specifies the exercise and the legal
effects of this right.
B. Context
§ 312g implements Arts 9(1) and 16 EU Consumer Rights Directive into German law. 2
However, a right of withdrawal in off-premises contracts had already featured in German law
since 1986 under the Haustürwiderrufsgesetz (Doorstep Withdrawal Act). A similar right for
distance contracts was enacted in 2000 via the Fernabsatzgesetz (Distance Contracts Act).
C. Explanation
I. Exceptions
Sub. 1 contains a simple reference to § 355, which gives further details as to how a 3
consumer can withdraw from the contract. Sub. 2 lists special types of contracts as exceptions
where there is no mandatory right of withdrawal for the consumer. The main reasons
underpinning these exceptions are the greatly reduced possibility for the trader to resell
goods that are personalised to the consumer (No. 1), highly perishable (No. 2), unsealed
(Nos 3 and 6) or have been inseparably mixed with other goods (No. 4), as well as to prevent
the use of right of withdrawal to protect against speculation risks (Nos 5, 8 and 12). Sub. 3
states that Sub. 1 is not applicable where a special rule establishes a right of withdrawal.
IL Reason
It is important to note that consumers do not have to justify their withdrawal as the law 4
does not specify any further requirements or conditions to the right. The BGH has approved
a withdrawal even in a case where the consumer was using the withdrawal right only as a
bargaining chip to renegotiate the contract towards a lower purchasing price.2
§312h
Termination and power of
attorney to terminate
If a continuing obligation is established
between a trader and a consumer pursuant
to this subtitle intended to substitute a con¬
tinuing obligation existing between the con-
§ 312h
Kündigung und Vollmacht zur
Kündigung
Wird zwischen einem Unternehmer und
einem Verbraucher nach diesem Untertitel
ein Dauerschuldverhältnis begründet, das ein
zwischen dem Verbraucher und einem ande-
1 A helpful overview over the right of withdrawal is provided by von dem Bussche/Klein, E-Commerce
Law in Germany (C.H.Beck 2015), p. 27 et seq.
2 BGH 16.3.2016 - VIII ZR 146/15, NJW 2016, 1951.
Fries
497
§ 312i
Division 3. Contractual obligations
sumer and another trader, and on the occa¬
sion of the establishment of the continuing
obligation the consumer
1. declares the termination of the existing
continuing obligation and commissions the
trader or a third party commissioned by the
latter to transmit the termination to the pre¬
vious contractual partner of the consumer, or
2. empowers the trader or a third party
commissioned by the latter to declare the
termination towards the consumer’s previous
contractual partner,
the consumer’s termination or the power
of attorney shall require to be in text form.
ren Unternehmer bestehendes Dauerschuld¬
verhältnis ersetzen soll, und wird anlässlich
der Begründung des Dauerschuldverhältnis¬
ses von dem Verbraucher
1. die Kündigung des bestehenden Dauer¬
schuldverhältnisses erklärt und der Unterneh¬
mer oder ein von ihm beauftragter Dritter
zur Übermittlung der Kündigung an den bis¬
herigen Vertragspartner des Verbrauchers be¬
auftragt oder
2. der Unternehmer oder ein von ihm be¬
auftragter Dritter zur Erklärung der Kündi¬
gung gegenüber dem bisherigen Vertrags¬
partner des Verbrauchers bevollmächtigt,
bedarf die Kündigung des Verbrauchers oder
die Vollmacht zur Kündigung der Textform.
A. Function
1 § 312h concerns termination with regard to continuing obligations. Such obligations are
typically found in subscription-based contracts for telecommunication services, health dubs,
or contracts with webspace providers. Often, consumers conclude new contracts with a new
provider without terminating an existing contract. Many providers offer to submit the notice
of termination to the previous provider, or to terminate the contract themselves on behalf of
the consumer. In some instances, the consumer may be entitled to withdraw from the new
contract. Accordingly, the requirement of text form in § 312h serves to make the consumer
aware that the withdrawal from a newly concluded contract does not rekindle a previous
contract, thus leaving the consumer without any contract.
B. Explanation
2 § 312h sets out a text form requirement (§ 126b) for the notice of termination of the
previous contract. Termination is ineffective if submitted by word of mouth, and the previous
contract is upheld. As a consequence of mitigating the risk that the consumer is left without
any contract, the law accepts that he might end up having two contracts to serve.
Chapter 3
Contracts in electronic commerce
Kapitel 3
Verträge im elektronischen
Geschäftsverkehr
§312i
General obligations in
electronic commerce
(1) ’If a trader uses teleservices in order to
conclude a contract for the supply of goods or
the rendering of services (e-commerce con¬
tract), he must
§312i
Allgemeine Pflichten im
elektronischen Geschäftsverkehr
(1) ’Bedient sich ein Unternehmer *UIT1
Zwecke des Abschlusses eines Vertrags üb*
die Lieferung von Waren oder über die Er¬
bringung von Dienstleistungen der Telenie-
dien (Vertrag im elektronischen Geschäfts'**
kehr), hat er dem Kunden
498
Fries
General obligations in electronic commerce
1. provide the customer with reasonable,
effective, and accessible technical means with
the aid of which the customer may identify
and correct input errors prior to making his
order,
2. communicate to the customer clearly
and comprehensibly the information speci¬
fied in Article 246c of the Introductory Act
to the Civil Code [Einführungsgesetz zum
Bürgerlichen Gesetzbuche] in good time
prior to sending his order,
3. confirm receipt of the order without
undue delay by electronic means for the cus¬
tomer, and
4. provide the customer with the opportu¬
nity to retrieve the contract terms including
the standard business terms when the con¬
tract is concluded and save them in a form
that allows for their reproduction.
2The order and the acknowledgement of
receipt within the meaning of sentence 1
No. 3 are deemed to have been received if
the parties for whom they are intended are
able to retrieve them in normal circum¬
stances.
(2) ’Subsection (1) sentence 1 Nos 1 to 3
must not be applied if the contract is entered
into exclusively by way of personal commu¬
nication. 1 2Subsection (1) sentence 1 Nos 1 to
3 and sentence 2 must not be applied if
otherwise agreed in a contract between par¬
ties who are not consumers.
(3) More extensive information obligations
resulting from other stipulations of the law
remain unaffected.
1 § 312i
1. angemessene, wirksame und zugängliche
technische Mittel zur Verfügung zu stellen,
mit deren Hilfe der Kunde Eingabefehler vor
Abgabe seiner Bestellung erkennen und be¬
richtigen kann,
2. die in Artikel 246c des Einführungsgeset¬
zes zum Bürgerlichen Gesetzbuche bestimm¬
ten Informationen rechtzeitig vor Abgabe
von dessen Bestellung klar und verständlich
mitzuteilen,
3. den Zugang von dessen Bestellung un¬
verzüglich auf elektronischem Wege zu bestä¬
tigen und
4. die Möglichkeit zu verschaffen, die Ver¬
tragsbestimmungen einschließlich der Allge¬
meinen Geschäftsbedingungen bei Vertrags¬
schluss abzurufen und in wiedergabefähiger
Form zu speichern.
Bestellung und Empfangsbestätigung im
Sinne von Satz 1 Nummer 3 gelten als zuge¬
gangen, wenn die Parteien, für die sie be¬
stimmt sind, sie unter gewöhnlichen Umstän¬
den abrufen können.
(2) ’Absatz 1 Satz 1 Nummer 1 bis 3 ist
nicht anzuwenden, wenn der Vertrag aus¬
schließlich durch individuelle Kommunika¬
tion geschlossen wird. 2Absatz 1 Satz 1
Nummer 1 bis 3 und Satz 2 ist nicht anzu¬
wenden, wenn zwischen Vertragsparteien, die
nicht Verbraucher sind, etwas anderes verein¬
bart wird.
(3) Weitergehende Informationspflichten
auf Grund anderer Vorschriften bleiben un¬
berührt.
A. Function
312i and 312j set out special obligations for traders in the field of e-commerce.1 § 312i 1
is applicable to e-commerce contracts; unlike §§ 312—312h, the scope of § 312i is not
limited to consumer contracts, but also covers B2B businesses. An e-commerce contract as
a contract for the supply of goods or services that is concluded through the use of
teleservices (defined somewhat cryptically in § 1(1) 1'* St. TMG). In essence, the concept
of teleservices comprises almost any kind of digital communication.2 Whereas this under¬
standing includes any contract agreed to via Internet or email, Sub. 2 considerably limits
the scope of application by excluding contracts which were concluded only by means of
individual communication. Thus, contracts entered into by exchanging emails do not fall
within the scope of § 312i. The standard case for § 312i is an online shop. A borderline case
might be a contract concluded through chatbot interaction; here, the better arguments
strike for an application of § 312i as chatbots give tailored but not really individual answers
to the requests of a user.
1 Instructions on how to implement those obligations arc provided by von dem Bussche/Klein, E-
Commerce Law in Germany (C.H.Bcck 2015), p. 33 et seq.
2 In further detail, MüKo BGB/Wendehorst, § 312i BGB mn. 8.
Fries
409
§ 312J
Division 3. Contractual obligations
B. Context
2 § 312i serves to implement Arts 10 and 11 EU E-Commerce Directive. With respect to
§§ 312c-312h, it is important to note that an e-commerce contract is not something entirely
different from a distance contract. Both concepts vary, but also show a considerable overlap:
B2C e-commerce contracts are subject to both, §§ 312c-312h and §§ 312i-312j. However,
only § 312i applies in a B2B contract. However, if a B2C contract was agreed on without both
parties meeting in person (distance contract) and also without the use of teleservices (i.e. no
e-commerce contract), only §§ 312c-312h apply.
C. Explanation
3 If a contract falls within the scope of application according to Subs 1 and 2, the trader has
to provide means to correct input errors, as well as the mandatory information stipulated in
Art. 246c EGBGB. Art. 245c EGBGB includes information about the technical steps taken
for the conclusion of a contract, on the availability of the contract wording after the
agreement, on the methods used to correct input errors, on the available communication
languages, and on the codes of conduct the trader is subject to. After the contract is
concluded, the trader has to electronically confirm receipt of the order and to enable the
customer to retrieve and save the contract terms, including the standard business terms. If
the trader fails to meet his obligations, the contract nevertheless remains valid. However,
without the necessary means to correct input errors, the trader cannot reproach the customer
with incorrect data entered accidentally entered. Apart from that, a violation of this, or one of
the other obligations, can result in action brought forward by competitors or consumer
associations.
§312j
Special obligations vis-a-vis
consumers in electronic commerce
(1) On the websites used for electronic
commerce with consumers, the trader is to
indicate clearly and unequivocally at the lat¬
est at the beginning of the ordering process,
in addition to the information provided pur¬
suant to § 312i(l), whether any delivery re¬
strictions apply and which means of payment
are accepted.
(2) In the case of a consumer contract
concluded in electronic commerce that has
as its subject-matter a for-a-fee service pro¬
vided by the trader, the trader must provide
to the consumer the information in accor¬
dance with Article 246a §1(1) sentence 1
numbers 1, 4, 5, 11, and 12 of the Introduc¬
tory Act to the Civil Code [Einfiihrungsgesetz
zum Bürgerlichen Gesetzbuche], and must do
so in an unambiguous, comprehensible man¬
ner as well as prominently, directly before the
consumer submits his order.
§312j
Besondere Pflichten im
elektronischen Geschäftsverkehr
gegenüber Verbrauchern
(1) Auf Webseiten für den elektronischen
Geschäftsverkehr mit Verbrauchern hat der
Unternehmer zusätzlich zu den Angaben
nach § 312i Absatz 1 spätestens bei Beginn
des Bestellvorgangs klar und deutlich anzuge¬
ben, ob Lieferbeschränkungen bestehen und
welche Zahlungsmittel akzeptiert werden.
(2) Bei einem Verbrauchervertrag im elek¬
tronischen Geschäftsverkehr, der eine entgelt¬
liche Leistung des Unternehmers zum Gegen¬
stand hat, muss der Unternehmer dein
Verbraucher die Informationen genub
Artikel 246a § 1 Absatz 1 Satz 1 Nummer 1»
4» 5, 11 und 12 des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche, unmittelbar bevor
der Verbraucher seine Bestellung abgibt* kl^
und verständlich in hervorgehobener V\ei^e
zur Verfügung stellen.
500
Fries
Special obligations vis-ä-vis consumers in electronic commerce 1-4 § 312J
(3) ’In case of a contract in accordance
with subsection (2), the trader is to arrange
the ordering situation such that the consumer
explicitly confirms with his order that he
undertakes to effect a payment. 2If the order
is placed using a button, the obligation of the
trader under sentence 1 is only deemed to
have been met if this button is marked in an
easy-to-read manner with nothing else but
the words ‘Order and Pay’ (zahlungspflichtig
bestellen), or with equally unambiguous
wording.
(4) A contract in accordance with
subsection (2) is only created if the trader
meets his obligation under subsection (3).
(5) ’Subsections (2) to (4) do not apply if
the contract is concluded exclusively by per¬
sonal communication. 2The obligations set
out in subsections (1) and (2) apply neither
to websites concerning financial services nor
to contracts relating to financial services.
(3) ’Der Unternehmer hat die Bestellsitua¬
tion bei einem Vertrag nach Absatz 2 so zu
gestalten, dass der Verbraucher mit seiner
Bestellung ausdrücklich bestätigt, dass er
sich zu einer Zahlung verpflichtet. 2Erfolgt
die Bestellung über eine Schaltfläche, ist die
Pflicht des Unternehmers aus Satz 1 nur er¬
füllt, wenn diese Schaltfläche gut lesbar mit
nichts anderem als den Wörtern „zahlungs¬
pflichtig bestellen“ oder mit einer entspre¬
chenden eindeutigen Formulierung beschrif¬
tet ist.
(4) Ein Vertrag nach Absatz 2 kommt nur
zustande, wenn der Unternehmer seine
Pflicht aus Absatz 3 erfüllt.
(5) ’Die Absätze 2 bis 4 sind nicht anzu¬
wenden, wenn der Vertrag ausschließlich
durch individuelle Kommunikation geschlos¬
sen wird. 2Die Pflichten aus den Absätzen 1
und 2 gelten weder für Webseiten, die Fi¬
nanzdienstleistungen betreffen, noch für Ver¬
träge über Finanzdienstleistungen.
A. Function
Whereas § 312i applies to any kind of e-commerce contract (including B2B), § 312j 1
contains additional obligations for the trader in B2C e-commerce contracts. Similar to
§ 312i, the provision only applies if the contract was not entered into solely by means of
individual communication (Sub. 5 1st St.). § 312i does not apply to financial sendees
contracts and websites (Sub. 5 2nd St.).
B. Context
§ 312i implements Art. 8(2) and (3) EU Consumer Rights Directive. 2
C. Explanation
I. Information obligations
Sub. 1 obliges the trader to inform the consumer about delivery restrictions and available 3
methods of payment. For example, if the trader has only limited goods available, or can deliver
the goods sold only at a later point in time, this must be displayed on the website. Furthermore,
if a certain customary payment method such as a standard money transfer is not accepted, this
must be made obvious so that a consumer who does not dispose over some other payment
method (e.g. credit card) has make payment via a costly alternative (see also § 312a(4)).
II. Time of information
If the contract obliges the consumer to pay for a good or service, Sub. 2 obliges the trader 4
to provide the information specified in Art. 246a § 1(1) 1” St. No. 1, 4, 5, 11, and 12 EGBGB
immediately before submission of the order. Thus, a car sharing company must not add an
insurance fee to the bill if the booking app informs the consumer only of the applicable time
charge.
Fries
501
§ 312k 1-2
Division 3. Contractual obligations
5
III. Button method
Sub 3 obliges the trader to alert the consumer to the fact that by placing his order he is
making a commitment to pay money. If the order is placed by « a butn on, tlhisbutton
has J be labelled with order and commit to pay (wh.ch better reflect.the German
zahlungspflichlig bestellen), or some similar wording. It is c0"‘ent,°^ word
‘Buy’ is sufficient here; however, just the word order does not suffice. Sub 4 states that only a
correctly labelled button leads to a binding contract. In turn, it is debated whether incorrect
labelling results in no contract at all, a contract without payment obligation, or a right of the
consumer to choose whether to uphold the contract.
Chapter 4
Deviating agreements and
burden of proof
Kapitel 4
Abweichende Vereinbarungen und
Beweislast
§312k
Deviating agreements and
burden of proof
(1) *No agreements deviating from the
provisions of this subtitle may be made, un¬
less otherwise provided, that are to the dis¬
advantage of the consumer or the customer.
2Unless otherwise provided, the provisions of
this subtitle apply even if they are circum¬
vented by other constructions.
(2) The burden of providing proof to the
consumer that the information obligations
provided for under the present subtitle have
been complied with is incumbent on the tra¬
der.
§ 312k
Abweichende Vereinbarungen und
Beweislast
(1) ’Von den Vorschriften dieses Unter¬
titels darf, soweit nichts anderes bestimmt
ist, nicht zum Nachteil des Verbrauchers
oder Kunden abgewichen werden. 2Die Vor¬
schriften dieses Untertitels finden, soweit
nichts anderes bestimmt ist, auch Anwen¬
dung, wenn sie durch anderweitige Gestaltun¬
gen umgangen werden.
(2) Der Unternehmer trägt gegenüber dem
Verbraucher die Beweislast für die Erfüllung
der in diesem Untertitel geregelten Informa¬
tionspflichten.
A. Function
1 Consumer protection requires effective protection. Taking into account that consumers
usually do not feel capable ot negotiating the terms of a contract and are often careless about
the preservation of evidence § 312k makes the preceding provisions mandatory for the
trader and also assign the burden of proof to him.
B. Context
2 § 312k tmptanwou Aris 6(9) .,„<1 25 EU Co„.„,„„ RiEhts DirMiye
' See Fervors, Die Button-Lösung in. Lichte der Rechtsge.schäthlehre, NJW 2016, 2289.
502
Fries
Interference with the basis of the transaction
§313
C. Explanation
I. Mandatory nature
According to Sub. 1, generally no agreement can be made between two individuals that 3
deviates from the provisions in 312-312k. According to German law, even a waiver of
rights constitutes a contract. Thus, for example, the consumer’s right of withdrawal cannot be
waived, but can only expire. It is questionable whether Sub. 1 allows a consumer to agree to a
binding settlement in a legal dispute on consumer rights. § 779 may provide a possible
solution: if there is reasonable doubt that the alleged consumer claim is justified, there is
room tor a settlement which is consistent with Sub. 1. On the contrary, if a form of
settlement is used to relinquish the consumer of an established right, such a settlement
would be void, according to Sub. I.1
IL Burden of proof
Sub. 2 charges the trader (here entrepreneur pursuant to § 13) with the burden of proof 4
that he has complied with the information duties set out in §§ 312a, 312d, 312i, and 312j.
This provision does not apply to B2B contracts even though they are subject to § 312i.
Subtitle 3
Adaption and ending of contracts
Untertitel 3
Anpassung und Beendigung von
Verträgen
§313
Interference with the basis of the
transaction
(1) If circumstances which became the ba¬
sis of a contract have significantly changed
since the contract was entered into and if the
parties would not have entered into the con¬
tract or would have entered into it with dif¬
ferent contents if they had foreseen this
change, adaptation of the contract may be
demanded to the extent that, taking account
of all the circumstances of the specific case, in
particular the contractual or statutory distri¬
bution of risk, one of the parties cannot
reasonably be expected to uphold the contract
without alteration.
(2) It is equivalent to a change of circum¬
stances if material conceptions that have be¬
come the basis of the contract are found to be
incorrect.
(3) 'If adaptation of the contract is not
possible or one party cannot reasonably be
expected to accept it, the disadvantaged party
§313
Störung der Geschäftsgrundlage
(1) Haben sich Umstände, die zur Grund*
läge des Vertrags geworden sind, nach Ver¬
tragsschluss schwerwiegend verändert und
hätten die Parteien den Vertrag nicht oder
mit anderem Inhalt geschlossen, wenn sie
diese Veränderung vorausgesehen hätten, so
kann Anpassung des Vertrags verlangt wer¬
den, soweit einem Teil unter Berücksichti¬
gung aller Umstände des Einzelfalls, ins¬
besondere der vertraglichen oder gesetzlichen
Risikoverteilung, das Festhalten am unverän¬
derten Vertrag nicht zugemutet werden kann.
(2) Einer Veränderung der Umstände steht
es gleich, wenn wesentliche Vorstellungen, die
zur Grundlage des Vertrags geworden sind,
sich als falsch herausstellen.
(3) ’Ist eine Anpassung des Vertrags nicht
möglich oder einem Teil nicht zumutbar, so
kann der benachteiligte Teil vom Vertrag
1 See MüKo BGB/Wendchorst, § 312k BGB mn. 5 -6; MüKo BGB/Habersack, § 779 BGB mn. 11.
M. Oehtn
503
§313 1-2
Division 3. Contractual obligations
may revoke the contract. 2In the case of con¬
tinuing obligations, the right to terminate
takes the place of the right to revoke.
zurücktreten. 2An die Stelle des Rücktritts¬
rechts tritt für Dauerschuldverhältnisse das
Recht zur Kündigung.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Geschäftsgrundlage 4
1. Subjective meaning 5
2. Objective meaning - 6
3. Große und kleine Geschäftsgrundlage 7
4. Distinction 8
a) Unilateral intention 9
b) Basis and content - 10
c) Liability' for defects 11
d) Impossible/unreasonable performance 12
II. Circumstances 13
III. Significant change 14
IV. Contract otherwise not entered into 15
V. Risk distribution 16
1. Statutory risk distribution 17
2. Contractual risk distribution 18
VI. Foreseeability 19
VII. Material conceptions found to be incorrect 20
VIII. Consequences 21
IX. Right to revoke the contract _ 22
X. Continuing obligations 23
XI. Procedural aspects _ 24
A. Function
I. Purpose and underlying principle
1 § 313 regulates the so-called Störung der Geschäftsgrundlage (or Wegfall der Geschäfts¬
grundlage), translated as interference with the basis of the transaction. § 313 serves to allow
for an adaption of the contract whenever its requirements are met. A party shall not be held
under a contract if circumstances which became the basis of a contract have significantly
changed since the contract was entered into and if the parties would not have entered into
this contract if they had foreseen this change. § 313 embodies the general principle of good
faith (§ 242). In consequence, § 313 - within its scope of application - limits the general
principle of pacta sunt servanda. While the performance of the contract might have become
unreasonable for one party, the other party might very well still have an interest m
performance of the contract as it was originally agreed between the parties. While in general
this principle of contract performance or pacta sunt servanda trumps the interest of the other
party, § 313 inverts this situation. § 313 therefore functions in the conflict between strict
contract performance and reasonable, good faith performance with an emphasis on the latter
II. Scope of application
2 § 313 applies to virtually all contractual agreements. This includes not only all centrad*
under the German law of obligations but also contractual agreements in the fit'll 0
504
M. Oehni
Interference with the basis of the transaction 3-5 § 313
inheritance law» family law or property law. However» the special circumstances of theses
areas of law must be considered when applying § 313. The general nature of the principles in
§ 313 also becomes clear when looking at § 60 VwVfG (Verwaltungsvcrfahrensgesetz -
Administrative Procedure Act) which contains an almost identical rule for agreements under
public law. § 313 even applies to preliminary contracts and might still take effect after the
end of a contract. However, § 313 does not apply prior to contract conclusion because the
parties have not agreed on a basis for their transaction.1 Parties cannot exclude the
application of § 313. The reason for this mandatory character is not so much that the parties
shall not deviate from § 313. The parties are free to deviate from § 313 as they see fit. § 313
in essence deals with the distribution of risks under a contract. Of course, the parties may
agree that one of them bears most (or maybe all) risks under the contract. However, it is
always possible that when agreeing on such a specific risk distribution the parties make
certain assumptions that become the basis for their contract. As such, the risk distribution
itself is again subject to the application of § 313. This shows that ultimately, the application
of § 313 is a question of contract interpretation on how the parties allocated the risks under
their contract. It is undisputed (and would otherwise violate basic legal principles) that
contracting parties cannot exclude contract interpretation.
B. Context
While the principle of Wegfall der Geschäftsgrundlage is a long-standing principle under 3
German law, it is only codified as part of the BGB since the 2002 SMG. This principle goes
back to the beginning of 1920 (and even before then): World War I had drastically changed
the political system in Germany and all over Europe; currency deprecation as weil as political
revolutions had a extensive impact on many short and iong-term contractual relationships.2
Courts have since applied the principle of interference with the basis of a contract to
situations such as wars, political crisis and economic crisis. However, the principle is clearly
not limited to such cases. Rather, courts also assumed a Wegfall der Geschäftsgriindlage in
case of legislative changes3 or if the interest of the obligee in the performance is materially
disturbed, e.g. if one partner buys an engagement ring and then the engagement falls
through.
C. Explanation
L Geschäftsgrundlage
§ 313 is based on the assumption that it is possible to determine a basis for the agreement 4
between the parties. However, there is no clear definition what exactly constitutes the basis of
a contract. In most cases a differentiation is also not necessary. §313 includes both a
subjective and an objective meaning.
1. Subjective meaning
Courts apply in particular a subjective test. The basis of a contract is the notion 5
about future circumstances one or both parties had when they concluded the contract
and on which their intentions were founded. This notion must exist during conclusion of
the contract without becoming part of the contract. It must be apparent to the other
party.4
1 BGH 2.5.1956 - V ZR 171/54, NJW 1956, 1275.
2 For further detail see also The German Law of Contract, p. 319 et seq.
3 BGH 23 3 1983 - IV h ZR 371/81, NJW 1983, 1552.
4 BGH 1.2.2012 - VIII ZR 307/10, NJW 2012, 1718.
M. Oehm
505
§313 6-12
Division 3. Contractual obligations
6
2. Objective meaning
, . / r-ioiiv the hichlv influential Karl Lorenz) have developed an
In comparison, scholars (espec.ally the h>n this objective test> a|)
objective definition for the basis of ons are part of the basis of the contract which
circumstances and general surrounding conditions are pan 01
must continue to exist.
7
3. Große und kleine Geschäftsgrundlage
The distinction between the so-called große (major) and
define the notion of the basis of a contract in the meaning of § 313. Lnder this approach all
classical examples of § 313 such as wars, political crisis and economic crisis are part of Je
große Geschaftsgrundlage, whereas all other relevant cases fall under the kleine Geschäfts¬
grundlage. For example, the reunification of Germany in 1990 was held to be part of the
große Geschäftsgrundlage.5 Ultimately, this approach is not especially helpful in order to
clarify what constitutes the basis of a transaction.
8
9
10
11
12
4. Distinction
§ 313 is general in nature and thus must be distinguished from many other legal
principles. The distinction can be extremely difficult and depends on the circumstances of
the individual case. Accordingly, it is often not possible to merely state that § 313 or a
different legal principle applies, as illustrated by the following examples. The following
differentiations are only examples to demonstrate that it can be difficult to decide whether
§ 313 applies or not.
a) Unilateral intention. In general, the unilateral intention of a party is not part of the
basis of a contract. Intentions can only form the basis of the contract if both parties - at least
to some extent - intend that certain circumstances are relevant for their contract.6 7
b) Basis and content. Difficulties can arise in distinguishing between the basis and the
content of the contract This is a question of contract interpretation. § 313 cannot apply to
content of the (written) contract as this does not form part of its basis, yet there is no clear
borderline between §313 and §§ 133, 157 (i.e. contract interpretation). However, this is
hardly a problem in practice since both principles will often lead to the same result, i.e. the
changed circumstances will be considered in one way or the other.
c) Liability for defects. § 313 does not apply in case of liability for defects (e.g. §§ 437 et
seq., §§ 634 et seq.). The provisions dealing with liability for defects are /ex specialis.
d) Impossible/unreasonable performance. The distinction between § 313 and § 275 can be
difficult. § 275 addresses the exclusion of a duty of performance to the extent that performance
is impossible or unreasonable. Broadly speaking, § 313 will not apply if performance is
excluded due to impossibility (§ 275(1))/ However, § 313 may be applied in several circum¬
stances e.g in case of an interference with purpose (Zweckstörung) or if it has become morally
impossible for the obhgor to perform. A common example for th^ distinction between §
and §3'3 is economic impossibility (wirtschaftliche Unmöglichkeit) whereby the necessary
in ? 8°r °Zare dLWr«onate with regard to the obliges
interest m performance Fhe d.tterence between § 275(2) and 313 lics > thc interests to be
taken into account: § 275(2) is concerned only with the ohlio. ' / u \
interests, „l,e,e,s under § 3,3 the interest ü!;. «Ä»" ”
5 BGH 4.7.1996 - 1 ZR 101/94, NJW 1997, 320.
6 BGH 15.7.2014 - XI ZR 100/13, NJW 2014, 3362
7 BGH 17.2.1995 - V ZR 267/93, NJW-RR 1995, «53
506
M Ochm
Interference with the basis of the transaction
13-17 §313
IL Circumstances
Sub. 1 requires certain circumstances to have become the basis of the contract. The parties 13
must therefore have concluded a valid contract in order for § 313 to apply. Moreover, the
relevant circumstances must be part of the basis of the contract, not the content of the
contract itself. A circumstance can become the basis of the contract even if both parties did
not have it in mind when they concluded the contract. Objective circumstances can become
part ot the basis of the contract.
III. Significant change
The circumstances must have significantly changed since the contract was entered into. 14
Notably, Sub. 1 uses the term significant (schwerwiegend) whereas Sub. 2 refers to material
(wesentlich). Despite the difference in terminology and presumption that a different meaning
is intended, these two terms are generally understood by courts and scholars to have the
same meaning. A change is significant in the meaning of Sub. 1 if there cannot be any
serious doubt that the parties would not have entered into the contract or would have
entered into it with different contents if they had foreseen this change. For example, if an
expected construction permit is refused after conclusion of the contract8 or if one spouse
significantly contributes to a marriage expecting that the marriage will not end through
divorce.9
IV. Contract otherwise not entered into
Sub. 1 requires that the parties would not have entered into the contract or would have 15
entered into it with different contents if they had foreseen this change. This warrants a
hypothetical view on what the parties might have done differently with the benefit of
hindsight. The relevant point in time to determine if the parties would not have entered
into this specific contract is the moment of its conclusion. The hypothetical nature of the test
often leads to disputes surrounding the responses to the circumstances, e.g. one party states
that they would have changed the contract, whereas the other party will deny this. In the
event of a lack of agreement, the courts will look at this point and determine the correct
hypothetical view.
V. Risk distribution
The distribution of contractual risk is the key issue under Sub. 1. A contract may only be 16
adapted under Sub. 1 if one of the parties cannot reasonably be expected to uphold the
contract without alteration. This generally requires an unbearable hardship for the party
requesting the change which would violate basic notions of fairness and justice.10 A contract
will not easily be changed under Sub. 1.
1. Statutory risk distribution
Firstly, it is first necessary to consider all statutory risk distributions when determining 17
whether a party cannot reasonably be expected to uphold the contract without alteration.11
Each contract that is codified under German law contains a certain risk distribution. For
example, § 556a( 1) allocates the risk to pay the operating costs of a vacant apartment to the
« BGH 23 3 1966 - VIII ZR 51/64, BeckRS 1966, 31179730.
9 BGH 8.11.2002 - V ZR 398/01, NJW 2003, 510; BGH 3.12.2014, XII ZB 181/13, NJW-Spezial 2015, 102.
10 BGH 5 1 1995 - IX ZR 85/94, NJW 1995, 592; BGH 11.10.1994 - XI ZR 189/93» NJW 1995, 47.
11 BGH 9 5 2012 - IV ZR 1/11, NJW 2012, 2733.
M, Oehm
507
Division 3. Contractual obligations
§ 313 18-21
lessor.12 * It is difficult for the risk bearing party to rely on Sub. 1 where there is such a
statutory risk distribution.
2. Contractual risk distribution
18 Secondly, the contractual risk distribution between the parties must be considered. A party
is precluded from relying on § 313 if it expressly accepted a risk under the contract Case
law requires that the risk was expressly accepted in the contract because of the consequence
that § 313 can no longer be applied.14 For example, Sub. 1 is excluded for risky businesses
where both parties know precisely the risks they are dealing with15 16 17 or in the case one party is
responsible for the changed circumstances leading to the unbearable situation. Apart from
such clear cases, each contract allocates risks between parties. It is the purpose of § 313 to
uphold the contractual risk distribution as far as possible while altering the contract to the
necessary extent.
VI. Foreseeability
19 Sub. 1 requires that the parties could not have foreseen the changed circumstances: if the
parties foresee the changed circumstances and nevertheless conclude the contract, both
parties have expressly accepted the risk of these circumstances changing. Courts have only
made an exception from this general rule in rare cayes and under specific circumstances.1'
VII. Material conceptions found to be incorrect
20 Sub. 1 covers cases where circumstances have changed after the conclusion of the contract,
whereas Sub. 2 serves to allow for the same treatment of cases where there has originally been
no subjective basis (subjektive Geschäftsgrundlage; Fehlen der Geschäftsgrundlage). It shall be
possible to adapt the contract in cases where the parties have based their contract on material
conceptions that are later found to be incorrect, such as if the parties were jointly mistaken in
their contractual motives. The material conception of the parties must have existed at the
time of contract conclusion and both parties must have based the contract on these
conceptions. Otherwise, there is no room for the application of Sub. 2. For example, it
usually does not suffice if the buyer informs the seller about his intention to use the
purchased object and to receive tax benefits.18 In such a case there might be a unilateral
conception of the buyer for the contract, though this is clearly not a material conception for
the seller.
VIII. Consequences
21 The legal consequence of Subs 1 and 2 is the right to demand the adaptation of the
contract. Even though § 313 limits the principle of pacta sunt servanda. this does not mean
that a contract can simply be revoked or terminated. This is only possible if an adaption of
the contract is not possible (Sub. 3). All circumstances of the specific case must be taken into
account when determining the adaptation of the contract. This expressiv includes the
contractual and statutory distribution of risk. The goal must be to uphold the contract as
far as poss.ble m order to confirm the intent of the parties when they concluded the contract.
The contract adaption shall therefore be minimal. Notably, Sub. 1 grants a right to demand
12 BGH 31.5.2006 - VIII ZR 159/05, NJW 2006, 2771
15 BGH 21.9.2005 - XII ZR 66/03, NJW 2006, 899
BGH 11.2.2015 - XII ZB 66/14, NJW 2015, 1242.
15 BGH 11.3.1993 - I ZR 27/91, NJW-RR 1993, 880
16 BGH 21.12.2010 - X ZR 122/07, NJW 2011, 989
17 BGH 28.9.1990 - V ZR 109/89, NJW 1991, 830
18 BGH 18.11.1985 - II ZR 51/85, NJW-RR 1986, 708
508
M. Oelnn
Termination for a compelling reason § 314
the adaption of the contract: the contract will not be adapted automatically by law. Courts
will only consider § 313 it one party invokes its right under it. Whereas a court will
ultimately decide if adaptation is necessary, it is first up to the parties to agree on an
adaption ot the contract. After all, the parties are in the better position to determine which
adaption of the contract best upholds their original intention to the greatest extent. Failing
this, the court will order adaptation.
IX. Right to revoke the contract
Sub. 3 addresses the case that an adaptation of the contract is not possible or one party 22
cannot reasonably be expected to accept the adaption. Here, Sub. 3 1st St. grants the right to
revoke the contract as a last resort (ultima ratio)}9 This requires a declaration of revocation.
The effects ot revocation are regulated in §§ 346 et seq.
X. Continuing obligations
In the case of continuing obligations (Dauerschuldverhältnisse), the right to terminate takes 23
the place of the right to revoke (Sub. 3 2nd St.). A continuing obligation constantly creates
new obligations for the parties during the existence of the contract. Typical continuing
obligations are lease agreements (§§ 535 et seq.), loan contracts (§§ 488 et seq.), and
partnerships (§§ 705 et seq.). A similar termination right exists in § 314, yet under different
requirements.19 20 In particular, § 314 does not require that it is unreasonable for the party
terminating the contract to accept an adaption of the contract. The contract can immediately
be terminated if the requirements of § 314 are fulfilled.
XI. Procedural aspects
The adaption of the contract under § 313 requires one party to demand adaption; the 24
contract is not adapted ipso iure. The parties may choose if they want to rely on § 313 or if
they - for any reason - rather want to bear the hardship in this case (perhaps hoping for
future contracts or the development of a business relationship). If a party invokes § 313 it can
immediately claim for performance of the adapted contract and there is no need to first file
a declaratory action. Such an action would be impermissible in most cases because payment
claims take precedent over declaratory actions under German law. § 313 does not oblige the
other party to renegotiate the contract. The refusal of the other party to renegotiate cannot
be the basis for a claim for damages. However, it may lead to a revocation right under Sub. 3
if the other party persistently refuses to renegotiate an adaption of the contract. The party
relying upon § 313 bears the burden of proof.21 The right to demand the adaption of the
contract becomes statute-barred after three years pursuant to §§ 195, 199.
§314
Termination, for a compelling
reason, of contracts for the
performance of a continuing
obligation
(1) ’Each party may terminate a contract
for the performance of a continuing obliga¬
tion for a compelling reason without a notice
§314
Kündigung von
Dauerschuldverhältnissen aus
wichtigem Grund
(1) 'Dauerschuldverhiiltnisse kann jeder
Vertragsteil aus wichtigem Grund ohne Ein¬
haltung einer Kündigungsfrist kündigen. 2Ein
19 BGH 30.9.2011 - V ZR 17/11, NJW 2012, 373.
20 See ♦ § 314 mn. 4.
21 BGH 8.11.2002 - V ZR 398/01, NJW 2003, 510.
M. Oehm
509
Division 3. Contractual obligations
§314 1
period. 2There is a compelling reason if the
terminating party, taking into account all the
circumstances of the specific case and weigh¬
ing the interests of both parties, cannot rea¬
sonably be expected to continue the contrac¬
tual relationship until the agreed end or until
the expiry of a notice period.
(2) lIf the compelling reason consists in the
breach of a duty under the contract, the con¬
tract may be terminated only after the expiry
without result of a period specified for relief
or after a warning notice without result.
2§ 323(2) numbers 1 and 2 applies, with the
necessary modifications, as regards the dis¬
pensability of specifying a period for such
relief and as regards the dispensability of a
warning notice, specifying a period for relief
and issuing a warning notice can also be
dispensed with if special circumstances are
given which, when the interests of both par¬
ties are weighed, justify immediate termina¬
tion.
(3) The person entitled may give notice
only within a reasonable period after obtain¬
ing knowledge of the reason for termination.
(4) The right to demand damages is not
excluded by the termination.
wichtiger Grund liegt vor, wenn dem kündi¬
genden Teil unter Berücksichtigung aller Um¬
stände des Einzelfalls und unter Abwägung
der beiderseitigen Interessen die Fortsetzung
des Vertragsverhältnisses bis zur vereinbarten
Beendigung oder bis zum Ablauf einer Kün¬
digungsfrist nicht zugemutet werden kann.
(2) ‘Besteht der wichtige Grund in der
Verletzung einer Pflicht aus dem Vertrag, ist
die Kündigung erst nach erfolglosem Ablauf
einer zur Abhilfe bestimmten Frist oder nach
erfolgloser Abmahnung zulässig. 2Für die
Entbehrlichkeit der Bestimmung einer Frist
zur Abhilfe und für die Entbehrlichkeit einer
Abmahnung findet § 323 Absatz 2 Nummer 1
und 2 entsprechende Anwendung. 3Die Be¬
stimmung einer Frist zur Abhilfe und eine
Abmahnung sind auch entbehrlich, wenn be¬
sondere Umstände vorliegen, die unter Abwä¬
gung der beiderseitigen Interessen die sofor¬
tige Kündigung rechtfertigen.
(3) Der Berechtigte kann nur innerhalb
einer angemessenen Frist kündigen, nachdem
er vom Kündigungsgrund Kenntnis erlangt
hat.
(4) Die Berechtigung, Schadensersatz zu
verlangen, wird durch die Kündigung nicht
ausgeschlossen.
Contents
A. Function
I. Purpose and underlying principle
II. Scope of application
B. Context
I. Historical
II. Legal I’.Z’Z
C. Explanation
I. Continuing obligation
II. Compelling reason
III. No notice period
IV. Termination alter warning notice
V. Termination notice
VI. Time limit
VII. Termination and damages
mn.
1
1
2
3
3
4
5
5
6
7
8
9
10
11
A. Function
I. Purpose and underlying principle
1 § 314 gives each party to a contract for the nerfn . h>
right to terminate the contract for a compelling r>> rnwn':e °t a continuing obligation tnc
of § 314 is to avoid unreasonable and intolerable a notice Pcr’0^- The purp*»
contract for the performance of a continuing nhli., Y CCt . or t,le Parties which result from *
of good faith (§ 242). lOn’ embodies the general princ'l’e
510
M. Oehm
Termination for a compelling reason
2-5 § 314
IL Scope of application
The termination right in § 314 applies as a general principle to all continuing obligations. 2
The purpose of § 314 was to establish a statute under which any contract for the performance
of a continuing obligation could be terminated. However, there are many special provisions
dealing with the termination of continuing obligations (e.g. § 490, § 543 or § 626). Any of
these special provisions takes precedent over § 314. This underpins the general nature of
§314. For example, the following contracts are covered by §314: franchise agreements1,
facility-management contracts and licensing agreements.2 § 314 is mandatory. Its principles
cannot be excluded either in individually agreed terms or a fortiori in standard business
terms.3 However, it is possible to limit the termination right in an individual agreement
insofar as the possibility to terminate the contract is not fully excluded. There is no clear line
where an agreement to limit § 314 is still valid and where the agreement to limit § 314 is too
extensive (i.e. is invalid). This must be determined for each individual case.
B. Context
I. Historical
The provision was introduced as part of the modernisation of the law of obligations in 3
2002 SMG. Until then, the BGB did not contain a statute governing the general possibility to
terminate contracts for the performance of a continuing obligation. However, this right
already existed under case law before 2002.4 The legislators expressly intended to codify this
right in statute. Parties can thus fully rely on the case law prior to 2002.
IL Legal
§ 313(3) contains a termination right in case of continuing obligations. However, the 4
termination under §313(3) and under §314 are subject to different requirements. In
particular, it must be unreasonable for the party terminating the contract to accept an
adaption of the contract. The relationship between § 314 and § 313(3) is disputed. Whereas
one could argue that § 313(3) takes precedent over § 314 if the compelling reason under
§ 314 also constitutes an interference with the basis of the transaction under § 313, one may
also argue that § 313(3) and § 314 can be applied in parallel. The courts have not yet decided
on this issue as in most cases the requirements of §314 and §313(3) will be fulfilled,
therefore the courts simply did not have to give a decision yet (and therefore have not).
C. Explanation
L Continuing obligation
The termination right only covers continuing obligations. The difference between a regular 5
contract and a contract for the performance of a continuing obligation is that under the latter
new duties constantly arise for both parties. Each party to a regular contract must fulfil the
duties they agreed to when they signed the contract in order to perform in full. In contrast,
new duties of the parties constantly arise during the existence of a contract for the
performance of a continuing obligations - performance of duties does not complete the
1 BGH 17.12.199« - I ZR 106/96, NJW 1999, 1177.
2 BGH 29.4.1997 - X ZR 127/95, NJW-RR 1997, 1467.
3 BGH 8.2.2012 - XII ZR 42/10, NJW 2012, 1431.
4 BGH 11.12.1981 - V ZR 247/80, NJW 1982, 820; BGH 17.12.199« - I ZR 106/96, N|W 1999, 1177.
M. Oehm
511
§ 314 6-10 Division 3. Contractual obligations
contract. Typical continuing obligations are lease agreements (§§ 535 et seq.), Ioan contracts
(§§ 488 et seq.) and partnerships (§§ 705 et seq.).
IL Compelling reason
6 There must be a compelling reason for the termination. Sub. 1 2nd St. legally defines what
constitutes a compelling reason: if the terminating party cannot reasonably be expected to
continue the contractual relationship, taking into account all the circumstances of the specific
case and weighing the interests of both parties. A compelling reason generally requires that the
other party is responsible for the grounds on which the terminating party bases its termina¬
tion.5 It is usually not unreasonable to expect a party to uphold a contract, especially if this partv
itself is responsible for its own hardship. Based on the principles set out in § 313(1) 2nd St,
taking into account all the circumstances of the specific case and weighing the interests of both
parties, a compelling reason can exist in cases of severe loss of trust of one of the parties. It does
not require fault of the other party. The interests of both parties must be considered as the sole
focus on the party terminating the contract does not suffice. The compelling reason must exist
at the time when the contract is terminated.6
III. No notice period
7 The termination right under Sub. 1 exists without a notice period, i.e. the contract maybe
terminated immediately.
IV. Termination after warning notice
8 Sub. 2 makes an important change to the right to terminate rhe contract without a notice
period under Sub. 1: if the compelling reason consists in the breach of a duty under the
contract, the contract may be terminated only after the unsuccessful expiry of a period
specified for relief or after a warning notice without result. Duties under a contract are all
primary and collateral duties as well as protective duties under § 241(2). Accordingly, the
compelling reason will usually consist in the breach of a duty under the contract and,
pursuant to Sub. 2, termination is only possible if the other part}7 was given a second chance,
either by way of an extra period specified for relief or a warning notice. This is similar to the
rule contained in § 323(1). Hence, Sub. 2 2nd St. refers to § 323(2) and stipulates that in these
cases the specification of a period of time is dispensable.
V. Termination notice
9 The termination is declared by notice to the other party. The termination notice is a
unilateral declaration of intent (§ 130). The termination notice does not need to state reasons
for the termination. However, the terminating party is obliged to give reasons upon request
by the other party.
VI. Time limit
10 Sub. 3 sets a time limit for the termination notice. The person entitled to terminate the
contract may give notice only within a reasonable period after obtaining knowledge ot the
reason for termination. The purpose of the time limit is that the other part}’ shall not be kept
in a lengthy state of uncertainty regarding the continued existence of the contract. The
reasonable period commences when the party entitled to terminate the contract obtained
knowledge of the reasons for termination. This requires reliable and comprehensible kno'd-
5 BGH 7.3.2013 - 111 ZR 231/12, NJW 2013, 2021.
6 BGH 26.3.2008 - X ZR 70/06, NJW-RR 200«, 1155.
512
M. Oehm
Specification of performance by one party 1 § 315
edge.7 Termination will be excluded after a reasonable period has lapsed. What is reasonable,
however, will depend on the circumstances of the individual case.8
VII. Termination and damages
Sub. 4 stipulates that termination does not exclude the right to demand damages. Since the 11
termination takes effect ex nunc, it cannot be questioned that damage claims, which already
existed before the termination, remain possible. Accordingly, Sub. 4 is merely declaratory. It
corresponds to § 325 which contains the same rule for the revocation of a reciprocal contract.
Possible grounds for claiming damages are set out in § 280 et seq. In particular, § 280(1) is
relevant if a party seeks to claim damages for breaches that already occurred before the
termination of the contract. § 281 applies if a party claims damages in lieu of performance
for non-performance or failure to render performance as owed. Generally, it is possible to
claim damages for the time until the next ordinary termination of the contract would have
been possible.9
Subtitle 4
Unilateral rights to specify
performance
Untertitel 4
Einseitige
Leistungsbestimmungsrechte
§315
Specification of performance by
one party
(1) Where performance is to be specified
by one of the parties to the contract, then in
case of doubt it is to be assumed that the
specification is to be made at the reasonably
exercised discretion of the party making it.
(2) The specification is made by declara¬
tion to the other party.
(3) ’Where the specification is to be made
at the reasonably exercised discretion of a
party, the specification made is binding on
the other party only if it is equitable. 2If it is
not equitable, the specification is made by
judicial decision; the same applies if the spe¬
cification is delayed.
§315
Bestimmung der Leistung durch
eine Partei
(1) Soll die Leistung durch einen der Ver¬
tragschließenden bestimmt werden, so ist im
Zweifel anzunehmen, dass die Bestimmung
nach billigem Ermessen zu treffen ist.
(2) Die Bestimmung erfolgt durch Erklä¬
rung gegenüber dem anderen Teil.
(3) ’Soll die Bestimmung nach billigem
Ermessen erfolgen, so ist die getroffene Be¬
stimmung für den anderen Teil nur verbind¬
lich, wenn sie der Billigkeit entspricht. Ent¬
spricht sie nicht der Billigkeit, so wird die
Bestimmung durch Urteil getroffen; das Glei¬
che gilt, wenn die Bestimmung verzögert
wird.
A. Function
I. Underlying principle and purpose
It is a general rule under German law that the essentialia negotii must be fulfilled in order for 1
a contract to be valid: contracting parties, the object of performance, and the consideration
(Gegenleistung; although better translated as counter-performance). The performance (Leistung)
1 BGH 26.2.1996 - If ZR 114/95, NJW 1996, 1403.
8 BGH 23.4.2010 - LwZR 20/09, NJW-RR 2010, 1500.
’ BGH 25.11.2010 - Xa ZR 48/09, NJW 2011, 1438.
M. Oehm
513
§ 315 2-5 Division 3. Contractual obligations
and the consideration meet this requirement if they are either specified by the parties or at
least specifiable, e. g. if based on objective criteria such as the market price. The purpose of
§§ 315 et seq. is therefore to extend this general rule in order to ensure the validity of contract
even if the parties failed to specify the performance. § 315 in essence stipulates that the
essentialia negotii are also fulfilled if the performance is to be specified by one of the parties
to the contract. §316 addresses the specification of the extent of the consideration. The
provisions thus deal with performance specification rights. They function as interpretative
rules in case the parties have not set clear standards for the specification of performance.
IL Scope of application
2 The parties are free to agree on the scope of the specification of performance under § 315.
They can agree that one party has the right to specify the performance as well as the right to
adapt the contract in case of a change in circumstances. They may also agree that one partv
shall specify the performance methods, such as the time and place for performance. The
scope of § 315 therefore reaches beyond the letters of the statute. The limits for the
specification are drawn when the specified performance is not equitable. Sub. 3 ensures that
the other party can ask the courts to review the specification and declare it void if it is not
equitable. In this case, the specification is made by judicial decision, i.e. by the courts. Parties
have different options to exclude the application of § 315. The first and most obvious option
is to agree on the performance, as is generally done. Usually, there is no room for the
performance to be specified by one of the parties to the contract. Furthermore, parties can
exclude § 315 on individually agreed terms as well as in standard business terms, as longas
the limits of §§ 307 et seq. are met.
B. Explanation
I. Performance specification
3 § 315 requires that the parties agreed on a performance specification right Performance is
to be specified by one of the parties to the contract. This can either be the obligee or the
obligor. The agreement of a performance specification right may be implied.* 1 A performance
specification right is excluded if the performance is specified in the contract or at least
specifiable by way of contract interpretation (§§ 133, 157).2 This is also the case if the parties
agreed on objective criteria to specify the performance. Such objective criteria could be the
market price or the reference rent customary in the locality (§ 558). The importance of § 315
is that it helps to uphold contracts even if the parties had an overt lack of agreement (§ 154)
but clearly wanted to reach an agreement.
1. Object
4 The object of the specification can be the performance as well as other aspects of the
contract such as its performance modalities. Even the specification of the content of the
contract can be covered under § 315.
2. Standard
5 The agreement of the parties on a specification right can establish a standard for the partv
to rely upon when specifying performance. Alternatively, the specification can be at the
discretion of the party making the specification. However, the specification must not be
arbitrary because this would violate § 138. If the parties have not agreed on a standard’
*•
1 BGH 19.1.2005 - VIII ZR 139/04, NIW-RR 2005, 762.
1 BGH 19.3.1975 - VIII ZR 262/73, NJW 1975, 1116.
514
M. Oehni
Specification of performance by one party 6-10 § 315
Sub. 1 applies and the specification is to be made at the reasonably exercised discretion of the
party making it.
II. Declaration to the other party
Sub. 2 stipulates that the specification is made by declaration to the other party. The 6
declaration is an irrevocable unilateral declaration of intent. It must be received by the other
party and does not have to satisfy any formal requirements, even if the contract itself does;
the declaration may thus be implied. Since the declaration is irrevocable, it can only be
avoided it a ground for avoidance under §§ 119 et seq. exists. The declaration has to be made
at the reasonably exercised discretion of the party making it. However, reasonable has to be
determined on a case-by-case basis in consideration of the interests of both parties, and
comparable cases.
III. Legal consequence
Subs 1 and 2 result in the prospective amendment to the contract. However, the other 7
party is not entitled to the specification being made. Sub. 3 2nd St. applies if the party that
could make the specification refuses to do so or delays the specification - it gives the other
party the right to request the courts to make the specification instead. Accordingly, the other
party cannot revoke the contract. The obligee is entitled to damages under § 286 in cases
where the obligor delays the specification.
IV. Equitable
Sub. 3 applies to cases where the specification is to be made at the reasonably exercised 8
discretion of a party, i.e. Sub. 1. It stipulates that the specification is binding on the other
party’ only if it is equitable. If the other party does not consider the specification to be
equitable, it may seek review by the courts, however the specification is (preliminarily)
binding pending review.3 The court will examine whether the party making the specification
used its discretion properly and did not violate it, e. g. by referring to arbitrary or irrelevant
circumstances.4
V. Judicial decision
Sub. 3 2nd St. stipulates that the specification is made by judicial decision if it is not 9
equitable. It follows from this wording that the other party can ask the courts to review the
specification made and, if necessary, replace it. Hence, judicial review is possible even in cases
where the parties agree that the performance is to be specified by one of the parties to the
contract. The parties cannot contract out of the judicial review. However, they can limit the
scope of the judicial review as is the case under Sub. 3. The court only reviews if the
specification is equitable. Insofar as the specification is equitable, the parties* discretion
precludes the court from replacing the specification with its own even if its specification
would deviate from the one made by the party.
VI. Examples
The case law on §315 is ample. It covers all types of contracts, from employment 10
contracts to insurance contracts as well as lease agreements. For example, courts had to
decide about the specification of price calculation under a contract for medical products»5
3 BAG 22.2.2012 - 5 AZR 249/11, NJW 2012, 2605.
4 BGH 5.12.2012 - IV ZR 110/10, BcckRS 2013, 00353.
5 OLG Köln 22.6.2012 - 20 U 27/12, NJW RR 2012, 1520.
M. Oehm
515
§316 1-3 Division 3. Contractual obligations
the specification that a lessor can combine multiple houses in his heating bill,6 and the
specification of the departure time of a flight as part of a package travel contract under
§ 651a.7
§316
Specification of consideration
If the extent of the consideration promised
for an act of performance is not specified,
then in case of doubt the party that is owed
the consideration is entitled to make the
specification.
§316
Bestimmung der Gegenleistung
Ist der Umfang der für eine Leistung ver¬
sprochenen Gegenleistung nicht bestimmt, so
steht die Bestimmung im Zweifel demjenigen
Teil zu, welcher die Gegenleistung zu fordern
hat.
A. Function
I. Purpose and underlying principle
1 § 316 contains an interpretative rule which allows for an amendment of the contract in
case the consideration (Gegenleistung, better translated as counter-performance) is not
specified. The party that is owed the consideration (i.e. the obligee) is entitled to make the
specification. While this might seem unusual, § 316 is based on sound principles. §316 is
meant to promote and ensure contract performance. § 316 only applies if the parties
concluded a valid contract, which requires the parties to have agreed on all the essentialia
negotii, in particular the consideration. The parties must only have failed or forgotten to
specify the extent of the consideration promised. § 316 stipulates that in case of doubt the
obligee may specify his consideration, rather than having one party revoke the contract
§ 316 therefore complements § 315» which stipulates that the specification made is binding
on the other party only if it is equitable (§ 315(3)).
IL Scope of application
2 § 316 does not apply if the extent of the consideration can be determined by way ot
contract interpretation (§§ 133, 157). It does also not apply if the extent of the consideration
follows from a statute (e.g. § 632(2) or § 653(2)). Furthermore, § 316 does not apply it the
parties agreed that the specification would not be made by the obligee, but rather by, tor
example, the obligor, the court or another third party".* 1 This must be determined by way ot
contract interpretation, as is made clear by the wording in case of doubt. Furthermore, Art.
CISG supersedes § 316.
B. Explanation
3
§ 316 requires a reciprocal contract, i.e. a relation of dependence must exist between
duties to perform of both parties.2 The nature and the extent of the performance of one ot
the parties must clearly be determined in the contract. The parties must have agreed on the
nature of the consideration, but not its extent. In this case» the party that is owed the
consideration is entitled to specify the extent of the consideration. For example, § 3If
been applied in practice where the parties to a contract agreed that 'they are certain they
6 BGH 14.7.2010 - VIII ZR 290/09, NJW 2010, 3229.
7 BGH 10.12.2013 - X ZR 24/13, NJW 2014, 1168.
1 BGH 13.4.2010 - XI ZR 197/09, NJW 2010, 1742; BGH 2.4.1964 - KZR 10/62, NJW W64, I*1 ‘
2 See -► § 320 mn. 2.
516
M. Ochm
Specification of performance by a third party 1-3 § 317
find the right extent of the consideration’.3 Another common example is the consideration
for experts.4
§317
Specification of performance by a
third party
(1) Where specification of performance is
left to a third party, then in case of doubt it is
to be assumed that the specification is to be
made at the reasonably exercised discretion of
the third party.
(2) If the specification is made by more
than one third party, then in case of doubt,
the agreement of all parties is necessary;
where an amount is to be specified and sev¬
eral amounts are specified, then in case of
doubt, the average amount applies.
§317
Bestimmung der Leistung durch
einen Dritten
(1) Ist die Bestimmung der Leistung einem
Dritten überlassen, so ist im Zweifel anzuneh¬
men, dass sie nach billigem Ermessen zu tref¬
fen ist.
(2) Soll die Bestimmung durch mehrere
Dritte erfolgen, so ist im Zweifel Überein¬
stimmung aller erforderlich; soll eine Summe
bestimmt werden, so ist, wenn verschiedene
Summen bestimmt werden, im Zweifel die
Durchschnittssumme maßgebend.
A. Function
§ 317 must be seen in context with § 315 and § 316. The-e provisions cover cases where 1
one of the parties is supposed to make the necessary specification to the contract. However,
parties can also use their contractual freedom and leave the specification to a third party.
Sub. 1 functions as an interpretative rule just as § 3)6. Where specification of performance
is left to a third party, it is to be assumed in case of doubt that the specfication is to be made
at the reasonably exercised discretion of the third party. The standard for the specification of
the third party is therefore the same as for the parties to the contract under § 315(1), i.e.
reasonably exercised discretion. The reasons for the parties to leave the specification to a
third party can be ample, e.g. the expertise of the third party or its role as a neutral outsider.
B. Explanation
I. Agreement
The interpretative rule in Sub. 1 requires that the parties have agreed to leave the 2
specification of performance to a third party. This agreement between the parties must be
valid. It is not subject to any specific requirements, formal or otherwise. This makes clear that
the agreement to leave the specification of performance to a third party under § 317 is not an
arbitration agreement which can only be concluded in the form of § 1031 ZPO.
II. Third party
The specification must be made by a third party. Typically, this is an expert or an arbitrator 3
though is also possible for any governmental authority to be the third party. In certain cases it
is also possible that the third party is a court, in which case § 317 functions as a choice of court
agreement.1 However, this can only be the case if the court would otherwise not be competent
to hear the case. This makes clear that it suffices under §317 for the third party to be
identifiable and therefore must not be identified by name (this would be especially impractical
3 BGH 6.5.1988 - V ZR 32/87, NJW-RR 1988, 970.
4 BGH 29.11.1965 - VII ZR 265/63, NJW 1966, 539.
1 BGH 6.11.1997 - III ZR 177/96, NJW 1998, 1388.
M. Oehm
517
§318 1
Division 3. Contractual obligations
if a governmental authority functions as the third party as
would become moot if the named person left the authority
the identified the entire agreement
before one party invoked § 317).
III. Standard
4 The standard for the specification under Sub. 1 is the reasonably exercised discretion of the
third party. Reasonable discretion is adjudged on a case-by-case basis in consideration of the
interest of both parties. Reference can of course be made to comparable cases.
IV. Specification by more than one third party
5 Sub. 2 stipulates another interpretative rule. If the specification is made by more than one
third party, then in case of doubt, the agreement of all parties is necessary. The principle of
unanimity applies by default. Since this is often impractical, the parties are free to and regularly
deviate from Sub. 2 by stipulating a majority rule. If, however, the unanimity principle applies
but the third parties cannot agree, then the court will have to decide (Sub. 1 2n<* Sb). Where the
specification of an amount is concerned, the average between the amounts specified by the
third parties generally applies. However, the severe deviation of one or some of the specifica¬
tions from the others can be an indication that these specifications are improper.2
V. Schiedsgutachtervertrag and the arbitration agreement
6 One last aspect that is important under § 317 is its distinction from an arbitration agreement
§ 317 applies to the so-called Schiedsgutachtervertrag (or arbitration-expert-contract). The
Schiedsgutachtervertrag is a material contract between the contractual parties and the arbitra¬
tion-expert. The parties agree on the arbitration-expert to make the specification as stipulated
under Sub. 1. This is a common ADR mechanism particularly for large-scale contracts. In
comparison, the arbitration agreement is a procedural contract by which the parties deviate
from the jurisdiction of the state courts. § 317 does not apply to arbitration agreements.
§318
Avoidance of specification
(1) The specification of performance made
by a third party is effected by declaration to
one of the parties to the contract.
(2) 'Only the parties to the contract are
entitled to avoid the specification made for
mistake, duress or deceit; the opponent is the
other party. 2Avoidance must occur without
undue delay after the opponent has obtained
knowledge of the grounds for avoidance.
3 Avoidance is excluded if thirty years have
passed since the specification was made.
§318
Anfechtung der Bestimmung
(1) Die einem Dritten überlassene Bestim¬
mung der Leistung erfolgt durch Erklärung
gegenüber einem der Vertragschließenden ist
(2) 'Die Anfechtung der getroffenen Be¬
stimmung wegen Irrtums, Drohung oder arg¬
listiger Täuschung steht nur den \ ertrag¬
schließenden zu; Anfechtungsgegner ist der
andere Teil. 2Die Anfechtung muss unverzüg¬
lich erfolgen, nachdem der Anfechtung**
berechtigte von dem Anfechtungsgrund
Kenntnis erlangt hat. 3Sie ist ausgeschlossen,
wenn 30 Jahre verstrichen sind, nachdem die
Bestimmung getroffen worden ist.
A. Explanation
I. Specification by declaration
1
Sub. I atipulales Ll.a. ,|» spenfuaiio,, „I perlormanee ,mde „ |h is efckk| b,
declaration (o one of Ilie parlies (o (he eo.iiraei, |t c„tresponds lo § „ T1;e sprfk.,l»
2 BGH 28.9.1964 - II ZR 181/62, N|W 1964, 2401,
518
M. Oehm
Ineffectiveness of the specification; substitution 1 § 319
is an irrevocable unilateral declaration of intent which has to be received by the other party.
It is generally binding for the parties1 as long as it is not annulled under § 319 or avoided
under Sub. 2. For the specification to become valid it suffices if it is made to one of the
parties to the contract only. Its content becomes part of the contract between the parties
upon receipt.
IL Voidability
Sub. 2 governs the voidability of the specification. It stipulates that only the parties are 2
entitled to avoid the specification. This makes clear that the third party making the
declaration is not entitled to avoid it. Furthermore, Sub. 2 lists the grounds for avoiding the
specification: mistake, duress or deceit. This refers to the general grounds for avoidance in
119, 120 and 123 (with the exception of § 123(2)). The requirements of one of these
grounds tor avoidance must be met in the individual case. Moreover, Sub. 2 states that
avoidance must occur without undue delay. Departing from § 124, the avoidance must occur
without undue delay also in case of deceit or duress (and not within the one year period
stipulated in § 124). The maximum limit for avoidance is thirty years after the specification
was made.
III. Legal consequence
The legal consequence of avoidance is that the specification is to be regarded as having 3
been void from the outset (§ 142). In this case, the third party must make a new specification
or the specification is made by judicial decision (Sub. 1 2nd St.).
§319
Ineffectiveness of the specification;
substitution
(1) !If the third party is to specify perfor¬
mance at its reasonably exercised discretion,
the specification made is not binding on the
parties to the contract if it is evidently in¬
equitable. 2The specification is made in this
case by judicial decision; the same applies if
the third party cannot or does not want to
make the specification or if it delays it.
(2) If the third party is to make the speci¬
fication at its free discretion, the contract is
ineffective if the third party cannot or does
not want to make the specification or if it
delays it.
§319
Unwirksamkeit der Bestimmung;
Ersetzung
(1) 1 Soll der Dritte die Leistung nach bil¬
ligem Ermessen bestimmen, so ist die getrof¬
fene Bestimmung für die Vertragschließen¬
den nicht verbindlich, wenn sie offenbar
unbillig ist. 2Die Bestimmung erfolgt in die¬
sem Falle durch Urteil; das Gleiche gilt, wenn
der Dritte die Bestimmung nicht treffen kann
oder will oder wenn er sie verzögert.
(2) Soll der Dritte die Bestimmung nach
freiem Belieben treffen, so ist der Vertrag
unwirksam, wenn der Dritte die Bestimmung
nicht treffen kann oder will oder wenn er sie
verzögert.
A. Function
I. Purpose and underlying principle
§ 319 ensures that the specification of the third party does not violate either party’s rights. 1
Its function is thus to protect the rights of the parties to the contract. The agreement that the
third party would make the specification cannot be seen as general waiver by the parties of
their rights on this point. Sub. 1 complements § 315(3) with one difference: Sub. 1 requires
1 OLG Frankfurt a.M. 3.12.1998 -JU 257/97, NJW-RR 1999, 379.
M. Oehm
519
§ 319 2-5 Division 3. Contractual obligations
the specification to be evidently inequitable in order for it to be invalid. The reason for this
strict standard is that a specification by a (neutral) third party is generally assumed to have a
higher guarantee of correctness than the specification by one of the parties.
IL Scope of application
2 The parties can exclude the application of § 319 via individually agreed terms. However,
the threshold for a valid exclusion is high because of the consequences: the exclusion is only
valid if both parties make an informed decision to exclude § 319 knowing that they (might)
submit to an evidently inequitable specification. § 319 cannot be excluded in standard
business terms.
B. Explanation
I. Evidently inequitable
3 Sub. 1 1st St. stipulates that a specification made by a third party at its reasonably exercised
discretion is not binding on the parties to the contract if it is evidently inequitable. The
specification is evidently inequitable if it severely violates the principle of good faith. Such
violation must have been obvious in the eyes of a competent and unbiased observer.1 This is
a high threshold which will often not be met. However, Sub. 1 does not require any fault of
the third party. For example, a specification is evidently inequitable if the third party
completely ignored the content of the contract or based his specification solely on the
interest of one party and ignored the interest of the other party.2 Miscalculations only lead
to an evidently inequitable specification if there is a discrepancy’ of more than 20-25 percent-'
Furthermore, the inequitable outcome must result from the third party, Le. his specifica¬
tion. It is therefore irrelevant if the third party may have breached any' (procedural) duties
in determining the specification. Moreover, since the specification is the only’ relevant point
of reference, the review if the specification was evidently inequitable must be conducted
based on the information and material available when the third party' made the specifica¬
tion (i. e. subsequent new information is irrelevant).
IL Judicial decision
4 Sub. 1 2nd St. stipulates that the specification is to be made by judicial decision if the third-
party specification is not binding on the parties to the contract. It follows from this wording
that the other party can ask the courts to review the specification made and, if necessary»
replace it. Judicial review is thus possible even in cases where the parties agree that the
performance is to be specified by a (neutral) third party'. However, the scope of the judicial
review is limited to the evidently inequitable criterion. In addition, it is only possible if the
parties agreed that the third party would specify performance at its reasonably exercised
discretion. Judicial review is not possible if the parties agree that the third party can applyits
free discretion.
1. Further criteria
5 The same applies if the third party cannot or does not want to make the specification orlt
it delays the specification (Sub. 1 2nd St.). The third party cannot make the specification it the
third party ceased to exist (e.g. because the parties agreed on an authority that no long‘'r
exists) or if the third party no longer has the necessary competence to act as third-p^b
.
1 BGH 27.6.2001 - VIII ZR 235/00, NJW 2001, 3775.
2 BGH 13.5.1974 - VIII ZR 38/73, NJW 1974, 1235.
3 BGH 26.4.1991 - V ZR 61/90, NJW 1991, 2761.
520
Af. Oehrn
Defence of unperformed contract § 320
expert.4 The third party does not want to make the specification if it refuses to act for the
parties.5 A delay merely requires that the specification is objectively late. The requirements of
a delay under § 286 need not be fulfilled. The contract is ineffective if the third party cannot
or does not want to make the specification or if it delays it. Again, the reason for this rule is
that it is not possible to replace the specification by a judicial decision. The only consequence
that remains is the ineffectiveness of the contract.
2. Free discretion
Sub. 2 stipulates that it is not possible to replace the specification by a judicial decision if 6
the third party is to make the specification at its free discretion. Such a specification can only
be void if it violates public policy (§ 138) or any statutory prohibition (§ 134). Accordingly,
parties hardly ever agree on the standard that the third party decides at its free discretion and
therefore usually apply the standard of reasonably exercised discretion as stipulated in Sub. 1.
Title 2
Reciprocal contracts
Titel 2
Gegenseitiger Vertrag
§320
Defence of unperformed contract
(1) 1A person who is a party7 to a reciprocal
contract may refuse his part of the perfor¬
mance until the other party renders consid¬
eration, unless he is obliged to perform in
advance. 2If performance is to be made to
more than one person, an individual person
may be refused the part performance due to
him until the complete consideration has
been rendered. 3The provision of § 273(3)
does not apply.
(2) If one party has performed in part,
consideration may not be refused to the ex¬
tent that refusal, in the circumstances, in
particular because the part in arrears is rela¬
tively trivial, would be bad faith.
§320
Einrede des nicht erfüllten
Vertrags
(1) 'Wer aus einem gegenseitigen Vertrag
verpflichtet ist, kann die ihm obliegende Leis¬
tung bis zur Bewirkung der Gegenleistung
verweigern, es sei denn, dass er vorzuleisten
verpflichtet ist. 2Hat die Leistung an mehrere
zu erfolgen, so kann dem einzelnen der ihm
gebührende Teil bis zur Bewirkung der gan¬
zen Gegenleistung verweigert werden. 3Die
Vorschrift des § 273 Abs. 3 findet keine An¬
wendung.
(2) 1st von der einen Seite teilweise geleistet
worden, so kann die Gegenleistung insoweit
nicht verweigert werden, als die Verweige¬
rung nach den Umständen, insbesondere we¬
gen verhältnismäßiger Geringfügigkeit des
rückständigen Teils, gegen Treu und Glauben
verstoßen würde.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Scope of application 2
B. Context 3
I. Historical 3
II. Legal 5
C. Explanation 6
I. Reciprocal contract 6
4 BGH 6.6.1994 - II ZR 100/92, NJW-RR 1994, 1314.
5 BGH 21.12.1977 - VIII ZR 141/76, NJW 197«, 631.
M, Oehm
521
§ 320 1-4
Division 3. Contractual obligations
II. Mutuality
III. Valid and due
IV. Non-performance of the other party.
V. Contract compliance
VI. Consequences
VII. Divisible performance
VIII. Aversion
IX. Procedural aspects
7
8
9
10
11
12
13
14
A. Function
L Purpose and underlying principle
1 The defence of an unperformed contract (Einrede des nichterfüllten Vertrags) is a
cornerstone of German contract law. It contains the general principle that under a reciprocal
contract performance has to be effected at the same time. The general mechanism is that the
obligor may refuse performance until the obligee renders his performance. Conversely, the
obligee may claim performance from the obligor only if the obligee himself is willing to
perform reciprocally and simultaneously (cf. § 322). § 320 therefore serves to put the obligor
in a position to pressure the obligee to render his performance.1
IL Scope of application
2 § 320 applies to all reciprocal contracts. This covers most contracts, e.g. purchase
agreements, lease agreements or service agreements. The decisive requirement is that a
relationship of exchange and mutuality (Austausch- und Gegenseitigkeitsverhältnis) exists
between the relevant duties to perform. This means that a relation of dependence must
exist between the performance of both parties. § 320 is based on the Roman law principle
do, ut des (I give, so that you give), therefore § 320 only applies to svnallagmatic contracts.
§ 273 applies in the absence of such a synallagmatic relationship. Parties may exclude the
application of § 320 via individually agreed terms. A standard example would be the
agreement that one party is required to perform in advance, which is expressly mentioned
in Sub. 1 1st St. However, the exclusion of § 320 in standard business terms is not possible
(cf. § 309 No. 2a).
B. Context
I. Historical
While the concept of reciprocal contracts is part of the BGB since the BGB was first
enacted on 1 January 1900, the current 320 et seq. (onlv) exist since 2002 when the entire
law of obligations was fundamentally revised and modernised One must therefore be
cautious when relying on case law from before 2002. Application of these cases is possible,
though with the assurance that the case law actually addresses the relevant principles and
does not just refer to the same sections of the BGB.
3
§ 320 is based on the (in some areas) antiquated principle ofcash purchases. One part)
hands over the object of purchase and at the same time the other partv hands over eash.
Obviously, this is olten no longer how contracts work. Practical reasons often dictate that one
party performs in advance. Part.es are tree to agree on the obligation of one partv to pertonn
in advance in the.r contract as they see ht. They can do so explicitlv as Jell as implied
I here is extens.ve case law on specthc language used in contrac s establishing obligati
1 BGH 3.11.2010 - VIII ZR 330/09, BeckRS 2010, 30970.
522
M. Oehm
Defence of unperformed contract 5-8 § 320
perform in advance.2 The consequence of an obligation to perform in advance is that § 320
does not apply.
II. Legal
The principle of reciprocal contracts is essential for § 320. The defence under § 320 only 5
covers contracts where a relation of dependence exists between the duties to perform of both
parties. This is typically the case in contracts where an exchange relationship exists, e.g. in a
standard purchase contract under § 433: the seller is obliged to deliver the object of purchase
to the buyer; the buyer is obliged to pay the purchase price to the seller. The same is true for
a standard lease under § 535: the lessor has the duty to grant the lessee use of the leased
property for the lease period; the lessee is obliged to pay the lessor the agreed rent. The
necessary mutuality exists for all duties of principal performance. It generally does not exist
tor collateral obligations. § 320 therefore does not apply here. However, § 320 does apply in
case the principal performance of one of the parties has transferred into a secondary
performance, e.g. under § 326(3). An essential feature of reciprocal contracts is that the
parties value both performances more or less equally.3 This generally is the basis for the
contract. An interference with this basis can be relevant under § 313. The contract must be
interpreted under §§ 133, 157 in order to determine the intentions of the parties.
C. Explanation
I. Reciprocal contract
§ 320 requires a reciprocal contract. This contract must be valid and still in existence. In 6
case of a termination of the contract, at least the reversal of the contract must not already be
fully concluded.
IL Mutuality
A relationship of dependence or mutuality must exist between the relevant duties to 7
perform. The defence under § 320 only covers synallagmatic performances. This is the case
for duties of principal performance.4 It is also true for any other duties which the parties to
the contract mutually consider essential to the contract. In this regard, it is irrelevant whether
the contracting parties agreed that performance must be rendered to each other or to a third
party.5 Only the relationship between the parties to the contract is relevant.
III. Valid and due
The claim against which a party raises the defence under § 320 must be valid and due. The 8
reason for this requirement is that a party does not need to rely on § 320 (and therefore can
not, if there is no valid claim against which said party must defend itself. This is typically the
case if one party is obliged to perform in advance. Furthermore, this point is also relevant if the
statute of limitation for the claim has lapsed. Initially, one would assume that § 320 does not
apply in such case. However, § 215 stipulates that a limitation of actions does not exclude the
assertion of a right of retention (e.g. § 320) if the claim was not yet statute-barred at the time
when the performance could first have been refused. In other words, the defence under § 320
can be invoked against a statute-barred claim if the requirements of § 320 were met first.
2 e if cash against documents’ means that the purchaser must perform, i.e. pay, in advance,
BGH 21 I 1987 - VIII ZR 26/86, NJW 1987, 2435.
3 BGH 2 11 1961 - Il ZR 126/59, NJW 1962, 250.
4 BGH 26 9 2013 - VII ZR 2/13, NJW 2014, 55.
BGH 17 12 2009 - IX ZR 214/08, NJW-RR 2010, 773.
M. Oehm
523
§ 320 9-14
Division 3. Contractual obligations
9
IV. Non-performance of the other party
, its nerformance under the contract, i.e. the other
The other party must not havej-enderr p is Howevef § 320
party must have failed to perform the ‘ontract at that moment. The reason for the
longer applies if the other party Pe^ require fault. Sub. 2 stipulates a specific rule for
non-performance is irre'evan and do« n° -qmr^ault^ ^P^
cases of partial performance. If one party nas pe r . i
upon §320 in case of bad faith, in particular when the part m -rears nwa Even
though there is ample case law on this issue, it is not possible to draw a borderline for the
application of Sub. 2; this is rather a decision that must be made m each individual case.
V. Contract compliance
10 The party relying on § 320 must itself comply with the contract This is an unwritten
requirement that is not found in the letter of § 320. However, a purpose of § 320 is to put the
obligor in a position to pressure the obligee to render his performance. This purpose would
be defeated if the obligor himself would not comply with the contract The courts have
consistently applied this requirement and stressed its importance.6 If the obligor prefers to
refuse his own performance definitely (i.e. no longer be obliged to perform), the obligor must
resort to other legal remedies, such as termination (cf. § 323).7 * Furthermore, the obligor
cannot rely on § 320 insofar as he is in default under § 286?
VI. Consequences
11 Sub. 1 1st St. grants a party a right to withhold its own performance. In contrast to § 273,
the party does not have to assert this defence in order to avoid being in default (§ 286). It the
obligee seeks to eliminate this defence, he must not only be ready to render his performance
but must also actually offer performance, possibly together with a warning notice demanding
the obligors performance. The same is true for setting a period of time under § 281 or § 323.
The defence under § 320 lapses upon successful performance. The mere execution of
performance does not suffice. Moreover, § 320 does not prevent the statute of limitation
from lapsing. If a party renders its performance unaware of this defence, it can not claim
restitution under § 813 because § 320 does not permanently exclude the claim (only until the
other side offers performance; § 320 is a so-called ‘temporary defence’).
VII. Divisible performance
12 Sub. 1 2nd St. stipulates a specific rule in case of divisible performance (§ 420). If the
obligor must render his performance to more than one person, he mav refiase his entire
performance to all obligees until the complete consideration has been rendered
VIII. Aversion
13
Sub. 1 3rd St. stipulates that § 273(3) does not annlv Tk;«? n v .
I r 1 . ; aPP!> • 1 hls means that the obligor or obhu*
may not avert the exercise of the defence under § 320 bv providing security Such exclusion is
in line w.th the purpose of § 320, namely to facilitate performant of the contract
14
IX. Procedural aspects
The defence under § 320 is a so-called Einrede under
to a plea which has to be invoked before the court. It is
German law. This literally translates
possible for the court to find that the
6 BGH 17.7.2013 - VIII ZR 163/12. NJW-RR 2013 lass
7 BGH 4.7.2002 - I ZR 313/99, NJW 2002 3M1 ”
• BGH 8.11.1994 - X ZR 104/91, NJW-RR 1995' 564
524
M. Oehni
Defence of uncertainty 1-3 § 321
defence was raised impliedly through context.9 The procedural effect of a successful defence
under § 320 is a judgment ordering concurrent performance (§ 322). The obligor bears the
burden of proof that a reciprocal contract exists and that his claim satisfies the requirement
of mutuality. The obligee must then evidence that he has either already performed the
contract or that the obligor has an obligation to perform in advance.
§321
Defence of uncertainty
(1) 1A person who is obliged to perform in
advance under a reciprocal contract may re¬
fuse to render his performance if» after the
contract is entered into» it becomes apparent
that his entitlement to consideration is jeo¬
pardised by the inability to perform of the
other party. 2The right to refuse performance
is not applicable if consideration is rendered
or security is given for it.
(2) 'The person required to perform in
advance may specify a reasonable period in
which the other party must» at his choice,
render consideration or provide security reci¬
procally and simultaneously against perfor¬
mance. 2If the period ends without result,
the person required to perform in advance
may revoke the contract. '§ 323 applies with
the necessary modifications.
§321
Unsicherheitseinrede
(1) 'Wer aus einem gegenseitigen Vertrag
vorzuleisten verpflichtet ist, kann die ihm
obliegende Leistung verweigern, wenn nach
Abschluss des Vertrags erkennbar wird, dass
sein Anspruch auf die Gegenleistung durch
mangelnde Leistungsfähigkeit des anderen
Teils gefährdet wird. 2Das Leistungsverweige¬
rungsrecht entfällt, wenn die Gegenleistung
bewirkt oder Sicherheit für sie geleistet wird.
(2) ’Der Vorleistungspflichtige kann eine
angemessene Frist bestimmen, in welcher der
andere Teil Zug um Zug gegen die Leistung
nach seiner Wahl die Gegenleistung zu bewir¬
ken oder Sicherheit zu leisten hat. 2Nach
erfolglosem Ablauf der Frist kann der Vor¬
leistungspflichtige vom Vertrag zurücktreten.
3§ 323 findet entsprechende Anwendung.
A. Function
I. Purpose
§ 321 gives a person obliged to perform in advance a right to withhold performance. The 1
right exists if the claim for consideration is jeopardised. However» this must only have
become apparent after conclusion of the contract as a party that agrees to perform in advance
generally accepts the risks of non-performance of his contractual partner. It is not possible to
derive a general principle from § 321. Rather, § 321 is a specific provision which can only be
applied if its requirements are met.
II. Scope of application
Parties are free to exclude the application of § 321 via individually agreed terms. An exclu- 2
sion of § 321 in standard business terms is not possible (§§ 307(2) No. 1, 309 No. 2a).
B. Context
In terms of the historical and systematic context, § 321 is a specific form of § 313 and its 3
principle of interference with the basis of the transaction. It is based on the Roman law
principle clausula rebus sic stantibus. The positioning of §321 immediately following the
defence of unperformed contracts under §§ 320 makes clear that § 321 should always been
seen in context with § 320, e.g. § 321 also requires the existence of a reciprocal contract.
9 BGH 7.10.1998 - VIII ZR 100/97, NJW 1999, 53.
M. Oehm
525
§321 4-8
Division 3. Contractual obligations
C. Explanation
I. Reciprocal contract
4 The defence of uncertainty under § 321 applies to a reciprocal contract in which one party
agreed to perform in advance (Sub. 1 1st St.). A reciprocal contract requires a relation of
dependence between the duties to perform of both parties. The obligation of performance in
advance must be validly agreed upon between the parties. Alternatively, it can be ordered by
statute, e.g. § 556b (for rent) or § 614 (for the person who promises a service). Performance
in advance means that one party is required to render its performance under the contract
first (i.e. before receiving the consideration).
II. Inability to perform
5 Sub. 1 requires that the entitlement to consideration is jeopardised by the inability to
perform of the other party. This is the case if there is a risk that the other party will not be
able to render performance. It is also the case if the other party would render a performance
which substantially deviates from the agreed upon quality. Sub. 1 requires that this risk
actually exists. It is not enough if -be party obligated to perform in advance has reasons to
believe that a risk of non-performance exists: the risk must exist and be real. If the party
obligated to perform in advance wrongfully relies upon Sub. 1 and refuses performance (Le.
because a risk of non-performance did actually not exist), the part}’ itself violates its
contractual duties and could face damage claims (cf. 280. 286). However, it is sufficient
if the risk is temporary, it does not need to be permanent.1 2 Possible risks are material
deteriorations of the financial situation of the other part)’ as well as any other hindrance to
performance, e. g. export embargos.
6 The risk of the inability to perform must become apparent after the contract is entered
into. The important criterion here is becoming apparent. This means that the underiving
circumstances that create the risk can already exist when the contract is concluded. It suffices
if the party relying upon § 321 was unaware of these circumstances. § 321 is even satisfied if
the party erred about them without its fault. In order to determine if the risk was apparent at
the time of contract conclusion, the position of a neutral third partv in the shoes of the
person obliged to perform in advance is relevant.
III. Consideration
7 Sub. 1 2nd St. stipulates that § 320(1) P' St. is not applicable if consideration [Gel¬
tung, better translated as counter-performance) is rendered or securin’ is given tor it
Consideration in the meaning of Sub. 1 2'"1 St. is rendered once the other pirn (i.e. the
party receiving the advance performance) has fully performed. The mere otter to perform is
insufficient and does not exclude § 321.
8
IV. Consequences
Sub. 1 grants the party obliged to pertorn, In adeanee righ, mthMJ ,ts r„fen„«.
i.e the party is no longer oH.grf to perlorn, in advance but can now request
ot:=z^
abeody exdudes a deh.y ot pern an«. Sub. 2 ““"Si^Z«" »
1 BGH 11.12.2009 - V ZR 217/08, N|W 2010, 127’
2 BGH 11.12.2009 - V ZR 217/08, N|W 2Olo’ 127?'
526
M. Oehtn
Order to perform reciprocally and simultaneously 1-3 § 322
advance a revocation right under § 323 and serves to prevent uncertainty once the party has
invoked Sub. 1. The party can specify a reasonable period for performance and after the
period has lapsed, he can revoke the contract.
V. Procedural aspects
§ 321 must be invoked betöre court, at least implicitly. The party relying on § 321 must 9
prove that the requirements of Sub. 1 1st St. arc met.
§322
Order to perform reciprocally and
simultaneously
(1) If a party brings an action for perfor-
mance due to him on the basis of a reciprocal
contract, the assertion by the other party of
his right to refuse performance until consid¬
eration is rendered merely has the effect that
the latter party is to be ordered to perform
reciprocally and simultaneously.
(2) If the party bringing the action must
perform in advance, then, if the other party is
in default of acceptance, he may bring an
action for performance after receiving con¬
sideration.
(3) The provision in § 274(2) applies to the
execution of judgment.
§322
Verurteilung zur Leistung
Zug-um-Zug
(1) Erhebt aus einem gegenseitigen Vertrag
der eine Teil Klage auf die ihm geschuldete
Leistung, so hat die Geltendmachung des dem
anderen Teil zustehenden Rechts, die Leistung
bis zur Bewirkung der Gegenleistung zu ver¬
weigern, nur die Wirkung, dass der andere Teil
zur Erfüllung Zug um Zug zu verurteilen ist.
(2) Hat der klagende Teil vorzuleisten, so
kann er, wenn der andere Teil im Verzug der
Annahme ist, auf Leistung nach Empfang der
Gegenleistung klagen.
(3) Auf die Zwangsvollstreckung findet die
Vorschrift des § 274 Abs. 2 Anwendung.
A. Function
I. Purpose
$ 322 is concerned with procedural aspects of the defence of unperformed contract under 1
§ 320. The function of § 322 is in essence the same as under § 274 (such as for § 320 and
§ 273). § 322 serves to avoid the dismissal by the court of claims as (currently) unfounded
whenever the defence under § 320 is invoked but the court can rather order both parties to
perform reciprocally and simultaneously (i.e. concurrent performance).
II. Scope of application
§ 322 applies in cases where the defence under § 320 or § 321 is invoked. The defence of 2
uncertainty also gives a right to refuse performance until consideration is rendered in the
meaning of § 322.
B. Explanation
I. Order
Sub. 1 stipulates that if a party being sued for performance invokes a defence under § 320 3
or § 321, the court may order this party to perform reciprocally and simultaneously. Most
importantly, the court will not consider either defence ex officio, but rather both defences
must be invoked by the parties. It suffices if the defences were invoked out of court.
M. Oehm
527
§323
Division 3. Contractual obligations
IL Alteration
4 The order for concurrent performance generally falls short of what a party seeks to claim.
§ 322 therefore requires a party to alter its claim if the other party invokes § 320 or § 321 (Le
now requesting to order the other party to perform reciprocally and simultaneously). If tfoe
party fails to alter its claim, the court will still only order concurrent performance, but at the
same time the court will dismiss the claim (i.e. regarding the claimed unconditional
performance).1 This is usually accompanied by the order to pay part of the procedural costs.
III. Advance performance
5 Three different scenarios must be distinguished if the parties agreed that one party has to
perform in advance. First, if the defendant agreed to perform in advance, the court can
simply order performance. No specific issues must be taken into account here. Second, if the
plaintiff agreed to perform in advance (and has not done so), the court will dismiss the claim
because it is not yet due.2 Thirdly, if the plaintiff agreed to perform in advance, but the
defendant is in default of acceptance, the plaintiff may bring an action for performance alter
receiving consideration under Sub. 2.
IV. Execution of judgments
6 Sub. 3 refers to § 274(2) with regard to the execution of a judgment On the basis of an
order for concurrent performance the obligee may thus pursue his claim by way of execution,
without effecting the performance he owes, if the obligor is in default of acceptance.
§323
Revocation for nonperformance or
for performance not in conformity
with the contract
(1) If, in the case of a reciprocal contract,
the obligor does not render an act of perfor¬
mance which is due, or does not render it in
conformity with the contract, then the obli¬
gee may revoke the contract, if he has speci¬
fied, without result, an additional period for
performance or cure.
(2) The specification of a period of time
can be dispensed with if
1. the obligor seriously and definitively re¬
fuses performance,
2. the obligor does not render performance
by a date specified in the contract or within a
period specified in the contract, in spite of
the fact that, according to a notice given by
the obligee to the obligor prior to conclusion
of the contract or based on other circum¬
stances attending at the time of its conclu¬
sion, the performance as per the date speci¬
fied or within the period specified is of
essential importance to the obligee, or
§323
Rücktritt wegen nicht oder nicht
vertragsgemäß erbrachter Leistung
(1) Erbringt bei einem gegenseitigen \ er¬
trag der Schuldner eine fällige Leistung nicht
oder nicht vertragsgemäß, so kann der Gläu¬
biger, wenn er dem Schuldner erfolglos eine
angemessene Frist zur Leistung oder Nach¬
erfüllung bestimmt hat, vom Vertrag zurück¬
treten.
(2) Die Fristsetzung ist entbehrlich, wenn
1. der Schuldner die Leistung ernsthaft und
endgültig verweigert,
2. der Schuldner die Leistung bis zu einem
im Vertrag bestimmten Termin oder *nnC5"
halb einer im Vertrag bestimmten Frist ni
bewirkt, obwohl die termin- oder fri^
gerechte Leistung nach einer Mitteilung *
Gläubigers an den Schuldner vor \ ertrag*
Schluss oder auf Grund anderer den vfrtr^
abschluss begleitenden Umstände ftif
Gläubiger wesentlich ist, oder
1 BGH 19.12.1991 - IX ZR 96/91, NJW 1992. 1172.
2 BGH 4.6.1973 - VII ZR 112/71, NJW 1973, 1792.
528
M. Oehm
Revocation for non- or non-conforming performance
3. in the case of work not having been
carried out in accordance with the contract,
special circumstances exist which, when the
interests of both parties are weighed, justify
immediate revocation.
(3) If the nature of the breach of duty is
such that setting a period of time is out of the
question, a warning notice is given instead.
(4) The obligee may revoke the contract
before performance is due if it is obvious
that the requirements for revocation will be
met.
(5) ’If the obligor has performed in part,
the obligee may revoke the whole contract
only if he has no interest in part perfor¬
mance. 2If the obligor has not performed in
conformity with the contract, the obligee may
not revoke the contract if the breach of duty
is trivial.
(6) Revocation is excluded if the obligee is
solely or very predominantly responsible for
the circumstance that would entitle him to
revoke the contract or if the circumstance for
which the obligor is not responsible occurs at
a time when the obligee is in default of
acceptance.
1 §323
3. im Falle einer nicht vertragsgemäß er¬
brachten Leistung besondere Umstände vor¬
liegen, die unter Abwägung der beiderseitigen
Interessen den sofortigen Rücktritt rechtfer¬
tigen.
(3) Kommt nach der Art der Pflichtverlet¬
zung eine Fristsetzung nicht in Betracht, so
tritt an deren Stelle eine Abmahnung.
(4) Der Gläubiger kann bereits vor dem
Eintritt der Fälligkeit der Leistung zurücktre¬
ten, wenn offensichtlich ist, dass die Voraus¬
setzungen des Rücktritts eintreten werden.
(5) ’Hat der Schuldner eine Teilleistung
bewirkt, so kann der Gläubiger vom ganzen
Vertrag nur zurücktreten, wenn er an der
Teilleistung kein Interesse hat. 2Hat der
Schuldner die Leistung nicht vertragsgemäß
bewirkt, so kann der Gläubiger vom Vertrag
nicht zurücktreten, wenn die Pflichtverlet¬
zung unerheblich ist.
(6) Der Rücktritt ist ausgeschlossen, wenn
der Gläubiger für den Umstand, der ihn zum
Rücktritt berechtigen würde, allein oder weit
überwiegend verantwortlich ist oder wenn der
vom Schuldner nicht zu vertretende Umstand
zu einer Zeil eintritt, zu welcher der Gläubi¬
ger im Verzug der Annahme ist.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Breach 4
II. Additional period of time 5
1. Consequences 6
2. Specification of a period of time dispensable 7
a) Refusal to perform 7
b) Fixed date for performance 8
c) Immediate revocation 9
d) Additional period 10
3. Warning notice 11
4. Anticipatory breach 12
5. Performance in part 13
6. Performance not in conformity with the contract 14
7. Solely or very predominantly responsible 15
8. Default in acceptance 16
A. Function
I. Purpose
§ 323 is the central provision governing the revocation for non-performance as well as for 1
performance not in conformity with the contract. Other provisions refer to § 323 in this
M. Oehm
529
the contract and failed to cure his breach durin?
o
if the obligor
§ 323 2-4 Division 3. Contractual obligations
respect (e.g. §§ 437, 536). § 323 serves on one hand to grant the obligee a contractual
revocation right. This revocation right exists regardless of the requirement of fault. On the
other hand, the generally required specification of an additional period of time is meant to
protect the obligor’s right to cure. The obligee shall only have the right to revoke the contract
failed to perform as agreed in
an additional period of time.
IL Scope of application
2 The rule in § 323 applies to all reciprocal contracts. This includes preliminary contracts as
well as inheritance contracts.1 However, more specific rules for the individual contract types
often take precedence over the general rule in § 323, e.g. §§ 437 No. 2, 440 regarding
purchase contracts or §§ 536 et seq. for lease agreements. Other exceptions are continuing
obligations which have already been implemented between the parties. Instead of revocation
(with the consequences of §§ 346 et seq.), parties can terminate such contracts for a
compelling reason under § 314. The application of § 323 can generally be excluded; the
only mandatory exception to this rule exists for the purchase of consumer goods in § 475. In
any other case, parties are free to agree on contractual revocation rights as they see fit Where
such a contractual agreement exists, the requirements for revocation come from the contract
itself.2 For example, parties are free to waive the requirement of an additional period of time.
However, the exclusion of § 323 in standard business terms is only possible in the (narrow)
limits provided by § 307(2) No. 1, §§ 308 Nos 3 and 7 as well as §§ 309 Nos 4 and 8.
B. Context
3 § 323 in part is based on European law as it serves to implement the EU Consumer Sales
Directive and was introduced as part of the 2002 modernisation of the law of obligations.
This European basis has to be taken into account when applying § 323. The provision
mirrors § 281, which deals with damages, with one difference: § 323 does not contain the
requirement of fault which is an important requirement under § 281. Moreover, if the
requirements of § 323 are met, § 286 (damage for default of the obligor) will also be fultilled.
Furthermore, § 323 is the general statute governing the revocation for non-performance or
non-conforming performance. In contrast, § 324 only applies if the obligor breaches a dutv
under § 241(2), i.e. a non-performance-related collateral obligation. The obligee in this case
can only revoke the contract if he can no longer reasonably be expected to uphold the
contract. § 326(5) makes clear that the obligee has the right to revoke the contract it the
obligor does not have to perform under § 275. While the rule in § 326(5) makes sense in
order to stress the importance of this right, systematically it is not necessary'. A similar right
already exists under § 323(2) No. 3.
C. Explanation
I. Breach
4 The right to revoke the contract first requires a breach of a reciprocal contrad-
Specifically, the obligor either does not render an act of performance which is due or d^>
not render it in conformity with the contract. This covers primary’ as well as colL*u'ra
performance-related duties. Only duties under § 241(2) and the requirements of impossibu^
under § 275 are covered by § 324 and § 326(5) respectively. Moreover, the duty breached '
' BGH 5.10.2010 - IV ZR 30/10, N|W 2011, 224.
2 BGH 4.12.1981 - V ZR 241/80, NJW 1982, 1036.
530
A4. Ochni
Revocation for non- or non-conforming performance 5-8 § 323
the obligor must have been due (§ 271). Non-performance in the meaning of Sub. 1 exists if
the obligor fails to render a possible and due performance. In contrast, non-conforming-
performance exists if the obligor performs poorly, i.e. not in conformity with the contract.
This includes his primary obligations as well as his collateral performance-related obligations
under the contract.
II. Additional period of time
Moreover, the obligee must have specified an additional period of time for performance or 5
cure. This period of time must have lapsed without any result, i.e. without (conforming)
performance. The setting of this additional period of time requires a clear and definite
request for performance,3 which usually also satisfies the requirements for a warning notice
under § 286(1), which puts the obligor in default. There are no other specific requirements
for the setting of the additional period of time. It is only necessary that the obligor
understands that there is a chance that the contract is revoked after the additional time has
lapsed. The additional period can only be set once the performance is due. An additional
period of time will be invalid if it is set for a performance which was not due. Most
importantly, the additional period of time must be reasonable. Reasonableness is to be
determined for each specific case individually based on the interests of both parties. The
period, on the one hand, must be long enough in order for the obligor to have a reasonable
chance to perform (assuming that he already started and finished performance). On the other
hand, the period must be short enough so that the obligee does not have to wait again over
the entire original performance period. In particular, if the payment of money is owed, the
additional period can generally be short because the obligor may not excuse himself on
account of his own financial difficulties.4 In practice, the uncertainty if a specified period of
time is reasonable or not is cushioned by the fact that the setting of an unreasonably short
period automatically sets a reasonable time. The following example illustrates this mechan¬
ism: if the obligee sets an additional period of time of one week in a case where two weeks
would have been reasonable and, instead of revoking the contract immediately after one
week, the obligee simply waits another week (but without specifying a further time for
performance), the revocation of the contract after two weeks would be valid.
1. Consequences
The requirements are set out in Sub. 1. If these requirements are met, the obligee has the 6
right to revoke the contract. The effects of the revocation are governed by §§ 346 et seq. The
obligee can still revoke the contract even though he continued to demand performance when
§ 323 was already fulfilled.5 6 Procedurally, the obligee has to prove that he declared the
revocation of the contract and that he had a right to do so.
2. Specification of a period of time dispensable
Sub. 2 stipules three cases under which the specification of a period of time can be 7
dispensed.
a) Refusal to perform. Sub. 2 No. 1 declares a specification of a period of time dispensable 8
if the obligor seriously and definitively refuses performance. The same requirement exists
under §281(2) and § 286(2) No. 3. The obligor must have refused performance after
performance was due. The threshold to assume such a performance refusal is high? The
obligor must have made clear that he knows his obligation to perform but still refuses to
3 BGH 5.10.2010 - IV ZR 30/10, NJW 2011, 224.
4 BGH 31.10.1984 - VIII ZR 226/83, NJW 1985, 320.
s BGH 20.1.2006 - V ZR 124/05, NJW 2006, 1198.
6 BGH 1.7.2015 - VIII ZR 226/14, NJW 2015, 3455.
M. Oehm
531
§ 323 8-9 Division 3. Contractual obligations
i c rho rpfiK-J must be his last word.7 It must be a situation in which there
render performance. render formance despite the specif
dearlv seems to be no chance tnai me uungw * .r,« ..
tion Jr an additional period of time. For example, this is not the case if the parties argue over
the content of the contract or if the obligor voiced his doubts about the^ahdity of the
contract. In addition, it will not be sufficient if the obligor declares that he is unsure if hew®
be able to perform during the additional period of time.8 A refusal of Performance under
Sub. 2 No. 1 rather exists if the obligor terminates the contract even though the obligee
always demonstrated contract compliance,9 10 or if the obligor tries to renegotiate the terms of
the contract while at the same time refusing to perform the contract as agreed. No. 1 is also
fulfilled if it is certain that the obligor will not perform during a reasonable period of time.11
8 b) Fixed date for performance. Sub. 2 No. 2 declares a specification of a period of time
dispensable if the parties agreed in the contract that performance had to be rendered by a
fixed date or within a fixed period (a so-called Fixgeschäft). In such a case where the parties
had already discussed and stressed the importance of timely performance before concluding
the contract, the obligee must not specify another period of time for performance. No. 2 in
essence has three requirements. First, the parties must have specified a date or a period of
time for performance in the contract. Second, the performance as per the date specified or
within the period specified must be of essential importance to the obligee. This requirement
of essential importance is fulfilled if the contract stands and falls with the timely perfor¬
mance.12 This is the case under just-in-time deliver)' contracts. 7bird, the obligee must have
informed the obligor about the essential importance of timely performance before conclusion
of the contract. This can be an express notice given by the obligee or any other surrounding
circumstances at the time of contract conclusion. The reason for this requirement is that the
obligee shall only be allowed to revoke the contract without specifying an additional period of
time for performance if the obligee told (or otherwise made clear to) the obligor before
concluding the contract that timely performance is essential to him. Sub. 2 No. 2 only covers
the so-called relatives Fixgeschäft, which must be distinguished from the absolutes Fix¬
geschäft. In the latter case, the obligee’s interest in the performance completely ceases if the
performance is not rendered on the specified date. The standard example is the delivery of a
wedding cake which is obviously useless after the wedding. The absolute Fixgeschäft does not
fall under Sub. 2 No. 2, but rather § 275 and § 326(1).
9
c) Immediate revocation. Sub. 2 No. 3 declares a specification of a period of tune
dispensable if special circumstances exist which justify immediate revocation of the contract.
No. 3 is a general provision which can be applied to all cases not covered under either No. 1
or No. 2. It requires that special circumstances exist which, when the interests of both parties
are weighed, justify immediate revocation. This provision is meant to give the courts
sufficient discretion to make a fair and reasonable decision in each individual case. Special
circumstances may be breaches of duties by the obligor which severelv harm the obligee's
trust. There is ample case law on this issue due to its application on a case-bv-case basis.
Accordingly, it is not possible to give an abstract answer when the requirements are met.
However, gmdance .s prov.ded by several examples: the purchaser of a new car discoversthat
the sei er replaced certain new parts with used parts before delivering the car1-’ the obligor
fraudulently concealed a defect;'9 a complete loss of interest, e.g. because the customer oi the
7 BGH 18.9.1985 - VIII ZR 249/84, NJW 1986 661
" BGH 30.10.1991 - VIII ZR 9/91, NJW 199’ ’35 ’
’ BGH 11.1.1984 - VIII ZR 255/82. NJW 1984‘io’’8
10 BGH 18.12.1985 - Vlll ZR 47/85. NJW 1986. 842'
11 BGH 14.6.2012 - VII ZR 148/10, NJW 2012 3714
12 BGH 18.4.1989 - X ZR 85/88. NJW-RR 1989’ 1375
n BGH 19.10.1977 - VIII ZR 42/76, NJW 197s’ 26o"
19 BGH 9.1.2008 - Vlll ZR 210/06, NJW 2008 \ 371
532
M Ochm
Revocation for non- or non-conforming performance 10-14 § 323
obligee refuses to accept the performance because of the delay in performance for which the
obligor is responsible.15
d) Additional period. Furthermore, Sub. 2 can also be applied if the obligee first specifies 10
an additional period of time and only after the requirements of Sub. 2 are met. In this case,
the obligee must not wait until the specified period lapses. However, if the requirements of
Sub. 2 are met and the obligee still specifies an additional period of time for performance, the
obligee has to wait until the end of the additional period before he can revoke the contract.
Special provisions declaring a specification of a period of time dispensable exist under § 440
(purchase agreements) and § 636 (contracts to produce a work).
3. Warning notice
Sub. 3 stipulates that if the nature of the breach of duty is such that setting a period of time 11
is out of the question, a warning notice is given instead. This is the case if the obligor is
contractually obliged to refrain from certain actions rather than to perform (Unterlassungs¬
pflicht). Here, the obligee must send a warning notice to the obligor requesting that the
obligor ceases his actions.
4. Anticipatory breach
The obligor may also revoke the contract before performance is due under Sub. 4 if it is 12
obvious that the requirements for revocation will be met.16 This is particularly meant to cover
cases where the obligor seriously and definitively refuses performance already before
performance is due. Sub. 4 is copied from Art. 72 CISG.
5. Performance in part
Sub. 5 1st St. stipulates that if the obligor has performed in part, the obligee may revoke the 13
whole contract only if he has no interest in part performance. The provision thus limits the
obligee's revocation right. The obligee receiving part performance must show that he has no
interest in this part performance in order to revoke the whole contract. Part performance is
any performance that is incomplete compared to the contractually-agreed performance. The
part performance must have been rendered. This is not the case if the obligee rejected the
part performance under § 266. Hence, Sub. 1 applies. Moreover, the obligee must have no
interest in the partial performance. This is the case if the partial performance is useless for
the obligee. For example: the purchaser buys a new smartphone that is supplied with a special
charger. If the seller now delivers the smartphone but is unable to deliver the charger, the
purchaser may revoke the entire contract because he has no interest in partial performance
(i.e. a smartphone without a charger is useless to him). On the contrary, if the purchases
buys three smartphones for his family but the seller only delivers two (including the
chargers), the purchaser can still use the two smartphones. The requirements of Sub. 1 1st
are therefore not met.
6. Performance not in conformity with the contract
Sub. 5 2nd St. stipulates that if the obligor has not performed in conformity with the 14
contract, the obligee may revoke the contract only if the obligor’s breach of duty is not
trivial. The non-conforming performance is trivial if it does not materially violate the
obligee’s performance interest. This must be determined by considering all interests in¬
volved.17 An important factor is the extent of the performance owed under the contract.
15 BGH 10.3.1998 - X ZR 7/96, NJW-RR 1998, 1489.
16 BGH 14.6.2012 - VII ZR 148/10, NJW 2012, 3714.
17 BGH 6.2.2013 - VIII ZR 374/11, NJW 2013, 1365; BGH 28.5.2014 - VIII ZR 94/13. NJW 2014, 3229.
M. Ochm
533
§ 324 1 Division 3. Contractual obligations
Generally, the costs for cure must be compared to the remuneration under the contract.'»
The non-conforming performance is no longer trivial if t e costs or cure are at least
5 percent of the remuneration.19 The case law on this issue is extensive. For example, if the
fuel consumption of a new car exceeds the manufacturer s speci ication y more than
10 percent, the non-conformity is no longer trivial.20 The same is true for the delivery of
computer hard- and software without a manual.21 However, at least for standard hard- or
software it can be questioned if in 2018 the courts would still find the delivery without a
manual to be ‘non-trivial’.
7. Solely or very predominantly responsible
15 The revocation is excluded under Sub. 6 if the obligee is solely or very predominantly
responsible for the circumstance that would entitle him to revoke the contract The
requirement very predominantly responsible is met if under the contributory negligence
provision in § 254 one finds that the obligee is close to solely responsible. This threshold is
high (at least 80-90 percent). For example, if the reason for a non-performance is that the
obligee has not provided the obligor with necessary information, the obligee is not solely or
at least very predominantly responsible and he cannot revoke the contract The obligee
himself must comply with the contract if he wants to revoke the contract If the obligee
breaches the contract, his revocation is excluded either under Sub. 6 or under § 242.
8. Default in acceptance
16 The same is true under Sub. 6 if the circumstance for which the obligor is not responsible
occurs at a time when the obligee is in default of acceptance (§ 293). Sub. 6 clearlv states that
the obligor must not be responsible for the circumstances that would entitle the obligee to
revoke the contract. In this regard, § 300 must be taken into account according to which the
obligor is only responsible for intent and gross negligence during the period of the default of
the obligee.
§324
Revocation for breach of a duty
under § 241(2)
If the obligor, in the case of a reciprocal
contract, breaches a duty under § 241(2), the
obligee may revoke the contract if he can no
longer reasonably be expected to uphold the
contract.
§324
Rücktritt wegen Verletzung einer
Pflicht nach § 241 Abs. 2
Verletzt der Schuldner bei einem gegensei“
tigen Vertrag eine Pflicht nach § 241 Abs. 2.
so kann der Gläubiger zurücktreten, wenn
ihm ein Festhalten am Vertrag nicht mehr
zuzumuten ist.
A. Function
1
§ 324 grants the obligee a revocation richt if Aki; > -.
a non-performance-related collateral obligation. This k'lhe^if V^h's hb
duty and with the breach violates the rights, legal in e ess . i k k
§ 324 complements § 282 which gives such obheee th d °'her ‘ntereStS the ^f
performance in case of a breach of 8 W?) x i->4 i “gh‘ ‘° den,and da,ua?es ,n l,eu ‘
s 4 aPPhcs only in a reciprocal contract.’
" BGH 29.6.2011 - VIII ZR 202/10, NJW 2011 287> ”
19 BGH 28.5.2014 - VIII ZR 94/13, NIW 2014
20 BGH 8.5.2007 - VHI ZR 19/05, NJW 2007 H '
21 BGH 4.11.1992 - VIII ZR 165/91, NJW 1993, 461.
1 See above, § 320.
534
M. Oehm
Damages and revocation
§325
B. Explanation
L Distinction between § 324 and § 323
A clear distinction between § 324 and § 323 can sometimes be difficult because both 2
provisions stipulate the same legal consequence, i.e. a revocation right. The provision is
determined on the basis ot the nature of the breached obligation breached. § 323 applies if
the obligor breaches a performance-related (collateral) obligation. Such performance-related
(collateral) obligations are all obligations for which the obligee has a positive performance
interest, i.e. all obligations that the obligee positively wants performed under the contract. In
contrast, § 324 applies it the obligor breaches a non-performance-related collateral obliga¬
tion. These are protective duties (Schlitzpflichten) for which the obligee has a mere interest
that they are not breached, i.e. the obligee does (generally) not positively expect the obligor
to do something but rather to refrain from harming the obligee in any way.
II. Breach of § 241(2)
The obligor must breach a duty under § 241(2). This covers all rights, legal interests and 3
other interests of the obligee. For example, a breach of a duty under § 241(2) exists if the
obligor violates the property of the obligee or harms his physical health. The defamation of
the obligee can also constitute a breach of a duty under § 241(2).
III. Unreasonableness
It must be unreasonable for the obligee to uphold the contract. This applies if the basis of 4
trust between the parties has been severely impaired due to the obligor’s breach. It is unclear
whether the obligee has to first give the obligor a warning notice.2 The better approach is that
a warning notice is not required under § 324 because the wording does not stipulate this
requirement. Moreover, the purpose of § 324 is that the obligee can revoke the contract if the
trust between the parties has been severely impaired. This can often already be the case
because of the first breach of a duty under § 241(2) by the obligor. It would then defeat the
purpose of § 324 if the obligee would have to send a warning notice and wait for a further
violation of his rights by the obligor before he can revoke the contract.
IV. Legal consequence
The legal consequence of § 324 is a right to revoke the contract. While § 324 itself does 5
not stipulate a time limit for the obligee to revoke the contract, a delayed revocation based
on § 324 can be void because of the general principles in § 314(3) or § 242. In particular,
the general principle of § 314(3) makes clear that the obligee has to revoke the contract
within a reasonable period after obtaining knowledge of the breach of his rights by the
obligor.
§325
Damages and revocation
The right to demand damages in the case
of a reciprocal contract is not excluded by
revocation.
§325
Schadensersatz und Rücktritt
Das Recht, bei einem gegenseitigen Vertrag
Schadensersatz zu verlangen, wird durch den
Rücktritt nicht ausgeschlossen.
2 It is sometimes assumed that a warning notice is required so that the obligee can no longer reasonably
be expected to uphold the contract, cf. Palandt BGB/Grüneberg, § 324 Bl iß inn. 4.
M. Ochm
535
§ 325 1-5
Division 3. Contractual obligations
A. Function
I. Purpose
§ 325 clarifies that the revocation of a contract does not exclude damages.' The obligee can
revoke the contract and at the same time claim lost profit as damages^§325>(as well as § 323 and
§ 324) complement the provisions on damages m § 281 and § 282. While the claim for damages
does not change the exchange relationship on which the parties agreed in their contract (re. the
damages under § 281 and § 282 are in lieu of performance), the revocation of the contract
prevents the contractual performances from being exchanged or leads to their restitution.
II. Scope of application
2 § 325 applies to reciprocal contracts.1 2 In particular, the following damage claims can be
invoked parallel to a revocation: (i) damages in lieu of performance for non-performance
(§281); (ii) damages in lieu of performance for breach of a duty under §241(2); (iii)
damages in lieu of performance where the duty of performance is excluded; (iv) damages in
lieu of performance under § 31 la(2); (v) damages for default of the obligor (§ 286); (vi) any
other collateral damages under § 280. Furthermore, the revocation does not exclude a claim
for reimbursement of futile expenses (§ 284).-’
B. Context
3 The right to demand damages and revoke the contract at the same time only exists under
German law since 2002. § 325 was introduced as part of the modernisation of the law of
obligations. Until 2002, parties had to choose between damages or revocation. § 325 explicitly
changed the law in this regard. Accordingly, parties must be careful if they’ seek to rely on
pre-2002 case law regarding the relationship between damages and revocation.
C. Explanation
I. Approaches
4 § 325 allows the obligee to react to the contractual breach of the obligor in different wavs.
First, the obligee can revoke the contract and demand restitution of its own performance.
Second, if the obligee has not yet rendered performance, the obligee can withhold its
performance. Third, if the obligee is interested in performing himself, the obligee can render
performance and claim damages from the obligor in lieu of performance under §§ 281 et seq-
5
II. Effects
The effects of the contract revocation must be considered when calculating the claim tor
damages. Generally the obligee must deduct from his claim for damages against the obligor
any advantages he has because ot the revocation. The reason for this is the general pnnc.ple
under German law on damages that the infrineinc n«irtv 4 n j but
the injured party shall not nuke a profit. TTte XgVSltÄ *
a consequence, alter declaration of the revocation, the obligee can onlJcikdite Ids damage
by way of balancmg his position without the performance with his performance
1 BGH 14.4.2010 - VIII ZR 145/09, NJW 2010, 2426?
2 See above, § 320.
1 BGH 15.4.2015 - VIII ZR 80/14, NJW 2015 16M nru , , , . ,<.s
’ BGH 2 7 ,005 _ vin zr w NJW ,iX^
536
M. Oehm
Release from consideration and revocation 9
Other possible methods of calculating damages under German law may not be applied in this
context. In case of a partial performance, the obligee may therefore only revoke the contract,
restore the partial performance and claim damages in lieu of the complete performance
under § 281(1) 2nd St. (so-called großer Schadensersatz4 5).
III. Binding declaration of revocation
The obligee is bound by his declaration of revocation. The obligee cannot therefore 6
unilaterally change his position, e.g. by insisting on retaining a partial performance and
claiming damages only for the unperformed part (so-called kleiner Schadensersatz^). Once
the contract is revoked, the performances have to be restored to the other party. In other
words: once the obligee has made his choice regarding damages and/or revocation, he is
bound by it. However, it should be noted that while this is the prevailing view amongst courts
and scholars, there is a minority view that allows the obligee to change his position.6
§326
Release from consideration and
revocation where the duty of
performance is excluded
(1) ’If, under § 275(1) to (3), the obligor is
not obliged to perform, there is no entitlement
to consideration; in the case of part perfor¬
mance, §441(3) applies with the necessary
modifications. Sentence 1 does not apply if
the obligor, in the case of failure to perform in
conformity with the contract, does not, under
§ 275(1) to (3), have to effect cure.
(2) Hf the obligee is solely or very predo¬
minantly responsible for the circumstance
due to which the obligor does not, under
§ 275(1) to (3), have to effect a cure, or if
this circumstance for which the obligor is not
responsible occurs at a time when the obligee
is in default of acceptance, the obligor retains
the entitlement to consideration. 2However,
he must allow to be credited against him what
he saves due to release from performance or
acquires or wilfully fails to acquire from
other use of his labour.
(3) ’If the obligee demands, under § 285,
return of reimbursement obtained for the
object owed or assignment of the claim to
reimbursement, he remains obliged to render
consideration. 2However, the latter is reduced
under § 441(3) to the extent that the value of
the reimbursement or of the claim to reim¬
bursement falls short of the value of the
performance owed.
(4) To the extent that the consideration
that is not owed under this provision is
§326
Befreiung von der Gegenleistung
und Rücktritt beim Ausschluss der
Leistungspflicht
(1) ’Braucht der Schuldner nach § 275
Abs. 1 bis 3 nicht zu leisten, entfallt der
Anspruch auf die Gegenleistung; bei einer
Teilleistung findet §441 Abs. 3 entspre¬
chende Anwendung. 2Satz 1 gilt nicht, wenn
der Schuldner »m Falle der nicht vertrags¬
gemäßen Leistung die Nacherfüllung nach
§ 275 Abs. 1 bis 3 nicht zu erbringen braucht.
(2) ‘1st der Gläubiger für den Umstand, auf
Grund dessen der Schuldner nach § 275
Abs. 1 bis 3 nicht zu leisten braucht, allein
oder weit überwiegend verantwortlich oder
tritt dieser vom Schuldner nicht zu vertre¬
tende Umstand zu einer Zeit ein, zu welcher
der Gläubiger im Verzug der Annahme ist, so
behält der Schuldner den Anspruch auf die
Gegenleistung. 2Er muss sich jedoch dasjenige
anrechnen lassen, was er infolge der Befrei¬
ung von der Leistung erspart oder durch
anderweitige Verwendung seiner Arbeitskraft
erwirbt oder zu erwerben böswillig unterlässt.
(3) ’Verlangt der Gläubiger nach § 285
Herausgabe des für den geschuldeten Gegen¬
stand erlangten Ersatzes oder Abtretung des
Ersatzanspruchs, so bleibt er zur Gegenleis¬
tung verpflichtet. 2Diese mindert sich jedoch
nach Maßgabe des § 441 Abs. 3 insoweit, als
der Wert des Ersatzes oder des Ersatz¬
anspruchs hinter dem Wert der geschuldeten
Leistung zurückbleibt.
(4) Soweit die nach dieser Vorschrift nicht
geschuldete Gegenleistung bewirkt ist, kann
4 See ► § 281 mn. 15 et seq.
5 See * § 281 mn. 15 et seq.
6 cf. Gsell, Das Verhältnis von Rücktritt und Schadensersatz, JZ 2004, 648.
M. Ochm
537
Division 3. Contractual obligations
§ 326 1-2
effected, what is performed may be claimed
back under 346 to 348.
(5) If, under § 275(1) to (3), the obligor does
not have to perform, the obligee may revoke;
§ 323 applies with the necessary modifications
to the revocation, subject to the proviso that it
is not necessary to specify a period of time.
das Geleistete nach den §§ 346 bis 348 Iu-
rückgefordert werden.
(5) Braucht der Schuldner nach § 275 Abs. i
bis 3 nicht zu leisten, kann der Gläubiger
zurücktreten; auf den Rücktritt findet § 323
mit der Maßgabe entsprechende Anwendung,
dass die Fristsetzung entbehrlich ist
Contents
mn.
. r . 1
A. Function
I. Purpose
II. Scope of application
B. Context
C. Explanation
I. Sub. 1 4
1. Joint responsibility - - *
2. Partial impossibility — $
3. Quantitative impossibility z
4. Legal consequences 8
II. Sub. — 9
1. Responsibility of the obligee 10
2. Default in acceptance 11
3. Legal consequence — 12
III. Sub. 3 - - 13
IV. Sub. 4 - 14
V. Sub. 5 — 15
VI. Joint impossibility 16
A. Function
I. Purpose
1 § 326 addresses the effects of a revocation if the obligor’s duty of performance is excluded
under § 275(1 )-(3). Sub. 1 stipulates that - in general - the obligee is released from his
obligation to render consideration. Subs 2 -5 contain reservations and modifications to the
general rule in Sub. 1. § 326 serves to allocate the risk that the performance is impossible
between the parties and is consequently a central provision in the German law of obligations.
II. Scope of application
2 The application of § 326 requires a reciprocal contract. Moreover, the duty excluded under
§ 275 must be related to the performance and the duties of both parties must be placed in a
relationship of mutuality.1 2 As long as these requirements are met. it is irrelevant if the dun- is
fo.- primary or collateral performance. Parties may exclude the application of Subs 1 and 2 na
indivtdually agreed terms? Furthermore, commonly used terms defining the responsibilities
of the parties, such as the>h or ex ivorfs incoterms are generally permissible. However, the
exclusion of Sub. in standard business terms violates 307(1) No. I and is therefore
invalid. Phis statement .s only partially true for Sub. 2: although it is possible to exclude
lhC 8triC‘ seq. must nonetheless
1 See above, § 320.
2 BGH 13.1.2011 - III ZU 87/10. NJW 2011, 756
’ BGH 2.10.1981 - I ZR 201/79, NJW 1982,’ 181.
538
M. Oehm
Release from consideration and revocation
3-9 § 326
B. Context
§ 326 in part is based on European law. It serves to implement the EU Consumer Sales 3
Directive. This context must be taken into account in applying § 326.
C. Explanation
I. Sub. 1
Sub. 1 1: St. stipulates that the entitlement to consideration is excluded if the obligor is not 4
obliged to perform under § 275(1 )-(3). This effect occurs ipso iure. Viewed from the perspective
of contractual risk allocation, Sub. 1 addresses the so-called price variation risk (Preisgefahr).
Generally, the obligor bears the risk that he does not receive consideration if he fails to perform.
1. Joint responsibility
Sub. 1 1st St. requires that neither the obligee nor the obligor are solely responsible (§§ 276 5
et seq.) for the impossible performance under § 275, but share a joint responsibility. It is also
applied in case the obligor is very predominantly responsible (Sub. 2).
2. Partial impossibility
Sub. 1 applies to cases where the obligor is not (fully) obliged to perform, as well as to 6
cases where the performance is only partially impossible. A common example for the latter
case would be the apportioned contract under which certain instalments become impossible.
The obligee is only excused from paying consideration for the impossible part.
3. Quantitative impossibility
Sub. 1 2nd St. clarifies that Sub. 1 does not cover cases of quantitative impossibility. This 7
means that if the obligor fails to perform in conformity with the contract and his otherwise
necessary cure becomes impossible under § 275, the obligee nevertheless is obliged to render
consideration. This rule prevents an automatic reduction of the consideration in cases of
non-conforming performance (or poor performance). This consequence would otherwise
arise because of specific requirements for the reduction of consideration in respect of
different contract types. A reduction of consideration shall therefore only be possible if the
specific requirements are met (e.g. § 437 No. 2).
4. Legal consequences
Sub. 1 has no effect on the contractual relationship as such. Its legal consequence is rather 8
the exclusion of the obligor’s claim for consideration. If the performance becomes fully
impossible, the claim for consideration is fully excluded. If the performance becomes only
partially impossible, the claim for consideration is reduced under §441(3). The relevant
point in time to value the reduction is the conclusion of the contract.
II. Sub. 2
Sub. 2 modifies the result under Sub. 1 dramatically. The obligor retains his entitlement to 9
consideration if the reasons for the impossibility of performance are attributable to the obligee.
Accordingly, Sub. 2 shifts the price variation risk from the obligor to the obligee. If its
requirements are met, the obligor no longer bears the risk that he docs not receive considera¬
tion if he fails to perform. The obligee rather bears the risk that he must render consideration
to the obligor without receiving any performance in return. Such shift of risks is justified as (he
obligee shall not be entitled to any benefits if he is responsible for the impossible performance,
M. Oehm
539
§ 326 10-14
Division 3. Contractual obligations
1. Responsibility of the obligee
10 The obligee is solely or very predominantly responsible for the circumstances due to which
the obligor does not have to perform (1st Alt.). The requirement very predominantly
responsible is met if the obligee is (at least almost) solely responsible pursuant to § 254 on
contributory negligence. This threshold is high (at least 80-90 percent). § 326 itself does not
stipulate for which circumstances the obligee is responsible; the general principles in §§ 276
et seq. therefore apply. The obligee is responsible for his own actions, his legal representatives
and for persons whom he uses to perform his obligation (Erfüllungsgehilfe4). The obligee is
responsible for the impossibility if he breaches a contractual performance-related duty or
omits to undertake necessary acts of cooperation. The obligee is also responsible if he
commits a tort which renders the performance impossible. It is also possible that the parties
specifically allocate the performance risks in their contract.5
2. Default in acceptance
11 The obligor retains his entitlement to consideration if the circumstance for which the
obligor is not responsible occurs at a time when the obligee is in default of acceptance
pursuant to § 293 (2nd Alt.). Most importantly, the default of acceptance does not need to be
the reason for the impossibility of performance. The obligee rather already bears the risk
because of his default. However, Sub. 2 clearly states that the obiigor must not be responsible
In this respect, § 300 must be taken into account whereby the obligor is only responsible for
intent and gross negligence during the period of the default of the obligee. The obligor thus
retains his entitlement to consideration in cases of (simple) negligence.
3. Legal consequence
12 The obligor retains his entitlement to consideration if the reasons for the impossibility of
performance are attributable to the obligee. The obligor receives the consideration without
having to perform himself due to § 275. However, the obligor must allow to be credited against
him what he saves due to the release from performance or what he acquires or wilfully fails to
acquire from other use of his labour (Sub. 2 2nd St.). The term wilfully fails means that the
obligor intentionally refrains from any labour even though he sees the possibility for it0 The
term does not require an intention to harm the obligee. The obligor bears the burden of prooi
that the obligee is responsible for the impossibility.7
III. Sub. 3
13 Sub. 3 addresses the scenario in which the obligor obtained reimbursement for the impossible
performance. In this case, the obligee may demand return of the reimbursement under § 285. It
the obligee chooses the reimbursement, he remains obliged to render consideration. Such rule is
justified because the reimbursement is the (legal) equivalent of the impossible performance and
the obligee demonstrates that he values it as such by demanding the reimbursement. However, ü
the reimbursement objectively is of lesser value than the impossible performance, the considera¬
tion is reduced under § 441(3). Conversely, the consideration is not increased if the reimburse¬
ment is of greater value because the wording of Sub. 3 does not provide for this conclusion.
IV. Sub. 4
14 Sub. 4 covers the situation that the obligor has already rendered his consideration. Itthe
requirements of Sub. 1 are met, the obligor may claim back his consideration under
—■—
1 See » § 278 inn. 4.
5 BGH 18.10.2001 - III ZR 265/00. N|W 2002, 595.
* BAG 14.11.1985 - 2 AZR 98/84, NJW I9«6, 2846.
7 BGH 11.12.1991 -VIII ZR 31/91, NJW 1992,683.
540
M. Ochm
Contract for the benefit of third parties § 328
§§ 346-348. Prior to the modernisation of the law of obligations in 2002, the obligor could
only demand restitution under the more general §§ 812 et seq.
V. Sub. 5
Sub. 5 grants the obligee the right to revoke the contract if the obligor does not have to 15
perform due to impossibility (§ 275).8 In particular, because performance is impossible, the
obligee does not have to specify an additional period of time for the obligor to perform before
the obligee can revoke the contract. In case of § 275(2) or (3), the right to revoke the contract
is subject to the obligors refusal of performance.9 The revocation right exists irrespective of
any fault of the obligor. If the parties validly excluded the application of § 323, they also
renounced the revocation right under Sub. 5. The reference to § 323 with the necessary
modifications means that only Subs 5 and 6 apply because Subs 1-4 specifically refer to the
additional period of time for performance.
VI. Joint impossibility
A special case concerns ‘joint impossibility’ (beiderseits zu vertretende Unmöglichkeit). It is 16
not expressly addressed in the provision but has been subject of many court decisions and
academic discussion. Joint impossibility applies where both the obligee and the obligor are
jointly responsible for the impossible performance under § 275. The allocation of the
responsibility' between the parties is irrelevant for its application save as to the scenario that
the obligee is very’ predominantly responsible under Sub. 2. The question then is what happens
to the duties of both parties in this scenario. While multiple solutions have been proposed and
discussed amongst German scholars, the following represents the prevailing view: (i) The
obligee can claim damages in lieu of performance under §§ 280(3), 283 or § 31 la(2). However,
the obligee must deduct from his claim for damages the amount representing his own
contributory' negligence under § 254. (ii) The obligor’s claim for consideration is excluded
because of Sub. 1. However, the exclusion of the claim for consideration constitutes a lo*s, for
which the obligee is partially responsible. Accordingly, the obligor can claim damages from the
obligee under § 280(1), but also the obligor’s damage claim must be reduced in the amount
that the obligor is responsible for the impossibility’ (§ 254).
§327
(repealed)
§327
(weggefallen)
Title 3
Promise of performance to
a third party
Titel 3
Versprechen der Leistung an einen
Dritten
§328
Contract for the benefit of
third parties
(1) Performance to a third party may be
agreed by contract with the effect that the
third party acquires the right to demand the
performance directly.
§328
Vertrag zugunsten Dritter
(1) Durch Vertrag kann eine Leistung an
einen Dritten mit der Wirkung bedungen
werden, dass der Dritte unmittelbar das
Recht erwirbt, die Leistung zu fordern.
8 BGH 10.10.2007 - VIH ZR 330/06, NJW 2008, 53.
9 BGH 19.12.2012 - VIII ZR 96/12, NJW 2013, 1074.
M. Oehm
541
Division 3. Contractual obligations
§328 1
(2) In the absence of a specific provision it
is to be inferred from the circumstances, in
particular from the purpose of the contract,
whether the third party is to acquire the
right, whether the right of the third party is
to come into existence immediately or only
under certain conditions, and whether the
power is to be reserved for the parties to the
contract to terminate or alter the right of the
third party without his approval.
(2) In Ermangelung einer besonderen Be¬
stimmung ist aus den Umständen, insbeson¬
dere aus dem Zwecke des Vertrags, zu ent¬
nehmen, ob der Dritte das Recht erwerben,
ob das Recht des Dritten sofort oder nur
unter gewissen Voraussetzungen entstehen
und ob den Vertragschließenden die Befugnis
vorbehalten sein soll, das Recht des Dritten
ohne dessen Zustimmung aufzuheben oder zu
ändern.
Contents
mn.
. r 1
A. Function
I. Purpose and underlying principle 1
II. Underlying legal relationships 2
1. Deckungsverhältnis “
2. Valutaverhaltnis ~
3. Vollzugsverhältnis
III. Scope of application &
B. Context '
I. Variations ~ - 1
II. Contract protecting third parties —- 8
1. Intentional contact 9
2. Legitimate interest 10
3. Interest is apparent 11
4. Protection - 12
5. Legal consequence 13
6. Void „ 14
C. Explanation — 15
I. Valid contract 15
II. Third party „ .. 16
III. Agreement 17
IV. Direct acquisition 18
V. Form 19
VI. Legal consequence 20
A. Function
I. Purpose and underlying principle
§ 328 serves to extend the contractual relationship between two parties to a third partv. i.e.
to create a contractual triangle. It is a basic principle of contract law that a contract creates
rights and obligations tor the parties to the contract; a person that is not partv to a contract
cannot invoke any rights based on the contract ("privity of contract’) At the same time, the
contractual partners can only demand performance from each other' $$ vg et seq. art' the
most important exceptions to this principle of contract law. $ 3\<t allows parties to conclude
a contract for the benefit of a third party. The obligor (in this context the promisor) Poises
to the obhgee (tn this context the promisee) to render his performance not to the promisee
but to a third party. A common intention to agree on a contract tbr the benefit of a third
party >s to prov.de tor a third party, e.g. by way of life insurance. Another practical reason is
a more efficient performance. *
542
Al Ochtn
Contract for the benefit of third parties
2-7 § 328
II. Underlying legal relationships
Since § 328 lifts the principle of privity of contract, it is of paramount importance to 2
distinguish the underlying legal relationships in the triangle between the promisor, the
promisee and the third party.
1. Deckungsverhältnis
The legal relationship between the promisor and the promisee is referred to as the 3
Deckungsverhältnis or Grundverhältnis. It is the fundamental relationship underpinning
the entire contract. The promisor and the promisee conclude a contract in which
the promisor promises to the promisee that he will render the agreed performance to a
third party. The promisee provides die agreed consideration to the promisor for his
performance.
2. Valutaverhältnis
The legal relationship between the promisee and the third party is referred to as the 4
Valutaverhältnis or Zuwendungsverhältnis. This is the disposition relationship (underlying
debt relationship), i.e. the legal reason for the third party to receive the right for perfor¬
mance. The disposition is often a donation from the promisee to the third party, but it can
also be any other contractual relationship. However, without a valid disposition relationship
(i.e. a valid contract), the third party faces the risk of having to restore the performance
under 812 et seq.
3. Vollzugsverhältnis
The legal relationship between the promisor and the third party is referred to as the 5
Vollzugsverhältnis. This is the performance relationship. The promisor renders his perfor¬
mance directly to the third party. Unlike the aforementioned fundamental and disposition
relationships, the performance relationship is not based on a contract. There is no contract
between the promisor and the third party. Instead, the relationship between them is solely
based on § 328 and establishes a right for the third party to demand performance and a
corresponding obligation for the promisor to perform.
III. Scope of application
328 et seq. are part of the general law of obligations. This means that only contracts 6
regarding the performance of obligations can be concluded as contracts for the benefit of
third parties. Contracts regarding the disposition of rights do not fall under §§ 328 et seq.
Such contracts are e.g. the contract of forgiveness (§ 397), and assignment (§ 398).
B. Context
I. Variations
The promisee and the promisor can conclude the contract for the benefit of third parties in 7
two different variations. They can either agree that the third party shall receive the right to
demand performance from the promisor. Th is is called an echter Vertrag zugunsten Dritter or
a genuine contract for the benefit of third parties and is intended by the wording of § 328.
The other possibility for the promisee and the promisor is to agree that the promisor may
only effectively render his performance to the third party without giving the third party a
right to demand performance. In this case, the privity of contract stands as only the promisee
M. Oehm
543
§ 328 8-12 Division 3. Contractual obligations
can demand performance. This is referred to as an unechter Vertrag zugunsten Dritter or a
non-genuine contract for the benefit of third parties.
II. Contract protecting third parties
8 Case law developed a further legal concept which is similar to § 328. This principle is
called Vertrag mit Schutzwirkungen zugunsten Dritter or contract protecting third parties.
The difference between these two principles is that the (real) contract for the benefit of
third parties gives the third party the right to demand principle performance whereas the
contract protecting third parties only extends secondary duties of care and protection to
third parties. The third party can claim damages for breach by the promisor of these duties
of care. The contract protecting third parties was originally based on § 328. The BGH,
however, also explains the existence of this principle with ‘completive contract interpreta¬
tion’ (ergänzende Vertragsauslegung1).2 Irrespective of its dogmatic foundation, the princi¬
ple of a contract protecting third parties is uncontested and has been the subject of
countless court decisions. The benefit of this principle for the third party is that possible
claims for damages against the promisor can be based on contract law rather than only on
torts. A common example is a lease agreement which extends to the lessee’s other family
members living in the same residence, e.g. children or grandparents.3 A further example,
which highlights the detail of the case law on this issue, would be a treatment contract fora
vasectomy whereby the spouse is protected against future alimony payments should the
treatment not be successful.4
1. Intentional contact
9 The contract protecting third parties first requires the third party to intentionally have
contact with the required performance under the contract (Leistungsnähe des Dritten). The
risks of a poor performance must be the same for the third party as for the actual part)* to the
contract.5 This is the case, e.g. for other family members that live in the same apartment
However, friends or other guests do not satisfy this requirement.
2. Legitimate interest
10 The party must have a legitimate interest that the third party* is protected under the
contract.6 The legitimacy of the interest is understood broadly. Any interest which is not
unreasonable can be sufficient.
3. Interest is apparent
11 Such legitimate interest must be apparent to the other party to the contract. In other
words, the contract promisor must generally be able to ascertain who he has to protect under
the contract. This does not mean that the promisor must know the number or names ot the
third parties.
4. Protection
12 The third party must be in need of protection. According to case law, this is only the case
if the third party docs not have any equivalent contractual" claims against either contractual
1 See -►SIS? mn. 4.
2 BGH 15.6. 1971 - VI ZR 262/69, NJW 1971, 1931.
3 BGH 12.5.1980 - VII ZR 158/79, NJW 1980, 1947.
4 BGH 27.6.1995 - VI ZR 32/94, NJW 1995, 2407.
5 BGH 2.7.1996 - X ZR 104/94, NJW 1996, 2927.
6 BGH 26.11.1968 - VI ZR 212/66, NJW 1969, 269.
544
AL Ochni
Contract for the benefit of third parties 13-19 § 328
party, i.e. the promisor or the promisee.7 An example where this requirement would not be
met is a sublease. Since the person subletting an apartment from the original tenant has a
contractual claim against the tenant, this person is not in need of protection vis-ä-vis the
contract between the tenant and the landlord.
5. Legal consequence
The third party can claim damages from the promisor. However, the promisor may invoke 13
both the fault of the third party as well as of his contractual partner under § 254 in order to
reduce the amount of damages.8
6. Void
A contract at the expense of third parties would violate the principle of party autonomy 14
and is therefore void.9
C. Explanation
I. Valid contract
The contract to the benefit of third parties first requires that the promisor and the 15
promisee conclude a valid contract. Sub. 1 stipulates that performance to a third party may
be agreed by contract. This contract determines the cover relationship {Deckungsverhältnis),
II. Third party
There are no limitations who can be the third party in the meaning of § 328. The third 16
party’ can either be a natural or legal person. § 331(2) stipulates that the third party need not
even exist at the time of contract conclusion.
III. Agreement
The promisor and the promisee must agree that the third party is supposed to acquire the 17
right to demand the performance directly. In case of doubt this has to be determined by
interpretation of the contract. In this respect, Sub. 2 stipulates that reference is to be made to
all circumstances, in particular to the purpose of the contract.
IV. Direct acquisition
The third party must acquire the right directly because of the contract between the 18
promisor and the promisee. This means that § 328 does not cover cases where the third
party acquires a right by way of legal succession, e.g. an assignment.
V. Form
The necessary form for § 328 is determined by the fundamental relationship, i.e. the 19
contract between the promisor and the promisee.10 Typical form requirements include
§ 31 lb in cases where the promisor agrees to transfer ownership of a plot of land or § 518
in case of a donation. Form requirements that exist for the contract under the ’disposition
relationship’ (Valutaverhältnis) are irrelevant.
7 BGH 15.2.1978 - VIII ZR 47/77, NJW 1978, 883.
MBGH 7.11.1960 - VII ZR 148/59, NIW 1961, 211.
9 BGH 12.11.1980 - VIII ZR 293/79, N(W 1981, 275.
10 BGH 9.4.1970 - KZR 7/69, N)W 1970, 2157.
M. Oehm
545
§ 329 1-2
Division 3. Contractual obligations
VI. Legal consequence
20 The third party acquires a right to demand performance from the promisor. The promisor
can only render his performance to the third party. It is especially important that the third
party directly acquires the right, i. e. the right never belonged to the promisee and is therefore
not subject to possible attachment from other obligees’ of the promisee. However, the third
party does not become party to the contract between the promisee and the promisor but
merely acquires the right to demand performance.11 The promisee can also demand that the
promisor renders his performance to the third party.
§ 329
Interpretation rule where there is
an assumption of the duty to
perform
Where one party to a contract agrees to
satisfy an obligee of the other part)' without
assuming the obligation, then in case of
doubt it may not be assumed that the obligee
is to acquire the right to demand satisfaction
from him directly.
§329
Auslegungsregel bei
Erfüllungsübemahme
Verpflichtet sich in einem Vertrag der eine
Teil zur Befriedigung eines Gläubigers des
anderen Teils, ohne die Schuld zu überneh¬
men, so ist im Zweifel nicht anzunehmen,
dass der Gläubiger unmittelbar das Recht
erwerben soll, die Befriedigung von ihm za
fordern.
A. Function
I. Purpose
1 The assumption of the duty to perform (Erfüllungsübernahme) is a contract between the
obligor and the person agreeing to satisfy the obligation to the obligee. § 329 senes to
provide a rebuttable presumption that the obligee is not part of this contract and no rights oi
the obligee are established. § 329 is thus a so-called unechter Vertrag zugunsten Dritter. Le. a
non-genuine contract for the benefit of third parties.1
IL Scope of application
2 A contractual assumption of a duty to perform exists where one part)’ to a contract agrees
to satisfy an obligee of the other party without assuming the obligation. In this regard. §
must be distinguished from the ‘assumption of a debt’ and the ‘cumulative assumption of a
debt’. Assumption of a debt (Schuldübernahme) is dealt with in § 415. In contrast to § 3-a*
the obligee must ratify the assumption of a debt to be valid. This is necessary because the
obligee’s rights (i.e. the right to choose his debtor) must not be violated. Until the ratification
has been given, the assumption of a debt functions as an assumption of a duty to perform
(cf. § 415(3)). The cumulative assumption of a debt (Schuldbcitritt) rests in-between the
assumption of a duty to perform and the assumption of a debt. On the one hand, it can k
agreed upon in a contract between the obligee and the third party. On die other hand, it
also be agreed by obligor and the third party without the obligee’s ratification as the
Schuldbcitritt does not violate the obligee’s rights but the obligee is rather given a further
debtor. The cumulative assumption of a debt is therefore a contract for the benefit oflhirki
parties under § 328.
_——-
Il BGH 8.2.2006 - IV ZR 205/04, NJW 2006, 1434.
i See ► § 328 mn. 7.
546
M. Oehm
Interpretation rule in the case of life annuity contracts
1 §330
B. Explanation
I. Form
A contract under § 329 does not require any specific form unless it does not fall under § 518 3
(2) (promise of a donation) or §§ 780, 781 (promise to fulfil an obligation/acknowledgement of
a debt). It is thus possible to tacitly agree on an assumption of a duty to perform.
II. Interpretation rule
§ 329 stipulates an interpretation rule. In case of doubt, the promise to assume the duty to 4
perform of the obligor does not give the obligee any rights vis-ä-vis the promisor. § 329
concerns a rebuttable presumption, i.e. the obligee can demonstrate that he was meant to be
given the right to demand performance directly from the third party. Whether § 329 applies
is to be determined based on the parties intentions and the purpose of the contract. Ample
case law exists on all types of contracts and areas of law.2
III. Legal consequence
The obligor has a claim against the third party. If not agreed otherwise, this claim only 5
covers the obligation as it existed when the contract between the obligor and the third party
was concluded. The obligor may assign his claim against the third party only to the obligee,
but not to any other person (cf. § 399). In this case, the obligee can demand payment from
the third party.3
§330
Interpretation rule in the case of
life annuity contracts
’Where in a life annuity contract the pay¬
ment of the life annuity to a third party is
agreed, in case of doubt it must be assumed
that the third party is to acquire the right to
demand performance directly. 2The same ap¬
plies if, in the case of a gratuitous disposi¬
tion, a duty of performance is imposed on the
person provided for, or, in the case of as¬
sumption of property or a landed estate,
performance for a third party is promised by
the assuming party for the purpose of provid¬
ing satisfaction.
§330
Auslegungsregel bei
Leibrentenvertrag
’Wird in einem Leibrentenvertrag die Zah¬
lung der Leibrente an einen Dritten verein¬
bart, ist im Zweifel anzunehmen, dass der
Dritte unmittelbar das Recht erwerben soll,
die Leistung zu fordern. 2Das Gleiche gilt,
wenn bei einer unentgeltlichen Zuwendung
dem Bedachten eine Leistung an einen Drit¬
ten auferlegt oder bei einer Vermögens- oder
Gutsübernahme von dem Übernehmer eine
Leistung an einen Dritten zum Zwecke der
Abfindung versprochen wird.
A. Function
I. Purpose
§ 330 stipulates an interpretation rule. As many other provisions in this chapter 1
(cf. §§ 329, 331, 332), § 330 stipulates an interpretation rule. § 330 clarifies that in case of
2 eg. BGH 8.5.1973 - X ZR 9/70, NJW 1973, 1373; LG München II 23.4.2004 - 14 O 7483/03.
NJW 2004, 2313.
3 BGH 22.1.1954 - 1 ZR 34/53, NJW 1954, 795.
M. Oehtn
547
§ 331 1 Division 3. Contractual obligations
doubt a contract for the benefit of a third party in the meaning of § 328 exists thereby
allowing the third party to demand performance directly. This requires the third party to
prove that performance to a third party was contractually agreed upon.
IL Scope of application
2 The rule in § 330 applies where performance to a third party is proven or undisputed. It
addresses three different cases: (i) Life annuity contracts (§ 759). The usual beneficiaries of
annuity charges are widows and children. The 1st St. stipulates that the beneficiary of an
annuity charge may demand performance in case of death. The annuity charge is not part
of the estate, (ii) The 2nd St. covers gratuitous dispositions (unentgeltliche Zuwendungen).
The concept of gratuitous dispositions extends to donations (§ 516), gratuitous loans
(§ 598) and non-interest-bearing loans. The relationship between the promisor and the
promisee of the contract for the benefit of a third party (Deckungsverhältnis1) is particularly
relevant with regard to the gratuitous nature. This means that the gratuitous disposition
must be between the parties to the contract under § 328. The relationship to the third partv
(Valutaverhältnis2) is irrelevant for the application of § 330, so called, (iii) The 2nd St also
covers the assumption of property or a landed estate (cf. §§ 311b(2), (3)). A landed estate
under § 330 is any agricultural estate. The purpose to allow the organisation of the
succession of a farm within the farmer’s family, though the modem practical relevance of
this provision is limited.
§331
Performance after death
(1) If the performance for the third party is
to occur after the death of the person to
whom it is promised, the third party acquires
the right to the performance, in case of
doubt, upon the death of the promisee.
(2) If the promisee dies prior to the birth
of the third party, the promise to perform to
the third party may only be cancelled or
modified if the power to do so was reserved.
§331
Leistung nach Todesfall
(1) Soll die Leistung an den Dritten nach
dem Tode desjenigen erfolgen, welchem sie
versprochen wird, so erwirbt der Dritte das
Recht auf die Leistung im Zweifel mit dem
Tode des Versprechensempfangers.
(2) Stirbt der Versprechensemptanger vor
der Geburt des Dritten, so kann das Verspre¬
chen, an den Dritten zu leisten, nur dann
noch aufgehoben oder geändert werden,
wenn die Befugnis dazu vorbehalten worden
ist.
A. Function
I. Purpose and underlying principle
1 Sub. 1 also contains an interpretation rule. The presumption here is that the third party
acquires the right to the performance upon the death of the promisee. § 331 makes clear that
it is possible for the promisee to grant a third party a contractual right without ha'ing to
adhere to the strict form requirements of inheritance law. In practice, §331 mostly apph^*0
relation to life insurance in case of death. Sub. 2 deals with the case that the promisee dies
prior to the birth of the third party. The principle underpinning § 331 is referred to
Vertrag zugunsten eines Dritten auf den Todesfall, i.e. a contract to the benefit of a third p^
upon death. Whether the parties intended to conclude such a contract must be determined
by interpretation of the contract.
1 See > § 328 inn. 3.
2 See -► § 328 mn. 4.
548
Al. Oehm
Performance after death
2-7 §331
IL Scope of application
§ 331 applies to all contracts to the benefit of a third party (§ 328) which stipulate the 2
death ot the promisee as the time for performance. A common example from the ample case
law that exists on this topic is the agreement between a bank and an account holder that the
bank will pay a certain amount from the account to a third party upon the death of the
account holder.1 Sub. 1 contains an interpretation rule, which is not mandatory law therefore
allowing tor deviations by agreement, e.g. parties may agree that the third party immediately
- upon conclusion of the contract - receives the right which, however, only falls due when
the promisee dies.
B. Explanation
I. Form
§ 331 does not require any specific form. The parties can agree on the contract verbally or 3
in writing. A formal requirement that might exist for the contractual relationship between
the promisee and the third party' is irrelevant.
It is a long-standing issue and a frequently asked question how a gratuitous disposition 4
from the promisee to the third party must be treated. The reason for this specific issue is that
there are different form requirements for either a donation under § 518 or a promise of
donation mortis causa (§ 2301). The BGH has decided that the disposition from the promisee
to the third partv is a donation under § 518.2 If the donation now violates the form
requirement in § 518(2), i.e. notarial recording, the basis for the third party to receive the
right would technically be invalid. However, since § 518(2) stipulates that a defect of form is
cured by rendering the performance promised, the BGH has decided that the violation of the
form requirement in $ 518(1) is cured upon death of the promisee.3 This issue has been the
subject of multiple court decisions as the heirs of the promisee often negate or contest the
rights of the third part}'.
II. Legal consequence
The third party receives a direct claim against the promisor upon the death of the 5
promisee. However, this claim is only final if the third party receives the claim because of a
valid contract with the deceased promisee. Otherwise, the heirs of the promisee could raise a
claim against the promisor or the performance under §§ 812 et seq.
1. Prior to death
Prior to the death of the promisee, the third party merely has the chance of receiving a 6
legal right in the future.4 All claims based on the contract between the promisor and the
promisee belong to the promisee.5 The promisee can substitute the third party in a contract
with the promisor (§§ 328(2), 332).
2. Unborn third party
Sub. 2 regulates the scenario that the promisee dies prior to the birth of the third party. 7
Although the third party had not yet been born when the promisee died, the (unborn) third
1 BGH 26.11.2003 - IV ZR 438/02, NJW 2004, 767.
2 BGH 26.11.2003 - IV ZR 438/02, NJW 2004, 767.
3 BGH 26.6.2013 - IV ZR 243/12, NJW 2013, 3448.
4 BGH 28.4.2010 - IV ZR 73/08, NJW 2010, 3232.
5 BGH 1.7.1981 - IVa ZR 201/80, NJW 1981, 2245.
M. Oehm
549
§ 333 ! Division 3. Contractual obligations
ui- „inet the nromisor. Until the third party is born, this exists as
party still receives the claim against tne prom
an entitlement.
§332
Modification by disposition
mortis causa in case of reservation
If the promisee reserves the power to place
another in the place of the third party desig¬
nated in the contract, then in case of doubt
this may also be accomplished in a disposi¬
tion mortis causa.
§332
Änderung durch Verfügung von
Todes wegen bei Vorbehalt
Hat sich der Versprechensempfänger die
Befugnis vorbehalten, ohne Zustimmung des
Versprechenden an die Stelle des in dem Ver¬
trag bezeichneten Dritten einen anderen zu
setzen, so kann dies im Zw’eifel auch in einer
Verfügung von Todes wegen geschehen.
A. Function
I. Purpose
1 § 332 stipulates another interpretation rule. If the piomisee reserves the power to
substitute the third-party beneficiary designated in the contract, the promisee may declare
the substitution in his disposition mortis causa, e.g. his will. The reservation of the power to
substitute the third-party beneficiary must be made in a contract with the promisor, because
§ 328(2) requires a contract between the promisor and the promisee to terminate or alter the
right of the third party. § 407 regulates the consequences of a performance of the promisor
who is unaware of the substitution to the original third party.
IL Scope of application
2 Parties may deviate from § 332 in individually agreed terms as well as in standard terms.1
Notably, § 332 generally does not apply to life insurance because insurance laws require the
policy holder to give the insurance company written notice of a substitution. The presenta¬
tion of a disposition mortis causa is not sufficient.2
§333
Rejection of the right by the
third party
If the third party rejects the right under the
contract towards the promisor, the right is
deemed to not have been acquired.
§ 333
Zurückweisung des Rechts durch
den Dritten
Weist der Dritte das aus dem Vertrag tf-
worbene Recht dem Versprechenden gegen‘
über zurück, so gilt das Recht als nicht erwor
ben.
A. Function
I. Purpose
1
§ 333 ensures that a right under a contract cmnnt k.. , . . ■ th.ir
will, if said person was not a party to the contract The\?Pt'Sed on h>
right towards the prom«,. , U> c„„tap** W «
1 UGH 1.7.1981 - IVa ZR 201/80, N|W 1981, 2’45
2 BGH 14.7.1993 - IV ZR 242/92, NJW 1993, 3U3'.
550
M. Oehtn
Objections of the obligor in relation to the third party
1 § 334
II. Scope of application
A possible scenario tor the application of § 333 could be cashless transactions. The 2
required (contractual) triangle exists between the account holder» the bank and a further
party. Now» the further party might issue a credit to the bank account of the account holder.
It the account holder wants to reject the credit vis-ä-vis its bank, the account holder (as the
third party) might seek to rely on § 333. However» the BGH decided that § 333 docs not give
the account holder a general possibility to reject rights, in particular credit on his account,
towards the bank. The contractual relationship between the account holder and the bank is
solely governed by § 675f.1
B. Explanation
I. Rejection of the right
The third party can reject the right towards the promisor.2 The rejection is a unilateral 3
declaration of intent which has to be received by the promisor. It does not require any
specific form, i.e. verbal rejection will suffice. Once exercised, the rejection is irrevocable.
There is no limitation period for the rejection. The third party can reject the right any time
before the promisor it has accepted it.
IL Legal consequences
If the third party rejects the right towards the promisor, the right is treated as if it had 4
never existed. The consequences for the contract between the promisor and the promisee
must be determined by way of interpretation on a case-by-case basis. One possible
consequence could be that the promisee can substitute the third party. Another possibility
would be that the promisee may demand performance himself. A third option would
be that the performance becomes impossible under § 275. In this latter case, the
consequences for the promisor’s remuneration claim vis-ä-vis the promisee are governed
by § 326.
§334
Objections of the obligor in
relation to the third party
The promisor is entitled to raise objections
under the contract in relation to the third
party too.
§334
Einwendungen des Schuldners
gegenüber dem Dritten
Einwendungen aus dem Vertrag stehen
dem Versprechenden auch gegenüber dem
Dritten zu.
A. Function
I. Purpose
§ 334 serves to protect the promisor. The rights of the third party completely rest on the 1
contract between the promisor and the promisee. Accordingly, the promisor must not be
treated any differently just because the promisor renders his performance to the third party
1 BGH 6.12.1994 - XI ZR 173/94, N|W 1995, 520.
2 BGH 15.10.1998 - I ZR 111/96, NJW 1999, 1110.
M. Oehtn
551
§ 335 1 Division 3. Contractual obligations
instead of the promisee. The promisor may raise all objections that exist under the contract
with the promisee.
IL Scope of application
2 § 334 applies to a contract in the context of promises of performance to third parties; a
similar provision can be found in § 404 dealing with the transfer of a claim. Parties may
deviate from § 334 by way of contractual agreement.1 This includes the extension of the
possibility to raise objections that exist under different contracts as well as the limitation of
the objections under the given contract.
B. Explanation
I. Objections
3 The term objections in § 334 is used in a broad sense. It covers any and all objections
that the promisor might have under the contract with the promisee. This includes:
objections precluding the existence of a right (e.g. §§ 125, 134, 138), objections excluding
an existing right (e.g. 142, 323, 441), any other defences (e.g. 214(1), 273, 320), and
even procedural objections, such as an arbitration agreement. However, the objection must
exist under the contract between the promisor and the promisee. If not agreed otherwise,
the promisor may thus not rely on objections that exist under a different contract he
might have concluded with the promisee, but which is not the basis for the right of
the third party. In addition, the promisor may not rely on any objections that the promisee
himself might have against the third party as the promisor is not part of their legal
relationship.
IL Set-off
4 The promisor may only declare a set-off against the right of the third party if the promisor
has a claim against the third party. The promisor may not declare the set-off based on any
claims he might have against the promisee.
§335
Right of the promisee to make
demands
The promisee may, where a different inten¬
tion of the parties to the contract may not be
assumed, demand performance for the third
party even if the latter is entitled to the right
to performance.
§335
Forderungsrecht des
V ersprechensempfangers
Der Versprechensempfanger kann, sofern
nicht ein anderer Wille der Vertragschließen¬
den anzunehmen ist, die Leistung an den
Dritten auch dann fordern, wenn diesem das
Recht auf die Leistung zusteht.
A. Function
1 § 335 functions as an interpretation rule regarding the legal position of the promisee in
contract for the benefit of third parties. It is subject to any different agreement between the
parties, i.e. the promisor and the promisee are free to agree on an exclusive right of the third
party to demand performance.
1 BGH 10.11.1994 - III ZR 50/94, NJW 1995, 392.
552
M. Oehm
Earnest in case of impossibility of performance
§338
B. Explanation
The promisee has the right to demand performance from the promisor to the third party. 2
This is an original right ot the promisee, not merely authorisation to collect the claim for the
third party.1 The right of the promisee extends to subsequent claims such as damage claims
under §§ 280 et seq.2 However, the promisee and the third party are not joint obligee’s
under § 428. Rather, a sui generis relationship exists between the promisee and the third
party; §§ 420 et seq. may not be applied. If the promisee suffers loss because of the default of
the promisor, the promisee may claim such damages by demanding payment to himself. The
right of the promisee to make demands is hereditary and can be assigned to others.
Title 4
Earnest, contractual penalty
Titel 4
Draufgabe, Vertragsstrafe
§336
Interpretation of earnest
(1) Where something is given as an earnest
when a contract is entered into, this is
deemed to be a sign that the contract has
been entered into.
(2) The earnest is not deemed, in case of
doubt, to be forfeit money.
§336
Auslegung der Draufgabe
(1) Wird bei der Eingehung eines Vertrags
etwas als Draufgabe gegeben, so gilt dies als
Zeichen des Abschlusses des Vertrags.
(2) Die Draufgabe gilt im Zweifel nicht als
Reugeld.
§337
Crediting or return of the earnest
(1) The earnest is, in case of doubt, to be
credited against the performance owed by the
giver of the earnest, or, where this cannot
occur, is to be returned when the contract is
performed.
(2) If the contract is cancelled, the earnest
must be returned.
§337
Anrechnung oder Rückgabe der
Draufgabe
(1) Die Draufgabe ist im Zweifel auf die
von dem Geber geschuldete Leistung anzu¬
rechnen oder, wenn dies nicht geschehen
kann, bei der Erfüllung des Vertrags zurück¬
zugeben.
(2) Wird der Vertrag wieder aufgehoben,
so ist die Draufgabe zurückzugeben.
§ 338
Earnest in case of impossibility of
performance for which giver of
earnest is responsible
'If the performance owed by the giver of
the earnest becomes impossible due to a
circumstance for which he is responsible, or
if the giver of the earnest is responsible for
the cancellation of the contract entered into,
the recipient of the earnest may retain it. 2If
the recipient demands damages for non-
§338
Draufgabe bei zu vertretender
Unmöglichkeit der Leistung
'Wird die von dem Geber geschuldete
Leistung infolge eines Umstands, den er zu
vertreten hat, unmöglich oder verschuldet
der (.eher die Wiederaufhebung des Ver¬
trags, so ist der Empfänger berechtigt, die
Draufgabe zu behalten. ^Verlangt der Emp¬
fänger Schadensersatz wegen Nichterfül-
1 OI.G Hamm 7.9.1995 - 4 UP 314/94, NJW-RR 1996, 1157; HK-BGB/Schulzc, § 335 BGB mn. 1.
2 BGH 15.1.1974 - X ZR 36/71, NJW 1974, 502.
M. Oehrtt
553
Division 3. Contractual obligations
§ 338 1-5
performance, the earnest must, in case of
doubt, be credited against it, or if this can¬
not occur, must be returned when damages
are paid.
lung, so ist die Draufgabe im Zweifel anzu¬
rechnen oder, wenn dies nicht geschehen
kann, bei der Leistung des Schadensersatzes
zurückzugeben.
A. Function
1 An earnest expresses (generally via a monetary payment) a commitment by one party' to
the other to conclude a contract and therefore the instrument serves to symbolise the
conclusion of a contract (§ 336). § 337 functions as an interpretation rule regarding the legal
consequences, whereas § 338 is concerned with exceptions to § 337. Earnest is an antiquated
principle based on and primarily used for contracts regarding the sale of livestock in the 19®
century. The instrument is now seldom used, as is best evidenced by the absence of any
(recent) case law.
B. Explanation
I. Distinction
2 The earnest must be distinguished from a down payment. The down payment does not
symbolise the conclusion of a contract. The down payment is rather the partial perfor¬
mance of a contract already concluded. One important example of a down payment - and
not an earnest - is the signing bonus common amongst professionals, e.g. professional
athletes. However, as a down payment, earnest money is generally not extra or in addition
to the performance agreed in the contract. This means that the earnest money functions
as a down payment which is deducted from the performance owed under the contract
(§ 337(1)).
II. Presumption; form
3 The earnest money justifies a procedural presumption under § 292 ZPO that a contract
was concluded. However, it is possible for the other part)’ to prove the contrary’. The earnest
money cannot substitute any formal requirements that exist for the conclusion of the
contract to be valid (e.g. § 518 regarding donations).
III. Forfeit money
4 § 336(2) is an interpretation rule which stipulates that, in case of doubt, the earnest money
is not deemed to be forfeit money. The party- giving the earnest monev mav not simplv waive
the earnest and revoke the contract. However, if the parties reserve such a contractual right to
revoke the contract, § 353 deals with the consequences of a revocation
5
IV. Restitution
ir the earnest cannot be credited against the performance owed bv the over ot
earnest (e.g. the contract stipulates a potior,nance k.nd jn bul"the ean»i
money was given as tnoney) the earnest money must Ih. remnR.d mRe ,1r. „tract
ha, been fully pertanned (S 337(1 » Such duty t„ nuke „stiluU„n is . eonlractaJ
seq. tbereloie apply bind not H „ „„ enrichn.e«»1
4 337(2) stipulates the same duly Io make mtitutum in cases where the so.nrad »
1 See also MüKo BGB/Gottwald, § 337 BGB mn. 4.
554
M. Ochm
Payability of contractual penalty § 339
terminated.2 The means of the termination are irrelevant. They may only impact the
liability of the person obliged to return the earnest money in case something interferes
with the restitution
V. Forfeiture
In cases where the person giving the earnest money is responsible for non-performance or 6
termination ot the contract, the person receiving the earnest money may keep the earnest
(§ 338 1st St.). This is also known as forfeiture of the earnest. The earnest money then
constitutes a minimum compensation for its recipient. The amount of the earnest money is
irrelevant. The critical requirement here is for the giver of the earnest to be at fault for the
non-performance or termination. If this is not the case, the general interpretation rule under
§ 337 applies.
VI. Damages
§ 338 2nd St. stipulates a reverse exception to § 338 1st St. If the recipient of the earnest 7
money choses to claim damages for non-performance under 281 et seq., the earnest
money must be deducted from the damages. In cases where a deduction is impossible, the
recipient must return the earnest. This rule is logical because 281 et seq. entails claims for
damages in lieu of performance, i.e. the damages (legally) supplant the performance.
§339
Payability of contractual penalty
’Where the obligor promises the obligee, in
the event that he fails to perform his obliga¬
tion or fails to do so properly, payment of an
amount of money as a penalty, the penalty is
payable if he is in default. 2If the performance
owed consists in forbearance, the penalty is
payable on breach.
§339
Verwirkung der Vertragsstrafe
’Verspricht der Schuldner dem Gläubiger
für den Fall, dass er seine Verbindlichkeit
nicht oder nicht in gehöriger Weise erfüllt,
die Zahlung einer Geldsumme als Strafe, so
ist die Strafe verwirkt, wenn er in Verzug
kommt. 2Besteht die geschuldete Leistung in
einem Unterlassen, so tritt die Verwirkung
mit der Zuwiderhandlung ein.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
IL Position within the BGB 2
III. Scope of application 3
1. Selbstständiges Strafversprechen 4
2. Consolidation 5
3. Sunset clauses 6
4. Forfeit money clause 7
B. Context 8
C. Explanation 9
I. Valid contract 9
II. Breach of obligation 10
III. Fault U
IV. Exercise in good faith 12
V. Legal consequences 13
2 The term cancellation is misleading as it implies an ex num effect, which would - strictly speaking -
not result in restitution.
M, Oehrn
555
§ 339 1-6
Division 3. Contractual obligations
A. Function
I. Purpose and underlying principle
1 §§ 339-345 govern contractual penalties. The purpose of a contractual penalty is twofold: to
promote performance of the contract as a form of leverage but also to spare the obligee the
otherwise necessary proof of damages.1 § 339 stipulates the requirements for the payability of
contractual penalties. The legal concept behind it is a conditional promise to pay the penalty m
case of non-performance (§ 340) or poor performance (§ 341).2 This makes clear that only the
so-called ‘dependent promise to pay penalties’ (unselbständiges Strafversprechen) falls under
§§ 339 et seq. The contractual penalty under § 339 only accrues in case of non-performance of
the primary obligation under the contract. The non-performance may be an act as well as an
omission. Generally» penalties are promised in money. The recipient of the penalty can be a
third-party which then has his own payment claim against the promisor of the penalty.
IL Position within the BGB
2 § 339 is a rule within in the general law of obligations. Contractual penalties can therefore
be agreed in ail types of contracts. Most often, contractual penalties are found in construction
contracts and in contracts containing non-competition clauses.
III. Scope of application
3 Contractual penalties are generally permissible under German law. Their scope of applica¬
tion is far reaching. For example, case law considers bottle deposits3 or overdraft fees4 as
contractual penalties. The wording of 339-341 only refers to the payment of an amount of
money as a penalty, § 342 extends the application of this section to cases where as penalty,
performance other than the payment of a sum of money, is promised. The following legal
concepts are not contractual penalties in the meaning of 339 et seq. They7 must, therefore,
be clearly distinguished.
1. Selbstständiges Strafversprechen
4 The ‘independent’ or stand-alone promise to pay penalties (selbständiges Straf'erspre-
chen) does not require the breach of a primary7 obligation.5 Here, the penalty* is promised tor
a specific act or omission without having an underlying legal obligation. For example, the
promise to stop drinking alcohol or to pay a penalty of 1,000 euro would be such a stand¬
alone promise. § 339 does not apply, only §§ 343 and 344.
2. Consolidation
5 A consolidation of damages or liquidated damages (Schadcnspauschalicning) only senes
the purpose to spare the obligee the necessary7 proof of damages. It is not meant to facilitate
contract performance.
3. Sunset clauses
6 Sunset clauses (Vcrftillsklauseln) punish the obligor by causing the loss of his rights
However, other than a penalty clause, sunset clauses do not create a claim for payment ot a
’ BGH 23.6.19«« - VII ZR 117/87, NJW 198«. 2536,
2 BGH 14.10.2009 - VIII ZR 272/08, NJW 2010. 859.
J BGH 9.7.2007 - II ZR 233/05. NJW 2007, 2913.
4 BGH 29.3.1994 - XI ZR 69/93. NJW 1994, 1532.
s BGH 18.12.1981 - V ZR 233/80, NJW 1982, 759.
556
M. Oehm
Payability of contractual penalty 7-10 § 339
penalty. In this regard, German courts apply the following difference: if a sunset clause only
causes the loss ot specific rights under the contract, §§ 339 et seq. apply by analogy;6 if,
however, a sunset clause causes the loss of all rights, § 354 applies.
4. Forfeit money clause
A forfeit money clause (Reuegeld) gives the possibility to terminate the contract against 7
payment of the forfeit money. This contradicts the principle of contractual penalties to
facilitate contract performance. §§ 339 et seq. therefore do not apply. § 353 concerns forfeit
money.
B. Context
In terms of the historical and legal context, contractual penalty clauses already existed 8
under Roman law. The concept was featured since the BGB entered into force on 1 January
1900. There is therefore comprehensive and long-standing case law on most aspects of
penalty clauses. From a comparative perspective, 339 et seq. must not be misinterpreted
by simply referring to the similar concepts under the common law. The case law of the
German courts has a different, more limiting focus on contractual penalties.
C. Explanation
I. Valid contract
The first requirement for contractual penalties is a valid contract regarding the payment 9
of the penalty. The wording of § 339 must not be misinterpreted that a unilateral promise
by the obligor suffices for a contractual penalty.7 The parties must agree on the require¬
ments that constitute a non-performance triggering the penalty as well as the amount of
damages. The penalty clause may be agreed in standard terms. However, the mandatory
provisions in § § 307 et seq., in particular § 309 No. 6, must be fulfilled. The necessary form
for the contractual penalty is accessory' to the main contract (i.e. if the main contract
requires the written form under § 126 to be valid, the penalty clause must also be agreed
upon in writing). The substance and scope of the penalty clause can be determined by
contract interpretation (§§ 133, 157). The penalty clause must not violate statutory
prohibitions or be contrary to public policy under §§ 134, 138. Here, it is crucial to be
aware that because of the partial invalidity rule in § 139, the invalidity of the penalty clause
may lead to the invalidity of the entire main contract. The main contract must still exist
w'hen the penalty clause is invoked as a revocation or termination of the main contract
precludes further penalty claims.
II. Breach of obligation
The obligation that is secured by the penalty clause must be breached. In this regard, § 339 10
distinguishes between the possible secured obligations. The 1st St. covers the cases where the
secured obligation under the main contract consists of an act that the obligor has to perform.
The penalty claim arises as soon as the obligor is in default with his performance. The obligor
bears the burden of proof that he was not in default (cf. § 345). The 2nd St. deals with the
cases where the obligor promised a forbearance or omission. A common example would be
the duty of confidentiality. Other than under the T’ St.» the obligee bears the burden of proof
that the obligor violated his promise of forbearance (see § 345).
6 BGH 22.1.1993 - V ZR 164/90. NJW RR 1993, 464.
7 BGH 18.5.2006 - I ZR 32/03, NJW-RR 2006, 1477.
M. Ochtn
557
§340 1
Division 3. Contractual obligations
III. Fault
11 § 339 requires that the breach of the secured obligation was the fault of the obligor. §276
sets the relevant standard in this regard.8 § 278 applies regarding the responsibility of the
obligor for third parties.
IV. Exercise in good faith
12 Finally, case law also employs the general requirement that exercising one’s right (i.e. the
penalty clause) must not be in bad faith (cf. § 242).9 This means that the obligee seeking to
invoke the penalty clause must have adhered to his obligations under the main contract
V. Legal consequences
13 A penalty claim, as agreed by the parties, will arise if aforementioned requirements (L-IV.)
are satisfied. If the parties disagree about the extent of the penalty, they can assign this
question to a neutral third party (§ 317). The payment of multiple penalties where there are
multiple breaches is to be determined by interpretation of the contract (§§ 133, 157) on a
case-by-case basis.10 The penalty claim can separately be assigned to any third party under
§§ 398 et seq.
§340
Promise to pay a penalty for
nonperformance
(1) ’If the obligor has promised the penalty
in the event that he fails to perform his
obligation, the obligee may demand the pen¬
alty that is payable in lieu of fulfilment. 2If
the obligee declares to the obligor that he is
demanding the penalty, the claim to perfor¬
mance is excluded.
(2) ’If the obligee is entitled to a claim to
damages for nonperformance, he may de¬
mand the penalty payable as the minimum
amount of the damage. Assertion of addi¬
tional damage is not excluded.
§340
Strafversprechen für
Nichterfüllung
(1) ’Hat der Schuldner die Strafe für den
Fall versprochen, dass er seine Verbindlich¬
keit nicht erfüllt, so kann der Gläubiger die
verwirkte Strafe statt der Erfüllung verlangen.
2Erklärt der Gläubiger dem Schuldner, dass er
die Strafe verlange, so ist der Anspruch ant
Erfüllung ausgeschlossen.
(2) ’Steht dem Gläubiger ein Anspruch auf
Schadensersatz wegen Nichterfüllung m,
kann er die verwirkte Strafe als Mindest¬
betrag des Schadens verlangen. :Die Geltend¬
machung eines weiteren Schadens ist nicht
ausgeschlossen.
A. Function
I. Purpose
1 § 340 governs the relationship between the claim for payment of the penalty and claim tor
performance or damages. § 340 serves to protect the obligor by stipulating that the obhg^
may only claim either payment of the penalty or performance of the original obligation-
Furthermore, if chosen, the penalty must be counted towards a claim for damages in
both serve the same interest.1
« BGH 21.11.2007 - XII ZR 213/05, BeckRS 2008, 00818.
9 BGH 23.1.1991 - Vlll ZR 42/90. NIW-RR 1991, 568.
10 BGH 9.7.2015 - I ZR 224/13, NJW 2016, 574.
i BGH 8.5.2008 - 1 ZR 88/06, NJW 2008, 2849.
558
M. Oehni
Promise to pay a penalty for nonperformance
2-5 § 340
II. Scope of application
§ 340 applies if the obligor has promised the penalty in the event that he fails to perform 2
his obligation. The obligor’s failure to perform, i.e. the non-performance, is the relevant
criterion in order to distinguish § 340 from § 341; such non-performance may be in full or in
part. In case of doubt, contract interpretation will determine if the penalty is meant to secure
the performance interest of the obligee (§ 340) or if the penalty is meant to secure the interest
of the obligee of proper performance (§ 341). Parties can agree to exclude the application of
§ 340 via individually agreed terms. Case law restricts the possibility to exclude § 340 in
standard terms.2
B. Explanation
I. Election
Sub. 1 gives the obligee the right to elect between performance of the primary obligation 3
or payment of the penalty. Since the obligee is given this option, the obligor may not simply
pay the penalty. The obligor may rather only fulfil his obligation to pay the penalty if and
when the obligee requested him to do so. The obligee’s request is a unilateral, contractual
declaration. If the obligee opts for payment of the penalty, the claim to performance is barred
(Sub. 1 2nd St.). In case of reciprocal contracts (§ 320), the necessary contract interpretation
generally leads to the result that the exclusion of the claim to performance extends to the
consideration. Conversely, if the obligee claims performance, the penalty claim is only barred
once the obligor has paid the penalty. Until then the obligee can reconsider and opt for
payment of the penalty.
II. Statute of limitations
The penalty claim is statute-barred the latest when the limitation period for the claim to 4
performance has passed (see § 217).
III. Relationship between penalty and damages
Sub. 2 entitles the obligee to choose between payment of the penalty or damages. Possible 5
claims for damages can be based on §§ 280, 281 et seq. The penalty claim does not require
the obligee to actually incur any damages.3 If the obligee chooses the penalty, he may still
claim further damages (Sub. 2 2nd St.). The penalty then functions as a minimum amount of
damages. It must be counted towards a claim for damages if both serve the same interest.
This is not the case, for example, regarding lawyers’ fees which accrued for the enforcement
of the penalty itself.4 Furthermore, the penalty does also not have to be counted towards a
claim for damages if the claim for damages existed before the parties agreed on the penalty
clause.5 A claim for additional damages is even possible if the penalty has been reduced
under § 343.
2 BGH 11.2.1992 - XI ZR 151/91, NJW 1992, 1097.
3 BGH 27.11.1974 - VHI ZR 9/73, NJW 1975, 163.
4 BGH 8.5.2008 - I ZR 88/06, NJW 2008, 2849.
5 BGH 26.3.2009 - 1 ZR 44/06, NJW-RR 2009, 1053.
M. Oehm
559
§ 341 1-3
Division 3. Contractual obligations
§341
Promise of a penalty for
improper performance
(1) If the obligor has promised the penalty
in the event that he fails to perform his
obligation properly, including, without lim¬
itation performance at the specified time, the
obligee may demand the payable penalty in
addition to performance.
(2) If the obligee has a claim to damages
for the improper performance, the provisions
of § 340(2) apply.
(3) If the obligee accepts performance, he
may demand the penalty only if he reserved
the right to do so on acceptance.
§341
Strafversprechen für nicht
gehörige Erfüllung
(1) Hat der Schuldner die Strafe fijr
Fall versprochen, dass er seine Verbindlich¬
keit nicht in gehöriger Weise, insbesondere
nicht zu der bestimmten Zeit, erfüllt, so kann
der Gläubiger die verwirkte Strafe neben der
Erfüllung verlangen.
(2) Steht dem Gläubiger ein Anspruch auf
Schadensersatz wegen der nicht gehörigen
Erfüllung zu, so findet die Vorschrift des
§ 340 Abs. 2 Anwendung.
(3) Nimmt der Gläubiger die Erfüllung an,
so kann er die Strafe nur verlangen, wenn er
sich das Recht dazu bei der Annahme vor¬
behält.
A. Function
I. Purpose and underlying principle
1 § 341 governs the relationship between the penalty claim and the claim to performance or
damages (together with § 341). In contrast to § 340, § 341 requires that the obligor has
promised the penalty in the event that he fails to perform his obligation properly, Le.
improper performance. Accordingly, § 341 primarily refers to cases of late performance or
poor performance. § 341 serves to make the enforcement of his claims easier for the obligee
This legal principle is called accumulation (Kumulation) and it seeks to secure performance
of the obligation through the penalty (compare this to § 340(1) 1st St. which is in lieu
performance).
IL Scope of application
2 Parties can agree to exclude the application of Sub. 3 via individually agreed terms. Sub.-5
cannot be excluded in standard terms, only its consequences can be reduced, i.e. by
stipulating in a construction contract that the penalty clause may be invoked until the final
payment has been made.1
B. Explanation
3
Sub. 1 entitles the obligee to demand the payable penalty in addition to pertbrnuntf
(compare this to § 340(1) Ist St. which is in lieu of performance). The penalty does not
replace performance. Sub. 2 stipulates that the relationship between the penalty and a cLunj
for damages is the same as under § 340. Sub. 3 then addresses the important i^ue 0
reservation of rights. It stipulates that the obligee may - in addition to demanding
performance - only claim the penalty if the obligee reserved his right to do so *hen
accepted performance. In other words: if the obligee accepts performance without reservati
of the penalty, his claim for penalty lapses. An intention of the obligee to waive his
claim is not necessary. The claim for penalty lapses by law. This is even the case if the obhg*
i BGH 13.7.2000 - VII ZR 249/99, NJW-RR 2000, 1468.
560
M. Oehni
Reduction of the penalty 1 § 343
neither knew ot his penalty claim nor of § 341. In addition, the reservation of rights must be
made on acceptance. An earlier or a later reservation is irrelevant. The reservation must be
made expressly.
§342
Alternatives to monetary penalty
If, as penalty, performance other than the
payment of a sum of money is promised, the
provisions of §§ 339 to 341 apply; the claim
to damages is excluded if the obligee de¬
mands the penalty.
§342
Andere als Geldstrafe
Wird als Strafe eine andere Leistung als die
Zahlung einer Geldsumme versprochen, so
finden die Vorschriften der §§ 339 bis 341
Anwendung; der Anspruch auf Schadens¬
ersatz ist ausgeschlossen, wenn der Gläubiger
die Strafe verlangt.
§ 342 extends the application of 339-341 to cases in which the performance other than 1
the payment ot a sum of money is promised as a penalty. However, an important exception is
that a further damage claim is excluded in this case; §§ 340(2) and 341(2) do not apply. This
means that if the obligee demands payment of the penalty, he may no longer demand
performance of the secured obligation. However, if the penalty accrued due to poor
performance (not non-performance) the obligee may demand the penalty for the poor
performance and may further demand performance of the remaining secured obligation.
The obligee must expressly reserve its rights in this case when accepting the penalty payment.
§ 342 does not need to refer to 343-345 as they already apply to penalties other than the
payment of money. Parties can deviate from § 342 in the contract.
§343
Reduction of the penalty
(1) ‘If a payable penalty is disproportio¬
nately high, it may on the application of the
obligor be reduced to a reasonable amount by
judicial decision. 2In judging the appropriate¬
ness, every legitimate interest of the obligee,
not merely his financial interest, must be
taken into account. 3Once the penalty is
paid, reduction is excluded.
(2) The same also applies, except in the
cases of §§ 339 and 342, if someone promises
a penalty in the event that he undertakes or
omits an action.
§343
Herabsetzung der Strafe
(1) ‘1st eine verwirkte Strafe unverhältnis¬
mäßig hoch, so kann sie auf Antrag des
Schuldners durch Urteil auf den angemesse¬
nen Betrag herabgesetzt werden. 2Bei der Be¬
urteilung der Angemessenheit ist jedes be¬
rechtigte Interesse des Gläubigers, nicht bloß
das Vermögensinteresse, in Betracht zu zie¬
hen. 3Nach der Entrichtung der Strafe ist die
Herabsetzung ausgeschlossen.
(2) Das Gleiche gilt auch außer in den
Fällen der §§ 339, 342, wenn jemand eine
Strafe für den Fall verspricht, dass er eine
Handlung vornimmt oder unterlässt.
A. Function
I. Purpose
§ 343 serves to protect the obligor of excessive penalties. It allows a judge to review and 1
decide on the fairness and reasonableness of a penalty in equity (Hillif’keitskontrolle). § 343 is
an exception to the general principle of German (contract) law that judicial review is limited
to the review of the legality of a decision. Due to its protective function, § 343 is mandator)'.1
It is possible for the obligor to waive his right under § 343 after the penalty has accrued.
1 BGH 22.5.196« - VIII ZR 69/66, NJW 196«, 1625.
M. Oehm
561
§ 343 2-6
Division 3. Contractual obligations
II. Scope of application
2 § 343 applies to all types of penalty clauses. In particular, it applies to penalty clauses
where the penalty is owed in money (§ 339) and in performance other than the payment of a
sum of money (§ 342). Moreover, § 343 applies to sunset clauses and to liquidated damages.2
Sub. 2 extends the application of § 343 to stand-alone penalty clauses. Notably, § 343 does
not apply in commercial contracts between merchants. § 348 HGB expressly excludes its
application. The case law, nevertheless, applies the general principles in §§ 2423, 3154 and
3135 to reduce the penalty to a reasonable amount.
B. Explanation
I. Valid penalty clause
3 The parties must have agreed on a valid penalty clause (§ 339). The parties must agree on
the requirements that constitute a non-performance triggering the penalty as well as the
damages amount. The invalidity' of a penalty clause is dealt with in § 344. The promise of a
penalty is invalid if the secured primary' obligation is ineffective or invalid. Furthermore, the
penalty clause alone can be invalid under the general principles of § 134 (a violation of a
statutory' provision) and § 138 (a legal transaction contrary to public policy'). However, these
principles are to be applied with caution and only in severe cases. For example, a penalty¬
clause does not violate public policy simply because the amount promised as a penalty is
high. Certain other factors must rather show that the parties had reprehensible motives when
they concluded the penalty clause.6 Such factors can be the endangerment of the economic
existence of the obligor.7 Moreover, claiming the penalty at all can constitute an impermis¬
sible exercise of rights under § 242; § 343 is also inapplicable in such cases. The common
example here is a very minor or trivial breach of the obligor’s promise.
II. Non-payment
4 Sub. 1 3rd St. stipulates - as the second requirement for a reduction - that the penalty must
not already have been paid. Once the obligor has paid and thus accepted the penalty' amount,
he can no longer claim a reduction.
III. Unreasonably high
5 The penalty must be unreasonably high. The reduction of a penalty to a reasonable
amount by a judicial decision only makes sense if the penalty otherwise is unreasonable. As
the wording unmistakably only refers to a reduction, it is not possible that the obligee relies
on § 343 and claims that the penally is unreasonably low and therefore should be increased-
IV. Application
6 § 343 requires an application of the obligor that the penalty is reduced. Courts must not
reduce a penalty ex officio. However, any indication by the obligor of his intention that the
2 Though this is disputed see HK BGB/Schulze, § 343 BGB mn. 2 (pro); BeckOK BGB/lanoschek
§ 343 IK ill inn. 2 (conlrn).
’ BGH 17.7.200« - I ZR 168/05, N)W 2009, 1882.
4 BGH 17.9.2009 - I ZR 217/07, NIWRR 2010, 1127.
4 BGH 24.3.1954 - II ZR 30/53, NJW 1954, 998.
o BGH 30.3.1977 - VIII ZR 300/75, BeckRS 1977, 31122440.
7 Sec MiiKo BGB/Gottwalil. § 343 BGB inn. 8.
562
M. Ochm
Burden of proof § 345
penalty is reduced suffices.8 The obligor must not expressly refer to § 343 or even quantify
the desired reduction.
V. Legal consequence
The legal consequence of § 343 is the reduction of the penalty by judicial decision to a 7
reasonable amount. When determining this reasonable amount, the judge must take every
legitimate interest of the obligee into account, not merely his financial interest. The severity
and extent of the breach are important factors to be considered.9 The judge must also
consider the purpose of the penalty clause which is to promote performance of the contract
as a form of leverage.10 The absence of actual damages cannot justify a reduction.
VI. Procedural aspects
The decision under § 343 is at the discretion of the deciding judge. As a consequence, the 8
appeal court can only review if the deciding judged applied all legal aspects correctly. The
relevant point in time for determining the reasonableness of the penalty is its assertion by
the obligee. The parties are tree to refer the decision about a reasonable penalty to an arbitral
tribunal.
§344
Ineffective promise of a penalty
If the law declares that the promise of an
act of performance is ineffective, then the
agreement of a penalty' made for the event of
failure to fulfil the promise is likewise inef¬
fective, even if the parties knew of the ineffec¬
tiveness of the promise.
§344
Unwirksames Strafversprechen
Erklärt das Gesetz das Versprechen einer
Leistung für unwirksam, so ist auch die für
den Fall der Nichterfüllung des Versprechens
getroffene Vereinbarung einer Strafe unwirk¬
sam, selbst wenn die Parteien die Unwirksam¬
keit des Versprechens gekannt haben.
§ 344 sen es to ensure the accessoriness or dependence of the promise of a penalty. The 1
contractual penalty under § 339 only accrues in case of non-performance of the main
obligation under the contract.* 1 If the main obligation is ineffective, so is the promise of a
penalty. The legal principle underpinning § 344 is that a promise of an act of performance,
which the law declares ineffective, must not be enforced indirectly by way of a penalty clause.
§ 344 therefore stipulates that it is irrelevant if the parties knew of the ineffectiveness of the
promise. The case law also applies this principle to stand-alone penalty clauses (selbständige
Vertragsstrafen).2 The following principles generally apply in order to render the promise
ineffective: a violation of a statutory provision (§ 134), a legal transaction contrary to public
policy 138), voidness resulting from a defect of form (§ 125). A party paying a penalty
despite § 344 can restore its payment under §§ 812 et seq.
§345
Burden of proof
If the obligor contests the payability of
the penalty because he has performed his
obligation, he must prove performance, un-
§345
Beweislast
Bestreitet der Schuldner die Verwirkung
der Strafe, weil er seine Verbindlichkeit er¬
füllt habe, so hat er die Erfüllung zu bewei-
h BGH 22.5.1968 - VIII ZR 69/66, NJW 1968, 1625.
9 BGH 31.5.2001 - I ZR 82/99, NJW 2002, 1876.
BGH 7.10.1982 - I ZR 120/80. NJW 1983, 941.
1 See » § 339 above.
2 BGH 6.2.1980 - IV ZR 141/78. NJW 1980, 1622.
M. Oehm
56.3
§346
Division 3. Contractual obligations
less the performance owed consisted in for- sen, sofern nicht die geschuldete Leistung •
bearance. einem Unterlassen besteht. 8 ln
A. Function
I. Purpose
1 § 345 confirms the general burden of proof principle that in case of an obligation to
perform a certain act, the obligor must prove his performance even if the obligee raises his
claims based on the non-performance. In other words: it is not for the obligee to prove that the
obligor has not-performed, but rather the obligor must prove that he has actually performed
despite the obligee’s claim to the contrary. The same applies in cases of poor performance,
however, § 363 must be taken into account. Conversely, in cases where the performance owed
consisted in forbearance, the obligee must prove that the obligor breached his promise.
IL Scope of application
2 Parties can generally deviate from § 345 in their contracts. However, § 309 No. 12
stipulates that party agreements regarding the burden of proof in standard terms must not
be to the disadvantage of the other party to the contract (i.e. to the contractual partner of the
user) if this person is a consumer.
Title 5
Revocation; right of withdrawal in
consumer contracts
Titel 5
Rücktritt; Widemifsrecht bei
V erbraucherverträgen
Subtitle 1
Revocation
Untertitel 1
Rücktritt
§346
Effects of revocation
(1) If one party to a contract has contrac¬
tually reserved the right to revoke or if he has
a statutory right of revocation, then, in the
case of revocation, performance received and
emoluments taken are to be returned.
(2) ’In lieu of restitution or return, the
obligor must provide compensation for value,
to the extent that
1. restitution or return is excluded by the
nature of what has been obtained,
2. he has used up, disposed of, encum¬
bered, processed or redesigned the object re¬
ceived,
3. the object received has deteriorated or
has been destroyed; but deterioration that is
caused by the object being used in accordance
with its intended use is not taken into ac¬
count.
§346
Wirkungen des Rücktritts
(1) Hat sich eine Vertragspartei vertraglich
den Rücktritt vorbehalten oder steht ihr ein
gesetzliches Rücktrittsrecht zu, so sind im
Falle des Rücktritts die empfangenen Leistun¬
gen zu rückzu gewähren und die gezogenen
Nutzungen herauszugeben.
(2) ’Statt der Rückgewähr oder Herauf
hat der Schuldner Wertersatz zu leisten,
weit
L die Rückgewähr oder die Herausgabe na
der Natur des Erlangten ausgeschlossen ist»
2. er den empfangenen Gegenstand
braucht, veräußert, belastet, verarbeitet od
umgestaltet hat,
3. der empfangene Gegenstand sich
schlechter! hat oder untergegangen ist; i, 1
bleibt die durch die bestimmungsgemäß**
gebnutchnahnie entstandene X erseht
rung außer Betracht.
564
Wcndland
Effects of revocation
1 §346
2If consideration is specified in the con¬
tract, then this is to be used as a basis when
the compensation for value is calculated; if
compensation for value for the benefit of use
of a loan is to be paid, it can be shown that
the value of the benefit of use was lower.
(3) ’The duty to compensate for loss of
value does not apply
1. if the defect justifying revocation only
became apparent during processing or trans¬
formation of the object,
2. to the extent that the obligee is respon¬
sible for the deterioration or destruction or
that the damage would also have occurred if
the object had remained with the obligee,
3. if in case of statutory revocation the
deterioration or destruction occurred with
the person entitled, although the latter
showed the care that he customarily exercises
in his own affairs.
2Any remaining enrichment must be re¬
turned.
(4) The obligee may demand damages, in
accordance with §§ 280 to 283, for breach of
a duty under subsection (1) above.
2Ist im Vertrag eine Gegenleistung be¬
stimmt, ist sie bei der Berechnung des Wert¬
ersatzes zugrunde zu legen; ist Wertersatz für
den Gebrauchsvorteil eines Darlehens zu leis¬
ten, kann nachgewiesen werden, dass der
Wert des Gebrauchsvorteils niedriger war.
(3) ’Die Pflicht zum Wertersatz entfällt,
1. wenn sich der zum Rücktritt berechti¬
gende Mangel erst während der Verarbeitung
oder Umgestaltung des Gegenstandes gezeigt
hat,
2. soweit der Gläubiger die Verschlechte¬
rung oder den Untergang zu vertreten hat
oder der Schaden bei ihm gleichfalls einge¬
treten wäre,
3. wenn im Falle eines gesetzlichen Rück¬
trittsrechts die Verschlechterung oder der
Untergang beim Berechtigten eingetreten ist,
obwohl dieser diejenige Sorgfalt beobachtet
hat, die er in eigenen Angelegenheiten anzu¬
wenden pflegt.
2Eine verbleibende Bereicherung ist heraus¬
zugeben.
(4) Der Gläubiger kann wegen Verletzung
einer Pflicht aus Absatz 1 nach Maßgabe der
§§ 280 bis 283 Schadensersatz verlangen.
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
C. Explanation 5
I. Right of revocation 5
1. Contractual 6
2. Statutory 7
II. Declaration of revocation 8
III. Legal consequences 9
1. Ex nunc effect 10
2. Obligation to return received performances 11
3. Obligation to return emoluments taken 12
4. Compensation for loss of value in lieu of restitution or return 13
5. Calculation of compensation 14
6. Release of the duty to compensate for loss of value 15
IV. Damages 16
A. Function
I. Purpose and underlying principles
The provision regulates the effects of the revocation of a contract. The purpose of the 1
revocation is to restore the economic status as it was before the conclusion of the contract.
Wencilancl
5b5
§ 346 2-7 Division 3. Contractual obligations
The revocation leads to the termination of the primary contractual duties and obliges both
parties to return the received performances for emoluments taken.
IL Position within the BGB
2 § 346 is located within the General Part of the Law of Obligations. The provision is part of
Title 5 (§§ 346-361) which codifies the law of revocation. It introduces subtitle 1
(§§ 346-354) which covers effects, some requirements and further details of the law
concerning revocation.
III. Scope of application
3 Since the reform of the law of obligations in 2002 § 346 applies to all rights of revocation
no matter whether they are of contractual or statutory origin. However, a clear distinction
between contractual and statutory rights of revocation is still necessary as § 346 includes
special provisions for both variants of rights of revocation (see § 346(3) 1st St. No. 3, § 347(1)
2nd St. and § 347(2) 1st St.). Furthermore, the distinction between contractual and statutory
revocation rights is necessary due to different sets of requirements and different standards for
accountability in case of damages.
B. Context
4 The provision underwent major changes in the course of reform of the law of obligations
in 2002. Before the reform, §§ 346 et seq. were - according to the wording - only applicable
to contractual rights of revocation. However, by the way of reference they have also - with
various modifications - been applied to statutory revocation rights. The reform harmonised
the effects of the revocation of contract so that the provision now applies to both contractual
and statutory rights of revocation alike, although various modifications remain. Furthermore,
the obligee can now combine revocation and compensation (§ 352) and is also allowed to
revoke the contract if the obligor is not liable for the default. The obligee can also revoke the
contract if the return of the received performance is impossible. Finally, the rules concerning
the allocation of risks have been harmonised and now no longer distinguish between
contractual and statutory rights of revocation.
C. Explanation
I. Right of revocation
5 § 346 requires a right of revocation which could either be of contractual or of statutory origin.
1. Contractual
6 A contractual right of revocation can be established either by explicit agreement or by
tacit consensus. When a revocation is included in general terms between an entrepreneur
and a consumer its validity is subject to judicial review according to §§ 307. 308 Na 3. It
requires a suitable reason which needs to be included in the general terms. The right is
subject to statutory restrictions on general contract terms. The parties can agree upon such a
contractual right of revocation even after the conclusion of the contract. The party who
makes use of a right of revocation has to prove its existence in court.
2. Statutory
7 Statutory rights of revocation are provided in §§ 323, 324, 326(5), 437(1) No. 2 and
No. 3.
566
Wendland
Effects of revocation
8-13 § 346
II. Declaration of revocation
In order to be valid, the revocation needs to be exercised by declaration vis-ä-vis the other 8
part}\ The declaration of revocation is - unlike a cancellation agreement - unilateral and
requires acknowledgement by the other party.
III. Legal consequences
After exercising the right of revocation, the contractual relationship between the parties is 9
transformed into a statutory restitutionary relationship.1 Its purpose is to restore econom¬
ically the status quo ante as the status before the contract was concluded. If the contract has
not yet been performed then its obligations are terminated. Otherwise the performance
received and emoluments taken are to be returned (Sub. 1).
1. Ex nunc effect
While the revocation takes effect ex nunc only, i.e. from the time when the revocation was 10
declared2 it also has a retrospective effect since it includes the return of received performances
and emoluments taken. The revocation only has effect on contractual obligations, not on
claims in rem. The place of performance for the duty to return performances received and
emoluments taken is the place where the returned performance originally had to be performed.3
2. Obligation to return received performances
In case of a statutory’ right of revocation the performances have to be returned at the place 11
where the object of restitution is situated according to the law (Sub. I 1st Alt.).
3. Obligation to return emoluments taken
Pursuant to Sub. 1 2nd Alt., the obligor has to return actually taken emoluments such as 12
fruits or any other benefits deriving from the use of the returned goods (§§ 99, 100). The
loss of value which occurred due to the proper use of the goods has to be taken into
account.4
4. Compensation for loss of value in lieu of restitution or return
If the obligor is not able to return the received performances or the emoluments taken, he 13
has to compensate the obligee in lieu (Sub. 2 1st St.). The provision covers three different
scenarios: Sub. 2 1st St. No. 1 relates to cases in which restitution or return is excluded by the
nature of what has been obtained, i.e. concerts, trips or other services. Sub. 2 1st St. No. 2
requires, that the obligor has used up, disposed of, encumbered, processed or redesigned
(§ 950) the object received. In case of disposition, the obligor only has to compensate if it is
impossible (§ 275) to retrieve the object or to remove the liability.3 Sub. 2 1st St. No. 3
concerns the case that the object received has deteriorated or has been destroyed. However,
the second part of Sub. 2 1st St. No. 3 states that a deterioration that is caused by the object
being used in accordance with its intended use is not taken into account, i.e. loss of value by
’ BGH 10.7.199« - V ZR 360/96, NJW 199«, 326«.
2 BGH 10.7.199« - V ZR 360/96, NJW 199«, 326«. Dissenting Canaris, I'inanzlcasing und Wandelung,
NJW 1982, 305, 310.
3 OLG Hamm 14.9.19«! - 2 U 43/81. MDR 1982, 141.
4 BGH 26.6.1991 - VIII ZR 198/90. NJW 1991, 2484; BGH 25.10.1995 - VIII ZR 42/94, N|W |99ö,
252.
s BGH 10.10.2008 - V ZR 131/07, NJW 2009, 63.
Wcndland
567
§ 347 Division 3. Contractual obligations
the initial registration of a car.6 The provision therefore only covers excessive deteriorations
such as substantial damage or abrasion due to excessive use.
5. Calculation of compensation
14 According to the first part of Sub. 2 2nd St., the calculation of the compensation is based on
the contractually agreed consideration if consideration is specified in the contract. If
compensation for value for the benefit of use of a loan is to be paid, then the obligor has
the right to show that the value of the benefit of use was lower so that the compensation will
reduced accordingly.7
6. Release of the duty to compensate for loss of value
15 According to Sub. 3 1st St. the duty to compensate for loss of value pursuant to Sub. 2 does
not apply in certain enumerated cases. Instead the obligor only has to return the remaining
enrichment (Sub. 3 2nd St). Therefore Sub. 3 T* St. No. 1 covers cases in which the defect
justifying revocation only became apparent during processing or transformation of the
object. In such a case, the processing or transformation of the object did not lead to an
added value of the good due to the defect. Sub. 3 1st St. No. 2 concerns the case that the
obligee is responsible for the deterioration or destruction or that the damage would also
have occurred if the object had remained with the obligee. Under such circumstances the
obligee is responsible for the loss of value so that it would be unfair to burden the obligor
with the duty to compensate. Sub. 3 Is’ St. No. 3 releases the obligor from his duh’ of
compensation if, in case of statutory revocation, the deterioration or destruction occurred
with the person entitled, although the latter showed the care that he customarily exercises in
his own affairs (§ 277). The provision privileges the owner of a statutory' right of revocation
and is therefore not applicable to contractual revocation rights. Sub. 3 2nd St. states that any
remaining enrichment must be returned. The provision contains a reference to the legal
effects of the law of unjust enrichment (§§ 812 et seq.).
IV. Damages
16 Sub. 4 makes clear that the obligee may demand damages in accordance with §§ 2SO-2S3,
for breach of a duty under § 346(1).
§347
Emoluments and outlays after
revocation
(1) ’If the obligor fails to take emoluments
contrary to the rules of proper management
although he could have done so, then he is
obliged to compensate the obligee for the
value. 2In the case of a statutory right of
revocation, the person entitled must in re¬
gard to emoluments be responsible only for
the care that he customarily exercises in his
own affairs.
(2) ‘If the obligor returns the object or
gives compensation for the value or if his
duty to compensate for value under § 346(3)
§347
Nutzungen und Verwendungen
nach Rücktritt
(1) ’Zieht der Schuldner Nutzungen ent¬
gegen den Regeln einer ordnungsmäßigen
Wirtschaft nicht, obwohl ihm das möglich
gewesen wäre, so ist er dem Gläubiger zum
Wertersatz verpflichtet. 2Im Falle eines ge¬
setzlichen Rücktrittsrechts hat der Berech-
tigte hinsichtlich der Nutzungen nur für die¬
jenige Sorgfalt einzustehen, die er in eigenen
Angelegenheiten anzuwenden pflegt.
(2) ’Gibt der Schuldner den Gegenstand
zurück, leistet er Wertersatz oder ist seine
Wertersatzpflicht gemäß §346 Abs. 3 1
6 BT-Drs. 14/6040 of 14.5.2001, p. 193.
7 See BT-Drs. 14/9266 of 5.6.2002, p. 45.
568
Wendland
Emoluments and outlays after revocation
1-4 § 347
No. 1 or 2 is excluded, he must be reimbursed
for his necessary outlays. 2Other expenses are
to be reimbursed to the extent that the ob¬
ligee is enriched by them.
oder 2 ausgeschlossen, so sind ihm notwen¬
dige Verwendungen zu ersetzen. 2Andere
Aufwendungen sind zu ersetzen, soweit der
Gläubiger durch diese bereichert wird.
A. Function
I. Purpose and underlying principles
The provision regulates the compensation of the obligee for emoluments not taken and the 1
reimbursement ot the obligor for his necessary outlays in case of revocation. Its purpose is to
maintain the equivalence ratio between performance and consideration even if the contract is
revoked. The provision was introduced in the course of the reform of the law of obligations
in 2002. It is of dispositive nature so it can be waived by the parties. It complements § 346(1)
which obliges the obligor to return emoluments actually taken. As in § 346(1) the term
emoluments include the fruits or any other benefits deriving from the use of the returned
goods 99, 100).
IL Scope of application
Contrary to the wording of its official heading (emoluments and outlays after revocation) 2
the provision also applies to emoluments and necessary' outlays falling into the period before
the revocation. Following the harmonised approach which governs § 346, the provision
applies to contractual and statutory' rights of revocation alike with § 346(2) 2nd St. as only
exception. The two subsections of the provision refer to the respective roles of the parties
within the statutory restitutionary relationship established by revocation: whereas Sub. 1
obliges the obligor Sub. 2 obliges the obligee.
B. Explanation
I. Compensation for emoluments not taken
Sub. 1 1st St. establishes the duty of the obligor to compensate the obligee for emolu- 3
ments not taken. If the obligor fails to take emoluments contrary to the rules of proper
management although he could have done so, he is obliged to compensate the obligee for
the value. As § 987(2), § 347 requires that the taking of the emoluments according to the
rules of proper management is possible for the obligor. The obligation for compensation
therefore terminates if the returned good has been used up or processed. That the obligor
culpably failed to take the emoluments is not necessary. Sub. 1 2nd St. privileges the obligor
in the case of a statutory right of revocation. In this case the obligor is in regard to
emoluments only responsible for the care that he customarily exercises in his own
affairs (§ 277).
IL Reimbursement of the obligor for his necessary outlays
Sub. 2 1st St. gives the obligor the right to be reimbursed for his necessary outlays if he 4
returns the object or gives compensation for the value or if his duly to compensate for value
under § 346(3) No. 1 or 2 is excluded. Outlays are all expenditures which directly benefit the
good. They are necessary, if they are objectively needed for the maintenance or for the proper
management of the good. This includes the common maintenance costs of the good.
According to Sub. 2 2nd St., other expenses are to be reimbursed pursuant to the provisions
of unjust enrichment (§§ 812 et seq.).
Wendland
569
§ 348 1-4
Division 3. Contractual obligations
§348
Reciprocal and simultaneous
performance
'The obligations of the parties arising from
revocation are to be performed reciprocally
and simultaneously. 2The provisions of
§§ 320 and 322 apply with the necessary
modifications.
§348
Erfüllung Zug-um-Zug
lDie sich aus dem Rücktritt ergebenden
Verpflichtungen der Parteien sind Zug Drn
Zug zu erfüllen. 2Die Vorschriften der §§ 320
322 finden entsprechende Anwendung.
A. Function
I. Purpose and underlying principles
1 The provision regulates the execution of the revocation. If the revocation leads to
reciprocal duties of both obligor and obligee, these duties have to be performed reciprocally
and simultaneously.
II. Scope of application
2 Although § 348 is dispositive so that the provision can be generally waived by the parties,
its derogation in general terms and conditions is subject to judicial review according to
§§ 305 et seq. As a result, the corresponding application of § 320 with the necessary
modifications as provided in the 2nd St. cannot be waived in general terms and conditions
between an entrepreneur and a consumer pursuant to § 309 No. 2a.1 The provision only
covers the duties arising from the statutory restitutionary relationship established by the
revocation, not the duties arising from the original contract. It includes all duties wdiich arise
from the statutory restitutionary relationship: beside the primary’ duties to return the
performances according to it also covers the duties to return actually taken emoluments
(§ 346(1)), to compensate emoluments wrongfully not taken (§ 347(1)), to compensate
for loss of value in lieu of restitution or return according to (§ 346(2)), to pay damages
(§ 346(4)) and to reimburse necessary outlays (§ 347(2)).
B. Explanation
I. Requirements
3 § 348 requires that both parties are subject to obligations arising from revocation. If the
revocation leads to a unilateral obligation of one of the parties only (as it might be the case it
§ 346(3) Is' St. applies), § 348 is by nature not applicable. However, § 348 does not require
that the parties' duties arising from revocation are dependent upon each other in the sense ot
a synallagma since revocation leads to a statutory restitutionary relationship which signifi¬
cantly differs from a contract imposing mutual synallagmatic obligations?
II. Legal consequences
4 If § 348 applies and revocation leads to a unilateral obligation of one of the parties onlv
then are the obligations of the parties arising from revocation to be performed recipnxalb
1 BGH 8.11.1974 - V ZR 36/73, N|W 1975, 165; BGH 21.12,1979 _ || ZR 244/-«, N’|\V WSO. l<''b
1632.
2 BGH 7.11.20(11 - VIII ZR 213/00, NJW 2002, 506, 507,
570
Wendland
Declaration of revocation 1-4 § 349
and simultaneously (1st St.). Furthermore, the provisions of § 320 and § 322 apply with the
necessary modifications (2nd St.). Since revocation does not lead to synallagmatic contractual
obligations, but to a statutory restitutionary relationship, the provisions regarding synallag¬
matic contracts such as § 323 (allowing a ‘revocation from revocation’) or § 326(1) 1st St. are
not applicable. Also, the respective obligations of both parties cannot be balanced but remain
standing vis-ä-vis each other.3 The parties have to declare set-off if they want to avoid reverse
payments.4
§349
Declaration of revocation
Revocation is effected by declaration to the
other party.
§349
Erklärung des Rücktritts
Der Rücktritt erfolgt durch Erklärung ge¬
genüber dem anderen Teil.
A. Function
The provision regulates the declaration of revocation and specifies its recipient. 1
B. Explanation
I. Exercise
The right of revocation is exercised by unilateral declaration of intent to the other party. 2
It becomes complete on receipt by the other party and is not subject to specific requirements
of form. It can therefore also be conducted implying an intent, i.e. by simply returning the
good. The party entitled to exercise the right of revocation only has to make clear by its
conduct that it wishes the expiration of the obligations not yet performed and the return of
the performances received.1
IL Unconditional declaration
As the declaration of revocation directly brings about the effects of revocation according to 3
§ 346, it generally cannot be subject to any conditions. However, if a conditional declaration
of revocation does not lead to unacceptable legal uncertainties for the other party, it is
deemed to be admissible.2 3 The party declaring the revocation is not obliged to provide
reasons for the revocation or impend the revocation before.3
III. Time limit
The revocation can be declared at any time and is not subject to a time limit. However, in 4
case of a revocation for non-performance or fur the failure according to § 218(1) 1M St., the
revocation is ineffective if the claim for performance or the claim for cure is statute-barred
and is invoked by the obligor invokes. According to § 218(1) 2nd St., this applies even if, in
accordance with § 275(1) to (3), § 439(3) or § 635(3), the obligor is not required to perform
3 BGH 30.6.2017 - V ZR 134/16, NJW 2017, 3438 (mn. 13); BGH 12.1.2016 - XI ZR 366/15, WM 2016,
454 (mn. 16).
4 Controversial: for a set-off OLG Frankfurt a.M. 11.6.2015 - 18 U 29/12, BeckRS 2016, 13982
(mn. 67), against a set-off probably BGH 20.2.2008 - VIH ZR 334/06, NJW 2008, 2028 (mn. 9).
’ BGH 24.6.1988 - V ZR 49/87. NJW 1988, 2879.
2 BGH 21.3.1986 - V ZR 23/85, NJW 1988, 2878.
3 BGH 10.12.1986 - VIH ZR 349/85, NJW 1987, 831.
Wendland
571
§ 350 1-3 Division 3. Contractual obligations
and the claim for performance or cure would be statute-barred. The right of revocation can
also be forfeited.
IV. Legal consequences
5 When exercised» the declaration directly brings about the effects of revocation according to
§ 346(1) which is the transformation of the contractual relationship between the parties is
transformed into a statutory restitutional relationship. This effect arises on receipt by the
other party and therefore generally the declaration cannot be revoked.
§350
Extinction of the right of
revocation after a period of time
has been specified
lIf a period of time has not been agreed for
the exercise of the contractual right of revoca¬
tion, then the other party may specify a rea¬
sonable period of time within which the per¬
son entitled to revoke must exercise that right.
2The right of revocation is extinguished if
revocation is not declared before the end of
that period.
§350
Erlöschen des Rücktrittsrechts
nach Fristsetzung
Hst für die Ausübung des vertraglichen
Rücktrittsrechts eine Frist nicht vereinbart,
so kann dem Berechtigten von dem anderen
Teil für die Ausübung eine angemessene Frist
bestimmt werden. 2Das Rücktrittsrecht er¬
lischt, wenn nicht der Rücktritt vor dem Ab¬
lauf der Frist erklärt wird.
A. Function
I. Purpose
1 The provision grants the other party the legal privilege to specify a reasonable period of time
within which the entitled party must exercise that right; right of revocation is extinguished it
not exercised within the time period. The provision aims to give the party possibility to end the
uncertainty surrounding the potential revocation of the contract. Its purpose is to establish a
sufficient level of legal certainty about the validity of the concluded contract.
II. Scope of application
2 Since the reform of the law of obligations in 2002, § 350 only applies to contractual rights of
revocation. However, the wording of the provision - which does not sufficiently distinguish
between the different reasons for non-performance of the obligor - does not perfectly fit to its
underlying rationale. Its scope of application therefore has to be broadened so that it
accordingly also applies to revocation in case of interference with the basis of the transaction
pursuant to § 313(3) I5' St., to revocation in case of vis major according to § 323(1) Ist St
to revocation in the context of a purchase where the parties mutually reserve a right ot
exchange. However, apart from these exceptions the provision dives on no account apph’
statutory rights of revocation since such an interpretation would exceed the limits of
wording. Conversely, in a goal-oriented interpretation the provision should not apply in cas*
in which the contractual revocation right only specifies or modifies a statutory right ot
revocation for the failure to perform in conformity with the contract.
B. Context
3 The provision corresponds to § 355 as amended in the course of the reform of the la*
obligations in 2002. It underwent slight modifications in respect to its limitation
572
Wemilami
Extinction oj the right of revocation after specification of time 4-8 § 350
contractual rights of revocation. According to the legislative history, the rationale behind the
limitation to contractual rights of revocation is the consideration that it can be expected from
the defaulting obligor to bear the uncertainty connected with a revocation right which has
not yet been exercised.1 Apart from that, the obligor is free to end the uncertainty by simply
performing the obligation owed.
C. Explanation
L No contractual agreement
In order to be eligible to specify a reasonable period of time for the exercise of the right of 4
revocation, it is necessary that no such period of time has yet been agreed upon. The
provision can be partially or fully waived by agreement of the parties, i.e. by agreeing on the
duration of the period tor the exercise of the revocation right and thus on its reasonableness.
However, the limits set by the provisions regulating the law of general obligations have to be
kept. Accordingly, pursuant to § 309 No. 8a a clause which limits the exercise of the buyer’s
revocation right to one week after specifying the period to the buyer has been held invalid by
the courts.2
IL Right of revocation may be exercised
Furthermore, the requirements of the execution of the revocation right must be fulfilled.3 5
The other party’ is only eligible to specify the period pursuant to the 1st St. if die entitled party
can lawfully make use of this right. Accordingly, in the case of revocation rights which are
subject to a dilatorily condition, the other party may only specify the reasonable period of
time once the condition is fulfilled.
III. Reasonable period of time
The provision requires that the other party’ specifies vis-ä-vis the entitled party a reason- 6
able period of time within which the entitled party must exercise that right. This has to be
done by unilateral declaration of intent which becomes complete upon receipt by the other
party. Whether the period of time is deemed to be reasonable has to be decided for each
individual case separately considering i.e. the time elapsed until the declaration, the extent of
the obligations to return the received performances or special burdens on the side of the
party which is entitled to exercise the right of revocation. If the period specified is deemed to
be unreasonably short, the period is not invalid and does not require another specification.
Instead the period is automatically limited to its reasonable length. The period commences
upon receipt of the other party’s declaration to the entitled party.
IV. Plurality of persons
In the case of a plurality of persons entitled to exercise a right of revocation, that right 7
extinguishes for all of them if not exercised in time even if the period specified was only
declared vis-ä-vis one of these persons (as also shown by § 351 2nd St.).
V. Unilateral waiver
The entitled party can also unilaterally waive this right before exercising it, i.e. by 8
performing the owed obligations while being aware of the revocation right. As the exercise
’ BT-Drs. 14/6040 of 14.5.2001, p. 185.
2 BGH 18.1.1989 - V1H ZR 142/88, NJW-RR 1989, 625 el seq.
3 BGH 18.1.1989 - VIJ1 ZR 142/88, NJW-RR 1989, 625 et seq.
We nd la nd
573
§ 351 1-3 Division 3. Contractual obligations
of the revocation right directly brings about the effects of revocation according to § 346, the
right of revocation cannot be waived once it has been exercised. However, in this case the
parties are free to set the original contract into force again.
VI. Legal consequences
9 According to the 2nd St., the right of revocation is extinguished if revocation is not
declared before the end of the specified period. This applies even in cases in which the cause
underlying the right of revocation persist. However, the revocation right only extinguishes in
respect to the specific cause of revocation which underlies the specification of a period of
time. A revocation justified by other causes remains possible as well as the exercise of other
rights such as the right of compensation.
§351
Indivisibility of the
right of revocation
’If, in a contract, there is more than one
person on one side or the other, the right of
revocation may be exercised only by all and
against all of them. 2If the right of revocation
is extinguished for one of the persons en¬
titled, it is also extinguished for the others.
§351
Unteilbarkeit des Riicktrittsrechts
’Sind bei einem Vertrag auf der einen oder
der anderen Seite mehrere beteiligt, so kann
das Rücktrittsrecht nur von allen und gegen
alle ausgeübt werden. 2Erlischt das Rücktritts¬
recht für einen der Berechtigten, so erlischt es
auch für die übrigen.
A. Function
I. Purpose
1 The provision regulates the exercise and the extinction of the right of revocation in cases of
a plurality of persons on one side or the other of a contract. It intends to preserve the unity of
the contract since the transformation of the contractual relationship into a statutory
restitutional relationship in the course of the revocation necessarily has to include the entire
legal relationship between the parties.
IL Scope of application
2 § 351 applies to all contracts which have been concluded between more than one person
on one side or the other. It is irrelevant on which side there is a plurality’ of persons. Since the
2nd St. that every person involved has an individual right of revocation, the provision does
not apply to the community of heirs which can exercise the right of revocation only mutual!**
Due to the necessity of uniform transformation of the legal relationship, the provision also
applies in the case of limitation of actions according to § 218. The provision can be partially
or fully waived by agreement of the parties.
B. Context
3 The provision is identical to § 356 in the version effective before the reform of the law ot
obligations in 2002 and has since remained unchanged.
574
Wendland
Set-o ff after nonperformance
1 §352
C. Explanation
I. Exercise
Pursuant to the 1st St., the revocation right can only be exercised in a uniform manner. It 4
states that it, in a contract, there is more than one person on one side or the other, the right of
revocation may be exercised only by all and against all of them. The revocation therefore
cannot be limited to individual members of the plurality of the persons involved on either side
ot the contract. It is sufficient that the cause for the revocation right persists with one member
ot the plurality ot persons.1 The exercise of the revocation right may be conducted by the use of
a lawfully-appointed representative. It is not necessary that the revocation right is exercised
by or vis-ä-vis all members of the plurality of persons individually or simultaneously.
II. Type of participation
The type of participation of the plurality of persons - i.e. joint obligees and obligors, 5
associations 420, 427, 428, 709, 747, 2039, 2040) - is irrelevant. However, § 351 does not
apply it there are only multiple independent claims. There is no participation of a plurality of
persons where an external partnership is involved since they have legal capacity on their
own. Special regulations for the respective plurality of persons, as it is the case for the
partnership, have precedence. If a person is accrued, i.e. by joint liability or by an accession
agreement, then § 351 does not apply, since although that person will be liable that does not
make him to a party of the contract, as required by the 1st St. In the case of a community of
heirs § 2039 does not grant a member of that community the capacity to exercise the right of
rex'oeation for the entire community.
III. Overall extinction of the revocation right
According to the 2nd St., the extinction of a revocation right has for one person has overall 6
effect for all other persons entitled. If the revocation right is extinguished for one of the
persons entitled - i.e. according to § 350 2nd St. or by waiver2 or forfeiture - it is also
extinguished for the others. According to its wording, the provision does not cover the case
that the right of revocation against one member of a plurality of persons is extinguished.
Howe\rer, in such cases the 2nd St. should be applied accordingly by way of analogy.
§352
Set-off after nonperformance
Revocation for failure to perform an obli¬
gation is ineffective if the obligor was able to
release himself from the obligation by means
of set-off and he declares set-off without un¬
due delay after the revocation.
§352
Aufrechnung nach Nichterfüllung
Der Rücktritt wegen Nichterfüllung einer
Verbindlichkeit wird unwirksam, wenn der
Schuldner sich von der Verbindlichkeit durch
Aufrechnung befreien konnte und unverzüg¬
lich nach dem Rücktritt die Aufrechnung
erklärt.
A. Function
The provision regulates the effects of a revocation in the context of a set-off (§ 388) and 1
solves the competition between both rights in favour of the obligor’s right to set-off. Its
1 BGH 30.4.1976 - V ZR 143/74, N|W 1976, 1931.
2 BGH 17.3.1989 - V ZR 245/87, NJW 1989, 2388.
Wend land
575
§ 353 Division 3. Contractual obligations
purpose is to preserve the effects of a set-off which should not be circumvented by
revocation. If a party is entitled to declare a set-off, it typically assumes and can legitimately
assume that the other party will refrain from sanctioning a non pe ormance. owever, if the
other party nevertheless declares the revocation of the contract, § 352 aims to establish the
state which existed before the revocation in case of a set-off.
B. Context
2 The provision succeeds § 357 in the version effective before the reform of the law of
obligations in 2002 which contained a similar rule, albeit limited to contractual revocation
rights. Since the provision’s rationale also applies to statutory revocation rights, its scope of
application was extended to cover all rights of revocation no matter whether they are of
contractual or statutory nature.
C. Explanation
I. Revocation for failure to perform or to perform
in conformity with the contract
3 According to its wording § 352 requires firstly a revocation for failure to perform.
However, for systematic reasons and with respect to § 323(1) the term failure to perform
also includes the failure to perform in conformity with the contract so that the provision also
applies to cases of malperformance or delayed performance.1 Whether the revocation right
depends on the party’s responsibility for the default is irrelevant.
II. Set-off situation at the time of revocation and declaration of set-off
4 Secondly, § 352 requires that the set-off situation already existed at the time of revocation
and that the obligor declares the set-off without undue delay pursuant to § 121(1) 1st St. after
the revocation.
III. Legal consequences
5 Once the obligor declares the set-off the other party 's revocation becomes ineffective.
Consequently, the claims arising from the statutory restitutional relationship expire and the
contract is reactivated with its original content: the parties are obliged to perform as
originally agreed. Furthermore, once a contraction^ revocation right has been used it is
exhausted. A statutory revocation right based on the same cause is barred.
§353
Revocation in return for
forfeit money
§353
Rücktritt gegen Reugeld
’If the right of revocation in return for
payment of forfeit money has been reserved, g
the revocation is ineffective if the forfeit w
money is not paid before the declaration or b
when the declaration is made and the other a
party, for this reason, rejects the declaration u
without undue delay. 2However, the declara- j<
tion is effective if the forfeit money is paid li
without undue delay after the rejection.
1 BGH 29.6.1981 - Vll ZR 299/80, NJW 1981. 2404.
'1st der Rücktritt gegen Zahlung eines ReU’
gelds Vorbehalten, so ist der Rücktritt un
wirksam, wenn das Reugeld nicht vor oder
bei der Erklärung entrichtet wird und der
andere Teil aus diesem Grunde die Erklärung
unverzüglich zurückweist. 2Die Erklärung
jedoch wirksam, wenn das Reugeld unverzüg¬
lich nach der Zurückweisung entrichtet wi
576
VVt’ih/Jmid
Revocation in return for forfeit money
1-5 § 353
A. Function
I. Purpose
The provision regulates the effects of a revocation if the right of revocation in return for 1
payment ot forfeit money has been contractually reserved. Its purpose is to preserve the
function ot the agreed forfeit money which is to grant the other party compensation for the
detriments connected with a revocation.1 However, the compensation granted by the forfeit
money consists ot the payment of a lump sum being independent from real losses.
II. Scope of application
The provision only applies to contractual revocation rights as it is the nature of the forfeit 2
money to grant to obligor a right to revoke the contract which otherwise does not exist. An
existing statutory revocation right is not affected and can be exercised without payment of
forfeit money.2
B. Context
The provision is identical to § 359 in the version effective before the reform of the law of 3
obligations in 2002 and has since remained unchanged.
C. Explanation
I. Agreement
The provision requires that a right of revocation in return for payment of forfeit money 4
has been reserved by agreement between the parties. Such an agreement has to be
distinguished from a contractual penalty pursuant to §§ 339 et seq.3 For the interpreta¬
tion of the parties’ intent the function of the payment is the decisive criterion: while the
purpose of a contractual penalty is to secure the proper performance of the contractional
obligations, the payment of forfeit money is the consideration one party pays to be entitled
to revoke the contract. Through the payment of forfeit money a party basically buys a
revocation right. Forfeit money therefore cannot be reduced as it is the case with a
contractional penalty pursuant to § 343.4 If the parties agree on the payment of an earnest
pursuant to § 336 they typically do not intend to agree on forfeit money in the sense of
§ 353. At the same time, the agreement of forfeit money does not have to be necessarily
limited to the payment of a lump sum. Rather, the parties are free to agree to any type of
consideration in return for the revocation right. The claim to receive the agreed forfeit
money remains even if the parties mutually agree to terminate the contract and does not
expire.
IL Amount
The parties are free to agree on any amount they consider to be reasonable within the 5
general limits of the freedom of contract - especially §138 - by individual contract.
However, if the agreement on the payment of forfeit money is part of general terms and
» BGH 4.10.1956 - II ZR 121/55, NJW 1956, 372.
2 BGH 18.4.1984 - VIII ZR 46/83, WM 19H4, 936, 937.
3 KG 23.5.1989 - 6U 4736/88, NJW-RR 1989, 1075, 1077.
4 KG 23.5.1989 - 6 U 4736/88, NJW-RR 1989, 1075, 1077,
Wendland
577
6
§ 353 6-9 Division 3. Contractual obligations
»ndldons then an unduly Heb
unreasonably disadvantages the other party. § 309 No. 6 is not pp & ent
of forfeit money is not a contractual penalty.
Ill Default to pay the forfeit money and
immediate rejection of the revocation
The 1« St. that (i) the forfeit money is not paid before the declaration of revocation or
when the declaration is made and (ii) that the other party, for this reason, rejects the
declaration without undue delay. The rejection of the dedaratton of revocatton ts therefore
subject to two requirements: first, the rejection has to be carried out without undue delay
after the declaration of revocation, which implicitly refers to § 121(1) 1 St., as it is also the
case with § 352. Secondly, the revocation has to be based on the lacking payment of the
forfeit money whereas the respective intent does not necessarily have to be uttered expressis
verbis. A conduct implying an intent should be sufficient.
IV. Payment of forfeit money without undue delay after the rejection
7 The 2nd St. regulates the legal consequences of a late payment of forfeit money’ after the
revocation has been rejected by the other party pursuant to the 1st St. If the person who is
contractually entitled to revoke the contract does so without paying the agreed forfeit
money and the other party’ according to the 1st St. rejects the revocation then the 2^ St
grants to possibility to cure the default by making up the missed payment The provision
requires, that (i) a situation pursuant to the 1st St. has occurred (revocation, non-payment
of agreed forfeit money, rejection of the revocation by the other party) and that (ii) the
agreed forfeit money has been paid - pursuant to § 121(1) 1st St. - without undue delay
after the rejection.
V. Burden of proof
8 The burden of proof for the existence of a contractional revocation right as well as for the
timely payment of the forfeit money (1st St.) or the making up of that payment (2nd St.) is on
the party who declares the revocation and who is obliged to pay the forfeit money. The
burden of proof for the agreement to pay forfeit money in return for a revocation right as
well as for the timely rejection of the revocation is on the other partv.
9
VI. Legal consequences
The provision regulates two succeeding scenarios: the rejection of a revocation without
timely payment of the agreed forfeit money (1st St.) and the option to cure the consequences
of the defaulted payment by paying the agreed forfeit money without undue delay alter the
rejection (2n St.). In the former case, the revocation is ineffective. The legal effectiveness ot
the revocation stands under the resolutive condition of timely rejection bv the other party.
However, m reverse conclusion, it will be effective if the other partv does not reject the
revocation without undue delay The payment of the forfeit money is not a necessary
ondi .on for the effect.veness ot the revocation. The other party is then entitled to claim
making up the missed payment ot the agreed forfeit money. dilatory
5 KG 23.5.1989 - 6 U 4736/««, NIWRR 19H9. 1075 1077 ’ ‘
" KG 23.5.1989 - 6 U 4736/8«, NJW-RR 1989, l07s’ 1077 et seq
578
Forfeiture of rights
1-5 § 354
§354
Forfeiture of rights
If a contract has been entered into is sub¬
ject to the reservation that the obligor will
lose his rights under the contract if he does
not pertorm his obligation, the obligee is
entitled to revoke the contract if this circum¬
stance occurs.
§354
Verwirkungsklausel
Ist ein Vertrag mit dem Vorbehalt ge¬
schlossen, dass der Schuldner seiner Rechte
aus dem Vertrag verlustig sein soll, wenn er
seine Verbindlichkeit nicht erfüllt, so ist der
Gläubiger bei dem Eintritt dieses Falles zum
Rücktritt von dem Vertrag berechtigt.
A. Function
I. Purpose and underlying principles
The provision contains a rule of interpretation for cases in which a contract is subject to 1
the reservation that the obligor will lose his rights under the contract if he does not perform
his obligation. It basically states that such a reservation has to be interpreted as the agreement
of a revocation right only. This benefits the obligee as it opens up the option for him to
maintain the contract by not exercising the revocation right while the obligor otherwise could
simply not perform. However, the provision also protects primarily the obligor by granting
him the right to reclaim the performances which already have been rendered pursuant to
§ 346(1).
IL Scope of application
The parties can waive the provision by express or implied agreement.1 2
B. Context
The provision is identical to § 360 in the version effective before the reform of the law of 3
obligations in 2002 and has since remained unchanged.
C. Explanation
I. Agreement
The provision requires that the parties agree that the obligor will lose all his rights under 4
the contract if he does not perform his obligation (forfeiture of rights). A mere partial
forfeiture of rights is not covered by the provision and might be interpreted as a contractual
penalty pursuant to §§ 339 et seq. or similar agreement.2 If the agreement contains partial
legal disadvantages only in case of default (such as the loss of a down payment) then these
effects apply on their own, § 354 does not apply. Although the wording of the provision
expressively refers to the non-performance of an obligation in accordance with § 323(1), it
also applies to cases of defective or delayed performance as it is the case with § 352: 323(5)
2nd St., (6), 324 are then to be applied by way of analogy.
If the agreement is part of general terms and conditions and it is not a continuing 5
obligation then the agreement might be ineffective according to § 307 because it unreason¬
ably disadvantages the other party pursuant to § 30K No. 3. This might be the case if the right
of a party to free himself from his obligation to perform is not covered by an objectively
1 BGH 29.6.1972 - II ZR 101/70, N|W 1972, 1H93, 1K94.
2 BGH 29.6.1972 - II ZR 101/70, NJW 1972, 1 «93, 1 «94.
Wendland
579
§ 354 6-9 Division 3. Contractual obligations
justified reason indicated in the contract (§ 308 No. 3). § 309 No. 6 is not applicable since the
provision does not apply to the agreement of contractual penalties.
II. Good faith
6 Due to its severe consequences, the provision is, pursuant to the principle of good faith
(§ 242), not applicable to mere negligible breaches of duty, especially in cases of an
insignificantly delayed performance.-’ If the other party himself does not adhere to his duties
then the right of revocation might be excluded according to the principle of good faith
pursuant to § 242.4 5 6 *
III. Responsibility
7 According to its wording, the provision does not require that the obligor has to be
responsible for the default. The contrasting prevailing opinion referring to the law effective
before the reform of the law of obligations in 2002° cannot be upheld since that would
conflict with the major rationale of the reform. Consequently, according to § 323(1), the
revocation in cases of defective or delayed performance is not dependent on the responsi¬
bility of the obligor for the default. However, if the obligee is predominantly responsible for
the default, the right of revocation may be excluded pursuant to § 323(6) by way of analogy?
The provision can be waived by the parties; they are therefore free to agree that the obligor
has to he responsible for the default.
IV. Burden of proof
8 The burden of proof for the existence of a contractual forfeiture of rights is on the obligee.
The burden of proof for proper performance is on the obligor. Divergences from the
standard provided by § 354 reverse the burden of proof. If the obligee claims that, according
to the agreement, parties the obligee should be only entitled to revoke the contract if the
obligor is responsible for the default, he bears the burden of proving the existence of such an
agreement.
V. Legal consequences
9 According to § 354, then obligee is entitled to revoke the contract if it is subject to the
reservation that the obligor will lose his rights under the contract if he does not perform his
obligation. Consequently, in connection with his remaining rights in case of default, the
obligee can chose between performance, revocation of the "contract and - if applicable -
damages in lieu of performance.
’ RG 29.6.1927 - ] 34/27, RGZ 117, 354, 356 ct se^
< BGH 12.7.1968 - V ZR 161/66. WM 1968. 1299, |Rp. RG c , ,u,o „„
5 Sec BGH 28.11.1980 - V ZR 105/79, N]W 1981 1600 im‘ ».V*? " ' 11 5O6'2S- Rl,Z ,2 V
30 ct seq. 1 «'• 1000, 1601; Rg I9.6.t934 -111 298/33. RGZ 14;
6 Dissenting BGH 28.11.1980 - V ZR 105/79. N)W 1981 iah» ..... • a
the law ol obligations in 2002. ’ ^01 tor the law before the reform <
!o.
580
Wcndland
Right of withdrawal in consumer contracts
§355
Subtitle 2
Right of withdrawal in
consumer contracts
Untertitel 2
Widerrufsrecht bei
Verbraucherverträgen
§355
Right of withdrawal in
consumer contracts
(1) ’If a consumer is given, by statute, a
right of withdrawal according to this provi¬
sion, then the consumer and the trader are no
longer bound by their declarations of inten¬
tion to conclude the contract if the consumer
withdraws from his declaration of intention
within the period specified. 2The withdrawal
is effected by a declaration being made to the
trader. 3The declaration must unambiguously
reflect the consumer’s decision to withdraw
from the contract. 4The withdrawal does not
have to provide any grounds. 5Dispatch of the
withdrawal in good time is sufficient to com¬
ply with the time limit.
(2) 1The withdrawal period is fourteen
days. 2Unless otherwise provided, it begins
upon the contract having been concluded.
(3) ‘In the case of the contract being with¬
drawn from, the performance received is to
be returned without undue delay. 2Where the
law has specified a maximum period within
which restitution is to be made, this shall
commence running for the trader upon re¬
ceipt of the declaration of withdrawal and,
for the consumer, upon dispatch of the de¬
claration of withdrawal. 3 A consumer will be
complying with this period by dispatching
the goods in good time. 4In the event of
withdrawal, the trader bears the risk of the
return shipment of the goods.
§355
Widerrufsrecht bei
Verbraucherverträgen
(1) ‘Wird einem Verbraucher durch Gesetz
ein Widerrufsrecht nach dieser Vorschrift
eingeräumt, so sind der Verbraucher und der
Unternehmer an ihre auf den Abschluss des
Vertrags gerichteten Willenserklärungen
nicht mehr gebunden, wenn der Verbraucher
seine Willenserklärung fristgerecht widerru¬
fen hat. 2Der Widerruf erfolgt durch Erklä¬
rung gegenüber dem Unternehmer. 3Aus der
Erklärung muss der Entschluss des Verbrau¬
chers zum Widerruf des Vertrags eindeutig
hervorgehen. 4Der Widerruf muss keine Be¬
gründung enthalten. 5Zur Fristwahrung ge¬
nügt die rechtzeitige Absendung des Wider¬
rufs.
(2) ‘Die Widerrufsfrist beträgt 14 Tage.
2Sie beginnt mit Vertragsschluss, soweit
nichts anderes bestimmt ist.
(3) ‘Im Falle des Widerrufs sind die emp¬
fangenen Leistungen unverzüglich zurück¬
zugewähren. 2Bestimmt das Gesetz eine
Höchstfrist für die Rückgewähr, so beginnt
diese für den Unternehmer mit dem Zugang
und für den Verbraucher mit der Abgabe der
Widerrufserklärung. 3Ein Verbraucher wahrt
diese Frist durch die rechtzeitige Absendung
der Waren. 4Der Unternehmer trägt bei Wi¬
derruf die Gefahr der Rücksendung der Wa¬
ren.
Contents
mn.
A. Function 1
I. Purpose 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 5
C. Explanation 6
I. Parties 6
JI. Withdrawal period 7
III. Exercise 9
1. Terminology 10
2. Reasons 11
3. Dispatch 13
Watson
581
§ 355 1-5
Division 3. Contractual obligations
IV. Effect 14
1. Restitution 15
a) Time frame 16
b) Receipt of goods 17
2. Risk 18
A. Function
I. Purpose
1 § 355 is the first provision in subtitle 2 on the right of withdrawal in consumer contracts.
In accordance with the legislative technique adopted in the BGB, it serves to provide the
general rules which apply in each of the circumstances in which the consumer is provided
with a statutory right to withdraw from a contract. These rules include the general effect of
withdrawal on the contract, the exercise of the withdrawal right, the general length and start
of the withdrawal period, and the obligations for the parties after withdrawal. Although the
short title suggests otherwise, § 355 does not confer a statutory right of withdrawal on the
consumer in consumer contracts.
II. Position within the BGB
2 The circumstances in which the consumer is afforded a right of withdrawal are scattered
across the Specific Law of Obligations (besonderes Schuldrecht, §§ 433-853) and also in other
legislation. The rules surrounding the right of withdrawal are instead contained in the
General Law of Obligations (allgemeines Schuldrecht, §§ 241-432) directly after the provi¬
sions on the right of revocation. This positioning reflects their common feature as a statutory
right to alter the legal relationship (gesetzliches Gestaltungsrecht)}
III. Scope of application
3 § 355 applies where the consumer has a statutory right of withdrawal: § 312g( 1) (otf-
premises contracts and distance contracts), § 485(1) (timeshare), § 495(1) (credit). § 5101)
(contracts for delivery by instalments), § 514(2) (gratuitous credit agreements and gratuitous
financing assistance), and § 4(1) FernUSG (distance learning contracts), each of which make
express reference to § 355. However, separate - though similar - rules apply to right ot
withdrawal in insurance contracts (§§ 8-9 VVG), investment contracts (VermogensanLig^
(§ 11(2) VermAnlG) for shares (Aktien) (§ 305 KAGB).
4 As a general principle § 355 avoids repetition and contributes to coherency in the BGB.
however the variation in the type of contracts in which the consumer has a statutory right ot
withdrawal requires additional, more specific rules (§§ 356-356e, 357-357d). § 355 therefore
applies insofar as it is not superseded by rules tailored to the type of contract concluded.
§ 355 is semi-mandatory insofar as there are no deviations to the consumer's disadvantage
e.g. a shorter withdrawal period (§ 361(2)).
B. Context
5 The right to withdraw is a key instrument in (European) consumer law and plav* a
central role in several EU Directives: EU Consumer Rights Directive; EU Consumer Cred*1
Directive; EU Timeshare Directive; EU Package Travel Directive; EU Distance Marketing^
Financial Services Directive. Accordingly, the provisions of the respective Directives not
only overlap to a considerable degree in order to achieve consistency at EU level but the'
1 MüKo BGB/I'ritsche, § 355 BGB mn. 13.
582
Watson
Right of withdrawal in consumer contracts 6-10 § 355
are also especially detailed to ensure consistency amongst the Member States. § 355
therefore serves to implement of each of these Directives. However, § 355 also applies to
withdrawal rights that are not rooted in EU law (in particular §§ 510, 514).
C. Explanation
L Parties
Pursuant to Sub. 1 1st St., the statutory right to withdrawal is only available to a consumer 6
(§ 13) in a contract with an entrepreneur (§ 142 3)?
IL Withdrawal period
The uniform time limit for the right of withdrawal is 14 days (Sub. 2 1st St.). As is apparent 7
from further provisions (e.g. 356(3), 356a(4)), the length of the withdrawal period may be
extended in the event of a failure by the entrepreneur to comply with information obligations
or it may end beforehand depending on the consumer’s interaction with particular types of
goods (e.g. unsealing hygiene products, § 312g(2) No. 3).
Sub. 2 2nd St. stipulates the general rule that the 14-day-period commences with the 8
conclusion of contract. However, this provision does not prevent the consumer from
exercising the right to withdrawal prior to the conclusion of the contract (i.e. wrhen his offer
is pending acceptance). ‘Unless otherwise provided’ takes account of the deviating rules in
§§ 356 et seq. which determine a different starting point for the right of withdrawal (e.g.
supply of pre-contractual information).
III. Exercise
Withdrawal is a declaration of intent which requires receipt (empfangsbedürftige Wil- 9
lenserklärung). As stipulated in Sub. 2 2nd St., the consumer is to make this declaration to
the entrepreneur. The entrepreneur is to receive this declaration. Although the declaration
of withdrawal may be subject to particular formal requirements (e.g. § 356(1)) it must
overall be an unambiguous reflection of the consumer’s decision to withdraw from the
contract The declaration may be made in text form or orally (except in timeshare
contracts, § 356a( 1)). However, an oral declaration is not recommended as the consumer
bears the burden of proof with regard to the exercise of the right to withdrawal.4 For this
reason it is advisable to keep supporting documents such as delivery confirmation
(e.g. fax, email) or using recorded delivery when sending the declaration of withdrawal
via post.5
1. Terminology
The consumer may use his own words and is not necessary for the consumer to use the 10
word ‘withdrawal’; words such as ‘termination’, ‘cancellation’ or ‘retraction’ are consid¬
ered equally suitable.6 It must be objectively clear that the consumer does not wish to
continue with the contract. For example, it is not clear from simply returning purchased
goods to the entrepreneur without prior or further explanation (‘tacit withdrawal')
2 Trader reflects an inconsistency in the translation of Unternehmer as entrepreneur (§ 14). Trader is
commonly used in the underlying EU directives where its definition corresponds to the definition of
entrepreneur in § 14.
3 For further detail see MüKo BGB/Fritschc, § 355 BGB mn. 34 et seq.
4 Also MüKo BGB/Fntsche, § 355 BGB mn. 47.
5 DG Justice Guidance Document concerning the Consumer Rights Directive (2014), p, 42.
6 DG Justice Guidance Document concerning the Consumer Rights Directive (2014), p. 42.
Watson
583
§ 355 11-16 Division 3. Contractual obligations
whether the consumer is seeking to exercise the right of withdrawal or guarantee
rights.* 7 The use of a model withdrawal form aims to avoid any ambiguity.
2. Reasons
11 In contrast to revocation and avoidance, the right of withdrawal is available to the
consumer irrespective of any breach or wrongdoing (e.g. duress) by the entrepreneur, ora
mistake by the consumer. This key distinction is reflected in Sub. 1 4th St as it is not
necessary to give a reason for withdrawal. Accordingly, the consumer does not have to
provide any reasons to the entrepreneur when exercising the right of withdrawal, thus
reflecting the powerful nature of this instrument. In particular, the BGH has held that a
consumer was not abusing the right of withdrawal simply because he had found the same
good elsewhere but at a cheaper price.8 However, the Court did acknowledge that there mav
be instances of abuse where the consumer uses the right of withdrawal to bully or harm the
entrepreneur. More recently, the BGH has also highlighted that the exercise of a right of
withdrawal may constitute a breach of good faith under § 242.9
12 The mere unambiguous declaration will suffice. Although businesses often request reasons
for withdrawal on standard withdrawal forms (often to assist in improving customer
sen ices), failure to provide reasons will not render the withdrawal ineffective.10 11
3. Dispatch
13 Pursuant to Sub. 2 5th St., the declaration of withdrawal must be dispatched within the
withdrawal period in order to be effective (‘in good time’). In other words, a declaration of
withdrawal made within the withdrawal period will not be ineffective if it is received after the
period has expired. The burden of proving timely dispatch lies with the consumer.
IV. Effect
14 Sub. 1 1st St. begins by stipulating the legal effects of the right of withdrawal, namely that both
the consumer and the entrepreneur are no longer bound by their declarations of intention to
conclude the contract. The generalisation ‘declaration of intent' indicates that its specific nature
as an offer or acceptance is not relevant. The conclusion of a contract is presumed tSub.3
1st St.), though this is not a precondition for the consumer to exercise his right of withdrawal/*
1. Restitution
15 The exercise of the right to withdrawal creates a Rtickgewährschuldverhältnis in which the
parties are an obligation to restore the received performances to the other. The exercise ot the
right of withdrawal therefore does not fully end the contractual relationship between the
parties but rather modifies its content.12 13 Sub. 3 contains the details of this particular
relationship. According to Sub. 3 1st St., the general obligation is for parties to make
restitution of their performances without undue delay (§ 121B); 357-35'd contain the
specific aspects for the different types of contracts.
16 a) Time frame. As is clarified by Sub. 3 2nd St., the time frame for restitution mav t*
subject to a maximum period (e.g. § 357(1)). Sub. 3 2nd St. determines further that, although
_ -——»
7 See however Jauernig BGB/Stadlcr, § 355 BGB inn. 6, who considers that tacit withdrawal is a dear
expression of withdrawal.
« BGH 16.3.2016 - VIII ZR 146/15, NJW 2016. 1951.
9 BGH 16.10.2018 - XI ZR 69/18, NJW 2019. 6b. Sec also * § 242 inn. 20.
10 Sec BcckOGK BGB/Mörsdorf, § 355 BGB mn. 59.
11 HK-BGB/Schulze, § 355 BGB inn. 4; MüKo BGB/Eritsche. § 355 BGB inn. 30.
12 Bor detail and the relationship to EU law see MüKo BGB/Fritsche, § 355 BGB inn. 65.
13 See MüKo BGB/Eritsche, § 355 BGB mn. 59.
584
Watson
Withdrawal in off-premises and distance contracts §356
statute may provide different lengths of maximum periods, the starting points arc subject to
the same requirements. However, these starting points vary in relation to the consumer and
the entrepreneur to take account of the respective knowledge of dispatch and knowledge of
receipt. For the consumer the maximum period to return the performance to the entrepre¬
neur will commence from the date on which the withdrawal is dispatched. In contrast, the
maximum period for the entrepreneur to return the performance to the consumer will
commence upon receipt of the declaration of withdrawal. These are, however, to be read in
conjunction with § 187(1), whereby the day on which the event occurs (i.e. the dispatch and
receipt) is not included in the calculation of the period.
b) Receipt of goods. Sub. 3 3rd St. reflects the general principle that it is irrelevant if the 17
entrepreneur receives the goods after the maximum period has expired provided that the
goods were dispatched to the trader within the withdrawal period (‘in good time’).
2. Risk
In the event of withdrawal the entrepreneur bears the risk of the return shipment of the 18
goods (Sub. 3 4th St.). The EU Consumer Rights Directive does not contain a rule on this
point, thus leaving the issue to be resolved by the national legislator. The German legislator
has adopted a consumer-friendly approach, which corresponds to the general underlying
theme (in particular in CJEU decisions)14 that the legal rules should generally not discourage
the consumer from exercising his right of withdrawal.15 The consumer may, however, be
liable to pay compensation for loss or damage to the goods if he has not exercised reasonable
care in choosing a reliable postal service or has not packaged the goods in a manner to
protect them during transit.16
§356
Right of withdrawal in off-
premises contracts and distance
contracts
(1) ’The trader may provide the consumer
with the opportunity' to complete and trans¬
mit the model withdrawal form pursuant to
schedule 2 to Article 246a § 1(2) sentence 1
number 1 of the Introductory Act to the Civil
Code [Einführungsgesetz zum Bürgerlichen
Gesetzbuche], or some other unambiguous
declaration of withdrawal, on the trader's
website. 2Where the consumer avails himself
of this opportunity, the trader must confirm
receipt of the withdrawal to the consumer
without undue delay on a durable medium.
(2) The withdrawal period commences
1. in the case of a sale of consumer goods
a) that is not governed by letters b to d as
soon as the consumer or a third party named
§ 356
Widerrufsrecht bei außerhalb von
Geschäftsräumen geschlossenen
Verträgen und
Fernabsatzverträgen
(1) ’Der Unternehmer kann dem Ver¬
braucher die Möglichkeit einräumen, das
Muster-Widerrufsformular nach Anlage 2 zu
Artikel 246a § 1 Absatz 2 Satz 1 Nummer 1
des Einführungsgesetzes zum Bürgerlichen
Gesetzbuche oder eine andere eindeutige Wi¬
derrufserklärung auf der Webseite des Unter¬
nehmers auszufüllen und zu übermitteln.
2Macht der Verbraucher von dieser Möglich¬
keit Gebrauch, muss der Unternehmer dem
Verbraucher den Zugang des Widerrufs un¬
verzüglich auf einem dauerhaften Datenträ¬
ger bestätigen.
(2) Die Widerrufsfrist beginnt
1. bei einem Verbrauchsgüterkauf,
a) der nicht unter die Buchstaben b bis d
fallt, sobald der Verbraucher oder ein von
14 See e.g. CJEU C-489/97 Messner ECLEEU:C:2OO9:5O2 mn. 24; CJEU C-511 /0« Heinrich Heine ECLl:
EU:C:2010:189 mn. 56.
15 BT-Drs. 17/12637 of 6.3.2Ü13, p. 60.
16 MüKo BGB/Fritsche, § 355 BGB mn. 68.
Watson
585
Division 3. Contractual obligations
§356
by the consumer, such third party not being a
carrier, has received the goods,
b) in die context of which the consumer
has ordered several goods as part of a single
order and the goods are delivered separately,
as soon as the consumer or a third party
named by the consumer, such third party
not being a carrier, has received the last of
the goods,
c) in the context of which the goods are
delivered in several partial shipments or
items, as soon as the consumer or a third
party named by the consumer, such third
party not being a carrier, has received the
last partial shipment or the last item,
d) that is directed towards the regular de¬
livery of goods over a specified period of
time, as soon as the consumer or a third party
named by the consumer, such third party not
being a carrier, has received the first goods,
2. in the case of a contract that has as its
subject matter the supply of water, gas, elec¬
tricity, district heating or digital content
which is not contained in a tangibie medium,
without the supply having been offered for
sale in a limited volume or set quantity, upon
conclusion of the contract.
(3) ’The withdrawal period does not com¬
mence prior to the trader having informed
the consumer in accordance with the re¬
quirements of Article 246a § 1(2) sentence 1
No. 1 or of Article 246b §2(1) of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche].
2The right of withdrawal expires at the latest
twelve months and fourteen days following
the point in time set out in subsection (2) or
§ 355(2) sentence 2. Sentence 2 does not
apply to contracts relating to financial ser¬
vices.
(4) ’In the case of a contract for the provi¬
sion of services, the right of withdrawal ex¬
pires also in those cases in which the trader
has completely provided the service and be¬
gan with the performance of the service only
after the consumer had given his express
consent thereto and concurrently acknowl¬
edged that he would lose the right to with¬
draw from the contract once the trader has
fully performed the contract. 2In an off-pre¬
mises contract, the consent by the consumer
must be communicated on a durable med¬
ium. Mn the case of a contract relating to the
provision of financial services, the right of
withdrawal expires, in derogation from sen¬
tence 1, if the contract was performed in full
by both parties at the express wish of the
ihm benannter Dritter, der nicht Frachtfüh¬
rer ist, die Waren erhalten hat,
b) bei dem der Verbraucher mehrere Wa¬
ren im Rahmen einer einheitlichen Bestellung
bestellt hat und die Waren getrennt geliefert
werden, sobald der Verbraucher oder ein von
ihm benannter Dritter, der nicht Frachtfüh¬
rer ist, die letzte Ware erhalten hat,
c) bei dem die Ware in mehreren Teilsen¬
dungen oder Stücken geliefert wird, sobald
der Verbraucher oder ein vom Verbraucher
benannter Dritter, der nicht Frachtführer ist,
die letzte Teilsendung oder das letzte Stück
erhalten hat,
d) der auf die regelmäßige Lieferung von
Waren über einen festgelegten Zeitraum ge¬
richtet ist, sobald der Verbraucher oder ein
von ihm benannter Dritter, der nicht Fracht¬
führer ist, die erste Ware erhalten hat,
2. bei einem Vertrag, der die nicht in
einem begrenzten Volumen oder in einer be¬
stimmten Menge angebotene Lieferung von
Wasser, Gas oder Strom, die Lieferung von
Fernwärme oder die Lieferung von nicht auf
einem körperlichen Datenträger befindlichen
digitalen Inhalten zum Gegenstand hat, mit
Vertragsschluss.
(3) ’Die Widemifsfrist beginnt nicht, be¬
vor der Unternehmer den Verbraucher ent¬
sprechend den Anforderungen des Artikels
246a § 1 Absatz 2 Satz 1 Nummer 1 oder des
Artikels 246b § 2 Absatz 1 des Einführungs¬
gesetzes zum Bürgerlichen Gesetzbuche un¬
terrichtet hat. 2Das Widerrufsrecht erlischt
spätestens zw’ölf Monate und 14 Tage nach
dem in Absatz 2 oder § 355 Absatz 2 Satz 2
genannten Zeitpunkt. 3Satz 2 ist auf Verträge
über Finanzdienstleistungen nicht anwend¬
bar.
(4) ’Das Widerrufsrecht erlischt bei einem
Vertrag zur Erbringung von Dienstleistungen
auch dann, wenn der LTntemehmer die
Dienstleistung vollständig erbracht hat und
mit der Ausführung der Dienstleistung erst
begonnen hat, nachdem der Verbraucher
dazu seine ausdrückliche Zustimmung geg^
ben hat und gleichzeitig seine Kenntnis da'01’
bestätigt hat, dass er sein Widerrufsrecht bei
vollständiger Vertragserfüllung durch den
Unternehmer verliert. -Bei einem außerhalb
von Geschättsräumen geschlossenen Vertrag
muss die Zustimmung des Verbrauchers
einem dauerhaften Datenträger übermüd1
werden. 'Bei einem Vertrag über die Erbrin'
gnng von Finanzdienstleistungen erlischt da»
Widerrufsrecht abweichend von Satz h "x'nn
586
VVdhoii
Withdrawal in off-premises and distance contracts
1-2 § 356
consumer before the consumer exercises his
right of withdrawal.
(5) In the case of a contract for the supply
of digital content that is not contained in a
tangible medium, the right of withdrawal
expires also if the trader began with the
performance of the contract after the consu¬
mer
1. had expressly consented to the trader
beginning with the performance of the con¬
tract prior to expiry of the withdrawal period,
and
2. had acknowledged that by his consent,
he would lose the right to withdraw from the
contract upon the performance of the con¬
tract having commenced.
der Vertrag von beiden Seiten auf ausdrück¬
lichen Wunsch des Verbrauchers vollständig
erfüllt ist, bevor der Verbraucher sein Wider¬
rufsrecht ausübt.
(5) Das Widerrufsrecht erlischt bei einem
Vertrag über die Lieferung von nicht auf
einem körperlichen Datenträger befindlichen
digitalen Inhalten auch dann, wenn der Un¬
ternehmer mit der Ausführung des Vertrags
begonnen hat, nachdem der Verbraucher
1. ausdrücklich zugestimmt hat, dass der
Unternehmer mit der Ausführung des Ver¬
trags vor Ablauf der Widerrufsfrist beginnt,
und
2. seine Kenntnis davon bestätigt hat, dass
er durch seine Zustimmung mit Beginn der
Ausführung des Vertrags sein Widerrufsrecht
verliert.
Contents
mn.
A. Function 1
B. Context 2
C. Explanation 3
I. Exercise of the right of withdrawal 3
1. Model withdrawal form 4
2. Other declaration 5
3. Confirmation of receipt 6
II. Start of the withdrawal period 7
1. Goods 8
a) Default 9
b) Several goods in single order 10
c) Partial shipment 11
d) Regular delivery 12
e) Definable quantities 13
2. Services 14
3. Financial services 15
4. Digital content 16
III. Extended withdrawal period 17
A. Function
§ 356 provides the specific rules for the consumer’s right of withdrawal in off-premises 1
contracts and distance contracts (§ 312g( 1)). It applies to off-premises contracts as defined in
§ 312b and distance contracts as defined in § 312c. Unless excluded by § 312g or superseded
by §§ 356a-e, § 356 applies in general to all contracts, whether for goods, services or digital
content, in which the consumer has a right of withdrawal under § 312g.1 The provisions are
mandatory insofar there may be no deviations to the consumer’s disadvantage (§ 361(2)).
B. Context
§ 356b serves to transpose Arts 9(2), 10, 11(1), (3), 16(a) EU Consumer Rights Directive 2
and Art. 6(2)(c) EU Distance Marketing of Financial Services Directive.
1 MuKo BGB/Fritsche, § 356 BGB mn. 1.
Watson
587
§ 356 3-5
Division 3. Contractual obligations
C. Explanation
I. Exercise of the right of withdrawal
3 Sub. 1 r1 St. concerns the exercise of the right to withdrawal. This provision applies in
principle to all distance and off-premises contracts in which the consumer has a right of
withdrawal and supplements the general rule in § 355(1) regarding the general freedom
regarding the form of the withdrawal. Sub. 1 1st St. stipulates options for the entrepreneur in
order to allow the consumer to exercise his right of withdrawal via the entrepreneur s website
and thus ease the withdrawal process.2 This possibility applies irrespective of whether the
consumer concluded the contract via the Internet. The entrepreneur is not obliged to proride
the consumer with this option to exercise the right of withdrawal (may provide), but
affording the consumer this possibility to does not negate the entrepreneurs duty under
Art. 246a § 1(2) 1st St. No. 1 EGBGB to provide the consumer with the model withdrawal
form.3
1. Model withdrawal form
4 In accordance with Art. 246a § 1(2) l5t St. No. 1 EGBGB, the entrepreneur is to always
provide the consumer with the model withdrawal form contained in schedule 2 to Art 246a
§ 1(2) 1st St. No. 1. The consumer may complete this form in writing and transmit it to the
entrepreneur by withdrawal form by post, telefax etc. or, if made available by the entrepre¬
neur, to complete and transmit this form via the entrepreneur’s website. The model with¬
drawal form serves as a simple means for the consumer to exercise the right of withdrawal,
whilst at the same time ensuring that the requirement of an unambiguous declaration is met
The model form under schedule 2 to Art. 246a § 1(2) 1st St. No. 1 EGBGB corresponds to
Annex I B EU Consumer Rights Directive:
- To [here the trader’s name, geographical address and, where available, his fax number
and e-mail address are to be inserted by the trader]:
- I/We (1) hereby give notice that I/We (1) withdraw from my/our (1) contract of sale of
the following goods (1 )/for the provision of the following sendee (1),
- Ordered on (l)/received on (1),
- Name of consumer(s),
- Address of consumer(s),
- Signature of consumer(s) (only if this form is notified on paper)
- Date
(1) Delete as appropriate
2. Other declaration
5 The entrepreneur may provide the consumer with the opportunitv to complete and
transmit some other unambiguous declaration of withdrawal. This m rv include for example-
a simple click on a withdrawal’ button or an online form which is different from the model
withdrawal form. The entrepreneur may seek to acquire further information from the
consumer regarding the w.thdrawa, e.g. the reasons. Such questions should be presented
separately and m accordance with §355(1) answering these questions mav not be a
condition for the transmission of the withdrawal form?
1 BT-Drs. 17/12637 of 6.3.2013, p. 60.
J MuKo BGB/l-ritsche, § 356 HGB mn. 5.
" DG Just.ce Guidance Document concerning the Consumer Rights Directive (2014). P. 40.
588
Watson
Withdrawal in off-premises and distance contracts 6-12 § 356
3. Confirmation of receipt
In contrast to the exercise by other means (e.g. telephone, letter, fax), the entrepreneur is 6
to confirm receipt of the withdrawal transmitted via the entrepreneur’s website (Sub. 1
2nd St.). This confirmation of receipt is to be communicated to the consumer without undue
delay and on a durable medium (§ 126b, e.g. email). Mere confirmation given on the
entrepreneur’s website will not suffice.5
IL Start of the withdrawal period
The application of § 356 is foremost subject to the manner in which the contract is 7
concluded: via means of distance communication or off-premises. However, the particular
nature ot the content of the contract requires a distinction with respect to the start of the
withdrawal period in contracts for goods or (financial) sendees or digital content.
1. Goods
Sub. 2 No. 1 provides several different variations for the starting point of the withdrawal 8
period. It is an exception to the general rule in § 355(2) 2nd St. according to which the
withdrawal period commences on the conclusion of the contract. The variations in (a)-(d)
each share the common features that the withdrawal period commences on receipt of the
goods by the consumer (‘physical possession’) or a third party named by the consumer, such
third party’ not being a carrier. In the latter instance, the withdrawal period will commence
when the consumer has, for example, named a different person to receive the goods (e.g. a
gift sent directly to the intended recipient), but will not commence when the consumer has
nominated a carrier to delivery7 of the goods in order to deliver them to the consumer or
other third party7 (e.g. the consumer engages a transportation company to collect the goods
from the entrepreneur, or selects a transportation company from a list provided byr the
entrepreneur). The wording ‘commences...as soon as’ used in Sub. 2 No. l(a)-(d) is, how¬
ever, to be read in conjunction with § 187(1): the day on which goods are received is not
included in the calculation of the withdrawal period. The time limit for withdrawal begins on
the day after the goods have been received.
a) Default Sub. 2 No. 1(a) is a default provision. It applies if (b)-(d) do not apply. The 9
provision applies, for example, where the consumer orders one single item (e.g. a t-shirt).
b) Several goods in single order. Sub. 2 No. 1(b) applies where the consumer has ordered 10
several goods as part of a single order and the goods are delivered separately. Here the
withdrawal period will commence upon receipt of the last of the goods. This rule takes into
account that the decision to withdraw from the contract may depend, for example, on the
interaction or comparison between two or more of the goods.6
c) Partial shipment. Sub. 2 No. 1(c) applies in situations in which the good is delivered in 11
several partial shipments or items. The provision therefore applies where, for example, a
single good has several different constituent elements that are each to be delivered separately
(e.g. separate delivery of a bicycle frame and wheels). In such instances the withdrawal
period will begin on receipt of the last partial shipment or last item.
d) Regular delivery. Sub. 2 No. 1(d) applies to contracts for the regular delivery of goods 12
over a specified period of time. In contrast to No. 1(b) and (c), the withdrawal period in
circumstances falling under No. 1(d) commences on the receipt of the first good. However,
the withdrawal period does not begin if the delivered good is not complete.7
5 MuKo BGB/Fritsche, § 356 BGB mn. 5.
6 DG Justice Guidance Document concerning the Consumer Rights Directive (2014), p. 39.
7 Jauernig BGB/Stadler, § 356 BGB mn. 5.
Watson
589
§ 356 13-17 Division 3. Contractual obligations
13 e) Definable quantities. Particular types of goods may be supplied in containers in
definable quantities and therefore the contract is for the sale of goods (e.g. a bottle of water,
a bottle of gas) or supplied under a utilities contract (as a type of service contract), e.g. for
water, gas, electricity, heating or telecommunication services.8 Sub. 2 addresses this distinc¬
tion by providing that the right of withdrawal in the latter types of contract commences upon
the conclusion of contract. The right of withdrawal in the former context will commence
pursuant to Sub. 2 No. 1.
2. Services
14 The withdrawal period in a contract for services commences upon the conclusion of the
contract (§ 355(2) 2nd St., subject to Sub. 3). Sub. 4 1st St. stipulates that the consumers right
of withdrawal will expire when the entrepreneur has completely provided the senice.
However, this consequence is subject to two requirements. Firstly, the consumer must have
given the entrepreneur his express consent to performance of the senice during the with¬
drawal period. In line with the EU Consumer Rights Directive, the express request requires a
positive act by the consumer (e.g. ticking a box).9 Secondly, the consumer must have also
concurrently acknowledged that he would lose the right to withdraw from the contract once
the entrepreneur has fully performed the contract. The rule in Sub. 4 Is* St. does not prevent
the consumer from withdrawing from the contract during the withdrawal period if the
service has not been performed in full: the consumer will be liable to pay an amount in
proportion to the amount agreed (§ 357(8)). Sub. 4 2nd St. provides an additional require¬
ment in off-premises contracts: the consent must be provided on a durable medium.
3. Financial services
15 Sub. 4 3rd St. stipulates an exception in a contract relating to the provision of financial
services: the right of withdrawal expires if the contract was performed in full by both parties
at the express wish of the consumer.
4. Digital content
16 Sub. 2 applies to digital content supplied on a tangible medium (e.g. DVD, USB-Stick).
Sub. 5 applies to digital content that is not contained on a tangible medium (e.g. content
downloaded directly from the Internet). In such instances the withdrawal period will
commence upon the conclusion of the contract (§ 355(2) 2nd St., subject to Sub. 3). The right
of withdrawal will expire, however, if the consumer has expressly consented to the perfor¬
mance of the contract before the end of the withdrawal period (No. 1) and has acknowledged
that, by consenting, he loses the right to withdraw from the contract upon the performance
having commenced (No. 2)10. It must therefore be made clear to the consumer that consent
to performance will result in the loss of the right to withdraw. In contrast to Sub. 4 T1 St., the
consumer cannot withdraw from the contract once the supply of digital content has
commenced, but has not been supplied in full (e.g. before a download is complete), and be
liable to pay a proportion of the agreed total price.
III. Extended withdrawal period
17 Pursuant to Sub. 3 1st St., the start of the withdrawal period is subject to the correct
performance of the pre-contractual information duties under Art. 246a § 1(2) Tl St. No.1 °r
Art. 246b §2(1) EGBGB. This requirement is therefore a further exception to § 355(2) 2nd St.
Art. 246a § 1(2) 1M St. No. 1 stipulates that the entrepreneur is to inform the consumer of the
H For detail sec MüKo BGB/Frilsche, § 356 BGB inn. 18 et seq.
9 DG Justice Guidance Document concerning the Consumer Rights Directive (2014), p. 50.
1(1 Translation note: would lose is an incorrect translation of verliert (loses)
590
Watson
Right of withdrawal in specific contracts § 356a
conditions, time periods and exercise of the right of withdrawal under § 355(1) as well as the
mode] withdrawal form in Annex 2. The information to be provided under Art. 246b § 2(1)
EGBGB on financial services is much more comprehensive and not limited to the informa¬
tion on the right of withdrawal. The failure to satisfy these requirements includes not only
the non-performance of the pre-contractual information duty but also the provision of
incorrect information. In either instance, the 14-day withdrawal period under § 355(2) 1st St.
will therefore not commence. Due to a distinction in the underlying EU Directives, the 2nd
and 3rd St. contain a maximum and unlimited withdrawal period, respectively. ’The right of
withdrawal in contracts for goods will expire at the latest 12 months and 14 days following
the receipt of the goods (subject to Sub. 2 No. 1 (a)-(d)). The right of withdrawal in contracts
for sendees will expire at the latest 12 months and 14 days following the conclusion of the
contract. The 14-day-period will commence should the entrepreneur fulfil his information
duty within this extended period, even if the duty is fulfilled during the last 14 days of the
maximum period. As Art. 6(1) EU Distance Marketing of Financial Services Directive links
the start ot the withdrawal period with the performance of the pre-contractual information
duties and, unlike the EU Consumer Rights Directive, does not contain a maximum period,
the withdrawal period in a contract relating to financial services will be indefinite if the
entrepreneur fails to perform his pre-contractual information duty (Sub. 3 No. 3).
§ 356a
Right of withdrawal in case of
timeshare, long-term holiday
product, brokerage contracts, and
exchange system contracts
(1) The withdrawal is to be declared in text
form.
(2) ’The withdrawal period commences at
the time of conclusion of the contract or of
the conclusion of a preliminary contract. 2If
the consumer does not receive the contractual
document or the copy of the contract until
after conclusion of the contract, the withdra¬
wal period commences at the time of receipt.
(3) 1 If the consumer has not been provided
with the pre-contractual information referred
to in § 482(1) or with the form designated in
Article 242 § 1(2) of the Introductory Act to
the Civil Code [Einführungsgesetz zum Bür¬
gerlichen Gesetzbuche] prior to conclusion of
the contract, not completely or not in the
language prescribed in § 483(1), the withdra¬
wal period, notwithstanding subsection (2),
does not commence until complete receipt of
the pre-contractual information and of the
form in the prescribed language. 2The right
of withdrawal expires at the latest three
months and fourteen days after the time
designated in subsection (2).
(4) fIf the consumer has not been pro¬
vided with the instruction regarding with¬
drawal designated in § 482a before the con-
§ 356a
Widerrufsrecht bei Teilzeit-
Wohnrechteverträgen, Verträgen
über ein langfristiges
Urlaubsprodukt, bei
Vermittlungsverträgen und
Tauschsystemverträgen
(1) Der Widerruf ist in Textform zu erklä¬
ren.
(2) ’Die Widerrufsfrist beginnt mit dem
Zeitpunkt des Vertragsschlusses oder des Ab¬
schlusses eines Vorvertrags. 2Erhält der Ver¬
braucher die Vertragsurkunde oder die Ab¬
schrift des Vertrags erst nach Vertragsschluss,
beginnt die Widerrufsfrist mit dem Zeitpunkt
des Erhalts.
(3) ’Sind dem Verbraucher die in § 482
Absatz 1 bezeichneten vorvertraglichen Infor¬
mationen oder das in Artikel 242 § 1 Absatz 2
des Einführungsgesetzes zum Bürgerlichen
Gesetzbuche bezeichnete Formblatt vor Ver¬
tragsschluss nicht, nicht vollständig oder
nicht in der in § 483 Absatz 1 vorgeschriebe¬
nen Sprache überlassen worden, so beginnt
die Widerrufsfrist abweichend von Absatz 2
erst mit dem vollständigen Erhalt der vorver¬
traglichen Informationen und des Formblatts
in der vorgeschriebenen Sprache. 2Das Wider¬
rufsrecht erlischt spätestens drei Monate und
14 l äge nach dem in Absatz 2 genannten
Zeitpunkt.
(4) ’Ist dem Verbraucher die in § 482a
bezeichnete Widerrulsbelehrung vor Ver¬
tragsschluss nicht, nicht vollständig oder
Watson
591
Division 3. Contractual obligations
§ 356a 1-5
tract has been entered into, cither not com¬
pletely or not in the language prescribed in
§ 483(1), the withdrawal period, notwith-
standing subsection (2), does not commence
until the complete the instructions on with¬
drawal has been received in the prescribed
language. 2The right of withdrawal expires
where appropriate notwithstanding
subsection (3) sentence 2, at the latest twelve
months and fourteen days after the time
named in subsection (2).
(5) lIf the consumer has concluded a time¬
share contract and an exchange system con¬
tract» and if these contracts have been offered
to him at the same time, the withdrawal
period for both contracts commences at the
time applicable under subsection (2) to the
timeshare contract. Subsections (3) and (4)
apply with the necessary modifications.
nicht in der in § 483 Absatz 1 vorgeschriebe¬
nen Sprache überlassen worden, so beginnt
die Widerrufsfrist abweichend von Absatz!
erst mit dem vollständigen Erhalt der Wider¬
rufsbelehrung in der vorgeschriebenen Spra¬
che. 2Das Widerrufsrecht erlischt gegebe¬
nenfalls abweichend von Absatz 3 Satz 2
spätestens zwölf Monate und 14 Tage nach
dem in Absatz 2 genannten Zeitpunkt
(5) ’Hat der Verbraucher einen Teilzeit-
Wohnrechtevertrag und einen Tauschsystem-
vertrag abgeschlossen und sind ihm diese
Verträge zum gleichen Zeitpunkt angeboten
worden, so beginnt die Widemifsfrist für
beide Verträge mit dem nach Absatz! für
den Teilzeit-Wohnrechtes ertrag geltenden
Zeitpunkt. 2I>ie Absätze 3 und 4 gelten ent¬
sprechend.
A. Function
1 § 356a deviates from § 355 in order to provide specific rules on the exercise, start and
extension of the right of withdrawal in timeshare (§481), long-term holiday products
(§ 481a), brokerage contracts (§ 481b( 1)), and exchange system contracts (§ 481b(2)). The
provisions are mandatory insofar as there may be no deviations to the consumer’s disadvan¬
tage (§ 361(2)).
B. Context
2 The text form requirement in Sub. 1 transposes Art. 7 EU Timeshare Directive into
German law; Subs 2-5 transpose Art. 6 EU Timeshare Directive.
C. Explanation
I. Formal requirements
3 Pursuant to Sub. 1, the right of withdrawal is to be exercised in text form (§ W 11
therefore deviates from the general freedom of form anchored in $ '») which also permits
an oral declaration of withdrawal. The EGBGB does not contain a model Withdrawal form ter
timeshare, long-term holiday products, brokerage contracts and exchange system contracts
4
5
II. Start of die withdrawal period
Sub. 2 stipulates two rules for determining the start of the withdrawal period. Fach rule
depends on the rece.pt of the (preliminary) contract or copy thereof The withdrawal
will commence at the t.me ol conclusion of the contract or of the condtXn of a prehnunan
contract pursuant to Sub. 1 1" St. if the consumer . IR,U!'K n y “ I
copy) at that time. If the consumer does not receive the onT CO’UnK,UUl
Sub. 2 2- St. provides that the withdrawal periodI conm^ T ?
A single withdrawal period applies where the cm t,nR ot rca,l\‘ .
contract and an exchange system contract which we«SXZlt2 X
592
Watson
Right of withdrawal hi consumer credit agreements § 356b
(Sub. 5 r( St.). The single withdrawal period shall be calculated according to the provisions of
Sub. 2 as they apply to the timeshare contract.
III. Extended withdrawal period
As § 356(3), Subs 3 and 4 provide for an extension to the withdrawal period in the event of 6
a breach ot pre-contractual information duties. The length of the extension depends on the
type of information that has not been provided.
1. General information
§ 482(1) provides that the consumer is to be provided with the information under 7
Art. 242(1) EGBGB, which simply refers to the annexes in the EU Timeshare Directive.
Art. 242(2) Annex I contains the standard information form for timeshare contracts. Annex
II contains the standard information form for long-term holiday product contracts. Annex
III contains the standard information form for brokerage1 contracts. Annex IV contains the
standard information form for exchange contracts. With the exception of brokerage con¬
tracts, the entrepreneur is to provide the consumer with the information using the standard
information form (Art. 242(2) 1st St. EGBGB). The entrepreneur may use the standard
information form or different means to provide the information for brokerage contracts,
though in the latter instance must provide information on where to find the standard
information form (Art. 242(2) 2nd and 3rd St.). The withdrawal period will only commence
if the consumer has been provided with the full pre-contractual information in the required
form prior to conclusion of the contract and in the language selected by the consumer or of
the Member State or state which is a contracting party io the Agreement on the EEA in
which the consumer is resident (§ 483(1)). The right of withdrawal expires at the latest 3
months and 14 days after receipt of the contractual document if any of these requirements
are not satisfied (Sub. 3 2nd St.). The standard 14-day withdrawal period will apply if the
requirements are satisfied within the extended withdrawal period.
2. Information on withdrawal
In accordance wnth Sub. 3, the consumer is to be provided with the full information on the 8
right of withdrawal prior to entering into the contract. § 482a 2nd St. refers to Art. 242(2)
EGBGB on the information concerning the right of withdrawal. Art. 242(2) EGBGB provides
that the consumer is to be provided with the ‘separate standard withdrawal form to facilitate
the right of withdrawal’ contained in Annex V to the EU Timeshare Directive. This form is to
be provided in the language selected by the consumer or of the Member State or state which
is a contracting party to the Agreement on the EEA in which the consumer is resident
(§ 483(1)). Failure to satisfy any of these requirements will result in an extension of the
withdrawal period to, at the latest, 12 months and 14 days after receipt of the contractual
document (Sub. 4 2nd St.). The standard 14-day withdrawal period will apply if the require¬
ments are satisfied within the extended withdrawal period.
§ 356b
Right of withdrawal in consumer
credit agreements
(1) The withdrawal period does not com¬
mence before the lender has provided the
borrower with a contract document intended
for the latter, with the written application of
§ 356b
Widerrufsrecht bei
Verbraucherdarichensverträgen
(I) Die Widerrufsfrist beginnt auch nicht,
bevor der Darlehensgeber dem Darlehensneh¬
mer eine für diesen bestimmte Vertrags¬
urkunde, den schriftlichen Antrag des Dar-
1 Resale contracts, as in the terminology of the EU Timeshare Directive.
Watson
593
§ 356b 1-2
Division 3. Contractual obligations
the borrower or with a copy of the contract
document or of his application.
(2) ‘Where in a general consumer credit
agreement the contract document provided to
the borrower pursuant to subsection (1) does
not include the obligatory information re¬
quired by § 492(2), the withdrawal period com¬
mences only with the subsequent provision of
this information pursuant to § 492(6). * 2Where
in a real estate consumer credit agreement the
contract document provided to the borrower
pursuant to subsection (1) does not include the
obligatory information on the right of with¬
drawal required by § 492(2) in conjunction
with Article 247 § 6(2) of the Introductory Act
to the Civil Code [Einfiihrungsgesetz zum Bür¬
gerlichen Gesetzbuche], the withdrawal period
commences only with the subsequent provision
of this information pursuant to § 492(6). 3In
the cases of sentences 1 and 2, the withdrawal
period is one month. 4The right of withdrawal
in a real estate consumer credit agreement
expires at the latest 12 months and 14 days
after the conclusion of contract or after the
time designated in subsection (1), if this is
after the conclusion of contract.
(3) In the event provided for by § 494(7),
the withdrawal period commences in a gen¬
eral consumer credit agreement only once the
borrower has received the copy of the con¬
tract designated therein.
lehensnehmers oder eine Abschrift der Ver¬
tragsurkunde oder seines Antrags zur Ver.
fügung gestellt hat.
(2) 'Enthält bei einem Allgemein-Verbrau-
cherdarlehensvertrag die dem Darlehensneh¬
mer nach Absatz 1 zur Verfügung gesteDte
Urkunde die Pflichtangaben nach §492
Absatz 2 nicht, beginnt die Frist erst mit
Nachholung dieser Angaben gemäß §492
Absatz 6. 2Enthält bei einem Immobiliar-Ver¬
braucherdarlehensvertrag die dem Darlehens¬
nehmer nach Absatz 1 zur Verfügung ge¬
stellte Urkunde die Pflichtangaben zum
Widerrufsrecht nach § 492 Absatz 2 in Ver¬
bindung mit Artikel 247 § 6 Absatz 2 des
Einführungsgesetzes zum Bürgerlichen Ge¬
setzbuche nicht, beginnt die Frist erst mit
Nachholung dieser Angaben gemäß §492
Absatz 6. 3In den Fällen der Sätze 1 und 2
beträgt die Widerrufsfrist einen Monat 4Das
Widemifsrecht bei einem Immobiliar-Ver¬
braucherdarlehensvertrag erlischt spätestens
zwölf Monate und 14 Tage nach dem Ver¬
tragsschluss oder nach dem in Absatz 1 ge¬
nannten Zeitpunkt, wenn dieser nach dem
Vertragsschluss liegt.
(3) Die Widerrufsfrist beginnt im Faße des
§ 494 Absatz 7 bei einem Allgemein-Verbran¬
cherdarlehensvertrag erst, wenn der Darle¬
hensnehmer die dort bezeichnete Abschrift
des Vertrags erhalten hat.
A. Function
1 § 356b contains specific rules on the right of withdrawal in consumer credit agreements
(§ 495, see also § 506, § 513). The provisions focus primarily on the start and maximum
length of the withdrawal period in deviation from the general rule in § 355(2).
B. Context
2 The EU Consumer Credit Directive and the EU Mortgage Credit Directive represent a
distinction at EU level between the regulation of general consumer credit agreements and ot
real estate consumer credit agreements, in particular with regard to the pre-contractual
information necessary to trigger the start of the withdrawal period. Implementing the EV
Mortgage Credit Directive into German law thus required modifications to take account ot
the two different EU Directives. However, at the same time the lack of specific rules for the
right of withdrawal under the EU Mortgage Credit Directive allowed the legislator to provide
rules applicable to both general consumer credit agreements and real estate consumer credit
agreements.1 The German legislator did not, however, extend the application of an unlimited
right of withdrawal provided by the EU Consumer Credit Directive to real estate consumer
credit contracts (Sub. 2 4th St.) for reasons of legal certainty.2
* BT-Drs 18/5922 of 7.9.2015, p. 74; BcckOGK BGB/Mörsdorf, § ISbb BGB mn ’
2 BT-Drs. 18/5922 of 7.9.2015, p. 74.
594
Right of withdrawal in consumer credit agreements 3-7 § 356b
C. Explanation
I. Withdrawal period
Pursuant to Sub. 1, the withdrawal period does not commence before the lender has 3
provided the borrower with either a contract document (or copy thereof) intended for the
borrower, or the borrower's written application (or copy thereof); here the written applica¬
tion is equated with the contract.3 The underlying emphasis is on the provision of particular
information to the borrower. The borrower will have a 14-day withdrawal period under
§ 355(2) 1st St. where the pre-contractual information obligations pursuant to § 492(2),
Art. 247 §§6-13 EGBGB are satisfied.
IL Obligatory information
According to Sub. 2, the withdrawal period does not commence until the borrower has 4
received the extensive obligatory information as set out in Art. 246 §§ 6-13 EGBGB. The
obligatory information varies depending on whether the contract is a general consumer
credit agreement or a real estate consumer credit agreement. In the latter instance only the
failure to provide information on the borrower's right of withdrawal will prevent the
commencement of the withdrawal period.
III. Extended withdrawal period
Sub. 2 applies where the lender has supplied the borrower with either the contract 5
document or written application as required by Sub. 1 but not with the obligatory
information required by § 492(2). § 492(6) 1st St. provides the lender with the possibility
to provide the borrower with the information after the contract has been effectively entered
into or, if the contract has become valid to the extent that the borrower receives the loan or
draws on it (§ 494(2) 1st St.). Sub. 2 provides three different extended withdrawal periods in
such case.
1. One month
Sub. 2 3rd St. affords the borrower a one-month withdrawal period in the event of 6
subsequent provision of the missing or incorrect obligatory information. § 492(6) stipulates
that this information is to be provided on a durable medium (§ 126b). The one-month
period applies in general consumer credit agreements and real estate consumer credit
agreements. Sub. 3 places an additional requirement for general consumer credit agree¬
ments in the event of subsequent amendments under § 494(2)-(6): the one-month period
will only commence upon receipt of a new copy of the agreement containing the new
information.4
2. Maximum
Sub. 2 4th St. provides a maximum withdrawal period only for real estate consumer credit 7
agreements. The borrower has a maximum withdrawal period of 12 months and 14 days if
the lender does not provide the obligatory information on the right of withdrawal or (Sub. 2
2nd St.) or the contractual documentation (Sub. 1). The expiration of the maximum period is
calculated from the conclusion of contract or after the provision of the contract document/
written application, if provided after the conclusion of contract.
3 BeckOGK BGB/Mörsdorf, § 356b BGB mn. 5.
4 See BeckOGK BGB/Mörsdorf, § 356b BGB mn. 11.
Watson
595
§ 356c 1-3
Division 3. Contractual obligations
3. Unlimited
8 The link between the commencement of the withdrawal period and the provision of
obligatory pre-contractual information is especially apparent for general consumer credit
agreements. In contrast to e.g. Art. 10(1) EU Consumer Rights Directive, the EU Consumer
Credit Directive does not contain a maximum withdrawal period. In principle the consumer
therefore has an unlimited right of withdrawal because it is the provision of the obligatory
information which triggers the start of the withdrawal period.
§ 356c
Right of withdrawal in contracts
for delivery by instalments
(1) In the case of a contract for delivery by
instalments that is neither a distance contract
nor an off-premises contract, the withdrawal
period does not commence prior to the trader
having informed the consumer pursuant to
Article 246 (3) of the Introductory Act to the
Civil Code [Einführungsgesetz zum Bürgerli¬
chen Gesetzbuche] as to the latter’s right of
withdrawal.
(2) ’§ 356(1) applies with the necessary
modifications. 2The right of withdrawal ex¬
pires at the latest twelve months and fourteen
days following the point in time set out in
§ 355(2) sentence 2.
§ 356c
Widerrufsrecht bei
Ratenlieferungsverträgen
(1) Bei einem Ratenlieferungsvertrag, der
weder im Fernabsatz noch außerhalb von
Geschäftsräumen geschlossenen wird, beginnt
die Widerrufsfrist nicht, bevor der Unterneh¬
mer den Verbraucher gemäß Artikel 246
Absatz 3 des Einführungsgesetzes zum Bür¬
ge! liehen Gesetzbuche über sein Widerrufe¬
recht unterrichtet haL
(2) * l§ 356 Absatz 1 gilt entsprechend 2Das
Widerrufsrecht erlischt spätestens zwölf Mo¬
nate und 14 Tage nach dem in § 355 Absatz!
Satz 2 genannten Zeitpunkt.
A. Function
1 § 356c regulates the start and maximum duration of the right of withdrawal in a contract
for delivery by instalments (cf. § 510(1) 1st St.) that is neither^ distance contract nor an off-
premises contract.1
B. Context
2 The EU Consumer Rights Directive contains provisions on the ri^ht of withdrawal in
instalment contracts concluded off-premises or via means of distance communication. Such
rules were implemented i.a. in § 356. However, beyond this Directive $ 5100 affords the
consumer with a right of withdrawal (§ 355) in instalment contracts ($ 510(D) that are not
distance contracts or off-premises contracts. § 356c therefore strives to align the rules on the
nght of withdrawal in instalment contracts in order to ensure as much consistency as poss.Ne-2
C. Explanation
I. Commencement
Sub. 1 links the start of the withdrawal period tn . -.ktsicf
8 355(11 1“ St i Art K. nr u . ««information on withdrawal rights M
§ 355(1) 1 St.). Art. 246(3) EGBGB st.pulates that, where the consumer has a nght ot
5 See MüKo BGB/Fritsche, § 356b BGB mn. 6.
1 l or further detail on such type of contracts see the
2 BT-Drs. 17/12637 of 6.3.2013, p. 62.
comments on § 510.
596
Watson
Right o) withdrawal in gratuitous credit agreements 1 § 356d
withdrawal, the entrepreneur is to inform the consumer in text form of the right of
withdrawal; the instructions on withdrawal must be provided in a clear manner and dearly
inform the consumer ot his main rights in a manner suitable to the means of communication
used. Art. 246(3) EGBGB provides further than the instructions must contain information on
the right of withdrawal, information that withdrawal is exercised by declaration to the
entrepreneur and does not require a reason, the name and address of the recipient of the
withdrawal, and information on the duration and start of the withdrawal period, and that the
withdrawal will be timely if it is dispatched within the withdrawal period.
II. Exercise
Sub. 2 1st St. allows the consumer to exercise of the right of withdrawal via the entrepre- 4
neur’s website, where such facility is available (§ 356(1) 1st St.). In such instances the
entrepreneur must confirm receipt ot the withdrawal to the consumer without undue delay
on a durable medium (§ 356(1) 2nd St.).
III. Extended withdrawal period
As stipulated in Sub. 1, the start of the withdrawal period is subject to the performance of 5
the pre-contractual information duties on the right of withdrawal. If the entrepreneur does
not perform this duty the duration of the right of withdrawal is extended to 12 months and
14 days beginning from the time of conclusion of contract (§ 355(2) 2nd St.).
§ 356d
Right of withdrawal of the
consumer in gratuitous credit
agreements and gratuitous
financing assistance
!In a contract in which an entrepreneur
grants a consumer gratuitous credit or gratu¬
itous financing assistance, by way of deroga¬
tion from § 355(2) sentence 2, the withdrawal
period does not commence before the entre¬
preneur has informed the consumer in accor¬
dance with the requirements of §514(2)
sentence 3 of his right of withdrawal. 2The
withdrawal period expires at the latest 12
months and 14 days after the conclusion of
contract or after the conclusion of contract or
after the time designated in sentence 1, if this
is after the conclusion of contract.
§ 356d
Widerrufsrecht des Verbrauchers
bei unentgeltlichen
Darlehensverträgen und
unentgeltlichen
Finanzierungshilfen
*Bei einem Vertrag, durch den ein Un¬
ternehmer einem Verbraucher ein unent¬
geltliches Darlehen oder eine unentgeltliche
Finanzierungshilfe gewährt, beginnt die Wi¬
derrufsfrist abweichend von § 355 Absatz 2
Satz 2 nicht, bevor der Unternehmer den Ver¬
braucher entsprechend den Anforderungen
des § 514 Absatz 2 Satz 3 über dessen Wider¬
rufsrecht unterrichtet hat. 2Das Widerrufs¬
recht erlischt spätestens zwölf Monate und
14 Tage nach dem Vertragsschluss oder nach
dem in Satz 1 genannten Zeitpunkt, wenn
dieser nach dem Vertragsschluss liegt.
A. Function
§ 356d provides specific rules on the start and maximum period of the right of withdrawal 1
in gratuitous credit agreements and gratuitous financing assistance agreements. The German
legislator granted the consumer a right of withdrawal in gratuitous credit agreements and in
gratuitous financing assistance agreements (§ 514) in order to take account of the trend to
offer gratuitous credit (‘0 percent interest’) to consumers and the thus the need to protect the
consumer due to the imposed financial obligations.1
1 BT.-Drs. 18/7584 of 17.2.2016, p. 140.
Watson
597
§ 356e 1-2
Division 3. Contractual obligations
B. Explanation
I. Commencement
2 As § 356b does not apply, the withdrawal period commences in principle upon conclusion
of the contract in accordance with the general rule in § 355(2) 2nd St. However, in line with
the general approach for the right of withdrawal, the 1st St. links the start of the withdrawal
period to the information on withdrawal rights. § 514(2) 3rd St. refers to Art. 246(3) EGBGB.
IL Extended withdrawal period
3 As stipulated in the 1st St., the start of the withdrawal period is subject to the performance of
the pre-contractual information duties on the right of withdrawal If the entrepreneur does not
perform this duty, the duration of the right of withdrawal is extended to 12 months and 14 davs
beginning from the time of conclusion of contract (§ 355(2) 2‘ld St.). Such maximum withdrawal
period is not provided for nongratuitous credit agreements and nongratuitous financing
assistance agreements insofar as they are general consumer credit agreements (§ 356b). The
maximum period in the 2nd St. does not conflict with EU law on credit agreements as gratuitous
credit agreements arc not regulated under the EU Consumer Credit Directive.2
§ 356e
Right of withdrawal in consumer
construction contracts
’The right of withdrawal in a consumer
construction contract (§650i(l>) does not
commence before the entrepreneur has in¬
structed the consumer of his right to with¬
drawal in accordance with Article 249 § 3 of
the Introductory Act to the Civil Code [Ein¬
führungsgesetz zum Bürgerlichen Gesetz¬
buche]. 2The withdrawal period expires at
the latest 12 months and 14 days after the
time designated in § 355(2) sentence 2.
§ 356e
Widemifsrecht bei
Verbraucherbauverträgen
’Bei einem Verbraucherbauvertrag (§ 650i
Absatz 1) beginnt die Widerrufsfrist nicht,
bevor der Unternehmer den Verbraucher ge¬
mäß Artikel 249 § 3 des Einfuhrungsgesetzes
zum Bürgerlichen Gesetzbuche über sein V*b
derrufsrecht belehrt hat. 2Das Widerrutsrecht
erlischt spätestens zwölf Monate und 14 Tage
nach dem in § 355 Absatz 2 Satz 2 genannten
Zeitpunkt.
A. Function
1 § 356e provides specific rules on the commencement and maximum period for the right ot
withdrawal in contracts between a consumer and an entrepreneur in which an entrepreneur
is to construct a new building or significantly renovate and existing building
construction contract, § 650i). § 356e applies to contracts for construction services insofar
the contract was concluded in circumstances which do not satisfy the requirements tor either
an off-premises or distance contract (§§ 312b, § 312c).* 1
B. Context
2 The German legislator introduced a right of withdrawal for consumers in construction
contracts as part of a series of reforms regarding the construction sector. The new Statuten
2 BT-Drs. 18/7584 of 17.2.2016, p. 141.
1 See BcckOGK BGB/Reiter, § 357d mn. 9.
598
Watson
Legal consequences of withdrawal from off-premises contracts etc. § 357
provisions, which include § 356e, entered into force on 1 January 2018. In contrast to
§§ 355-356d, § 356e is not directly rooted in EU legislation though is aligned with the EU-
based approach in § 356(3).
C. Explanation
§ 6501 Is* St. affords a right of withdrawal to the consumer in a consumer construction 3
contract. § 6501 2"d St. provides that the entrepreneur is obliged to inform the consumer of
his right to withdrawal in accordance with Art. 246(2) EGBGB. § 356e links the start of the
14-day withdrawal period to the performance of this information obligation. In accordance
with this approach the incorrect or non-performance of this information obligation will
extend the withdrawal period to a maximum of 12 months and 14 days beginning from the
time of conclusion of contract (§ 355(2) 2nd St.).
§357
Legal consequences of withdrawal
from off-premises contracts and
distance contracts to the
exception of contracts relating to
financial services
(1) The performance received is to be res¬
tituted at the latest after fourteen days.
(2) !The trader must also restitute any
payments the consumer may have made for
the delivery*. 2This does not apply inasmuch
as the consumer has incurred additional costs
because he opted for a type of delivery other
than the least expensive type of standard
delivery offered by the trader.
(3) ’In making the repayment, the trader
must use the same means of payment that the
consumer used in making the payment. Sen¬
tence 1 does not apply if the parties expressly
have agreed otherwise and the consumer does
not incur any costs as a result.
(4) ’In the case of a sale of consumer
goods, the trader may refuse to make repay¬
ment until he has received the returned goods
or the consumer has provided proof that he
has dispatched the goods. 2This does not
apply if the trader has offered to collect the
goods.
(5) The consumer is not obliged to arrange
for the return shipment of the goods received
if the trader has offered to collect the goods.
(6) ’The consumer bears the direct costs of
return shipment of the goods if the trader has
informed the consumer pursuant to
Article 246a §1(2) sentence 1 No. 2 of the
Introductory Act to the Civil Code [Einfiih-
§357
Rechtsfolgen des Widerrufs von
außerhalb von Geschäftsräumen
geschlossenen Verträgen und
Fernabsatzverträgen mit
Ausnahme von Verträgen über
Finanzdienstleistungen
(1) Die empfangenen Leistungen sind spä¬
testens nach 14 Tagen zurückzugewähren.
(2) ’Der Unternehmer muss auch etwaige
Zahlungen des Verbrauchers für die Liefe¬
rung zurückgewähren. 2Dies gilt nicht, soweit
dem Verbraucher zusätzliche Kosten entstan¬
den sind, weil er sich für eine andere Art der
Lieferung als die vom Unternehmer angebo¬
tene günstigste Standardlieferung entschie¬
den hat.
(3) ’Für die Rückzahlung muss der Unter¬
nehmer dasselbe Zahlungsmittel verwenden,
das der Verbraucher bei der Zahlung verwen¬
det hat. 2Satz 1 gilt nicht, wenn ausdrücklich
etwas anderes vereinbart worden ist und dem
Verbraucher dadurch keine Kosten entstehen.
(4) ’Bei einem Verbrauchsgüterkauf kann
der Unternehmer die Rückzahlung verwei¬
gern, bis er die Waren zurückerhalten hat
oder der Verbraucher den Nachweis erbracht
hat, dass er die Waren abgesandt hat. 2Dies
gilt nicht, wenn der Unternehmer angeboten
hat, die Waren abzuholen.
(5) Der Verbraucher ist nicht verpflichtet,
die empfangenen Waren zurückzusenden,
wenn der Unternehmer angeboten hat, die
Waren abzuholen.
(6) ’Der Verbraucher trägt die unmittel¬
baren Kosten der Rücksendung der Waren,
wenn der Unternehmer den Verbraucher
nach Artikel 246a § 1 Absatz 2 Satz 1
Nummer 2 des Einführungsgesetzes zum Bür-
Watson
599
§357
Division 3. Contractual obligations
rungsgesetz zum Bürgerlichen Gesetzbuche]
of this obligation. 2Scntence 1 does not apply
if the trader has stated that he is prepared to
bear these costs. 3In the case of off-premises
contracts, in the context of which the goods
were delivered to the consumer’s dwelling at
the time the contract was concluded, the
trader is obliged to collect the goods at his
own costs if, by their nature, these goods
cannot be returned by post.
(7) The consumer shall be liable for any
diminished value of the goods if
1. the diminished value results from the
handling of the goods in any other manner
than that necessary to establish the nature,
characteristics, and functioning of the goods,
and
2. the trader has informed the consumer
pursuant Article 246a § 1(2) sentence 1 No. 1
of the Introductory Act to the Civil Code
[Einführungsgesetz zum Bürgerlichen Gesetz¬
buche] of his right of withdrawal.
(8) 1Where the consumer withdraws from a
contract for the provision of services or the
supply of water, gas, or electricity, without
their supply having been offered for sale in a
limited volume or set quantity, or for the
supply of distance heating, the consumer
shall owe the trader compensation for the
value of the performance provided until the
time of the withdrawal in those cases in
which the consumer has expressly demanded
that the trader begin with the performance
prior to expiry of the withdrawal period. 2The
claim pursuant to sentence 1 exists only in
those cases in which the trader has properly
informed the consumer pursuant to
Article 246a § 1(2) sentence 1 Nos 1 and 3 of
the Introductory Act to the Civil Code [Ein-
fuhrungsgesetz zum Bürgerlichen Gesetz¬
buche]. 3For off-premises contracts, the claim
pursuant to sentence 1 exists only in those
cases in which the consumer has transmitted
his request pursuant to sentence 1 on a dur¬
able medium. 4In calculating the compensa¬
tion for value, the total price agreed upon is
to be used as a basis. 5If the total price agreed
upon is excessive, the compensation for value
shall be calculated on the basis of the market
value of the performance provided.
(9) Where the consumer withdraws from a
contract for the supply of digital content that
is not contained in a tangible medium, he
shall not compensate for value.
gediehen Gesetzbuche von dieser Pflicht
terrichtet hat. 2Satz 1 gilt nicht, wenn d*
Unternehmer sich bereit erklärt hat, d‘
Kosten zu tragen. 3Bei außerhalb von g*
schäftsräumen geschlossenen Verträgen, be'
denen die Waren zum Zeitpunkt des Ve/
tragsschlusses zur Wohnung des Verbrau
chers geliefert worden sind, ist der Unterneh¬
mer verpflichtet, die Waren auf eigene Kosten
abzuholen, wenn die Waren so beschaffen
sind, dass sie nicht per Post zurückgesandt
werden können.
(7) Der Verbraucher hat Wertersatz fiu-
einen Wertverlust der Ware zu leisten, wenn
1. der Wertverlust auf einen Umgang mit
den Waren zurückzuführen ist, der zur Prü¬
fung der Beschaffenheit, der Eigenschaften
und der Funktionsweise der Waren nicht
notwendig war, und
2. der Unternehmer den Verbraucher nach
Artikel 246a § 1 Absatz 2 Satz 1 Nummer 1
des Einführungsgesetzes zum Bürgerlichen
Gesetzbuche über sein Widerrufsrecht unter¬
richtet hat.
(8) Widerruft der Verbraucher einen Ver¬
trag über die Erbringung von Dienstleistun¬
gen oder über die Lieferung von Wasser, Gas
oder Strom in nicht bestimmten Mengen oder
nicht begrenztem Volumen oder über die
Lieferung von Fernwärme, so schuldet der
Verbraucher dem Unternehmer Wertersatz
für die bis zum Widerruf erbrachte Leistung,
wenn der Verbraucher von dem Unternehmer
ausdrücklich verlangt hat, dass dieser mit der
Leistung vor Ablauf der Widerrufsfrist be¬
ginnt. 2Der Anspruch aus Satz 1 besteht nur,
wenn der Unternehmer den Verbraucher
nach Artikel 246a § 1 Absatz 2 Satz 1
Nummer 1 und 3 des Einführungsgesetzes
zum Bürgerlichen Gesetzbuche ordnungs¬
gemäß informiert hat. 3Bei außerhalb von
Geschäftsräumen geschlossenen Verträgen
besteht der Anspruch nach Satz 1 nur dann»
wenn der Verbraucher sein Verlangen na
Satz 1 auf einem dauerhaften Datenträger
übermittelt hat. 4Bei der Berechnung
Wertersatzes ist der vereinbarte Gesamtpre15
zu Grunde zu legen. 5Ist der vereinbarte
samtpreis unverhältnismäßig hoch, ist
Wertersatz auf der Grundlage des Markte
der erbrachten Leistung zu berechnen.
(9) Widerruft der Verbraucher e‘n®n^cfll
trag über die Lieferung von nicht aut e
körperlichen Datenträger befindlichen
len Inhalten, so hat er keinen Wertersa
leisten.
Watson
600
Legal consequences of withdrawal from off-premises contracts etc. 1-4 § 357
Contents
mn.
A. Function 1
B. Context 2
C. Explanation 3
I. Time period 3
II. Scope of reimbursement 4
III. Form of reimbursement 5
IV. Refusing repayment 6
V. Return of goods 7
VI. Compensation 8
1. Goods 9
2. Services 11
3. Digital content 12
A. Function
§ 355(3) outlines the general effect of the legally-valid exercise of a withdrawal right as the 1
return of the performances received (§ 355(3) 1st St.). § 357 expands on the general rule in
§ 355(3) by stipulating the specific obligations and liabilities for the parties in the event of
withdrawal from off-premises contracts and distance contracts. § 357 does not apply to
financial services - these are subject to the provisions in § 357a. § 357d does not exclude the
application of § 357 to consumer construction contracts concluded off-premises or at a
distance.1
B. Context
§ 357 transposes Arts 13 and 14 EU Consumer Rights Directive. 2
C. Explanation
I. Time period
Restitution of performances is to take place without undue delay (§ 355(3) 1st St.). Sub. 1 3
expands on this general rule by providing a maximum period of 14 days for the restitution of
the performances received. This provision applies to both the entrepreneur and the con¬
sumer. § 355(3) 2nd St. stipulates that this period begins for the entrepreneur upon receipt of
the declaration of withdrawal and, for the consumer, upon dispatch of the declaration of
withdrawal.
IL Scope of reimbursement
Sub. 2 is a consequence of the effect of the CJEU decision in Heinrich Heine2 which 4
clarified that the obligation to reimburse the sums paid by the consumer (Art. 6(2) EU
Distance Sales Directive) extended to reimbursement of delivery costs. Whereas Sub. 2 1st St.
provides that the scope of payments to be reimbursed also comprises the costs of delivery
(‘postage and packaging), Sub. 2 2nd St. limits the extent of reimbursement to the least
expensive type of standard delivery offered. For example, if the standard delivery charges are
5 euro and the consumer selects express delivery at the price of 10 euro, the entrepreneur will
have to reimburse 5 euro only.
1 See BeckOGK/Reiter, § 357d BGB mn. 9.
2 CJEU C-511/08 Heinrich Heine ECLI:EU:C:2010:189.
Watson
601
§ 357 5-7
Division 3. Contractual obligations
III. Form of reimbursement
5 In principle the entrepreneur is to make repayment in the same means of payment used by
the consumer in making the payment (Sub. 3 1st St.). This rule is of particular importance in
the use of gift certificates (vouchers) for a cash sum as the entrepreneur may reimburse the
consumer in the form of a gift certificate.3 This rule protects the trader from the use of the
right of withdrawal in order to receive a cash equivalent. The parties may agree an alternative
form of reimbursement (e. g. crediting the amount to the consumer’s bank account where the
initial payment was made in cash), the consumer may not, however, incur any costs as a
result (Sub. 3 2nd St.).
IV. Refusing repayment
6 The exercise of the right of withdrawal may not necessarily coincide with the return of the
goods (e. g. where the consumer first exercises the right of withdrawal via the entrepreneur’s
website). In particular, the maximum period under Sub. 1 (in conjunction with § 355(3)
3rd St.) provides the consumer with a 14-day-period in which to dispatch the goods. Sub. 4
1st St. therefore entitles the entrepreneur to refuse repayment until he has received either the
goods or proof that the goods have actually been dispatched.4 In the latter instance the
entrepreneur bears risk of the return shipment of the good according to § 355(3) 4th St The
right to refuse to make repayment does not apply if the entrepreneur has offered to collect
the goods (2nd St.).
V. Return of goods
7
Pursuant to Sub. 5, the consumer is obliged to make arrangement for the return shipment
of the goods unless the entrepreneur has offered to collect them. Sub. 3 3rd St. excludes this
obligation in off-premises contracts if the goods were delivered to the consumer’s dwelling at
the time the contract was concluded if the goods cannot be returned by post (e.g. due to their
size and/or weight). Arrangements for the return shipment will typically consist of choosing
a postal service provider and making arrangements for the goods to be received by such
service provider (e.g. taking the goods to the post office, arranging time and date for
collection). The obligation also extends to ensuring the goods are suitably packaged for
transit.5 The consumer is not only obliged to make arrangements for the return shipment but
may also have to bear the direct costs of return shipment (Sub. 6 1st St.). This may apply it,
for example, the consumer does not have to accept the entrepreneur’s offer to collect the
goods and instead makes alternative arrangements. Direct costs include the cost of postage
and packaging, but may not extend to include the costs of removing the good if, for example
it has been installed (e.g. an oven).6 It is important to note, however, that installation ot the
good may result in the loss of the right of withdrawal if the good is inseparably mixed wth
other items (§ 312g(2) No. 4). The direct costs do not extend to any administrative, handling
or restocking costs for the entrepreneur.7 The consumer only has to bear the direct costs ot
return shipment of the goods if the entrepreneur has informed the consumer thereof (Sub. 6
1st St.) or if the entrepreneur has not stated that he is prepared8 to bear these costs (Sub. 6
3 BT-Drs. 17/12637 of 6.3.2013, p. 63.
4 See BeckOGK BGB/Mörsdorf, § 357 BGB mn. 27.
5 BeckOGK BGB/Mörsdorf, § 355 BGB mn. 103; MüKo BGB/Fritsche, § 357 BGB mn. 20.
6 See BeckOGK BGB/Mörsdorf, § 357 BGB mn. 40.
7 DG Justice Guidance Document concerning the Consumer Rights Directive (2014), p. 44.
8 Although the wording sich bereit erklärt hat used in Sub. 6 2nd St. may be translated as PrePare!
(due to the meaning of the word bereit), it does not accurately reflect the binding nature ot
entrepreneur’s statement. The translation of hat sich bereit erklärt as agreed to in Art. 14(1) EU Consun
Rights Directive is more appropriate.
602
Watson
Legal consequences of withdrawal from off-premises contracts etc. 8-12 § 357
2nd St.). The consumer will not have to bear the costs if the entrepreneur fails to inform the
consumer of this consequence. Furthermore, the breach of this particular information duty
will also extend the withdrawal period beyond the 14-day-period. However, the consumer
will nonetheless have to bear the direct costs of return if correct information on these costs is
given, but incorrect information on another aspect of the right of withdrawal is not.
VI. Compensation
Subs 8-9 distinguish between goods, services, and digital content with regard to whether 8
the consumer is to pay the entrepreneur compensation for diminished value (goods) or value
ot performance provided (services, digital content).
1. Goods
A particularly sensitive issue concerns the consumers liability for any diminished value of 9
the goods (Sub. 7). Liability for diminished value (Wertverlust) is to be distinguished from
compensation for use (Nutzungsersatz) (§ 347), which does not apply in the event of
withdrawal. In principle, the consumer will not be liable to compensate the entrepreneur
for any diminished value of the goods which results from the handling of the goods in a
manner necessary to establish the nature, characteristics, and functioning of the goods.
Recital 47 EU Consumer Rights Directive states that the extent of the handling corresponds
to the handling permitted in a shop. The extent of the handling therefore depends on the type
of good purchased and the typical scope of permitted examination. Difficulties arise where
the good in question may be examined in store, but examination by the consumer at home
would exclude resale.9
Pursuant to Sub. 7 No. 2, the consumer will not be liable to compensate for diminished value 10
if the entrepreneur has not informed the consumer of the conditions, time periods and
procedure for exercising the right of withdrawal (§ 355) as well as the model withdrawal form
(Schedule 2 to Art. 246a EGBGB). The consumer will therefore not be liable to compensate for
diminished value of the good sustained during the extended withdrawal period resulting from a
breach of any of the pre-contractual information duties pertaining to withdrawal.
2. Services
Sub. 8 concerns the payment of compensation for value in service contracts. In principle, 11
the consumer is obliged to pay compensation for the value of the performance provided until
the time of withdrawal (1st St.) with the total price providing the basis for the calculation
(5th St.). The obligation is, however, subject to the consumer’s express demand for perfor¬
mance before the end of the withdrawal period (1st St., 4th St.) and the pre-contractual
information on the conditions, time limits and procedure for exercising the right of with¬
drawal, the model withdrawal form, and the obligation to pay compensation for value
(3rd St.). If the total price agreed upon is excessive, the compensation for value shall be
calculated on the basis of the market value of the performance provided (5th St.).
3. Digital content
The consumer does not have to pay compensation for value of digital content that is not 12
supplied on a tangible medium (Sub. 9). This rule is to be read in conjunction with § 356(5),
whereby the consumer consents to the supply of the digital content and in so doing acknowl¬
edges the loss of the right of withdrawal. If the requirements of § 356(5) are not fulfilled the
consumer will retain the right to withdrawal and therefore ought not be burdened with the
payment of compensation for value where the entrepreneur is in breach of his pre-contractual
obligations.
9 MüKo BGB/Fritsche, § 357 BGB mn. 32.
Watson
603
§ 357a
Division 3. Contractual obligations
§ 357a
Legal consequences of the
withdrawal of contracts relating to
financial services
(1) The performance received is to be res¬
tituted at the latest after thirty days.
(2) 1 Where off-premises contracts or dis¬
tance contracts relating to financial services
are withdrawn from, the consumer is obliged
to pay compensation for the value of the
services provided by the trader until the time
of the withdrawal if
1. this legal consequence has been indi¬
cated to the consumer prior to his making a
declaration as to the conclusion of a contract
and
2. the consumer has expressly agreed to the
trader beginning to perform the service prior
to the withdrawal period having ended.
2Where contracts relating to nongratuitous
financing assistance are withdrawn from that
are covered by the exception set out in § 506
(4), § 357 subsections (5) to (8) likewise applies
with the necessary modifications. 3Where the
contract relating to nongratuitous financing
assistance has as its subject matter the supply
of digital content which is not contained in a
tangible medium, the consumer is to compen¬
sate for the value of the digital content sup¬
plied until the time of the withdrawal if
1. this legal consequence has been indicated
to the consumer prior to his making a declara¬
tion as to the conclusion of a contract, and
2. the consumer has expressly consented to
the trader beginning with the supply of the
digital content prior to the withdrawal period
having ended.
4Where consideration is specified in the
contract, this is to serve as the basis for
calculating the compensation for value. 5lf
the total price agreed upon is excessive, the
compensation for value shall be calculated on
the basis of the market value of the perfor¬
mance provided.
(3) 'Where consumer credit agreements are
withdrawn from, the borrower is to pay the
agreed interest for the period lapsing between
the disbursement and the repayment of the
loan. 2If the loan is secured by a security right
in land, evidence may be submitted as to the
value of the benefit of use having been lower
than the interest agreed upon. 3In this case,
solely the lower amount is owed. 4 In cases in
which contracts relating to nongratuitous fi-
§ 357a
Rechtsfolgen des Widerrufs von
Verträgen über
Finanzdienstleistungen
(1) Die empfangenen Leistungen sind spä-
testens nach 30 Tagen zurückzugewähren.
(2) 'Im Falle des Widerrufs von außerhalb
von Geschäftsräumen geschlossenen Verträgen
oder Fernabsatzverträgen über Finanzdienst¬
leistungen ist der Verbraucher zur Zahlung
von Wertersatz für die vom Unternehmer bis
zum Widerruf erbrachte Dienstleistung ver¬
pflichtet, wenn er
1. vor Abgabe seiner Vertragserklärung auf
diese Rechtsfolge hingewiesen worden ist und
2. ausdrücklich zugestimmt hat, dass der
Unternehmer vor Ende der Widemifsfrist mit
der Ausführung der Dienstleistung beginne
2Im Falle des Widerrufs von Verträgen
über eine entgeltliche Finanzierungshilfe, die
von der Ausnahme des § 506 Absatz 4 erfasst
sind, gilt auch § 357 Absatz 5 bis 8 entspre¬
chend. 3Ist Gegenstand des Vertrags über die
entgeltliche Finanzierungshilfe die Lieferung
von nicht auf einem körperlichen Datenträger
befindlichen digitalen Inhalten, bat der Ver¬
braucher Wert ersatz fur die bis zum Wider¬
ruf gelieferten digitalen Inhalte zu leisten,
wenn er
1. vor Abgabe seiner Vertragserklärung auf
diese Rechtsfolge hingewiesen worden ist und
2. ausdrücklich zugestimmt hat, dass der
Unternehmer vor Ende der Widemifsfrist
mit der Lieferung der digitalen Inhalte be¬
ginnt.
4Ist im Vertrag eine Gegenleistung be¬
stimmt, ist sie bei der Berechnung des Wert
ersatzes zu Grunde zu legen. 5Ist der verein¬
barte Gesamtpreis unverhältnismäßig h
ist der Wert ersatz auf der Grundlage *
Marktwerts der erbrachten Leistung zu
rechnen.
(3) 'Im Falle des Widerrufs von Verbiß
cherdarlehensverträgen hat der Dark en$
nehmer für den Zeitraum zwischen der *
Zahlung und der Rückzahlung des Dar e
den vereinbarten Sollzins zu entrichten,
einem Immobiliar-Verbraucherdarlehen
nachgewiesen werden, dass der Wert des
brauchsvorteils niedriger war als der 'er
barte Sollzins. 3In diesem Fall ist nur
niedrigere Betrag geschuldet. 4Im e
604
Watson
Legal consequences of the withdrawal of other contracts
1 § 357b
nancing assistance are withdrawn from that
are not covered by the exception set out in
§ 506(4), subsection (2) likewise applies, with
the necessary modifications, subject to the
proviso that the information concerning the
right of withdrawal is replaced by the obliga¬
tory information under Article 247 § 12(1) in
conjunction with § 6(2) of the Introductory
Act to the Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzbuche], each of
which provisions concerns the right of with¬
drawal. 5Over and above this, the borrower
must refund to the lender solely the expendi¬
ture which the lender has provided to public
agencies and cannot demand back.
Widerrufs von Verträgen über eine entgeltli¬
che Finanzierungshilfe, die nicht von der
Ausnahme des § 506 Absatz 4 erfasst sind,
gilt auch Absatz 2 entsprechend mit der Ma߬
gabe, dass an die Stelle der Unterrichtung
über das Widerrufsrecht die Pflichtangaben
nach Artikel 247 § 12 Absatz 1 in Verbindung
mit § 6 Absatz 2 des Einführungsgesetzes
zum Bürgerlichen Gesetzbuche, die das Wi¬
derrufsrecht betreffen, treten. 5Darüber hi¬
naus hat der Darlehensnehmer dem Dar¬
lehensgeber nur die Aufwendungen zu
ersetzen, die der Darlehensgeber gegenüber
öffentlichen Stellen erbracht hat und nicht
zurückverlangen kann.
§ 357 serves to transpose Art. 7(4), (5) EU Distance Marketing of Financial Services 1
Directive and Art. 14(3) EU Consumer Credit Directive in order to provide detailed, specific
rules concerning the legal consequences of withdrawal from a contract relating to financial
services (as defined in § 1 (1 a) KWG). Despite the generalisation financial services, § 357 does
require distinctions to be drawn with regard to the manner in which the contract was
concluded (Sub. 2 1st St.), whether the contract is for non-gratuitous financing assistance
(Subs 2 and 3) and consumer credit agreements (Sub. 3). In essence, § 357a contains
modifications on general approaches to the right of withdrawal. Sub. 1 expands on § 355(3)
1st St. by providing a 30-day maximum period. Subs 2 and 3 concerns consumer’s payment
obligations and links these to the satisfaction of pre-contractual information obligations.
§ 357b
Legal consequences of the
withdrawal of timeshare, long¬
term holiday product, brokerage
contracts, and exchange system
contracts
(1) ’The consumer does not incur any costs
in the event of a withdrawal. 2The trader
must reimburse the consumer for the costs
of the contract, its implementation, and its
reversal. ^Remuneration for services rendered
and for providing residential buildings for
use is excluded.
(2) The consumer is to provide compensa¬
tion for the diminished value of the accom¬
modation within the meaning of § 481 solely
inasmuch as the diminishment in value is the
result of the accommodation not being used
in accordance with its designated purpose.
§ 357b
Rechtsfolgen des Widerrufs von
Teilzeit-Wohnrechteverträgen,
Verträgen über ein langfristiges
Urlaubsprodukt,
Vermittlungsverträgen und
T auschsystemverträgen
(1) ’Der Verbraucher hat im Falle des Wi¬
derrufs keine Kosten zu tragen. 2Die Kosten
des Vertrags, seiner Durchführung und seiner
Rückabwicklung hat der Unternehmer dem
Verbraucher zu erstatten. 3Eine Vergütung
für geleistete Dienste sowie für die Überlas¬
sung von Wohngebäuden zur Nutzung ist
ausgeschlossen.
(2) Der Verbraucher hat für einen Wert¬
verlust der Unterkunft im Sinne des § 481
nur Wertersatz zu leisten, soweit der Wert¬
verlust auf einer nicht bestimmungsgemäßen
Nutzung der Unterkunft beruht.
A. Function
§ 357b expands on the general provisions of § 355(1), (3) with specific rules on the legal 1
consequences of the withdrawal from a timeshare contract (§ 481), a contract for a long-term
Watson
605
§ 357b 2-5 Division 3. Contractual obligations
holiday product (§ 481a), a brokerage contract (§ 481b( 1)) or an exchange system contract
(§ 481b(2)). § 355(3) 1st St. contains the general effect of a restitution of performances
received: the trader (entrepreneur as per § 14) is obliged to return payments made by the
consumer and reimburse costs incurred under the contract (Sub. 1); the consumer is t0
return the rights in rem acquired under the contract,1 but may be obliged to pay compensa¬
tion for diminished value (Sub. 2). The relatively broad scope of the entrepreneur’s restitu¬
tion obligation aims to ensure that the consumer is not discouraged from exercising his right
of withdrawal by the prospect of potential costs.2
B. Context
2 § 357b transposes Art. 8(2) EU Timeshare Directive.
C. Explanation
I. Costs
3 Sub. 1 rl St. provides that the consumer does not incur any costs in the event of
withdrawal. Any costs of the contract, its implementation, and its reversal have to be
reimbursed to the consumer by the entrepreneur (Sub. 1 2nd St.). In this respect, the scope
of the entrepreneur’s restitution obligation extends to payments that the consumer may have
made to a third party (such as a notary, lawyer or estate agent3).
IL Remuneration
4 Sub. 1 3rd St. transposes the second part of Art. 8(2) EU Timeshare Directive according
to which the consumer is not ‘liable for any value corresponding to the service which may
have been performed before withdrawal.’ The 3rd St. makes a finer distinction and
clarification that the entrepreneur may not retain payments or charge for use of senices
rendered or accommodation provided (Nutzungsersatz); this also extends to any proces-
sing/administration fees.4
III. Diminished value
5 Sub. 2 provides that the consumer may be obliged to compensate the entrepreneur for
diminished value of the accommodation. However, this obligation only arises insofar as
the consumer has not used the accommodation in accordance with its designated purpose;
this can include excessive use (i.e. beyond mere testing) or causing damage.5 The burden
of proof rests on the entrepreneur.6 The consumer is therefore not liable to pay
compensation for value if his use is in accordance with the accommodation’s designated
purpose.
1 BT-Drs. 17/2764 of 18.8.2010, p. 19.
2 BT-Drs. 17/12637 of 6.3.2013, p. 65-66.
3 BeckOK BGB/Müller-Christmann, § 357b BGB mn. 5.
4 LG Mainz 11.12.1998 - 7 0 210/98, NJW-RR 2000, 508.
5 BeckOK BGB/Müller-Christmann, § 357b BGB mn. 3.
6 BeckOK BGB/Müller-Christmann, § 357b BGB mn. 6; MüKo BGB/Fritsche, § 357b BGB nin. 5.
606
Watson
Legal consequences of withdrawal in consumer construction contracts § 357d
§ 357c
Legal consequences of revoking
contracts for delivery by
instalments that are neither
distance contracts nor off-
premises contracts
!§ 357(1) to (5) applies, with the necessary
modifications, to the restitution of the per¬
formance received. 1 2The consumer bears the
direct costs of the return shipment of the
items of property received unless the trader
has stated that he is prepared to bear these
costs. 3§ 357(7) applies with the necessary
modifications, subject to the proviso that the
information pursuant to Article 246a § 1(2)
sentence 1 No. 1 of the Introductory Act to
the Civil Code [Einführungsgesetz zum Bür¬
gerlichen Gesetzbuche] is replaced by the in¬
formation pursuant to Article 246 (3) of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche].
§ 357c
Rechtsfolgen des Widerrufs von
weder im Fernabsatz noch
außerhalb von Geschäftsräumen
geschlossenen
Ratenlieferungsverträgen
!Für die Rückgewähr der empfangenen
Leistungen gilt § 357 Absatz 1 bis 5 entspre¬
chend. 2Der Verbraucher trägt die unmittel¬
baren Kosten der Rücksendung der empfan¬
genen Sachen, es sei denn, der Unternehmer
hat sich bereit erklärt, diese Kosten zu tragen.
3§ 357 Absatz 7 ist mit der Maßgabe entspre¬
chend anzuwenden, dass an die Stelle der
Unterrichtung nach Artikel 246a § 1 Absatz 2
Satz 1 Nummer 1 des Einführungsgesetzes
zum Bürgerlichen Gesetzbuche die Unterrich¬
tung nach Artikel 246 Absatz 3 des Einfüh¬
rungsgesetzes zum Bürgerlichen Gesetzbuche
tritt.
§ 357c expands on § 355(1), (3) with specific rules on the legal consequences of revoking1 a 1
contract for delivery by instalments that is neither a distance nor off-premises contract. In
principle § 357 on the legal consequences of withdrawal on distance and off-premises
contracts applies to contracts for delivery by instalments that are neither distance contracts
nor off-premises contracts. § 357(6) does not apply because (i) the information obligation
concerning the right of withdrawal in a contract for delivery by instalments that is neither a
distance contract nor off-premises contract does not extend to information on the costs of
return, and (ii) § 357(6) 3rd St. contains a rule particular to off-premises contracts.2
§ 357d
Legal consequences of withdrawal
in consumer construction
contracts
*If the performance provided up to with¬
drawal cannot be returned due to the nature
of the performance, the consumer owes com¬
pensation for value to the entrepreneur. 2In
calculating the compensation for value, the
remuneration agreed upon is to be used as a
basis. 3If the remuneration agreed upon is
excessive, the compensation for value shall
be calculated on the basis of the market value
of the performance provided.
§ 357d
Rechtsfolgen des Widerrufs bei
V erbraucherbauverträgen
’Ist die Rückgewähr der bis zum Widerruf
erbrachten Leistung ihrer Natur nach aus¬
geschlossen, schuldet der Verbraucher dem
Unternehmer Wertersatz. 2Bei der Berech¬
nung des Wertersatzes ist die vereinbarte
Vergütung zugrunde zu legen. 3Ist die verein¬
barte Vergütung unverhältnismäßig hoch, ist
der Wertersatz auf der Grundlage des Markt¬
wertes der erbrachten Leistung zu berechnen.
1 Translation note: withdrawal would be more appropriate and reflect the consistent use of withdrawal
as the translation of Widerruf in subtitle 2.
2 BT-Drs. 17/12637 of 6.3.2013, p. 66.
Watson
607
§358 Division 3. Contractual obligations
1 § 357'd entered into force on 1 January 2018. It builds on the general restitution obligati0n
anchored in § 355(3) 1st St. by providing a solution to the problem that the nature of the
performance excludes its return, e.g. because removal of the performance would result in its
destruction.1 § 357d therefore provides an obligation for the consumer to pay compensation
to the entrepreneur for the value of the performance rendered (1st St.); this obligation arises
irrespective of whether the performance has increased the value of the property.2 The basis
for calculation in the 2nd and 3rd St. adopt the approach in § 357(8) 4th and 5th St. for off-
premises or distance contracts for services, though without the additional requirements of
particular pre-contractual information obligations. Remuneration may be considered exces¬
sive if it exceeds market value by more than 20 percent.3
§358
Contracts linked to the contract
from which the consumer has
withdrawn
(1) If the consumer has effectively with¬
drawn his declaration of intention to enter
into a contract for the supply of goods or for
the provision of a service by a trader, he is
also no longer obliged by his declaration of
intention to enter into a loan contract linked
to this contract.
(2) If the consumer has effectively with¬
drawn his declaration of intention to enter
into a consumer credit agreement on the
basis of § 495(1) or § 514(2) sectence 1, he
also ceases to be obliged by his declaration of
intention to enter into a contract linked to
that consumer credit agreement for the sup¬
ply of goods or for the provision of a service.
(3) ’A contract for the supply of goods or
for the provision of some other performance
and a loan contract pursuant to
subsections (1) or (2) are linked if the loan
fully or partially serves to finance the other
contract and both contracts constitute an
economic unit. 2An economic unit is to be
assumed in particular if the trader himself
finances the consideration of the consumer
or, in the case of financing by a third party, if
the lender in preparation for or for entering
into the loan contract uses the services of the
trader. 3In the case of a financed acquisition
of a plot of land or of an equivalent right, an
economic unit is only to be assumed if the
§358
Mit dem widerrufenen Vertrag
verbundener Vertrag
(1) Hat der Verbraucher seine auf den
Abschluss eines Vertrags über die Lieferung
einer Ware oder die Erbringung einer ande¬
ren Leistung durch einen Unternehmer ge¬
richtete Willenserklärung wirksam widerru¬
fen, so ist er auch an seine auf den Abschluss
eines mit diesem Vertrag verbundenen Dar¬
lehen svertrags gerichtete Willenserklärung
nicht mehr gebunden.
(2) Hat der Verbraucher seine auf den
Abschluss eines Darlehensvertrags gerichtete
Willenserklärung auf Grund des § 495
Absatz 1 oder des § 514 Absatz 2 Satz 1 wirk¬
sam widerrufen, so ist er auch nicht mehr an
diejenige Willenserklärung gebunden, die auf
den Abschluss eines mit diesem Darlehens¬
vertrag verbundenen Vertrags über die Liefe¬
rung einer Ware oder die Erbringung einer
anderen Leistung gerichtet ist.
(3) !Ein Vertrag über die Lieferung einer
Ware oder über die Erbringung einer anderen
Leistung und ein Darlehensvertrag nach den
Absätzen 1 oder 2 sind verbunden, wenn das
Darlehen ganz oder teilweise der Finanzie¬
rung des anderen Vertrags dient und bei e
Verträge eine wirtschaftliche Einheit bilden.
2Eine wirtschaftliche Einheit ist insbesondj**
anzunehmen, wenn der Unternehmer se
die Gegenleistung des Verbrauchers
ziert, oder im Fidle der Finanzierung du*
einen Dritten, wenn sich der Darlehensge
bei der Vorbereitung oder dem Abschluss
Darlehensvertrags der Mitwirkung des n
nehniers bedient. -'Bei einem finanzierten
1 BeckOK BGB/Müller-Christmann, § 357d BGB mn. 3-4. See BT-Drs. 18/8486 of 18.5.201b» p-3b 1
examples.
2 BeckOGK BGB/Reiter, § 357d BGB mn. 6.
3 BeckOGK BGB/Reiter, § 357d BGB mn. 11; HK-BGB/Schulze, § 357d BGB mn. 2.
608
Watson
Contracts linked to consumer contract
1 § 358
lender himself provides the plot of land or
the equivalent right to the consumer, or if he,
beyond the provision of the loan, promotes
acquisition of the plot of land or the equiva*
lent right in cooperation with the trader, by
making the interest of the trader in its dis¬
posal his own, in full or in part, by assuming
functions of the disposing party in planning,
advertising or carrying out the project, or by
unilaterally favouring the disposing party.
(4) ’§ 355(3) and, depending on the type of
the linked contract, 357 to 357b apply,
with the necessary modifications, to the re¬
versal of the linked contract, independently
of the type of sale. 2Where the linked contract
is a contract for the supply of digital content
that is not contained in a tangible medium
and the trader has provided the consumer
with a copy or confirmation of the contract
pursuant to § 312f, the consumer is to pay, in
derogation from § 357(9) and subject to the
prerequisites of § 356(5), second and third
half-sentences, compensation for the value of
the digital content supplied until the time of
withdrawal. 3Where the linked contract is a
contract for delivery by instalments that is a
distance contract or an off-premises contract,
then § 357 applies, with the necessary mod¬
ifications besides § 355(3); in all other cases,
§ 355(3) and § 357c apply, with the necessary
modifications, to linked contracts for the
delivery by instalments. 4In the case of
subsection (1), however, claims against the
consumer for payment of interest and costs
arising from the reversal of the loan contract
are excluded. 5With regard to the legal con¬
sequences of withdrawal, the lender assumes
the rights and duties of the trader under the
linked contract if the loan has already flowed
to the trader when the withdrawal becomes
effective.
(5) The subsections (2) and (4) above do
not apply to consumer credit agreements
which serve to finance the acquisition of
financial instruments.
werb eines Grundstücks oder eines grund¬
stücksgleichen Rechts ist eine wirtschaftliche
Einheit nur anzunehmen, wenn der Darlehens¬
geber selbst dem Verbraucher das Grundstück
oder das grundstücksgleiche Recht verschafft
oder wenn er über die Zurverfügungstellung
von Darlehen hinaus den Erwerb des Grund¬
stücks oder grundstücksgleichen Rechts durch
Zusammenwirken mit dem Unternehmer för¬
dert, indem er sich dessen Veräußerungsinte¬
ressen ganz oder teilweise zu Eigen macht, bei
der Planung, Werbung oder Durchführung
des Projekts Funktionen des Veräußerers
übernimmt oder den Veräußerer einseitig be¬
günstigt.
(4) ’Auf die Rückabwicklung des verbunde¬
nen Vertrags sind unabhängig von der Ver¬
triebsform § 355 Absatz 3 und, je nach Art des
verbundenen Vertrags, die §§ 357 bis 357b
entsprechend anzuwenden. 2Ist der verbun¬
dene Vertrag ein Vertrag über die Lieferung
von nicht auf einem körperlichen Datenträger
befindlichen digitalen Inhalten und hat der
Unternehmer dem Verbraucher eine Abschrift
oder Bestätigung des Vertrags nach § 312f zur
Verfügung gestellt, hat der Verbraucher ab¬
weichend von § 357 Absatz 9 unter den Vo¬
raussetzungen des § 356 Absatz 5 zweiter und
dritter Halbsatz Wertersatz für die bis zum
Widerruf gelieferten digitalen Inhalte zu leis¬
ten. 3Ist der verbundene Vertrag ein im Fern¬
absatz oder außerhalb von Geschäftsräumen
geschlossener Ratenlieferungsvertrag, ist ne¬
ben § 355 Absatz 3 auch § 357 entsprechend
anzuwenden; im Übrigen gelten für verbun¬
dene Ratenlieferungsverträge § 355 Absatz 3
und § 357c entsprechend. 4Im Falle des Absat¬
zes 1 sind jedoch Ansprüche auf Zahlung von
Zinsen und Kosten aus der Rückabwicklung
des Darlehensvertrags gegen den Verbraucher
ausgeschlossen. 5Der Darlehensgeber tritt im
Verhältnis zum Verbraucher hinsichtlich der
Rechtsfolgen des Widerrufs in die Rechte und
Pflichten des Unternehmers aus dem verbun¬
denen Vertrag ein, wenn das Darlehen dem
Unternehmer bei Wirksamwerden des Wider¬
rufs bereits zugeflossen ist.
(5) Die Absätze 2 und 4 sind nicht anzu¬
wenden auf Darlehensverträge, die der Finan¬
zierung des Erwerbs von Finanzinstrumenten
dienen.
A. Function
§ 358 applies in circumstances in which a consumer concludes a credit agreement (§ 491) 1
which fully or partially serves to finance a contract for goods or the supply of services (‘linked
contract’). It applies a so-called Widerrufsciurchgrijf or Widerrufscrstreckung whereby the
Watson
609
§ 358 2-6 Division 3. Contractual obligations
effect of withdrawal from one contract extends to the other (Subs 1 and 2). This effect aims
to protect the consumer from risks which may arise from splitting contracts which together
form an economic unit.1 Due to the effect of market fluctuations beyond the control of the
lender, financial instruments (e. g. transferable securities)2 are excluded from the scope of
application (Sub. 5).3
B. Context
2 § 358 is rooted in EU legislation. The EU Distance Marketing of Financial Services
Directive (Art. 6(7)), EU Consumer Credit Directive (Arts 14, 15), EU Timeshare Directive
(Art. 11), and the EU Consumer Rights Directive (Arts 3, 15) each contain provisions on the
effect of withdrawal on linked contracts.
C. Explanation
I. Linked contract
3 Sub. 3 1st St. provides that contracts are linked if the loan fully or partially serves to finance
the other contract and both contracts constitute an economic unit. Serves to finance means
that objectively the loan constitutes the remuneration for the good or service. An economic
unit requires a connection between the loan agreement and the financed goods/services
contract which justifies the extension of the effect of withdrawal from one contract to the
other, e.g. one contract would not have been concluded without the other or the overall
context is first apparent when considering both contracts together.4
4 Sub. 3 2nd and 3rd St. contain irrebuttable presumptions of a linked contract. Sub. 3 2nd St
contains the general presumption of an economic unit if the entrepreneur and lender are one
and the same (1st Alt.) or if there is a collaboration (arbeitsteiliges Zusammenwirken) between
the lender and the entrepreneur (2nd Alt.); this 2nd Alt. will be satisfied e. g. by a framework
agreement between lender and entrepreneur.5 The irrebuttable presumption is narrower tor
linked contracts concerning plots of land (3rd St.).
IL Legal consequences
5 Sub. 4 regulates the practical consequences of the withdrawal from a linked contract. The
1st St. stipulates that § 355(3) and - depending on the type of linked contract - § 357-3?/b
apply with the necessary modifications. Sub. 4 2nd-5th St. serve to provide the necessan
deviations.
6
1. Digital content
Sub. 4 2nd St. provides an exception to the exclusion of compensation for value for digital
content (§ 357(9)). This exception is necessary because the consumer’s informed consent to
performance excludes the right of withdrawal in contracts for digital content that is
supplied on a durable medium (§ 356(5)). In principle the link between the contract tor the
supply of digital content and the necessary loan agreement provides the consumer with a°
indirect means to withdraw from the contract for the supply of digital content and thus. )
virtue of § 357(9), would mean that the consumer is not liable to pay compensation tor
1 BT-Drs. 17/12637 of 6.3.2013, p. 66.
2 See ► § 1(11) KWG for a list of financial instruments.
3 BT-Drs. 17/12637 of 6.3.2013, p. 66.
4 BeckOK BCiB/Miiller-Christmann, § 358 BGB mn. 31, 39.
5 BeckOK BGB/Müller-Christmann, § 358 BGB mn. 35.
610
Watson
Objections in the case of linked contracts § 359
The exception in Sub. 4 2nd St. therefore takes account of the purpose of § 357(9) as a
sanction for breach of pre-contractual information obligations.6 7
2. Instalment contracts
Sub. 4 3rd St. determines the applicable rules on the legal consequences of withdrawal if 7
the instalment contract has been concluded in the form of a distance or off-premises
contract (application of §§ 355(3), 357) or otherwise (application of §§ 355(3), 357c). In
this respect § 357c primarily contains a cross-reference stipulating the application of § 357
(D-(5), (7)7
3. Loan contracts
Sub. 4 4th St. applies where the withdrawal from the loan contract (the linked contract) 8
arises by extension of the consumer’s exercise of his right of withdrawal in the contract for
goods/services (Sub. 1). This rule reflects Art. 15(1) EU Consumer Rights Directive: the
ancillary contract shall be automatically terminated without any costs for the consumer.8
Sub. 4 4th St. is also particularly relevant in contracts subject to § 357b( 1) 1st St. (timeshare
etc.), as the consumer should not incur any costs in the event of a withdrawal.9
4. Assumption of rights and duties
Sub. 4 5th St. applies - despite its seemingly narrow wording - to withdrawal under Sub. 1 9
and Sub. 2.10 The lender’s assumption of the rights and duties of the entrepreneur under
the linked contract serves to ensure a bilateral restitution of the obligations (bilaterale
Rückabwicklung) between the lender and the consumer and to spare the consumer from
reimbursing the borrower and waiting for the refund from the entrepreneur.11
§359
Objections in the case of linked
contracts
(1) ’The consumer may refuse to repay the
loan to the extent that objections under the
linked contract would entitle him to refuse
his performance to the trader with whom he
has entered into the linked contract. 2This
does not apply in the case of objections based
on a contract amendment agreed between
this trader and the consumer after the con¬
sumer credit agreement is entered into. 3If
the consumer may demand a cure, he cannot
refuse to repay the loan until the cure has
failed.
(2) Subsection (1) must not be applied to
credit agreements that serve to finance the
§359
Einwendungen bei verbundenen
Verträgen
(1) ’Der Verbraucher kann die Rückzahlung
des Darlehens verweigern, soweit Einwendun¬
gen aus dem verbundenen Vertrag ihn gegen¬
über dem Unternehmer, mit dem er den ver¬
bundenen Vertrag geschlossen hat, zur
Verweigerung seiner Leistung berechtigen
würden. 2Dies gilt nicht bei Einwendungen,
die auf einer Vertragsänderung beruhen, wel¬
che zwischen diesem Unternehmer und dem
Verbraucher nach Abschluss des Darlehensver¬
trags vereinbart wurde. 3Kann der Verbrau¬
cher Nacherfüllung verlangen, so kann er die
Rückzahlung des Darlehens erst verweigern,
wenn die Nacherfüllung fehlgeschlagen ist.
(2) Absatz 1 ist nicht anzuwenden auf Dar¬
lehensverträge, die der Finanzierung des Er-
6 See MüKo BGB/Habersack, § 358 BGB mn. 84.
7 See * § 357c mn. 1.
8 BeckOK BGB/Müller-Christmann, § 358 BGB mn. 66.
9 MüKo BGB/Habersack, § 358 BGB mn. 86.
10 BT-Drs. 14/6857 of 31.8.2001, p. 24. For more detail see MüKo BGB/Habersack, § 358 BGB mn. 89.
11 BT-Drs. 14/6040 of 14.5.2001, p. 201.
Watson
611
§ 359 1-4
Division 3. Contractual obligations
acquisition of financial instruments, or if the werbs von Finanzinstrumenten dienen, oder
financed remuneration is less than 200 euros. wenn das finanzierte Entgelt weniger
200 Euro beträgt.
A. Function
I. Purpose
1 § 359 supplements the ‘extension of withdrawal’ (Widerrufsdurchgriff) under § 358 with an
‘extension of objections’ (Einwendungsdurchgriff) in order to protect the consumer from the
risks associated with the division of the economic unit into its constituent contracts. For
example, the consumer would nevertheless be required to make loan repayments to the
lender despite non-performance by the seller of the good.1
IL Scope of application
2 § 359 requires the conclusion of a consumer credit agreement (§§491 et seq.). The
provision thus does not apply to the contracts listed under § 491(2) 2nd St., (3) 2nd St § 359
also does not apply to financing assistance (§ 506)2 or to contracts for delivery by instalments
(§510) or to related contracts under § 360. Furthermore, Sub. 2 excludes the application of
Sub. 1 under two circumstances: (i) credit agreements that serve to finance the acquisition of
financial instruments (e. g. transferable securities); (ii) the remuneration for the linked sales
or service contract is less than 200 euro.
B. Context
3 Art. 15(2) EU Consumer Credit Directive allows the EU Member States to determine the
extent and conditions of the consumer’s right to pursue remedies against the creditor ii the
consumer has pursued his remedies against the supplier. This rule also featured in Art 11(2)
Directive 87/102/EEC, however was already familiar to German case law?
C. Explanation
4 The consumer’s right to refuse to repay the loan is subject to objections that would
entitle him to refuse his performance to the trader with whom he has entered into the
linked contract (1st St.). Such objections are all objections (Einwendungen) and defences
(Einrede) which prevent (hindern), destroy (vernichten) or suspend \hetnrnen) rights,
thereby affording a broad definition to the notion of objection. The right to refuse to
repay the loan is not available if the objection is based on an amendment to the contract
between the entrepreneur and the consumer that was agreed after the conclusion of the
credit agreement (2nd St.). In the event of defective performance (Schlechtleistuf^
opposed to Nichtleistung - non-performance) by the entrepreneur (e.g. deliver)’ a
defective good), the consumer must first allow the entrepreneur to attempt cure. The rig
to refuse to repay the loan is therefore subject to the entrepreneur’s failure to cure tn
defect (3rd St.).
1 BeckOK BGB/Müller-Christmann, § 359 BGB mn. 1; HK-BGB/Schulze, § 359 BGB nin. h
BGB/Habersack, § 359 BGB mn. 1.
2 BGH 22.1.2014 - VIII ZR 178/13, NJW 2014, 1519, 1520.
1 BT-Drs. 11/5462 ol 25.10.1989, p. 23.
« BGH 25.9.2001 - XI ZR 109/01, NJW 2002, 137.
612
Watson
Related contracts
1-2 § 360
§360
Related contracts
(1) ’Where the consumer has effectively
withdrawn his declaration of intention to
conclude a contract and where the prerequi¬
sites for a linked contract are not met, he will
also not be bound any longer to his declara¬
tion of intention to conclude a related con¬
tract. 2§ 358(4) sentence 1 to 3 applies with
the necessary modifications to the reversal of
the related contract. 3Where the consumer
withdraws from a timeshare contract or a
contract relating to a long-term holiday pro¬
duct, he does not incur costs for the related
contract, either; § 357b( 1) sentences 2 and 3
apply with the necessary modifications.
(2) !A related contract is given wherever it
relates to the contract from which the consu¬
mer has withdrawn and concerns a perfor¬
mance that is being provided by the trader
under the contract from which the consumer
has withdrawn, or by a third party on the basis
of an agreement concluded by the third party
and the trader under the contract from which
the consumer has withdrawn. 2A consumer
credit agreement is a related contract also in
those cases in which the loan exclusively serves
to finance the contract from which the consu¬
mer has withdrawn and the performance by the
trader governed by the contract from which the
consumer has withdrawn has been exactly spe¬
cified in the consumer credit agreement.
§360
Zusammenhängende Verträge
(1) lHat der Verbraucher seine auf den
Abschluss eines Vertrags gerichtete Willens¬
erklärung wirksam widerrufen und liegen die
Voraussetzungen für einen verbundenen Ver¬
trag nicht vor, so ist er auch an seine auf den
Abschluss eines damit zusammenhängenden
Vertrags gerichtete Willenserklärung nicht
mehr gebunden. 2Auf die Rückabwicklung
des zusammenhängenden Vertrags ist § 358
Absatz 4 Satz 1 bis 3 entsprechend anzuwen¬
den. 3Widerruft der Verbraucher einen Teil¬
zeit-Wohnrechtevertrag oder einen Vertrag
über ein langfristiges Urlaubsprodukt, hat er
auch für den zusammenhängenden Vertrag
keine Kosten zu tragen; § 357b Absatz 1
Satz 2 und 3 gilt entsprechend.
(2) !Ein zusammenhängender Vertrag liegt
vor, wenn er einen Bezug zu dem widerrufe¬
nen Vertrag aufweist und eine Leistung be¬
trifft, die von dem Unternehmer des widerru¬
fenen Vertrags oder einem Dritten auf der
Grundlage einer Vereinbarung zwischen dem
Dritten und dem Unternehmer des widerru¬
fenen Vertrags erbracht wird. 2Ein Darlehens¬
vertrag ist auch dann ein zusammenhängen¬
der Vertrag, wenn das Darlehen, das ein
Unternehmer einem Verbraucher gewährt,
ausschließlich der Finanzierung des widerru¬
fenen Vertrags dient und die Leistung des
Unternehmers aus dem widerrufenen Vertrag
in dem Darlehensvertrag genau angegeben
ist.
A. Function
In some cases a consumer may conclude a contract for goods or services and, in relation to 1
this contract (‘principal contract’), conclude further contracts with the same entrepreneur for
goods or services related to the principal contract (‘related contract’). For example, the consumer
purchases a television (principal contract) and also concludes a contract with the seller for the
installation of the television (related contract). Sub. 1 1” St. provides an extension of the
withdrawal (Widerrufsdurchgriff; Widerrufsersteckung) from the principal contract to the main
contract in order to prevent the consumer from remaining bound by the related contract and to
ensure that the related contract does not serve as an obstacle to the decision to withdraw from
the principal contract.1 In this respect there is an overlap between the purpose underpinning
§ 358 and § 360, however as is apparent from Sub. 1 1” St., § 358 takes priority over § 360.
B. Context
§ 360 was introduced in the course of transposing Arts 2(15), 15(2) EU Consumer Rights 2
Directive into German law. At that time the BGB already contained various EU-based rules
1 BR-Drs. 817/12 of 21.12.12, p. 109; see also § 358 mn. 1.
Watson
613
§ 361 1 Division 3. Contractual obligations
of the withdrawal from related contracts (e.g. timeshare, distance marketing of financial
services) which were scattered across the Law of Obligations until the introduction of § 350
Distinctions tailored to the type of contract were nevertheless necessary, as reflected by Sub. 1
3rd St. and Sub. 2 2nd St.
C. Explanation
I. Related contract
3 Sub. 2 1st St. contains the definition of a related contract. In this context, relates to
requires an actual or economic connection between the principal and related contract; a
close temporal connection is not necessary.2 Performance refers to goods or senices.
This performance has to be provided either by the entrepreneur under the principal
contract or by a third party on the basis of an agreement between the third party and the
entrepreneur.
IL Legal consequences
4 Sub. 1 regulates the legal consequences of the withdrawal from the principal contract on
the related contract. Sub. 1 1st St. outlines the extension of withdrawal (Widerrufsdurchgriff).
The effect corresponds to the general effect pursuant to § 355(1) 1st St3 Sub. 1 2nd St refers to
§ 358(4) lsl-3rd St. for the particulars regarding the reversal of the related contract This
therefore requires categorisation of the related contract due to the further cross-referencing
in § 358(4) to §§ 357-357b which, in particular, contain varying rules on the payment of
compensation for value (Wertersatz). Sub. 1 3rd St. provides that the consumer does not incur
any costs from the withdrawal from the related contract where the principal contract is for a
timeshare contract or contract relating to a long-term holiday product.
§361
Further claims, deviating
agreements and burden of proof
(1) No further claims against the consumer
over and above those pursuant to the provi¬
sions of this subtitle exist as a result of the
withdrawal.
(2) ’Unless otherwise provided, there may
be no deviation from the provisions of this
subtitle to the disadvantage of the consumer.
2Unless otherwise provided, the provisions of
this subtitle apply even if they are circum¬
vented by other constructions.
(3) Where the commencement of the with¬
drawal period is in dispute, the burden of
proof is on the trader.
§361
Weitere Ansprüche, abweichende
Vereinbarungen und Beweislast
(1) Über die Vorschriften dieses Untertitels
hinaus bestehen keine weiteren Ansprüche gfr
gen den Verbraucher infolge des Widerrufe-
(2) !Von den Vorschriften dieses Untertitels
darf, soweit nicht ein anderes bestimmt ist.
nicht zum Nachteil des Verbrauchers abg^
wichen werden. 2Die Vorschriften dieses In
tertitels finden, soweit nichts anderes
stimmt ist, auch Anwendung, wenn sie ar
anderweitige Gestaltungen umgangen we •
(3) Ist der Beginn der Widerrufsfrist.sti*
tig, so trifft die Beweislast den Unterne m
A. Function
§ 361 is the final provision in subtitle 2 on the right of withdrawal in consumer conlra^
It regulates three issues which each apply in conjunction with all provisions in this suN1
2 BeckOK BGB/Müller-Christmann, § 360 BGB mn. 7.
3 See -► § 355 mn. 13.
614
Watson
Further claims, deviating agreements and burden of proof 2-5 § 361
claims against the consumer (Sub. 1), imperative (mandatory) nature (Sub. 2), and burden of
proof on the commencement of the withdrawal period (Sub. 3).
B. Context
Sub. 1 reflects Art. 14(5) EU Consumer Rights Directive. Sub. 2 on the mandatory nature 2
of the consumer’s withdrawal right is stated under the provision on the imperative nature in
Art. 12(1) EU Distance Marketing of Financial Services Directive, Art. 22(2) and (3) EU
Consumer Credit Directive, Art. 12(1) EU Timeshare Directive, Art. 25 EU Consumer Rights
Directive, and Art. 41 EU Mortgage Credit Directive. Sub. 3 on the burden of proof features
indirectly in Art. 6(9) EU Consumer Rights Directive, whereby the entrepreneur bears the
burden of proving compliance with the pre-contractual information obligations. This
particular rule is anchored in § 312k(2). Sub. 3 therefore complements this rule in § 312k as
the commencement of the withdrawal period is often linked to the correct provision of the
pre-contractual information (§§ 356(3), 356a(2) and (3), 356b(2), 356c(l), 356d 1st St., 356e
1st St.), however has existed in the BGB since the 2002 modernisation of the law of
obligations (originally § 355(3) 4th St.).
C. Explanation
L Claims
Sub. 1 stipulates that claims against the consumer that exist as a result of the withdrawal 3
are limited to the claims permitted under subtitle 2. Such claims include e.g. compensation
for diminished value (§ 357(7), § 357b(2)). The strict scope of Sub. 1 therefore excludes
claims for compensation for use (Nutzungsersatz). However, Sub. 1 does not exclude the
consumer’s liability for damages that have not arisen in conjunction with the right of
withdrawal and its consequences.1
IL Deviation; circumvention
Sub. 2 1st St. clarifies the semi-mandatory nature of the rules concerning the consumer’s 4
right to withdraw. The legislative provisions set a minimum standard of protection for the
consumer. Deviations from this minimum standard are therefore possible if they provide the
consumer with an advantage (e.g. a longer period for withdrawal, agreement that the
entrepreneur will bear the costs of return). A deviation to the consumer’s disadvantage will
be void pursuant to § 134 and substituted by the statutory provisions.2 Sub. 2 2nd St.
stipulates that circumventions will not exclude the application of the statutory provisions
in subtitle 2.
III. Burden of proof
A dispute regarding the commencement of the withdrawal period may arise, for example, 5
where the entrepreneur maintains that the consumer’s withdrawal is invalid because it was
not exercised within the withdrawal period. Sub. 3 stipulates that it is for the entrepreneur to
prove whether and when the withdrawal period commenced (e.g. satisfaction of the pre-
contractual information obligations); the consumer bears the burden of proving the correct
exercise of the right of withdrawal.3
1 BT-Drs. 17/12637 of 6.3.2013, p. 64. For further detail see MüKo BGB/Fritsche, § 361 BGB run. 4 et
seq.
2 BeckOGK BGB/Müller-Christmann, § 361 BGB mn. 11.
3 Palandt BGB/Grüneberg, § 361 BGB mn. 3.
Watson
615
§362 1
Division 4. Extinction of obligations
Division 4
Extinction of obligations
Abschnitt 4
Erlöschen der Schuldverhältnisse
Title 1
Performance
Titel 1
Erfüllung
§362
Extinction by performance
(1) An obligation is extinguished if the
performance owed is rendered to the obligee.
(2) If performance is rendered to a third
party for the purpose of performing the con¬
tract, the provisions of § 185 apply.
§362
Erlöschen durch Leistung
(1) Das Schuldverhältnis erlischt, wenn die
geschuldete Leistung an den Gläubiger be*
wirkt wird.
(2) Wird an einen Dritten zum Zwecke der
Erfüllung geleistet, so findet die Vorschrift
des § 185 Anwendung.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Scope of application 2
B. Context 3
I. Extinction by other means 3
II. Irreversibility - 4
C. Explanation — 5
I. Performance 5
1. Cash payments 6
2. Bank transfer 7
3. Modes of performance 8
4. Recipient 9
II. Performance to a third party 10
III. Legal consequences 11
1. Reservations 12
2. Burden of proof 13
3. Defective performance 14
A. Function
I. Purpose and underlying principle
1 §§ 362 et seq. regulate the extinction of obligations. This means that the obligation^
terminated and ceases to exist. There are different scenarios for obligations to be exon
guished under German civil law. §§ 362 et seq. deal with these different scenarios. Then**
common scenario for an obligation to be extinguished is by performance ot con^n
Performance of contract occurs in principle through the satisfaction of the intert?[teor
performance, e. g. the obligor offers the owed good to the obligee or alternatively, the o l? .
pays the obligee. In this case, the performance of contract is an objective factual elenien
the performance; a subjective component is not required, i.e. the obligee does not n*
(subjectively) want the contract to be performed.
616
E. Oehtn
Extinction by performance
2-5 § 362
IL Scope of application
§§ 362 et seq. apply to all performance obligations; this includes claims for injunction 2
(Unterlassungsansprüche). Duties of conduct (Nebenpflichten) within the meaning of § 241(2)
are not included in the scope of application.
B. Context
I. Extinction by other means
§ 362 establishes the general rule of performance of contract by rendering the perfor- 3
mance owed to the obligee (Sub. 1) or to a third party (Sub. 2). The acceptance in lieu of a
performance within the meaning of § 364(1) also extinguishes the obligation. However, the
acceptance in lieu of performance must always be distinguished from an acceptance which is
only made on account of performance (Annahme erfüllungshalber). An acceptance on
account of performance does not extinguish the obligation. Other scenarios for an obligation
to be extinguished are: performance of contract by impossibility of performance (§ 275),
occurrence of a condition subsequent to performance (§ 158), forfeiture (§ 242), termination
agreement or lapse of time (§ 163). Furthermore, an obligation generally ceases to exist if the
claim and the obligor are united in one person (confusion or Konfusion), unless a special
situation of interest requires that the claim remains in existence. Finally, in case of legal
person, the obligation may be extinguished by the obligor ceasing to exist when the legal
person is finally extinguished. However, the deletion from the register is not sufficient, since
it has only declaratory significance.1
IL Irreversibility
Procedurally, the extinction of obligations must be taken into account ex officio as a so- 4
called destructive objection (rechtsvernichtende Einwendung). The extinction of an obligation
is irreversible. If parties want to revive a claim, they must establish a new legal relationship,
i.e. a new contract. The only exception are claims of a party to a contested transaction under
§ 144 InsO or § 12 AnfG. Here, the claim continues to have legal effect even after its
extinction as a legal ground for the retention of the benefit received.
C. Explanation
L Performance
Sub. 1 stipulates that an obligation is extinguished if the performance owed is rendered to 5
the obligee. This requires that the obligor effects a successful performance vis-ä-vis the obligee;
the performance act alone is not sufficient. The obligor may make use of third parties (§§ 267,
268, 278) to bring about successful performance, unless the parties agreed otherwise or is
indicated by the specific obligation, in particular in case of a personal obligation. Performance
of contract may also occur if the obligee acquires the ownership in good faith pursuant to
§§ 932 et seq. as a result of a disposal of an unauthorised alienor. Performance of contract does
not occur if the obligee refuses to cooperate as required under the contract. However, in the
event of unjustified refusal to cooperate, the obligee shall be in default of acceptance pursuant
to §§ 293 et seq. In the event of the existence of several claims, it may be advisable to make a
redemption determination (Tilgungsbestimmung) within the meaning of § 366(1) in order to
achieve the intended performance.2
' BGH 29.9.1967 - V ZR 40/66, NJW 1968, 297.
2 BGH 20.6.1990 - XII ZR 98/89, NJW 1990, 3194.
E. Oehm
617
§ 362 6-10
Division 4. Extinction of obligations
1. Cash payments
6 In case of a monetary obligation, the obligor can pay his debt in cash by handing over the
owed amount in bank notes and coins. The cash must be handed over to the obligee in
person (or to his representative). Depositing the cash, e.g. at the obligees mailbox, will not
suffice in the absence of a specific agreement.3
2. Bank transfer
7 The obligor generally is also entitled to make a bank transfer if the obligee has made his
account details available to the obligor or has accepted bank transfers in the past If specific
account details are given, the transfer to another account generally has no repayment effect,
i. e. does not constitute a successful performance. Performance of contract occurs when the
amount is credited to the account of the obligee provided for performance. The bank is not a
third party within the meaning of Sub. 2, but the paying agent of the obligee. In case of a
direct debit, performance of contract occurs as soon as the obligor’s account has been
effectively debited and the amount has been credited to the obligee’s account. Ample case law
exists regarding further details of performance, e. g. by way of credit note,4 payment to a
public notary escrow5 or electronic payment via credit or debit cards.6
3. Modes of performance
8 The underlying obligation specifies the performance owed. The time (§271), place (§§269
et seq.) and manner (§§ 242 et seq.) in which the performance is to be rendered are
determined accordingly. Consequently, advance performance can only be considered if the
parties have agreed accordingly or at least if the obligee has impliedly consented. Delayed
performance does not per se prevent performance of contract.
4. Recipient
9 Generally, under Sub. 1 the recipient of the performance will be the obligee of the claim.
Performance to a receiving messenger or representative shall be deemed to be performance to
the obligee himself. This presupposes that the obligee is entitled to receive, i.e. he must be
legally competent and authorised to dispose of the claim,7 because the performance ot
contract extinguishes the claim. In other words: by accepting performance the obligee
disposes of his claim. This is not possible for persons with limited legal capacity.
minors. The latter may validly accept performance provided in accordance with § 107. ie-
with the consent of the legal representative. The power to dispose of a claim may also be
withdrawn by an official prohibition of disposal (§ 136) or the insolvency of the obligee (§
InsO). If the obligor performs to a non-entitled person (e.g. the receiving person had no
competence to receive the goods), the obligor may claim the goods or sendees provided in
accordance with § 812(1) 1st St. 1st Alt.
II. Performance to a third party
10 Sub. 2 stipulates that the performance to a third party leads to performance of eon^d
if the obligee has authorised the third party to receive the performance in advance G
(1)). Pursuant to § 185(2), subsequent approval is also possible. This has speciaB^
3 AG Köln 29.6.2005 - 137 C 146/05, NJW 2006, 1600
4 BGH 7.3.2002 - IX ZR 293/00, NJW 2002, 1788.
5 BGH 7.12.2006 - IX ZR 161/04, NJW-RR 2007. 845.
6 BGH 16.4.2002 - IX ZR 375/00, NJW 2002, 2234; MüKo BGB/Fetzer § 362 BGB mn. 18- „
7 Palandt BGB/Griineberg, § 362 BGB mn. 4; BGH 21.4.2015 - XI ZR 234/14, N|W 2015.
618
E. Oehtn
Bürden of proof if performance of contract is accepted § 363
cance for § 816(2) as it grants the obligee a claim for restitution against the third party.
Furthermore, performance of contract occurs in the case of performance to a non-entitled
person if the recipient subsequently becomes the obligee or the obligee inherits the
recipient.
III. Legal consequences
Performance of contract extinguishes the obligation. This is equivalent to the perfor- 11
mance of contract of the obligee by way of compulsory enforcement (Zwangsvollstreckung).
In case of continuing obligations, performance of contract only occurs in respect of the
partial performance rendered.8
1. Reservations
Whenever performance is made subject to reservations, a distinction shall be made with 12
regard to the occurrence of performance of contract: if the obligor declares the reservation
only in order to exclude the effect of § 814, i.e. in order to obtain his claim for restitution
from § 812 in the event of proof of the non-existence of the claim, performance of contract
occurs.9 Performance of contract, however, does not occur if the performance is made on the
condition that the claim actually exists. In this case, the performing party merely wants to
ward off the burden of proof for the existence of the claim.10 The obligee is entitled to reject
the performance; acceptance of the condition may be implied if he nevertheless accepts the
performance as performance of contract.
2. Burden of proof
The burden of proof for successful performance is distributed according to the risks of the 13
parties involved: The obligee bears the burden of proving the existence of the claim until
performance of contract. With the exception of § 363, the burden of proof for proper
performance of contract lies with the obligor. When asserting a claim under the law of
unjust enrichment, the obligor must prove the absence of the legal grounds for performance.
3. Defective performance
Pursuant to § 433(1) 2nd St., incomplete or defective performance shall in principle not 14
result in performance of contract. If, however, the obligee accepts such a performance, § 363
assigns him the burden of proof for the missing performance.
§363
Burden of proof in the case of
acceptance as performance of
contract
If the obligee has accepted performance
offered to him as performance of contract,
he bears the burden of proof if he does not
wish to have the performance considered as
performance of contract because it was dif¬
ferent from the performance owed or because
it was incomplete.
§363
Beweislast bei Annahme als
Erfüllung
Hat der Gläubiger eine ihm als Erfüllung
angebotene Leistung als Erfüllung angenom¬
men, so trifft ihn die Beweislast, wenn er die
Leistung deshalb nicht als Erfüllung gelten
lassen will, weil sie eine andere als die ge¬
schuldete Leistung oder weil sie unvollständig
gewesen sei.
8 HK BGB/Schulze, § 362 BGB mn. 9.
9 BGH 24 11.2006 - LwZR 6/05, NJW 2007, 1269.
10 BGH 6.10.1998 - XI ZR 36/98, NJW 1999, 494.
E. Oehm
619
§ 363 1-4
Division 4. Extinction of obligations
A. Function
I. Purpose and underlying principle
1 In general, the obligor bears the burden to prove the proper performance of his obligation.
The purpose of § 363 is to shift the burden of proof in case the obligee has already accepted a
performance as performance of contract.1 In this case, it no longer makes sense to burden the
obligor who has already rendered performance and therefore no longer has access to the
performance. However, there are certain exceptions to the general rule in § 363. For example,
§ 477 stipulates that a presumption applies within the first six months in favour of the
consumer that the purchased good was already defective at the time the risk passed. This
provision shows the general protection of consumers under German civil law.
II. Scope of application
2 The shifting of burden of proof covers performances of all kinds, including performances
by landlords2 or the seller’s right to cure.3 Still, the obligor must prove that his performance
is free of defects if he asserts claims for consideration (e.g. § 433(2)). Obligations to abstain
(arg. § 345)4 are an exception to this provision since it is easier to prove a breach of the duty
to refrain than compliance with it. More exceptions are obligations to provide information
and advice.5 Here, the obligee bears the burden of proof because the obligee is in a better
position to demonstrate that he did not receive proper advice by stating the missing
information. The obligor must substantiate his denial of the alleged misinformation. This
means that the obligor must provide a detailed explanation of the content of the given advice
or information. The obligee must then refute these allegations.6
B. Explanation
I. Acceptance
3 The requirement to shift of the burden of proof under § 363 is the acceptance of the
performance as performance of contract by the obligee. Acceptance under German law is a
factual event (tatsächlicher Vorgang) and does not require an express (legal) declaration.
Rather, acceptance can be made impliedly by use, resale or prolonged silence.7 The condi¬
tions for acceptance under § 363 correspond with those for acceptance within the meaning
of § 640. However, the acceptance within the meaning of § 363 does not have the character
of a legal transaction. It is sufficient that the performance is accepted as essentially m
accordance with the contract.
II. Examination
4 Acceptance subject to examination is not sufficient for § 363 to apply as there is n0
acceptance at all. The same applies to the acceptance of packaged goods, as an inspecnon
after unpacking is always required. In commercial transactions, § 377 HGB limits
1 BGH 8.7.2009 - VIII ZR 200/08, VIII ZR 266/08, NJW 2009, 3099; HK-BGB/Schulze, § Bl’R
mn. 1.
2 BGH 12.6.2013 - XII ZR 50/12, NJW-RR 2013, 1232.
3 BGH 9.3.2011 - VIII ZR 266/09, NJW 2011, 1664.
4 Palandt BGB/Griineberg, § 363 BGB mn. 1.
5 BGH 9.6.1994 - IX ZR 125/93, NJW 1994, 3295.
6 BGH 11.10.2007 - IX ZR 105/06, NJW 2008, 371.
7 OLG Köln 11.11.1994 - 19 U 77/94, NJW-RR 1995, 751.
620
E. Oehm
Acceptance in lieu of performance of contract 1-3 § 364
application of § 363 to the effect that the buyer is only granted a short period of time to
examine the goods. If the buyer fails to make a corresponding complaint, acceptance is
assumed.
III. Defective performance
The shift of the burden of proof covers both the fact that the performance has 5
been rendered as well as the absence of defects, i.e. the fact that proper performance has
been rendered. § 363 also applies to incomplete and incorrect performances as well as to
legal defects insofar as these performances were accepted as performance of contract.
However, the shifting of the burden of proof does not lead to a loss of the obligee’s
warranty rights; it only makes it procedurally more complicated for the obligee to assert
his rights.
§364
Acceptance in lieu of performance
of contract
(1) The obligation expires if the obligee
accepts, in lieu of performance of contract,
performance other than that owed.
(2) If the obligor assumes a new obligation
to the obligee for the purpose of satisfying
the latter, it is not to be assumed, in case of
doubt, that he is assuming the obligation in
lieu of performance of contract.
§364
Annahme an Erfüllungs statt
(1) Das Schuldverhältnis erlischt, wenn der
Gläubiger eine andere als die geschuldete
Leistung an Erfüllungs statt annimmt.
(2) Übernimmt der Schuldner zum Zwecke
der Befriedigung des Gläubigers diesem ge¬
genüber eine neue Verbindlichkeit, so ist im
Zweifel nicht anzunehmen, dass er die Ver¬
bindlichkeit an Erfüllungs statt übernimmt.
A. Function
I. Purpose
Acceptance in lieu of performance of contract enables the obligor to fulfil his obligation by 1
performance other than that owed. It leads to the extinction of the obligation. The purpose of
§ 364 therefore is to provide parties with flexibility regarding the performance of the
contract. Sub. 2 clarifies that if the obligor enters into a new obligation towards the obligee,
such new obligation is generally not to be classified as acceptance in lieu of performance of
contract. Something else may, however, arise by way of interpretation of the performance
and the acceptance.
II. Scope of application
The provision applies to performances of any kind and objects, to claims against third 2
parties as well as to service contracts and contracts to produce a work (Werkvertrag).1
B. Explanation
I. Agreement
The assumption of an acceptance in lieu of performance of contract requires an agreement. 3
An agreement on acceptance in lieu can be made when the performance is rendered. It can
also be made in advance, i.e. prior to the actual acceptance in lieu. In the case of an
1 MüKo BGB/Fetzer, § 364 BGB mn. 4.
E. Oehm
621
§ 364 4-8 Division 4. Extinction of obligations
agreement in advance, the obligor is granted a right of replacement in accordance with §262
The obligee’s conduct must provide a clear indication where acceptance is tacitly declared to
be performance of contract.2
4 The agreement on acceptance in lieu of performance is not a contract with consideration
in itself. Rather, it is an agreement regarding the performance of the original obligation.3 The
legal basis for performance under Sub. 1 is the original contract. The obligee must restore
what he received in lieu of performance if the original obligation no longer exists.4
IL Examples
5 A typical scenario under German law is a sales contract for the purchase of a car. The
stereotype is also true in law: Germans love cars. Therefore, ample case law exists in regard to
such sales contracts. In case of the purchase of a car, a certain distinction must be made in
regard to § 364: on the one hand, only one purchase agreement is deemed to exist if the seller
takes over a used car and offsets the agreed value of the used car against the purchase price for
the new car. Here, the set-off does not depend on the seller’s success in reselling the used car.
Sub. 1 and § 365 apply in this case. On the other hand, two contracts are deemed to exist if a
contract is concluded for the purchase of a new car in parallel with an agency agreement for the
resale of the used car. Here, the seller usually guaranties a minimum price for the used car while
the final price for the new car depends on the achieved price with sale of the used car. The
achieved price will then be set-off against the purchase price for the new car after deferment of
payment. In this case, the economic risk remains with the buyer. Sub. 1 does not apply.
6 Another important scenario for Sub. 1 are bank transfers.5 A bank transfer in a giro
transaction generally constitutes a performance other than that owed.6 By providing the
obligor with his bank details, the obligee accepts that the obligor effects performance not by
handing over cash but by using a bank transfer. Performance occurs when the amount is
credited to the obligee’s account.7 If payment is made by direct debit (Lastschrifh'erfahren).
the obligor’s bank must have effectively debited the obligor’s account and the obligee’s bank
must have credited the amount for performance to occur. The obligor’s bank can also assume
the redemption risk,8 i. e. effectively having a valid performance already with the debit of the
obligor’s account. This is usually the case to simplify business operations.
III. Legal consequences
7 The valid acceptance in lieu of performance of contract extinguishes the obligation. The
original obligation remains the legal basis for this performance. The requirements for the
reversal of the contract therefore also depend on the original obligation. If the performance
in lieu is an increase or decrease to the performance originally" owed, this shall onlv be
compensated in the event of a separate agreement between the parties.9 § 365 applies in the
event of default on the part of the obligor.
1. Distinction from performance on account of performance
8 The acceptance in lieu of performance must be distinguished from a so-called perfornwno?
on account of performance or Leistung erfiillungshalber. The latter provides the obligee wrt
a further security for his claim. It does not immediately lead to performance of contract.
2 BGH 30.10.1954 - II ZR 131/53, NJW 1955, 101.
3 BGH 30.11.1993 - VIII ZR 190/82, NJW 1984, 429.
' BGH 28.11.1994 - VIII ZR 53/94, NJW 1995, 518.
5 Sec > §§ 675c et seq.; BGH 13.3.1953 - V ZR 92/51, N)\V 1953 897
• BGH 133.1953 - V ZR 92/51, N|W 1953, 897,
7 BGH 28.10.1998 - VIII ZR 157/97, N|W 1999, 210.
" BGH 15.12.1980 - 11 ZR 53/80, NJW 1981, 1669.
v RG 26.1.1918 - Rep. V. 238/17.
622
E. Ochm
Warranty in the case of performance in lieu of performance 1-2 § 365
must be determined by way of interpretation whether the performance is rendered in lieu of
performance or on account of performance. Such interpretation mostly follows the general
principles for interpretation under German law (§§ 133, 157). If this does not lead to a clear
result, it follows from Sub. 2 that in case of doubt the new liability of the obligee was agreed
on account of performance. The reason for this rule is simple: it generally conflicts with the
obligee s interest to bear the insolvency risk of a third party unknown to him. However, this
would be the case if a performance on account of performance would fulfil the contract. The
obligor could simply ask a third party to render performance.
2. Effect on original obligation
In the case of a performance on account of performance, the original obligation remains in 9
force. The obligee receives an additional possibility of satisfaction. In most cases, the
obligee becomes the fiduciary owner of the object performed on account of performance. As
a result, his right to this object is secured against the seizure of other obligees of the obligor.
The obligee has the opportunity to satisfy his claim from the performance, i.e. the obligee can
choose to accept the performance. The original claim only ceases to exist if the satisfaction is
successful. Otherwise, the obligee can fall back on his original claim. The original claim is
usually delayed by way of deferment until the failure of satisfaction; it is extinguished in the
event of complete satisfaction.
§365
Warranty in the case of
performance in lieu of
performance of contract
If a thing, a claim against a third party or
another right is given in lieu of performance
of contract, the obligor must provide war¬
ranty for a legal defect or a material defect
of the thing in the same manner as a seller.
§365
Gewährleistung bei Hingabe an
Erfüll ungs statt
Wird eine Sache, eine Forderung gegen
einen Dritten oder ein anderes Recht an Er-
füllungs statt gegeben, so hat der Schuldner
wegen eines Mangels im Recht oder wegen
eines Mangels der Sache in gleicher Weise
wie ein Verkäufer Gewähr zu leisten.
A. Function
I. Purpose
§ 365 supplements § 364. For the acceptance in lieu of performance of contract, § 365 1
stipulates that in the event of a material or legal defect, the obligor shall be liable in
accordance with the provisions of the law on sales (§§ 433 et seq.).
IL Scope of application
Since the acceptance in lieu of performance does not create a new contractual basis, the 2
original obligation remains the legal basis of the claim. § 365 is based on the assumption of
full liability of the obligor for what is given in lieu of performance of contract. However,
statutory limitations of liability must be observed, e.g. within the scope of a donation
523, 524). In this respect, § 365 does not apply. Furthermore, a contractual limitation of
liability may also be agreed between the parties. The most frequent case of application is
probably the tacit waiver of liability for imperceptible defects in the purchase of used cars.1
§ 365 does not apply to performance on account of performance.2
1 BGH 21.4.1982 - VIII ZR 26/81, NJW 1982, 1700.
2 RG 6.1.1933 - VII 284/1932.
E. Oehtn
623
§ 366 1-2
Division 4. Extinction of obligations
B. Explanation
3 § 365 refers to the provisions of the law on sales. In the case of a defect, the original
obligation does not revive automatically. Rather, the obligee has the rights under §§ 433 et
seq. However, the obligor must put the obligee in the position the obligee would be in with
the extinguished obligation.3 This is taken into account by the fact that the obligee can sue
directly for performance of the original obligation.4 Insofar as a third party has rendered
the performance in lieu, the third party shall be subject to the warranty obligation.
§366
Crediting of performance to more
than one claim
(1) If the obligor owes performance of the
same kind to the obligee under more than
one obligation, and if what he pays does not
suffice to redeem all debts, that debt is re¬
deemed that he determines when he per¬
forms.
(2) If the obligor does nor make a determi¬
nation, then the first debt redeemed is the
debt due for redemption; among more than
one due debt, the one offering the obligee the
least security; among more than one equally
secure debts, the more onerous one; among
more than one equally onerous debts, the
oldest debt; and where all are equally old,
each debt proportionally.
§366
Anrechnung der Leistung auf
mehrere Forderungen
(1) Ist der Schuldner dem Gläubiger aus
mehreren Schuldverhältnissen zu gleicharti¬
gen Leistungen verpflichtet und reicht das
von ihm Geleistete nicht zur Tilgung sämt¬
licher Schulden aus, so wird diejenige Schuld
getilgt, welche er bei der Leistung bestimmt
(2) Trifft der Schuldner keine Bestimmung,
so wird zunächst die fällige Schuld, unter
mehreren fälligen Schulden diejenige, welche
dem Gläubiger geringere Sicherheit bietet
unter mehreren gleich sicheren die dem
Schuldner lästigere, unter mehreren gleich
lästigen die ältere Schuld und bei gleichem
Alter jede Schuld verhältnismäßig getilgt
A. Function
I. Purpose and underlying principles
1 § 366 serves to determine the order of crediting in case of the existence of several similar
claims. Sub. 1 stipulates that if the obligor owes performance of the same kind to the obligee
under more than one obligation, and if what the obligor pays does not suffice to redeem all
debts, such debt is redeemed that the obligor determines when he performs. The allocation ot
a performance to a certain obligation is necessary for extinction to occur. In principle, the
obligor has the right to determine performance (Sub. 1). If the obligor does not exercisethis
right, Sub. 2 stipulates the applicable legal order for the extinction of claims: the first debt
redeemed is the debt due for redemption; among more than one due debt, the one oftenng
the obligee the least security; among more than one equally secure debts, the more onerous
one; among more than one equally onerous debts, the oldest debt; and where all are equal?
old, each debt proportionally. The priority of the will of the parties anchored in Sub. 1«lhe
result of the principle of freedom of contract (Vertragsfreiheit) under German law.
II. Scope of application
2 § 366 applies to all kinds of contractual obligations. The definition of a contractu*1
obligation under § 366 is narrow. Each individual claim constitutes a contractual oblig*111’
v
3 OLG Hamm 5.10.1987 - 22 U 18/87, NJW-RR 1988, 266
4 BGH 18.1.1967 - VIH ZR 209/64, NJW 1967, 553.
624
E. Oehtn
Crediting of performance to more than one claim 3-6 § 366
§ 366 thus also applies if multiple claims result from the same contract.1 § 366 does not
apply to open current accounts (Kontokorrentverhältnisse) because the payments do not
constitute individual obligations but are subject to an overall account in the future.2
B. Explanation
L Independent obligations
Sub. 1 applies if similar, independent obligations are to be credited. If there is no similarity 3
of the obligations the classification usually results from the nature of the performance
provided. Furthermore, the independence of the various obligations in relation to each other
is necessary’. Self-reliance can also exist in the case of obligations arising from the same
contractual obligation in the broader sense, e.g. in the case of several rent instalments3 or
loan instalments.4 In the case of several legally independent parts of a claim, Sub. 1 applies
mutatis mutandis. If the obligor makes payments to different obligees, § 366 can only be
applied accordingly if the obligor's respective payment has an exempting effect on all obligees.
IL Stipulation by obligor
1. Right to determine
Sub. 1 gives the obligor the right to determine the order of crediting. The determination is 4
given by the obligor by means of a unilateral declaration of intent which needs to be
received by the obligee. The obligor can make his declaration explicitly or tacitly;5 interpreta¬
tion of a declaration follows the general rules on interpretation under German law (§§ 133,
157).
2. Determination of redemption
The declaration of intent by the obligor is referred to as determination of redemption 5
(Tilgungsbestimmung). In principle, the obligee has no possibility of taking action against the
Tilgungsbestimmung. If the obligee refuses acceptance of the performance under objection
against the Tilgungsbestimmungy the obligee will be in default of acceptance under §§ 293 et
seq. if also certain additional requirements are met. Importantly, default of acceptance leads
to a stricter standard for liability of the obligee. Generally, the Tilgungsbestimmung must be
made upon performance. A previous agreement between the parties is likewise possible and
can exclude a later Tilgungsbestimmung by the obligor.6 For the obligee, such an anticipated
agreement has the advantage of influencing the order in which performance is credited. A
subsequent Tilgungsbestimmung is only exceptionally permissible if the obligor has paid to
the previous obligee in unawareness of an assignment of the claim to a new obligee. The
obligor must exercise his right of determination immediately.7
III. Stipulation by obligee
Formal agreements in standard business terms which grant the obligee the right to credit 6
the performance against an obligation at his discretion are not admissible and therefore
J BGH 9.10.2014 - IX ZR 69/14, NJW 2015, 162.
2 BGH 13.12.1990 - IX 2 ZR 33/90, NJW-RR 1991, 562.
’ BGH 20.6.1984 - Vlll ZR 337/82, NJW 1984, 2404.
4 BGH 25.1.1982 - Vlll ZR 324/80, BeckRS 1982, 31075928.
5 BGH 4.12.1990 - XI ZR 340/89, NJW 1991, 832.
6 BGH 20.6.1984 - VIII ZR 337/82, NJW 1984, 2404.
7 BGH 11.5.2006 - VII ZR 261/04, NJW 2006, 2845.
E. Oehm
625
§ 367 Division 4. Extinction of obligations
ineffective pursuant to § 307(l).8 Such a clause discriminates against the obligor in an
unreasonable manner since it deviates from the statutory provisions and withdraws the
obligor’s right to dispose of his performance. However, it is possible to determine a
repayment sequence in standard business terms provided that the interests of both parties
are adequately taken into account.9
IV. Stipulation by law
1. Determination by statute
7 If the obligor has not made a Tilgungsbestimmung or if the determination of redemption is
ineffective according to § 307(1), the statutory order for crediting applies as stipulated in
Sub. 2. This provision reflects the interests of both parties based on presumed reasonable
party intentions. For this reason, Sub. 2 does not apply if the obligee recognises that the
interest of the obligor differs. The main case of application here is the payment of premiums
on an insurance contract; the payment is to be credited in such a way that the insurance
cover is justified and maintained for as long as possible.10
2. Order
8 The order determined according to Sub. 2 initially gives priority to the due date. The
decisive factor here is the maturity of the claim, not its ability for a claim to be fulfilled.
Thereafter, the claim with the lower security is credited. The economic assessment must be
taken into account. A claim is considered to be more secure against another if it is already
titled11 or if statutory limitation will occur at a later date. The onerousness to be
considered subsequently is measured according to the amount of the interest rate, a
possible contractual penalty, legal pendency that has already occurred, or default. The
age of the claim is determined by the time at which the claim arose. If the obligations
cannot be distinguished according to any of these criteria, all obligations are credited
proportionally.
V. Burden of proof
9 The obligee bears the burden of proof regarding the existence of an obligation other than
the one to which the obligor wishes to credit. In case of several obligations, the obligor must
prove the conditions which allow the payment to be credited against the contested obligation.
Only Sub. 2 applies in the context of execution and insolvency of the obligor.12
§367
Crediting to interest and costs
(1) If the obligor must pay interest and
costs in addition to the principal perfor¬
mance, an act of performance not sufficient
to redeem the entire debt is first credited to
the costs, then to the interest and finally to
the principal performance.
§367
Anrechnung auf Zinsen und
Kosten
(1) Hat der Schuldner außer der Hauptlei*
tung Zinsen und Kosten zu entrichten, so
wird eine zur Tilgung der ganzen Sch
nicht ausreichende Leistung zunächst aut
Kosten, dann auf die Zinsen und zuletzt au
die Hauptleistung angerechnet.
8 BGH 9.3.1999 - XI ZR 155/98. NJW 1999, 2043.
9 BGH 20.6.1984 - VIII ZR 337/82, NJW 1984, 2404.
10 BGH 27.2.1978 - II ZR 3/76, N|W 1978, 735.
11 BGH 19.10.1983 - VIII ZR 169/82, WM 1983. 1337.
12 BGH 23.2.1999 - XI ZR 49/98, NJW 1999, 1704.
626
E. Oehtn
Crediting to interest and costs
1-5 § 367
(2) If the obligor determines another
method of crediting, the obligee may refuse
to accept the performance.
(2) Bestimmt der Schuldner eine andere
Anrechnung, so kann der Gläubiger die An¬
nahme der Leistung ablehnen.
A. Function
I. Purpose
§ 367 specifies the order of crediting in relation to the main obligation and the ancillary 1
obligation, i.e. interest and costs. Sub. 1 stipulates that, if an act of performance is not
sufficient to redeem the entire debt, the performance is first credited to the costs, then to the
interest and only lastly to the main obligation. Sub. 2 gives the obligee a right of refusal to
accept performance if the obligor determines another method of crediting.
II. Position within the BGB
§ 367 represents a follow-up regulation to § 366. § 367 only applies to the relationship 2
between the main and the ancillary obligations arising from a certain obligation. In the
relationship of independent obligations to each other as well as between ancillary obliga¬
tions and other main obligations, § 366 takes priority. This means that the obligation to
be satisfied with priority must first be determined in accordance with § 366. In the context
of crediting a performance against interest and costs, § 367 must be taken into account,
i.e. crediting first against the incidental costs and interest and then against the main
obligation.
III. Scope of application
The scope of application of § 367 is the same as § 366. § 367 also applies to claims of 3
different obligees as long as the obligor can render his performance to one of the obligees
alone.1 Furthermore, § 367 has a wide scope of application; it can be applied directly or by
analogy. For the crediting within the scope of a consumer loan agreement, however, § 497(3)
1st St. determines a different order. According to this regulation, first the costs of legal
proceedings, then the main obligation and then the interest are to be credited.
B. Explanation
I. Interest and costs
Interest is determined by the general concept of interest under § 246. § 367 applies mutatis 4
mutandis to proceeds from execution and the realisation of securities. Costs include all
expenses of the obligee which are necessary to enforce his obligation. The obligor must be
obliged to compensate the costs for any legal reason. This typically includes litigation and
enforcement costs.
II. Order
Sub. 1 stipulates the order of crediting of interest and costs. In principle, a performance by 5
the obligor is first credited against the costs, then against the interest and only subsequently
against the principal performance. The parties may deviate from this provision by agreeing
on a different order.2
1 OIG Hamm 14.6.1999 - 13 U 259/98, NJW-RR 2000, 174.
2 OLG Hamm 29.3.1974 - 11 U 246/73, NJW 1974, 1951.
E. Oehm
627
§ 368 1-4
Division 4. Extinction of obligations
III. Refusal to accept performance
6 In contrast to § 366, however, the obligor cannot determine the order unilaterally. Sub 2
stipulates that the obligee has a right to refuse performance if the obligor unilaterally
determines a different crediting order. The refusal to accept performance must be declared
at the time of performance. Otherwise, the determination of the obligor is valid.3
§368
Receipt
'Upon receiving performance, on demand,
the obligee must issue a written acknowledge*
ment of receipt (receipt). 2If the obligor has a
legal interest in having the receipt issued in
another form, he may demand issue in that
form.
§368
Quittung
‘Der Gläubiger hat gegen Empfang der Leis¬
tung auf Verlangen ein schriftliches Empfangs-
bekenntnis (Quittung) zu erteilen. 2Hat der
Schuldner ein rechtliches Interesse, dass die
Quittung in anderer Form erteilt wird, so
kann er die Erteilung in dieser Form verlangen.
A. Function
L Purpose
1 § 368 aims to simplify the burden of proof for the obligor with regard to the performance
of his obligations. The obligor can demand that the obligee issues a written acknowledgement
of receipt upon receiving performance. If the obligor has a legal interest in having the receipt
issued in another form, he may demand issuance in that other form, e.g. in a notarial deed. A
receipt can also be claimed for partial performances or the return of objects.
II. Scope of application
2 Through its positioning in the general law of obligations, § 368 applies to all reciprocal
contracts in case of performance or acceptance in lieu of performance. § 368 does not applv in
case of deposit or set-off. In transport law, § 368 applies analogously to the obligation of the
freight forwarder to issue a receipt for the receipt of the goods upon request of the consignor.
B. Context
3 Receipt is not a legal transaction (Rechtsgeschäft), but a mere declaration of knowledge* 1 the
obligee declares that he has received performance. The receipt contains no explanation of the
satisfaction of the claim, an acceptance as performance of contract (§ 363) or their acceptance ot
a work (§ 640). If the wording is clean however, a connection of the receipt with a further-
reaching contract of forgiveness or the acknowledgement of non-indebtedness (§ 397) is possiNe-
C. Explanation
I. Procedural aspects
4 Under German civil procedure law, the obligor bears the burden of proving tulfiln‘ent
the claim. In this respect, the receipt first provides proof in the formal sense pursuant 1
3 BGH 13.4.1983 - VIII ZB 38/82, NJW 1983, 2773.
1 BGH 14.4.1978 - V ZR 10/77, WM 1978» 849; HK-BGB/Schulze, § 368 BGB mn. 2.
628
E. Oehm
Receipt 5-8 § 368
§416 ZPO. Second, in the context of the free assessment of evidence within the meaning of
§ 286 ZPO, the receipt generally allows the conclusion to be drawn that the payment was
made by the obligor.2 The material correctness of the receipt can be invalidated by
provoking the court’s doubt that the performance was received; proof to the contrary does
not have to be furnished. In the case of a receipt in advance, the obligee only has to provide
proof ot the advance issue of the receipt in order to provoke the court’s doubt. The burden of
proof for subsequent performance then lies with the obligor.
IL Issuance
§ 368 stipulates that the receipt shall be issued at the obligor’s request. Without a request 5
of the obligor, the obligee does not need to issue a receipt. The request must be clear. It can
be made either in writing or verbally. However, if the obligee refuses to issue a receipt even
though the obligor has made such a request the obligor can withhold performance.
III. Content
The receipt shall indicate the contractual relationship between the obligor and the obligee, 6
the subject matter of the performance and the place and time of the performance to which it
relates. These facts can also result from the overall circumstances, e.g. when acknowledging
an invoice. They do not need to be stated expressly. In case of doubt, the obligor bears the
burden of proof.
IV. Form
In formal terms, the receipt must be in writing within the meaning of § 126 or in 7
electronic form within the meaning of §§ 126(3), 126a. Furthermore, the receipt must be
signed personally or provided with a qualified electronic signature; a paraphe is not sufficient.
The obligor is burdened with evidencing that the signature is genuine. Due to the security of
cash payment transactions, the probative value of a bank receipt also occurs without a
handwritten signature.3 Within the framework of standard business terms, a receipt is only
valid if it contains a separate signature pursuant to § 309 No. 12b. The receipt shall be
deemed to have been issued as soon as the obligor can dispose of it. A receipt in another
form under § 368 2nd St. requires a legal interest of the obligor. Such a receipt usually
consists of a publicly certified receipt, e.g. a notarial deed, which is required for the
modification and cancellation of encumbrances on real estate in accordance with §§ 1144,
1167 in conjunction with § 29 GBO. Such a receipt confirms, for example, the repayment of
the security right over real property designated in the receipt by the property owner.4
V. Right of retention
The obligor may bring an action for the issue of a receipt (Leistungsklage). Due to the 8
lower court costs of the action for acknowledgement of the non-existence of a legal
relationship pursuant to § 256 ZPO (negative Festellungsklage), this will often be the
preferable type of complaint. In the event of the obligee’s refusal, the obligor is also entitled
retain the consideration rendered. Even in case of an obligation to perform in advance, the
refusal to issue a receipt can lead to a default of acceptance on part of the obligee within the
meaning of § 293. A right of retention, however, does not exist for claims existing alongside
the contested claim. The claim to the issue of a receipt shall continue to exist even after
performance.
2 BGH 1.7.1987 - VIII ZR 117/86, NJW 1988, 204.
3 BGH 28.9.1987 - II ZR 35/87, NJW-RR 1988, 881.
4 BGH 7.5.1991 - XI ZR 244/90, NJW 1991, 1953.
E. Oehm
629
§370
Division 4. Extinction of obligations
§369
Costs of the receipt
(1) The costs of the receipt must be borne
and advanced by the obligor, unless the legal
relation existing between him and the obligee
leads to a different conclusion.
(2) If more than one obligee steps into the
shoes of the original obligee as the result of
transfer of the claim or by way of inheritance,
the extra costs are charged to the obligees.
§369
Kosten der Quittung
(1) Die Kosten der Quittung hat der
Schuldner zu tragen und vorzuschießen, so¬
fern nicht aus dem zwischen ihm und dem
Gläubiger bestehenden Rechtsverhältnis sich
ein anderes ergibt
(2) Treten infolge einer Übertragung der
Forderung oder im Wege der Erbfolge an die
Stelle des ursprünglichen Gläubigers mehrere
Gläubiger, so fallen die Mehrkosten den
Gläubigern zur Last.
A. Explanation
I. Interest of the obligee
1 Sub. 1 stipulates as a general rule that since a receipt is issued in the obligor’s interest and
for his evidentiary purposes, the obligor must bear and advance the resulting costs. An
exception to this general rule exists undei Sub. 1 for legal relationships between obligor and
obligee which were concluded exclusively in the interest of the obligee, e.g. the liability'for
gratuitous safekeeping (§ 690) or a mandate (§§ 662, 667). Here, the obligee cannot dann the
costs for the receipt from the obligor.
II. Costs
2 The obligee’s claim for costs is limited to the costs of reproduction, certification, dispatch
etc.; the obligee is not entitled to any compensation for his service. The costs for a receipt will
generally be low. There is no statutory table for the costs of the receipt; Rather only the
actual incurred costs for issuing the receipt must be compensated, i.e. cost for courier
services or notarisation.
III. Extra costs
3 Sub. 2 stipulates that if more than one obligee steps into the shoes1 of the original obligee
the extra costs are charged to the obligees. The simple rule behind Sub. 2 is that if additional
costs are incurred because of multiple obligees, the obligees bear these additional costs, not
the obligor. Additional costs can be incurred for example by succession (§§ 1922 et seq ) or
assignment (§ 398).
§370
Performance to the bringer of the
receipt
The bringer of a receipt is deemed to be
authorised to receive the performance to the
extent that the circumstances of which the
performing party is aware do not stand in
the way of assuming such authorisation.
§ 37.° .
Leistung an den Überbringer <*e
Quittung
Der Überbringer einer Quittung g®
ermächtigt, die Leistung zu empfange"'
fern nicht die dem Leistenden bek*nn^
Umstände der Annahme einer solche
niächtigung entgegenstehen.
1 Translation note: takes the place of would be a more suitable translation of an die Stelle
630
E. Oehtn
Performance to the bringer of the receipt
1-7 § 370
A. Function
I. Purpose
§ 3/0 supplements § 368 to the effect that the obligor performing in good faith to the 1
bringer ot a receipt is released from his obligation of performance. § 370 is a so-called
Rechtsschein provision, i.e. § 370 protects the trust of an objective third party in the legal
system.
II. Underlying principle
In general, the handing over of a receipt to a third party (i. e. the bringer) is to be 2
understood as the granting of a power of attorney for collection, the appointment as a
receiving messenger or any other authorisation to receive the performance pursuant to
§§ 362(2), 185. However, if no such power is granted to the bringer of the receipt, § 370
assumes that a third party who submits a receipt is authorised to receive the performance in
order to protect the obligor. This fiction is limited by the circumstances under which the
bringer gave the receipt. The rule in § 370 is justified by the fact that a Rechtsschein (i.e. the
trust from the perspective of an objective third party) was placed in the sphere of the obligee
as the issuer of the receipt.
B. Explanation
I. Requirements
§ 370 has four requirements which must be met so that the obligor can validly render his 3
performance to the bringer of the receipt.
1. Authentic receipt
The receipt brought must be authentic. The obligor rendering his performance cannot rely 4
on § 370 if the bringer of the receipt plays foul and brings a forged or falsified receipt. The
same applies if the receipt was rendered without legal capacity. However, in the case of
genuine, but stolen or lost receipts, the obligor may be released from the obligation to
perform. The same applies to a blanket receipt signed by the obligee which is filled in
contrary to the agreement.
2. Recipient of performance
The performance must be made to the bringer of the receipt. The presentation of the 5
receipt is sufficient, but not the reference to a receipt already handed over or the promise of
subsequent transmission.
3. Performance owed
Only the performance of the service owed is protected, but not performance in lieu of 6
performance and no performance surrogates.
4. Performance in good faith
The obligor must render his performance in good faith. § 370 is not fulfilled if the 7
obligor knows (and thus acts in bad faith) that his performance will not be received by the
obligee. This is the case if the obligor was aware of circumstances which prevent a valid
E. Oehm
631
§ 371 1-3 Division 4. Extinction of obligations
authorisation to receive performance. Here, the obligor does not need the protection of
§ 370. However, it is not sufficient if the obligor should have known the circumstances
preventing a valid authorisation. The obligor must have positive knowledge in order to
be in bad faith. Thus, it is not necessary that the obligor draws the correct conclusions
from the facts known to him. The burden of proof for bad faith of the obligor lies with the
obligee.
II. Legal consequences
8 As a result of the bringing of a valid receipt, the obligor can render performance effectively
to the bringer of the receipt. The effects of §§ 362 et seq. arise.
§371
Return of the certificate of
indebtedness
’If a certificate of indebtedness has been
issued relating to the claim, the obligor may,
besides demanding the receipt, also demand
return of the certificate of indebtedness. 2lf
the obligee claims to be unable to return it,
the obligor may demand an officially certified
acknowledgement that the debt is extin¬
guished.
§371
Rückgabe des Schuldscheins
’Ist über die Forderung ein Schuldschein
ausgestellt worden, so kann der Schuldner
neben der Quittung Rückgabe des Schuld¬
scheins verlangen, behauptet der Gläubiger,
zur Rückgabe außerstande zu sein, so kann
der Schuldner das öffentlich beglaubigte An¬
erkenntnis verlangen, dass die Schuld erlo¬
schen sei.
A. Function
I. Purpose and underlying principle
1 § 371 serves to protect the obligor against the use of the certificate of indebtedness
(Schuldschein) as evidence after the expiration of the debt as well as to protect the general
interest of the public against the misuse of certificates of indebtedness.
II. Scope of application
2 An important application of § 371 in practice concerns the restitution of title. § 371 can
be applied by analogy in order to restore title which has been fully performed. The obligor
can bring a claim to restore title after performance if the inadmissibility of the enforcement
of such title is undisputedly established or has become res judicata on the basis ot an
enforcement counterclaim within the meaning of § 767.1 2
B. Explanation
I. Definition
3 A certificate of indebtedness is a document which establishes or confirms the debt an3
which the obligor has issued as proof of the existence of the debt.2 The written declaration
suretyship, the deed of assignment by way of security or a transfer of ownership by 1
security are to be qualified as certificate of indebtedness.
1 BGH 22.9.1994 - IX ZR 165/93, NJW 1994, 3225.
2 BGH 24.5.1976 - III ZR 63/74, WM 1976, 974.
632
E. Ochm
Requirements
§372
II. Evidence
A certificate of indebtedness has formal evidentiary value within the meaning of § 416 4
ZPO. The material evidentiary value is governed by § 286 ZPO. In this context, possession of
the certificate of indebtedness is an essential indication: if the obligee is in possession of the
certificate of indebtedness, this indicates the existence of a debt. If the certificate of
indebtedness is in the obligor's possession, this indicates that the debt has been extinguished.
III. Ownership
According to § 952, the obligee is entitled to ownership of the certificate of indebtedness; 5
the ownership follows the right to the claim. Conversely, ownership does not automatically
revert to the obligor through repayment of the claim. The obligor has a contractual claim
(schuldrechtlicher Anspruch) to restitution of the certificate of indebtedness. The obligor can
also enforce this claim against third parties who are in possession of the certificate of
indebtedness, also against the obligee's attorney.3
IV. Loss or damage
If the certificate of indebtedness is lost or damaged before the debt has been settled, the 6
obligee is entitled to a new certificate of indebtedness under 798, 800 by analogy. The
obligee must bear the costs incurred as a result as the loss falls within his area of responsibility.
V. Acknowledgement
After fulfilment of the debt, § 371 2nd St. grants the obligor a claim for the submission of 7
an acknowledgement of non-indebtedness within the meaning of § 397(2) by the obligee.
Title 2
Deposit
Titel 2
Hinterlegung
§372
Requirements
’Money, securities and other documents as
well as valuables may be deposited by the
obligor for the obligee with a public authority
intended for this purpose if the obligee is in
default of acceptance. 2The same applies if the
obligor cannot fulfil his obligation or cannot
do so with certainty for another reason that is
in the person of the obligee or as the result of
uncertainty, not due to negligence, as to the
identity of the obligee.
§372
V oraussetzungen
’Geld, Wertpapiere und sonstige Urkunden
sowie Kostbarkeiten kann der Schuldner bei
einer dazu bestimmten öffentlichen Stelle für
den Gläubiger hinterlegen, wenn der Gläubi¬
ger im Verzug der Annahme ist. 2Das Gleiche
gilt, wenn der Schuldner aus einem anderen
in der Person des Gläubigers liegenden
Grund oder infolge einer nicht auf Fahrläs¬
sigkeit beruhenden Ungewissheit über die
Person des Gläubigers seine Verbindlichkeit
nicht oder nicht mit Sicherheit erfüllen kann.
Contents
nm.
A. Function
I. Purpose 1
JI. Position within the BGB 2
III. Scope of application 3
3 OLG München 31.3.2005 - 19 U 5091/04, MDR 2005, 900.
E. Oehm
633
§ 372 1-4 Division 4. Extinction of obligations
B. Context 4
C. Explanation 5
I. Performance 5
II. Objects eligible for deposit 6
III. Default of acceptance 7
IV. Other reasons 8
V. Good faith 9
VI. Dispute amongst several claimants 10
A. Function
I. Purpose
1 The legal institution of deposit offers the obligor the possibility of fulfilling an obligation if,
due to an obstacle arising from the obligee’s side, the obligor is unable or unsure to fulfil his
obligations directly to the obligee. However, fulfilment of the obligation is necessary for the
obligor to receive the consideration due. German law therefore provides the possibility' for
the obligor to deposit money, securities and other documents as well as valuables with a
public authority. The purpose of the deposit is clear: the law wants to help the obligor who is
willing to perform.
IL Position within the BGB
2 The deposit follows the provisions on performance. This systematic position within the
BGB makes sense as the deposit provides a further way for the obligor to bring about the
legal consequences of §§ 362 et seq. The obligor can perform his obligation even though he is
denied the possibility to take the route of the performance owed originally.
III. Scope of application
3 The effects of the deposit can also be brought about by agreement between the parties.1
This means that the parties can voluntarily agree on a deposit in order to achieve the
performance of an obligation. Deposit is, however, to be distinguished from the deposit ot
security pursuant to §§ 232 et seq. or pursuant to §§ 707(1), 709 2nd St., 108 et seq. ZPO,
which serve to secure a claim within the enforcement. The same applies to the deposit with a
trustee, e.g. a notary pursuant to § 23 BNotO. As only money and movable property’are
eligible for depositing, service contracts and contracts to produce a work are therefore
excluded from the scope of application of §§ 372 et seq.
B. Context
4 The deposit is a relationship under public law because the obligor must deposit his
performance with a public authority. The process of the deposit is governed by the der0*'*
regulations and deposit laws of each of the 16 German Länder. However, they all folio«'
essentially the same principles.2 The deposit relationship is established by an administrati«
act (Verwaltungsakt) vis-ä-vis the depository office. In principle, the depository office is <he
Amtsgericht, more specifically the judicial officer (Rechtspfleger). The deposit is also to b«
regarded as effective even if the substantive requirements for the deposit are not submitted by
the obligor. Viewed in rem, the deposit does not change the legal situation regarding the
deposited objects, i.e. the obligor generally remains the owner of the deposit. Yet, if domes**
currency (i.e. euro) is deposited, the ownership of the deposited bills and coins is transfer*
1 BGH 29.9.1992 - XI ZR 9/92, N|W 1993, 55.
2 Palandt BGB/Griineberg, Eint v § 372 BGB inn. 6.
634
E. Oehtn
Requirements 5-8 § 372
to the Land in accordance with the Land's deposit regulations. The reason is simple: if the
Land returns the deposit to the obligor the Land does not return the exact bills and coins but
only the value of the money that was deposited. The situation, however, is different if foreign
currency or other movables are deposited. Here, the Land will return exactly what was
deposited and therefore, the ownership remains with the obligor. The deposit relationship
creates a right of surrender against the depository office under public law. The holder of this
claim is the obligee or, in the case of a group of possible obligees, the true beneficiary. The
obligee must prove his entitlement by submitting a declaration of consent, a public deed or a
legally binding judgment (e.g. §§ 21, 22 of the Hessian Deposit Act3). If the consent to
surrender is not given voluntarily by another Prätendent4 the true beneficiary can sue for the
release declaration pursuant to § 812.
C. Explanation
I. Performance
The deposit must be qualified as a performance surrogate. The obligor does not provide 5
his performance (e.g. hands over a diamond ring to the obligee) but provides for a
surrogate performance (e.g. deposits the diamond ring with a public authority). The
possibility to deposit establishes a right for the obligor, but not an obligation. The obligor
can always choose to render his performance to the obligee, even if he is uncertain whether
that is actually the right obligee. The obligor, however, bears the risk to render performance
to the wrong person with the consequence that the obligor must perform again. Conversely,
the obligee or the group of obligees cannot demand a deposit from the obligor under § 372.
However, there are certain specific provisions where an obligee can request the obligor to
deposit his performance, e.g. § 432(1) 2nd St., § 660(2), § 1077(1) 2nd St., § 1281 2nd St.,
§ 2039 2nd St. In these cases, the deposit leads to the extinction of the claim pursuant
to § 362.
IL Objects eligible for deposit
Domestic and foreign currency, security papers, documents and treasures are eligible for 6
deposit. Treasures are movable objects which are durable and easy to store. The value has to
be particularly high in relation to their size and weight according to the prevailing view of the
market, e.g. jewellery and works of art. In the area of commercial sales, § 373 HGB provides
the obligor with a broader possibility of depositing goods of all kinds. In case of goods which
are not capable of deposit, the obligor can have them publicly auctioned and deposit the
proceeds.5
III. Default of acceptance
The conditions of §§ 293 et seq. must be fulfilled with regard to default of acceptance. 7
This requires a proper offer of the owed performance by the obligor at the correct time and
place as well as the refusal of acceptance by the obligee.
IV. Other reasons
The unknown residence or the legal incapacity of the obligee may also be further 8
reasons for deposit. Limited legal capacity is also sufficient if there is no legal representa-
3 Hessiehes Hinterlegungsgesetz (HessHintG; Hessen Deposit Act).
4 See below mn. 10.
5 See § 383 below.
E. Oehm
635
§ 373 1 Division 4. Extinction of obligations
tive. Uncertainty about the identity of the obligee may not be based on negligence on
the part of the obligor. The uncertainty can relate to factual or legal circumstances
Considerable importance is attached to the question of legal succession on the part of
the obligee and if it has actually occurred or has only been alleged. Examples are the
uncertain line of succession and the multiple assignment of a claim.6 There must be
justified, objectively understandable doubts about the identity of the obligee. Due to the
overall circumstances, it must not be reasonable for the obligor to remove these doubts at
his own risk and costs.7
V. Good faith
9 The obligor shall be entitled to deposit if the provisions for the protection of good faith
(e.g. §§ 370, 407, 409, 808, 893) apply in his favour.8 This applies both if the application of
the provisions is doubtful and if a repeated claim against the obligor is not to be seriously
feared.9 The obligor would otherwise be indirectly obliged to make payment to the alleged
beneficiary.
VI. Dispute amongst several claimants
10 Prätendentenstreit is a civil procedural scenario that occurs in connection with deposits.
In this scenario several claimants claim to be the true obligee. Firstly, one of the claimants
(Prätendent) is the plaintiff and the obligor is the defendant. The suing Prätendent notifies
the dispute to the other Prätendenten in order to be able to enforce his possible claim against
them as well after the proceedings (Streitverkündung). The obligor is released from the
proceedings upon depositing the undisputed performance. The legal dispute continues
between the Prätendenten. The rightful obligee is entitled to a declaration of release of the
other Prätendenten pursuant to § 812.
§373
Reciprocal and simultaneous
performance
If the obligor is obliged to perform only in
return for performance by the obligee, he
may make the right of the obligee to receive
the deposited thing dependent upon the ren¬
dering of consideration.
§373
Zug-um-Zug-Leistung
Ist der Schuldner nur gegen eine Leistung
des Gläubigers zu leisten verpflichtet, so kann
er das Recht des Gläubigers zum Empfang der
hinterlegten Sache von der Bewirkung der
Gegenleistung abhängig machen.
1 The provision modifies § 372. The obligor may make the surrender of the deposit to the
obligee dependent on rendering the consideration. The right exists for any right of retention,
i.e. both for the contractual consideration if the obligor is not obliged to perform in advance
as well as for statutory rights of retention such as §§ 255, 368, 371, 1144.1 The reservation
may be noted in the application for deposit or can be declared subsequently until the
exclusion of the right to take back the deposit under § 376. The existence of the right of
retention is not verified by the depository office. Reservations other than rendering the
consideration are to be rejected by the depository office as inadmissible. In any case, the
obligor retains the right to sue for the consideration he is claiming.
6 BGH 19.10.2000 - IX ZR 255/99, NJW 2001, 231; see also 8 372 above
7 BGH 28.1.1997 - XI ZR 211/95, NJW 1997, 1501.
8 Palandt BGB/Grüneberg, 372 BGB mn. 7.
’BGH 28.1.1997 -XI ZR 211/95, NJW 1997, 1501; BGH 19.10.2000 - IX ZR 255/99. NJW 2001.
1 MüKo BGB/Fctzer, § 373 BGB inn. 1.
636
E. Oehm
Place of deposit; duty to notify
1-3 § 374
§374
Place of deposit; duty to notify
(1) Deposit must be made at the depositary
office of the place of performance; if the
obligor deposits at any other place, he must
compensate the obligee for the damage aris¬
ing from this.
(2) lrThe obligor must notify the obligee of
the deposit without undue delay; in case of
failure to do so he is liable in damages. 1 2The
notice may be omitted if it is impracticable.
§374
Hinterlegungsort; Anzeigepflicht
(1) Die Hinterlegung hat bei der Hinterle¬
gungsstelle des Leistungsorts zu erfolgen; hin¬
terlegt der Schuldner bei einer anderen Stelle,
so hat er dem Gläubiger den daraus entste¬
henden Schaden zu ersetzen.
(2) JDer Schuldner hat dem Gläubiger die
Hinterlegung unverzüglich anzuzeigen; im
Falle der Unterlassung ist er zum Schadens¬
ersatz verpflichtet. 2Die Anzeige darf unter¬
bleiben, wenn sie untunlich ist.
A. Function
Sub. 1 stipulates the place where a deposit must be made. In general, this is the place of 1
performance. Sub. 2 requires the obligor to notify the obligee of his deposit without undue
delay. The reason is that the obligee must know that his claim was performed by the
obligor.
B. Explanation
I. Competent local court
Sub. 1 stipulates that the obligor shall make the deposit at the competent local court as 2
the depositary office. The competent local court is the court of the place of performance.
The place of performance shall be determined in accordance with § 269. Accordingly, the
local court at the obligor’s residence shall be the correct depository office in the case of a
Holschuld (a debt collectible by the obligee), and a Schickschuld (an obligation to send the
performance owed (e.g. goods). In the case of a Bringschuld (a debt to be discharged at the
obligee’s residence) the depository office is the local court at the obligee’s residence. The
deposit with another local court does not affect the effectiveness of the deposit; it merely
leads to a liability for damages on the part of the obligor vis-ä-vis the obligee for the
resulting additional costs.
IL Without undue delay
Sub. 2 requires the obligor to notify the obligee of the deposit without undue delay. 3
Without undue delay within the legal definition of § 121(1) 1st St. means without culpable
delay, i.e. to be assessed according to the circumstances of the individual case, but not longer
than two weeks.1 In the case of several Prätendenten2, the duty to notify applies to all, i.e. the
obligor must inform all Prätendenten about the deposit. The notification triggers the
statutory limitation period pursuant to § 212(1) No. 1. The obligor shall also be liable for
damages in the event of a breach of the duty to notify. However, he is not obliged to notify if
this is associated with disproportionate difficulties. This is particularly the case if the obligor
cannot determine the address of the obligee. Under certain circumstances, the depository
office must notify the obligee of the deposit.3
1 OLG Hamm 9.1.1990 - 26 U 21/89, NJW-RR 1990, 523.
2 See -► § 372 mn. 10.
3 e.g. § 15(1) HintG NRW; § 15(1) HessHintG.
E. Oehm
637
§376 1
Division 4. Extinction of obligations
§375
Retroactive effect with
dispatch by mail
If the deposited thing has been dispatched
to the depositary office by mail, the deposit
has retroactive effect to the date when the
thing was put in the mail.
§375
Rückwirkung bei
Postübersendung
Ist die hinterlegte Sache der Hinterlegungs-
stelle durch die Post übersendet worden, so
wirkt die Hinterlegung auf die Zeit der Auf¬
gabe der Sache zur Post zurück.
1 § 375 provides for a rule to determine the start of the deposit. If the deposited item has
been dispatched to the depositary office by mail, the deposit has retroactive effect to the date
when the item was put in the mail. Thereby, § 375 declares that the redemptive effect of the
deposit pursuant to §§ 378, 379 is shifted forward to the point of time when the deposited
item was submitted to the post office. § 375 requires that the deposited item is actually
received by the depository office. While the obligee bears the risk of deterioration of the item
during transport (§ 379(2)), the obligor bears the risk of destruction or loss of the item
during transport. Exceptions exist if the obligee is already in default of acceptance pursuant
to § 300(2) or § 326(2). One interesting aspect of § 375 is whether transmission by post only
includes - as the wording might suggest - the Deutsche Post or also embraces other ways of
transport, mailing service companies or courier services. According to the prevailing and
correct view, the term by mail or in German Post in § 375 must be read broadly. It includes
other transport or mailing services.1 As the market for postal services opened up since the
introduction of § 375 it is necessary to interpret the wording in a broader and modem sense.
§376
Right to take back
(1) The obligor has the right to take back
the deposited thing.
(2) Taking back is excluded
1. if the obligor declares to the depositary
office that he waives the right to take back,
2. if the obligee declares his acceptance to
the depositary office,
3. if the depositary office is presented with
a final and absolute judgment handed down
in a dispute between the obligee and the
obligor which declares the deposit to be law¬
ful.
§376
Rücknahmerecht
(1) Der Schuldner hat das Recht, die hin-
terlegte Sache zurückzunehmen.
(2) Die Rücknahme ist ausgeschlossen:
1. wenn der Schuldner der Hinterlegungs¬
stelle erklärt, dass er auf das Recht zur Rück¬
nahme verzichte,
2. wenn der Gläubiger der Hinterlegungs¬
stelle die Annahme erklärt,
3. wenn der Hinterlegungsstelle ein z*1*
sehen dem Gläubiger und dem Schuldner
ergangenes rechtskräftiges Urteil vorgelegt
wird, das die Hinterlegung für rechtmäßig
erklärt.
A. Function
1 Sub. 1 stipulates that the obligor generally has a right to take back his deposit. This
sense since the deposit itself is also only a right of the obligor not an obligation. It itis
voluntary decision of the obligor to deposit a performance the obligor must be free to
his mind and take back the deposited item, at least until the obligee has not accepted
deposit as performance. The consequence of taking back the deposit, of course, is tM
obligor still owes his performance. Sub. 2 specifies certain scenarios in which it is not po^sl
to take back or redeem the deposit.
i MüKo BGB/Fetzer, § 375 BGB mn. 1.
638
E. Oehm
Unpledgeability of the right to take back
§377
B. Explanation
I. Right of redemption
The obligor’s right of redemption or to take back is a right to alter the deposit relation- 2
ship. The exercise of the right must be declared to the depositary office. In exercising the
right, the obligor acquires a public law right of surrender against the depositary office. As
long as the obligor reserves the right of redemption, the deposit does not have the effect of
discharging the debt, i.e. not effectively rendering performance. However, with the deposit
the obligor is already entitled to the rights under § 379, e.g. it provides the obligor with
advantages in terms of the allocation of risk and the associated costs.
IL Waiver
The obligor may waive his right of redemption vis-ä-vis the depositary office (Sub. 2 3
No. 1). The waiver brings about the effects of § 378, which has the advantage for the obligor
that the deposit is seen as an equated performance. This relieves the obligor in the same way
as if he had performed at the time he made the deposit. The obligor still retains the right to
name further possible obligees.1 Furthermore, the surrender of the deposit to the obligee is no
longer subject to the obligor’s consent.
111. Acceptance
The obligor’s right of redemption is also excluded by the obligee’s acceptance of the 4
deposit (Sub. 2 No. 2). The obligee shall declare acceptance to the depositary office. In case of
a deposit in favour of several possible obligees, the exclusion of the obligor’s right to take
back the deposited item already occurs upon acceptance by one possible obligee.
IV. Final and absolute judgment
If the depository office has received a final and absolute judgment (rechtskräftiges Urteil) 5
declaring the deposit to be lawful, the obligor’s right of redemption shall be excluded
(Sub. 2 No. 3). Such a judgment may be a declaratory judgment (Feststellungsurteil), an
interim declaratory judgment (Zwischenfeststellungsurteil) or a judgment rejecting an ob¬
ligee’s action pursuant to § 379, i. e. a judgment that refers the obligee to the deposited thing.
The judgment must have been issued in a legal dispute between the obligor and a possible
obligee (Prätendent). A judgment between two possible obligees (Prätendentenstreit) is not
sufficient.
§377
Unpledgeability of the right to
take back
(1) The right to take back is not subject to
pledge.
(2) If insolvency proceedings are initiated
against the assets of the obligor, the right to
take back may, for the duration of the insol¬
vency proceedings, not be exercised by the
obligor either.
§377
Unpfändbarkeit des
Riicknahmerechts
(1) Das Recht zur Rücknahme ist der Pfän¬
dung nicht unterworfen.
(2) Wird über das Vermögen des Schuld¬
ners das Insolvenzverfahren eröffnet, so kann
während des Insolvenzverfahrens das Recht
zur Rücknahme auch nicht von dem Schuld¬
ner ausgeübt werden.
1 BGH 2.2.1960 - VIII ZR 43/59, NJW 1960, 1003.
E. Oehrn
639
§378
Division 4. Extinction of obligations
A. Function
1 The rule in § 377 serves to protect the obligee (Gläubigerschutzvorschrift). The obligee
shall be protected in the event of enforcement measures taken by third-party-obligees
against the obligor and should the obligor become insolvent. Sub. 2 stipulates that
the obligor may not exercise his right of redemption for the duration of insolvency
proceedings.
B. Explanation
I. Not subject to pledge
2 Sub. 1 declares the right of redemption to be unseizable. In other words: the right to take
back is not subject to pledge. This means that a third-party-obligee of the obligor may not
seize the obligor’s right to take back the deposited item. Sub. 1 secures the satisfaction of the
obligee through the deposited item. Sub. 1 ensures that only the obligee for whom an item
was deposited can satisfy his claim. This goal is further achieved by §§ 413, 400 where the
right of redemption is also declared non-assignable.
II. Insolvency proceedings
3 Sub. 2 stipulates that the obligor may also not exercise the right of redemption during his
insolvency proceedings. Again, the purpose is to protect the obligee for whom the obligor
deposited the item. Moreover, under German insolvency law (§ 36 InsO), the right of
redemption does also not fall within the insolvency estate. In consequence, the insolvency
administrator has no right of disposal pursuant to § 80(1) InsO. However, the insolvency
does not affect the obligor’s right to waive the redemption and the obligee’s right to accept
the deposit. The insolvency administrator and third-party-obligees have the right to contest
the validity of the deposit under insolvency legislation.
III. Surrender
4 Sub. 2 is not applicable if the obligor can demand the surrender of the object for a legal
reason other than § 376(1), i.e. not as a right to take back. In this case the satisfaction of
the obligee is not attainable and the purpose of § 377 is not affected. For the same reason,
the obligor’s claim for restitution resulting from the declaration of redemption is both
attachable and transferable. The same is true for the obligor’s right of redemption under
§ 382 2nd half St. and the obligor’s enrichment claims in the event that the claim does
not exist.
§378
Effect of deposit where
taking back is excluded
If taking back the deposited thing is ex¬
cluded, the obligor is freed from his obliga¬
tion by deposit in the same way as if he had
rendered performance to the obligee at the
time of deposit.
§378
Wirkung der Hinterlegung bei
ausgeschlossener Rücknahme
Ist die Rücknahme der hinterlegte .
ausgeschlossen, so wird der Schuldner
die Hinterlegung von seiner Verbin
in gleicher Weise befreit, wie wenn er
der Hinterlegung an den Gläubiger g
hätte.
640
E. Oehm
Effect of deposit where taking back is not excluded
§379
A. Function
§ 378 allows the obligor to fulfil his performance and be freed from his obligation with the 1
deposit. The obligor can simply declare that he excludes or disposes of the possibility to take
back the deposited item. In this case, the obligor has no further control over the deposited
item. From an economic perspective, the deposited item already belongs to the obligee.
B. Explanation
I. Lawful deposit
The effect of deposit depends on whether it is lawful or unlawful. A lawful deposit needs to 2
meet the requirements of § 372. A lawful deposit is a deposit which meets all the requirements
set out in § 372.1 If only one of these requirements is missing, the deposit is unlawful.
1. Discharge of debt
The lawful deposit pursuant to § 372 has the effect of discharging the debt. By excluding 3
the obligor’s right of redemption, the release from the obligation takes effect ex tunc as if the
obligor had performed to the obligee at the time of the deposit.2 At the same time, securities
are released and interest, contractual penalties and other consequences of default also cease
to apply retroactively from the time of the deposit. The obligee must be named in the
application for deposit as one of the authorised recipients.3 If the obligor names the obligee
only subsequently, he is released from his obligation from this point in time only.4
2. Relationship to § 363
A lawful deposit further has the effect of § 363 (i.e. reversal of the burden of proof) as 4
soon as the deposited item is handed over to the obligee. Only at this point in time is the
situation under § 378 comparable to § 363: the obligee has the possibility to examine the
performance, he has direct access to the performance and - most importantly - he accepted
the performance as performance of contract.
IL Unlawful deposit
In the case of an unlawful deposit, the release depends on the acceptance of the deposit by 5
the obligee;5 i.e. the provision is similar to § 364.
§379
Effect of deposit where taking back
is not excluded
(1) If taking back the deposited thing is not
excluded, the obligor may refer the obligee to
the deposited thing.
(2) As long as the thing is deposited, the
obligee bears the risk and the obligor is not
§379
Wirkung der Hinterlegung bei
nicht ausgeschlossener Rücknahme
(1) Ist die Rücknahme der hinterlegten
Sache nicht ausgeschlossen, so kann der
Schuldner den Gläubiger auf die hinterlegte
Sache verweisen.
(2) Solange die Sache hinterlegt ist, trägt der
Gläubiger die Gefahr und ist der Schuldner
1 See above, § 372.
2 BGH 20.3.2008 - IX ZR 2/07, NJW-RR 2008, 1075.
3 BGH 22.2.2007 - IX ZR 2/06, NJW-RR 2007, 989.
4 BGH 8.12.1988 - IX ZR 12/88, NJW-RR 1989, 200.
5 BGH 29.9.1992 - XI ZR 9/92, NJW 1993, 55.
E. Oehm
641
§380
Division 4. Extinction of obligations
obliged to pay interest or provide compensa¬
tion for emoluments not taken.
(3) If the obligor takes back the deposited
thing, the deposit is deemed not to have
occurred.
nicht verpflichtet, Zinsen zu zahlen oder Er
satz für nicht gezogene Nutzungen zu leisten
(3) Nimmt der Schuldner die hinterlegte
Sache zurück, so gilt die Hinterlegung als
nicht erfolgt.
A. Function
1 Contrary to § 378, under § 379 the obligor does not exclude or dispose of his right to take
back the deposited item, i.e. the obligor does not relinquish his right. He still has access to
the deposited item. For this reason, the scope of the deposit’s effect is reduced under § 379.
B. Explanation
I. Legal consequences
2 Sub. 1 stipulates that as long as the obligor’s right of redemption for the deposit continues
to exist, the obligor shall not be released from his obligation. This makes sense because the
obligor still can prevent his performance by invoking his right of redemption. Nevertheless,
the deposit still has several advantages for the obligor. Firstly, pursuant to Sub. 1, the obligor
has the right to refuse performance vis-a-vis the obligee. If the obligee asks the obligor to
perform, the obligor may refer the obligee to the deposit because he has already offered
performance to the obligee by way of the deposit. The right to refuse performance is to be
asserted as a plea in court. Secondly, due to the right to refuse performance, the obligor does
not run the risk of default. Thirdly, Sub. 2 stipulates that for the time of the deposit, the
obligee bears the price risk. This means that the obligee must provide the consideration
incumbent upon him even in the event of deterioration or destruction of the deposited item.
In other words: the value of the deposit is estimated at the time of the deposit. Fourthly, for
the time of the deposit, Sub. 2 also provides that the obligor is not bound to pay interest or
compensation for undrawn benefits.
IL Default in acceptance
3 In the event of default in acceptance on behalf of the obligee at the time of the deposit, §§ 300
(2), 301, 302, 326(2) have the same effects as Sub. 2. The provision is redundant for this
scenario.
III. Redemption
4 Sub. 3 stipulates that if the obligor exercises his right of redemption, the legal conse¬
quences of the deposit shall cease to have retroactive effect. The situation that existed before
the deposit arises automatically. However, there is one important exception in practice: the
acknowledgement triggered by the notification of the deposit, which initiated the recoin
mencement of the limitation period under § 212(1) No. 1, remains valid.
§380
Proof of entitlement to receive
To the extent that, according to the provi¬
sions applicable to the depositary office, a
declaration by the obligor acknowledging
this entitlement is required or sufficient for
§380
Nachweis der
Empfangsberechtigung
Soweit nach den fiir die Hinterlegung^1^
geltenden Bestimmungen zum Nachweis^
Empfangsberechtigung des Gläubig«**
diese Berechtigung anerkennende Er a
642
E. Oehrn
Proof of entitlement to receive
1-5 § 380
proof of the entitlement of the obligee to
receive, the obligee may demand from the
obligor the issue of the declaration under the
same conditions as those under which he
would be entitled to demand performance if
the deposit had not occurred.
des Schuldners erforderlich oder genügend
ist, kann der Gläubiger von dem Schuldner
die Abgabe der Erklärung unter denselben
Voraussetzungen verlangen, unter denen er
die Leistung zu fordern berechtigt sein wür¬
de, wenn die Hinterlegung nicht erfolgt wäre.
A. Function
§ 380 grants the obligee a right to demand a declaration from the obligor that he is entitled 1
to the deposit. The declaration of entitlement is part of the obligor’s obligation to enable the
obligee to receive the performance.
B. Context
The reason for § 380 is technical in nature: under the German federalist legal system, the 2
release of a deposit is governed by the laws of the individual Länder. Most of these laws
require (or used to require) that the obligee proves his entitlement to the deposited item by
bringing a declaration from the obligor as confirmation. However, since the deposit itself and
its requirements are dealt with under the unified German civil law, there was a need to grant
the obligee the right set out in § 380.
C. Explanation
Whether a declaration under § 380 can become necessary in practice depends on the type 3
of deposit:
I. Exclusion of the right to take back
If the obligor’s right of redemption for the deposited item is excluded (cf. § 376(2)), no 4
declaration of release is required because the obligor is no longer involved in the deposit
relationship. By excluding the right of redemption for his deposit, the obligor rendered his
performance. An exception applies if the obligor has included a right of retention pursuant
to § 373 in the application for the deposit. Moreover, the obligee can still claim a
declaration under § 380 if the obligor contests the obligee’s claim after having made his
deposit.1
II. Right to take back
If the obligor’s right of redemption is not excluded pursuant to § 376(2) most Land deposit 5
laws require a declaration of release for the obligee to receive the deposit. As a general rule,
however, such declaration is dispensable, since the obligor’s designation of a certain obligee
implies his consent to the surrender of the deposited item to this obligee. A declaration of
release is therefore only required if there are doubts as to the obligee’s entitlement to receive
the deposited item.2 In case of doubt, the obligee bears the burden of proof that he is the
actual beneficiary and that the claim on which the deposit is based actually exists. For this,
§ 380 grants the right to the obligee to demand the declaration from the obligor under the
same conditions as those under which the obligee would be entitled to demand performance
if the deposit had not occurred.
1 HK-BGB/Schulze, § 380 BGB mn. 1.
2 MüKo BGB/Fetzer, § 380 BGB mn. 5.
E. Oehm
643
§ 382 1-2
Division 4. Extinction of obligations
§381
Costs of deposit
The costs of deposit are charged to the
obligee to the extent that the obligor does
not take back the deposited thing.
§381
Kosten der Hinterlegung
Die Kosten der Hinterlegung fallen dem
Gläubiger zur Last, sofern nicht der Schuld¬
ner die hinterlegte Sache zurücknimmt
A. Explanation
I. Cost of deposit
1 § 381 stipulates that the obligee bears the costs of the deposit in relation to the obligor. The
second part of the provision clarifies that this is not the case if the obligor takes back the
deposited item. As such, it is a clarifying addition in relation to § 379(3). Here, the deposit is
deemed not to have occurred. Consequently, the obligor has to pay the expenses caused as
the deposit did not lead to performance due to the obligor’s redemption. The allocation of
costs in § 381 also corresponds to the obstacles arising from the respective spheres of the
obligee and the obligor: in principle, the deposit is based on an obstacle in the sphere of the
obligee as the obligor may generally only make use of a deposit if he is uncertain that his
performance to the obligee would free him of his obligation. In the (exceptional) case of
redemption, the obstacle arises from the obligor’s sphere.
II. Administrative costs
2 The obligation to bear the costs vis-ä-vis the depositary office is governed by the
respective laws on costs, the Justizverwaltungskostengesetz (JVKostG).
§382
Extinction of the right of the
obligee
The right of the obligee to the deposited
amount is extinguished at the end of thirty
years after receipt of the notice of deposit, if
the obligee does not report to the depositary
office before then; the obligor is entitled to
take the thing back, even if he has waived the
right to take back.
§382
Erlöschen des Gläubigerrechts
Das Recht des Gläubigers auf den hinter¬
legten Betrag erlischt mit dem Ablauf von
30 Jahren nach dem Empfang der Anzeige
von der Hinterlegung, wenn nicht der Gläu¬
biger sich vorher bei der Hinterlegungsstelle
meldet; der Schuldner ist zur Rücknahme
berechtigt, auch wenn er auf das Recht zur
Rücknahme verzichtet hat.
A. Function
1 § 382 limits the obligee’s claim for surrender of the deposited item against the depositary
office to 30 years. The provision contains a general rule under German law. in cases where
the obligee still has not accepted the deposit as performance after 30 years, § 382 senes to
establish Rechtsfrieden, i.e. to finally settle all claims. The time limit of 30 years generally »
the maximum limitation period under German law (§ 197).
B. Explanation
2
The time limit begins to run with the receipt of the notice of deposit; if the notification
was infeasible, the time limit begins with the deposit. With the expiration of the claim
the depository office, the claim against the obligor shall also expire as far as the obligor is n°
644
E. Oehni
Sale by private agreement §385
already freed pursuant to § 378. After the expiry of the 30-year period, also the obligor who
has waived his right of redemption, may reclaim the item. However, according to some Land
deposit laws, an additional exclusion period of one year applies to this claim.1
§383
Auction of things
not capable of deposit
(1) ’If the movable thing owed is not sui¬
table for deposit, the obligor may in case of
default by the obligee have it auctioned at the
place of performance and deposit the pro¬
ceeds. 2The same applies in the cases set out
in § 372 sentence 2, if spoilage of the thing is
to be feared or safekeeping is associated with
disproportionate costs.
(2) If reasonable success is not expected
from an auction at the place of performance,
the thing is to be auctioned at another suita¬
ble place.
(3) ’The auction must be performed pub¬
licly by a bailiff appointed for the place of
auction or other official authorised to con¬
duct auctions or a publicly employed auction¬
eer (public auction). 2The time and place of
the auction, with a general description of the
thing, are to be publicly announced.
(4) The provisions of subsections (1) to (3)
do not apply to registered ships and ships
under construction.
§384
Warning of auction
(1) The auction is permitted only after the
obligee has been warned about it; the warn¬
ing may be omitted if the thing is vulnerable
to spoilage and postponement of the auction
entails danger.
(2) The obligor must notify the obligee of
the auction without undue delay; in the
event of his failure to do so, he is liable in
damages.
(3) The warning and the notice may be
omitted if they are impracticable.
§385
Sale by private agreement
If the thing has a stock exchange or market
price, the obligor may effect the sale privately
at the current price through a commercial
§383
Versteigerung
hinterlegungsunfähiger Sachen
(1) ’Ist die geschuldete bewegliche Sache zur
Hinterlegung nicht geeignet, so kann der
Schuldner sie im Falle des Verzugs des Gläu¬
bigers am Leistungsort versteigern lassen und
den Erlös hinterlegen. 2Das Gleiche gilt in den
Fällen des § 372 Satz 2, wenn der Verderb der
Sache zu besorgen oder die Aufbewahrung mit
unverhältnismäßigen Kosten verbunden ist.
(2) Ist von der Versteigerung am Leistungs¬
ort ein angemessener Erfolg nicht zu erwar¬
ten, so ist die Sache an einem geeigneten
anderen Orte zu versteigern.
(3) ’Die Versteigerung hat durch einen für
den Versteigerungsort bestellten Gerichtsvoll¬
zieher oder zu Versteigerungen befugten an¬
deren Beamten oder öffentlich angestellten
Versteigerer öffentlich zu erfolgen (öffentliche
Versteigerung). 2Zeit und Ort der Versteige¬
rung sind unter allgemeiner Bezeichnung der
Sache öffentlich bekannt zu machen.
(4) Die Vorschriften der Absätze 1 bis 3
gelten nicht für eingetragene Schiffe und
Schiffsbauwerke.
§384
Androhung der Versteigerung
(1) Die Versteigerung ist erst zulässig,
nachdem sie dem Gläubiger angedroht wor¬
den ist; die Androhung darf unterbleiben,
wenn die Sache dem Verderb ausgesetzt und
mit dem Aufschub der Versteigerung Gefahr
verbunden ist.
(2) Der Schuldner hat den Gläubiger von
der Versteigerung unverzüglich zu benach¬
richtigen; im Falle der Unterlassung ist er
zum Schadensersatz verpflichtet.
(3) Die Androhung und die Benachrichti¬
gung dürfen unterbleiben, wenn sie untunlich
sind.
§385
Freihändiger Verkauf
Hat die Sache einen Börsen- oder Markt¬
preis, so kann der Schuldner den Verkauf aus
freier Hand durch einen zu solchen Verkäu-
* E.g. § 27 HintG NRW.
E. Oehm
645
§ 386 1-4
Division 4. Extinction of obligations
broker officially authorised to effect such
sales or through a person authorised to sell
by public auction.
fen öffentlich ermächtigten Handelsmäkler
oder durch eine zur öffentlichen Versteig
rung befugte Person zum laufenden Preis
bewirken.
§386
Costs of the auction
The costs of the auction or of the sale
under § 385 are borne by the obligee if the
obligor does not reclaim the deposited pro¬
ceeds.
§386
Kosten der Versteigerung
Die Kosten der Versteigerung oder des
nach § 385 erfolgten Verkaufs fallen dem
Gläubiger zur Last, sofern nicht der Schuld¬
ner den hinterlegten Erlös zurücknimmt
A. Function
I. Purpose and underlying principle
1 §§ 383-386 supplement and complete the provisions on the deposit by allowing for a self¬
help sale (Selbsthilfeverkauf). The self-help sale in accordance with §§ 383-386 gives the
obligor the opportunity to release himself from his obligation even in the case of movable
items which cannot be deposited, i.e. items which are neither money nor papers or valuables.
In such a case, the proceeds of the sale must be deposited instead of the item. If the obligor
waives the redemption of the proceeds, he can refer the obligee to the deposited proceeds in
accordance with § 379. A successful self-help sale fulfils the obligee’s claim even if the
amount of the proceeds is less than the actual value of the sold item.1
IL Scope of application
2 §§ 383 et seq. generally apply to all items which cannot be deposited. However, § 383(4)
makes an exception for registered ships and ships under construction. Moreover, these provi¬
sions only apply to moveable things as stated in § 383(1). Hence, real property is also excluded
from the application. In the latter case, the obligor only has the right to abandon possession
pursuant to § 303 which is the more specific provision. As such, § 303 supplements § 383.
B. Context
3 In the case of a commercial purchase, the more specific provision of § 373 HGB applies.
This provision provides the seller with similar possibilities for depositing and auctioning, but
without differentiation according to the type of goods, i.e. all goods are subject to § 373 HGB.
C. Explanation
I. Requirements
4 A self-help sale has two requirements: the sale must be for a movable item that cannot
deposited and there must be an accepted reason for the self-help sale. The accepted reaso^
pursuant to § 383(1) are (i) default of acceptance, (ii) the threat of spoilage and
disproportionately high storage costs. Especially the last two possibilities make sense
would be futile to deposit a perishable item or an item of which the storage is extren*.
costly.
i MüKo BGB/Fetzer, § 383 BGB mn. 8.
646
E. Oehm
Costs of the auction
5-9 § 386
IL Auction
1. Public auction
If the requirements of § 383 are fulfilled, the obligor may have the item auctioned off 5
publicly. The public auction is legally defined in § 383(3) 1st St. as an auction performed
publicly by a bailiff appointed for the place of the auction or another official authorised to
conduct auctions or a publicly employed auctioneer. Judicial officers, notaries and persons
appointed in accordance with the German public trade laws (GewO) are responsible for
public auctions. §§ 156, 450, 451 are applicable as they explicitly deal with contracts
concluded in auctions. The obligee must be warned that an auction will take place before¬
hand (§ 384). The warning is not subject to any formal requirement, i.e. it can be made in
any form, even orally.
2. Unlawful auction
In the event of a violation of regulations intended to protect the obligee during the 6
auction, the auction is unlawful. This does not include the violation of instructional
regulations.2 For example, the auction will not be rendered unlawful if it merely is held at
a place other than the place of performance. However, this could trigger liability for
damages on the part of the obligor if the obligee suffers any damages due to the fact that
the auction does not take place at the place of performance. In this context, the obligor
must prove that the auction at the place of performance would not have yielded higher
proceeds.3
3. Costs
According to § 386, the costs of the auction are borne by the obligee if the obligor does not 7
take back the deposited proceeds. The remarks made on § 381 above apply mutatis mutandis,
whereby the auctioning costs also include VAT.4
III. Private sale
A private sale of the item, i. e. not by way of a public auction, is only permissible under 8
the additional conditions of § 385. The item to be sold must have a stock exchange or
market price; the obligor may effect the sale privately at the current price through a
commercial broker officially authorised to effect such sales or through a person authorised
to sell by public auction. Only the manner of the sale is regulated by the provision.
Otherwise, §§ 383, 384 shall still apply. A stock exchange or market price is given if an
average price can be determined for items of the type owed at the point of sale from a
larger number of sales.5 In the case of private sale, the proceeds obtained must at least
correspond to the average price.
IV. Legal consequences
In case of a lawful auction or private sale, the obligee’s claim for performance is 9
converted into a claim for the proceeds.6 By depositing the proceeds, the obligor is freed
from his obligation in accordance with §§ 378, 379. Optionally, the obligor may also perform
2 Palandt BGB/Grüneberg, § 383 BGB mn. 5.
3 RG 16.3.1925 - IV 118/24.
4 BGH 12.5.1980 - VIH ZR 167/79, NJW 1980, 2473.
5 BeckOK BGB/Dennhardt, § 385 BGB mn. 1.
6 Palandt BGB/Grüneberg, § 383 BGB mn. 6 with further references.
E. Oehm
647
§ 387 1 Division 4. Extinction of obligations
his obligation by paying the amount of the proceeds or by declaring a set-off.7 In case of an
unlawful auction or private sale which do not fulfil the legal requirements, the obligor is
liable to pay damages in accordance with §§ 283, 280(1), (3). The mitigation of liability jn
§ 300(1) does not benefit the obligor. Regardless of fault, a claim to surrender of proceeds
may arise pursuant to § 285.8
Title 3
Set-off
Titel 3
Aufrechnung
§387
Requirements
If two persons owe each other performance
that is substantially of the same nature, each
party may set off his claim against the claim
of the other party as soon as he can claim the
performance owed to him and effect the per¬
formance owed by him.
§387
V oraussetzungen
Schulden zwei Personen einander Leistun¬
gen, die ihrem Gegenstand nach gleichartig
sind, so kann jeder Teil seine Forderung ge¬
gen die Forderung des anderen Teils aufrech¬
nen, sobald er die ihm gebührende Leistung
fordern und die ihm obliegende Leistung be¬
wirken kann.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Requirements 4
II. Set-off situation (Aufrechnungslage) 5
III. Declaration «... 6
IV. Multiple parties 7
1. Multiple obligors of the main obligation 8
2. Multiple obligees of the main obligation 9
3. Multiple obligors of the counter obligation 10
4. Multiple obligees of the counter obligation U
V. Performances substantially of the same nature 1-
VI. Validity of the counter obligation 13
VII. Main obligation 14
VIII. Prohibition of set-off 15
1. Prohibition by law 16
2. Prohibition by contract 17
3. Prohibition by nature of the obligation 18
A. Function
I. Purpose and underlying principle
1 §§ 387 et seq. provide the obligor with another possibility to fulfil an obligation. The^
off is the mutual redemption of two opposing obligations by means of a unilater
transaction (einseitiges Rechtsgeschäft). The obligor fulfils his obligation towards the
7 HK-BGB/Schulze, §§ 383-386 BGB mn. 4.
8 Palandt BGB/Grüneberg, § 383 BGB mn. 7.
648
E. Oehm
Requirements 2-5 § 387
the main obligation or Hauptforderung - and has the possibility to enforce his own claim -
the counter obligation or Gegenforderung.1 The purpose of a set-off is twofold: on the one
hand, offsetting helps two parties who conclude contracts on a regular basis to avoid
uneconomic and time-consuming money shifting. Also, it violates the principle of good faith
to demand something that should be returned immediately. On the other hand, offsetting is
particularly relevant to the obligor if he is entitled himself to a claim against the obligee and
the liquidity of the obligee is uncertain. Therefore, the set-off functions as a security as well as
an enforcement measure.2
IL Scope of application
As § 387 is positioned within the General Law of Obligations, essentially all obligations can 2
be subject to a set-off. Hence, a set-off may be excluded by contract or law. The set-off must
be distinguished from the legal concept of crediting (Anrechnung). The main difference is
that in case of crediting only dependent invoices are to be deducted from the main credit.
Furthermore, crediting is to be considered ex officio, i.e. without the express declaration of a
party. The prohibitions for set-off by law do not apply to crediting.
B. Context
Under the principles of private international law, the applicable lav; is governed by EU 3
legislation. According to Art. 17 Rome I, the right to set-off shall be governed by the law
applicable to the claim against which the right to set-off is asserted, i.e. the main obligation.
This has the consequence that this legal system is also decisive for the requirements, the
validity and the effect of the set-off.3 If parties agreed otherwise, the agreement prevails. If the
CISG is the applicable (sales) law, the underlying national law governs the set-off because the
set-off is not governed by the CISG (Art. 4 CISG).4 According to case law preceding the
introduction of the Rome I Regulation, a set-off is only admissible if both jurisdictions
involved accept offsetting as a legal institute.5
C. Explanation
I. Requirements
A set-off requires a set-off situation (Aufrechnungslage) (§ 387), a declaration of set-off 4
(§ 388) and that a set-off is not excluded (§§ 390-395). For the set-off situation, § 387
demands two mutual obligations of the same nature. The obligations do not have to result
from the same contractual relationship. The counter obligation has to be valid and due; the
main obligation has to be attainable. All requirements have to be met at the time of receipt of
the declaration of the set-off.6
IL Set-off situation (Aufrechnungslage)
The first requirement for a set-off is the reciprocity of two obligations. The party declaring 5
the set-off is the obligor of the main obligation as well as the obligee of the counter
obligation. Vice versa, the other party is the obligee of the main obligation and the obligor
of the counter obligation.
1 BGH 24.9.2015 - IX ZR 55/15, NJW 2016, 403.
2 Palandt BGB/Grüneberg, § 387 BGB mn. 1.
3 BGH 14.5.2014 - VIII ZR 266/13, NJW 2014, 3156.
4 BGH 23.6.2010 - VIII ZR 135/08, NJW 2010, 3452; BGH 14.5.2014 - VIII ZR 266/13, NJW 2014, 3156.
5 CJEU C-87/01 Commission v CCRE ECLI:EU:C:2003:400.
6 BGH 8.11.2011 - XI ZR 341/10, NJW 2012,445.
E. Oehm
649
§387 6-11
Division 4. Extinction of obligations
III. Declaration
6 A set-off can be declared by the obligor of the main obligation if he also has a claim
against the obligee.
IV. Multiple parties
7 A distinction has to be made if more than two parties (the obligor and the obligee of the
main obligation) are involved, but not all parties are equally entitled or bound by the relevant
obligations. There are four possible scenarios: in the first two scenarios, there are multiple
parties involved regarding the main obligation. Scenario (1) deals with multiple obligors of
the main obligation; scenario (2) deals with multiple obligees of the main obligation. For the
other two scenarios, there are - vice versa - multiple parties involved regarding the counter
obligation. Scenario (3) deals with multiple obligors of the counter obligation; scenario (4)
deals with multiple obligees of the counter obligation. In all four cases, the set-off is declared
by the obligor of the main obligation.
1. Multiple obligors of the main obligation
8 In case of multiple obligors of the main obligation, the set-off declared by one obligor
with a counter obligation is effective for all obligors (§ 422(1)). This means that the main
obligation for all obligors ceases to exist vis-a-vis the obligee. Depending on the internal
relationship between the obligors, however, the main obligation does not (legally) expire
due to the set-off, but is transferred to the obligor who declared the set-off in accordance
with § 426(2). § 422(2) clarifies that the other obligors would not have been entitled to
declare the set-off since the counter obligation did not belong to them. The reason behind
§ 422(2) is that the other obligors cannot dispose of a claim belonging to another party.
The obligor who owns the counter obligation shall not be forced to declare a set-off
against his will and thereby bear the insolvency risk due to the transfer of the main
obligation to him.
2. Multiple obligees of the main obligation
9 In case of multiple obligees of the main obligation, § 428 stipulates that the obligor may at
his discretion effect performance to each of the obligees. This means that the obligor may
declare a set-off against one of the multiple obligee’s alone, i. e. without considering the other
obligees, as long as the obligor has a claim against this obligee. This still applies if one of the
obligees has already sued for performance, i.e. the obligor can declare the set-off against
another obligee. An exception to this rule is contained in § 432 which contains a rule for
more than one obligee of indivisible performance.
3. Multiple obligors of the counter obligation
10 In case of multiple obligors of the counter obligation, again § 422(1) extends the effect of
the set-off to all obligors. As mentioned above, the claim may transfer to the entitled obligor
in accordance with § 426(2).
4. Multiple obligees of the counter obligation
11 In case of multiple obligees of the counter obligation, §§ 428, 430 have the effect that the
other obligees can claim performance from the offsetting party. By declaring the set-off, the
obligor of the main obligation - who is also one of the obligees of the counter obligation -
effectively sets off the obligation of the other obligees. As a consequence, the offsetting party
becomes the obligor of the counter obligation to the extent that the set-off fulfilled this
650
E. Oehni
Requirements 12-17 § 387
obligation. §§ 428, 430 stipulate that the other obligees now have a claim against the
offsetting party.
V. Performances substantially of the same nature
The set-off requires two performances that are substantially of the same nature. Therefore, 12
the primary case of application are monetary obligations. Hence, monetary obligations in
different currencies do not meet the criterion, but offsetting is admissible if the obligor is
allowed to substitute the obligation in euro in accordance with § 244. Other examples of
performances of the same nature are obligations in kind (Gattungsschuld) and obligations to
surrender money.
VI. Validity of the counter obligation
The counter obligation needs to be valid and due7, i.e. the counter obligation has to be 13
enforceable and not subject to a defence. Consequently, offsetting is not possible with
regard to future or extinguished obligations and obligations subject to a condition
precedent. However, offsetting is possible with obligations subject to a condition subse¬
quent as long as the condition is not fulfilled. Also, avoidance does not impede offsetting. If
the condition is fulfilled or avoidance is declared, the set-off is invalid ex tunc. In case of
knowledge of voidability the declaration of a set-off can be interpreted as confirmation
pursuant to § 144(1).
VII. Main obligation
The main obligation has to be attainable (erfüllbar); contrary to the counter obligation, the 14
main obligation does not have to be enforceable and due. Therefore, offsetting is possible
against obligations subject to defence or conditions subsequent. If the obligor did not know
that the obligation is permanently subject to a defence the obligor may demand restitution
under § 813(1).
VIII. Prohibition of set-off
A set-off may be excluded by law, contract or the nature of the obligation. 15
1. Prohibition by law
Offsetting is (partly) excluded by law in §§ 390-395, § 96 InsO, § 66(1) 2nd St. AktG, § 19(2) 16
2nd St. GmbHG, § 181 VAG, § 22(5) GenG, § 17(3) StromGW/GasGVV, § 43 RVG, § 6 AAG.
2. Prohibition by contract
Parties can contractually agree on the prohibition of a set-off under the non-mandatory 17
legislation.8 The agreement can be made explicitly or tacitly. However, the will of the parties
must result in the set-off to be limited or excluded. A typical contractual term for prohibition of
set-off is ‘cash on delivery’.9 In general business terms, the prohibition is limited by §§ 309 No. 3,
307(1). The decisive terms are the terms governing the main obligation.10 § 309 No. 3 states that
a provision by which the other party to the contract with the user is deprived of the right to set
off a claim that is uncontested or has been finally and non-appealable established is ineffective.
The same applies for entrepreneurs due to § 307(1). Furthermore, according to § 556b(2), an
agreement which restricts the right of the lessee to set off within the scope of § 556b( 1) shall be
7 BGH 19.5.2011 - IX ZR 222/08, NJW-RR 2011, 1142.
8 BGH 12.10.1983 - VIII ZR 19/82, NJW 1984, 357.
9 BGH 19.9.1984 - VIII ZR 108/83, NJW 1985, 550.
10 BGH 6.6.1999 - I ZR 84/97, NJW 1999, 3629.
E. Oehm
651
§ 388 1-3 Division 4. Extinction of obligations
ineffective. Furthermore, a contractual prohibition of offsetting may also result from procedural
agreements. A counter obligation for which the exclusive jurisdiction of a foreign court has been
agreed cannot be set-off before a domestic court.11 The same applies for arbitration agreements
as long as the arbitral tribunal has not decided on the counter obligation?2
3. Prohibition by nature of the obligation
18 Offsetting is also excluded if it is contrary to the nature of the obligation or contrary to
good faith. Ample case law exists on the prohibition of set-off, e.g. a bank may in principle
only set-off those counterclaims against its customers which were obtained in the normal
course of banking business.13 Another example is that a trustee may only set-off connected
counterclaims within the framework of the trust; the fiduciary nature of a rent deposit implies a
tacit prohibition of a set-off with regard to claims not arising from the tenancy agreement.14
§388
Declaration of set-off
1 Set-off is effected by declaration to the
other party. 2The declaration is ineffective if
it is made subject to a condition or a stipula¬
tion as to time.
§388
Erklärung der Aufrechnung
!Die Aufrechnung erfolgt durch Erklärung
gegenüber dem anderen Teil. 2Die Erklärung
ist unwirksam, wenn sie unter einer Bedingung
oder einer Zeitbestimmung abgegeben wird.
A. Function
1 The declaration of set-off is a right to alter a legal relationship (Gestaltungsrecht). In case of
a set-off situation (§ 387), the declaration has the effects of § 389. The requirements of § 387
have to be fulfilled at the time of the declaration.
B. Explanation
I. Requirements
2 The declaration of set-off is a unilateral legal act, which can be expressed explicitly or
tacitly,1 but has to be received by the other party. Furthermore, the declaration has to specify the
main obligation and the counter obligation. According to the altering character of the declara¬
tion, the declaration cannot be made subject to a condition or a stipulation as to time (2nd St.).
The declaration is also invalid if it is subject to an official permit.2 Only the obligor of the main
obligation can declare the set-off. Third parties are limited to performance under § 267.
IL Types of set-off
1. Set-off declared in legal proceedings (Prozessaufrechnung)
3 The set-off has a dual nature: on the one hand, the set-off is a plea under substantive law
claiming that the obligation is extinguished by a set-off. On the other hand, a set-off can be
declared in legal proceedings. The latter is both a procedural act and a substantive legal
transaction? The set-off in legal proceedings only takes substantive effect if the procedural
11 BGH 21.1.2015 - VIII ZR 352/13, NJW 2015, 1118.
12 BGH 17.1.2008 - Ill ZR 320/06, NJW-RR 2008, 556.
11 BGH 28.4.1987 - VI ZR 1/86, 43/86, NJW 1987, 2997.
14 BGH 11.7.2012 - VIII ZR 36/12, NJW 2012, 28.
1 BVerfG 26.2.1992 - 2 BvR 1463/92, NJW-RR 1993, 764.
2 BGH 28.10.1953 - VI ZR 217/52, NJW 1954, 266.
3 BGH 20.12.1956 - II ZR 177/55, NJW 1957, 591,
652
£. Oehm
Effect of set-off § 389
act is valid and the requirements of § 387 are fulfilled. The legal concept of § 139 stipulates
that the set-off is invalid under substantive law if the set-off is inadmissible due to procedural
reasons, e.g. §§ 296, 533, 767(2) ZPO. The counter obligation continues to exist and can be
used differently.
2. Contingent set-off (Hilfs- oder Eventualaufrechnung)
A defendant may declare a contingent set-off in the litigation subject to the condition that 4
the court grants the main obligation. The award of the main obligation is classified as a
permissible legal condition and not a genuine condition according to § 388. The obligation
tor set-off may not be taken into account by the court until it considers the main obligation
to be justified, i.e. the condition is fulfilled.
A distinction is to be drawn in case of set-off against obligations for which the civil courts 5
are not competent: § 17 GVG does not assign the civil courts a general competence to decide
on interdisciplinary matters. However, civil courts are capable of deciding on undisputed
counter obligations. In the case of a disputed counter obligation, which e.g. would have to be
asserted by means of administrative law, the proceedings are to be suspended until a decision
has been reached by the competent administrative court as pursuant to §§ 148, 302 ZPO.
3. Set-off contract (Aufrechnungsvertrag and Verrechnung)
Instead of a unilateral declaration for a set-off, netting of claims can also be effected by 6
means of an agreement between the parties: an Aufrechnungsvertrag. The parties can of course
freely agree to set-off or net their claims they have against each other. In light of general
freedom of contract, the legislator did not consider an explicit provision to be necessary. The
nature of the Aufrechnungsvertrag is a contract in rem or schuldrechtlicher Verfügungsvertrag.
As such, this contract extinguishes the claims against each other. The parties do not have to
meet requirements of § 387. Rather, they can freely agree to set off their claims.
a) Conclusion. An Aufrechnungsvertrag may be concluded expressly or impliedly. How- 7
ever, the previous practice of offsetting mutual claims alone is not sufficient for the
conclusion of a contract.4 5 The validity of a set-off by contract also presupposes that the
claims to be set off are legally valid? The parties must be authorised to dispose of the claims.
Opening of insolvency proceedings against the assets of a party excludes offsetting due to a
lack of power of disposal (§ 80(1) InsO).
b) Other factors. Even if a unilateral set-off were possible, concluding an Aufrechnungs- 8
vertrag may make sense because it saves the offsetting party from having to prove the facts on
which the counter obligation is based. As such, it eases the burden of proof. While mere
silence on a set-off declaration does not automatically constitute contractual approval for an
Aufrechnungsvertrag, this does not preclude the acceptance to such a contract if the obligee
expresses his consent to the contract by his conduct.
§389
Effect of set-off
The effect of set-off is that the claims, to
the extent that they correspond, are deemed
to expire at the time when they are set
against each other as being appropriate for
set-off.
§389
Wirkung der Aufrechnung
Die Aufrechnung bewirkt, dass die Forde¬
rungen, soweit sie sich decken, als in dem
Zeitpunkt erloschen gelten, in welchem sie
zur Aufrechnung geeignet einander gegen-
übergetreten sind.
4 BGH 16.2.1970 - VII ZR 188/68, VersR 1970, 368.
5 BGH 5.11.1997 - XII ZR 20/96, NJW 1998, 978.
E. Oehm
653
§ 389 1-6
Division 4. Extinction of obligations
A. Function
1 § 389 serves to regulate the legal effect of a set-off. § 389 stipulates that the claims are
deemed to expire at the time when they are set against each other as being appropriate for
set-off, to the extent that they correspond. If the set-off is declared with an existing set-off
situation, the main obligation is redeemed with retroactive effect against the counter
obligation.
B. Explanation
I. Effect of set-off situation
2 The situation that two claims are set against each other as being appropriate for set-off is
referred to as an Aufrechnungslage (‘set-off situation ). Such situation as such has no legal
effect whatsoever.1 It does not grant an objection or defence. A payment despite an existing
set-off situation does not give rise to a claim for enrichment pursuant to § 813. The claim
remains interest-bearing and default occurs.
II. Effect of declaration of set-off
3 The effect of the set-off requires a declaration of set-off. A party must explicitly declare
that it wants to set-off its claim against another claim (§ 388). The effect of the declaration of
set-off lies in the extinction of the obligation with retroactive effect to the time of the set-off
situation. In other words: the effect of the declaration goes back to the point in time when the
two claims for the first time were set against each other as appropriate for a set-off. Also, the
consequences of default, contractual penalties or interest cease to exist ex tunc, i.e. they are
retroactively void.2 Due to the effect ex tunc, the obligor can restore what has already been
performed on default, contractual penalties or interest under § 812(1) 1st St. 1st Alt.
1. Increase in value of counter obligation
4 In case of increases in the value of the counter obligation, a distinction must be made
between the occurrence of the set-off situation and the off-set declaration: on the one hand,
the value of the claim at the time of the set-off declaration is decisive if only the obligee of the
counter obligation could have declared the set-off, e.g. due to § 393. On the other hand, the
value of the claim at the set-off situation is decisive if both parties were entitled to declare a
set-off.3
2. Amount
5 The main obligation used for the set-off may exceed or fall short of the counter obligation.
This follows from the express stipulation in § 389 that the claims expire to the extent that
they correspond.
3. Revocation of set-off declaration
6 It is generally possible to revoke a set-off declaration. In this case, the contractual re¬
establishment of the claims is necessary in order to restore the claims. This means that the
claims - which were already extinct - must contractually be re-established.
1 BGH 20.6.1951 - GS Z 1/51, NJW 1951, 599.
2 BGH 23.1.1991 - VIII ZR 42/90, NJW-RR 1991, 568.
3 BGH 17.4.1958 - II ZR 335/56, NJW 1958, 1040.
654
E. Oehm
No set-off against a claim subject to a defence
1-3 § 390
4. Limitation period
§ 204(1) No. 5 stipulates that the limitation period is suspended by the assertion of a set-off 7
ot a claim in a legal action. Therefore, the declaration of a set-off in legal proceedings suspends
the statutory period in the amount for which the set-off is declared. If the amount of the main
obligation used tor the set-off exceeds the amount of the counter obligation, there is no
limitation with regard to the excess amount of the main obligation.4 The suspension ends six
months after the proceedings has been finally decided or otherwise ended (§ 204(2)).
§390
No set-off against a claim subject
to a defence
A claim subject to a defence may not be set
off.
§390
Keine Aufrechnung mit
einredebehafteter Forderung
Eine Forderung, der eine Einrede entgegen¬
steht, kann nicht aufgerechnet werden.
A. Function
§ 390 stipulates that a claim subject to a defence may not be set off. This provision 1
confirms the principle arising from § 387 that the obligation used for offsetting (counter
obligation) must be fully valid.* 1 This is not the case for the obligation against which a set off
is declared (main obligation). Therefore, it is possible to declare a set off against a main
obligation which is subject to a defence.
B. Context
In the context of § 390, § 215 is an important provision. In previous versions of the BGB, 2
the rule in § 215 used to be contained in the second sentence of § 390. § 215 deals with a set¬
off after a claim is statute-barred. § 215 stipulates that a limitation of actions does not
exclude a set-off if the claim was not yet statute-barred at the time when the set-off could first
have been made. The provision thereby lifts the objection that an obligation is statute-barred
if the set-off situation existed already at a time when the statutory limitation period had yet
not lapsed. In this respect, the law recognises an interest worth protecting on the part of the
obligor of the main obligation in maintaining the right to declare a set-off once it has arisen
and in trusting that it will continue to exist.
C. Explanation
I. Defence
§ 390 specifies the requirement for set-off that the counter obligation must be fully valid. 3
The obligee of a claim subject to a defence should not be able to enforce his claim by way of
self-help by declaring a set-off. § 390 refers to substantive defences or defences under
material law, but not to procedural defences.2 The prohibition of a set-off requires only the
existence of the objection, but not its assertion by the other party.3 A typical example for a
defence in the meaning of § 390 is the defence of an unperformed contract under § 320.
4 BGH 20.3.2009 - V ZR 208/07, NJW-RR 2009, 1169.
1 See above, § 387.
2 BGH 18.7.2013 - VII ZR 241/12, NJW 2013, 2975.
3 BGH 9.10.2000 - II ZR 75/99, NJW 2001, 287.
E. Oehm
655
§ 391 1-2 Division 4. Extinction of obligations
Another example would be the right of retention under § 273 as long as the reusing party is
not in delay of acceptance.4
II. Assigned claim
4 If the obligor declares a set-off against an assigned claim vis-ä-vis the assignee (§ 406), the
set-off is also excluded if the assignor is entitled to defences within the meaning of § 390.5
§391
Set-off with different places of
performance
(1) ‘Set-off is not excluded by the fact that
the claims are for different places of perfor¬
mance or of delivery. 2However, the party
setting off must compensate for the damage
incurred by the other party due to the fact
that he does not receive or cannot render
performance at the specified place.
(2) If it is agreed that the performance is to
take place at a specified time and in a speci¬
fied place, then it is to be assumed, in case of
doubt, that set-off against a claim for which
there is another place of performance is to be
excluded.
§391
Aufrechnung bei Verschiedenheit
der Leistungsorte
(1) xDie Aufrechnung wird nicht dadurch
ausgeschlossen, dass für die Forderungen ver¬
schiedene Leistungs- oder Ablieferungsorte
bestehen. 2Der aufrechnende Teil hat jedoch
den Schaden zu ersetzen, den der andere Teil
dadurch erleidet, dass er infolge der Aufrech¬
nung die Leistung nicht an dem bestimmten
Orte erhält oder bewirken kann.
(2) Ist vereinbart, dass die Leistung zu
einer bestimmten Zeit an einem bestimmten
Orte erfolgen soll, so ist im Zweifel anzuneh¬
men, dass die Aufrechnung einer Forderung,
für die ein anderer Leistungsort besteht, aus¬
geschlossen sein soll.
A. Function
1 § 391 contains three different rules dealing with set-off with different places of perfor¬
mance. Sub. 1 1st St. stipulates that a set-off is not excluded by the fact that the claims are for
different places of performance. Sub. 1 2nd St. states that the party setting off must
compensate for the damage incurred by the other party due to the fact that he does not
receive or cannot render performance at the specified place. Sub. 2 clarifies that if the parties
agreed on a specific time and place for performance, a set-off against a claim for which there
is another place of performance is excluded.
B. Explanation
I. Place of performance
2 Sub. 1 1st St. contains an exception to the strict principle that performances must
substantially be of the same nature for a set-off. This exception corresponds to the needs of
legal transactions and as such clarities that claims with different performance or delivery
locations can also be set off. Such differences in the modalities of benefits do not affect the
necessary same nature. The scope of application of the provision is not limited to Germany,
it also applies if the place of performance for the claim of the offsetting party is abroad,
provided that the mutual claims are otherwise of the same nature, in particular with regard to
the currency in which payment is to be made.1 However, § 391 cannot be applied if the
4 BGH 3.2.1959 - VIII ZR 14/58, BeckRS 1959, 31197291
5 BGH 27.6.1961 - VI ZR 205/60. NJW 1961, 1009.
1 OLG Frankfurt a.M. 27.10.1966 - 11 U 42/66» NJW 1967, 501.
656
E. Oehm
Set-off against a seized claim 1-2 § 392
parties have completely excluded German law as the law governing the contract. It does not
constitute an overriding mandatory provision in the sense of Art. 9 Rome I.
II. Compensation for damage
Sub. 1 2nd St. stipulates that the offsetting party must compensate the opposing party for 3
the damage incurred due to the fact that the other party does not receive or cannot render
performance at the specified place. Since the offsetting party obtains an advantage through
the 1st St., it is appropriate that the offsetting party must compensate the other party for the
disadvantages it suffers. These disadvantages are all damages which are causally linked to the
fact that the party does not receive or cannot effect the payment at the specified place. These
damages include e.g. possible transport costs which the counterparty would not have had to
incur if the set-off had not taken place.2 However, Sub. 1 2nd St. has little practical
significance as such damages rarely occur.
III. Contractual provisions
Sub. 2 contains an interpretative rule for cases in which the time and place of perfor- 4
mance are contractually stipulated. However, this rule does not apply if the time and place of
performance result from dispositive law.3 Therefore, Sub. 2 has little practical relevance.
§392
Set-off against a seized claim
By the seizure of a claim, the set-off of a
claim to which the obligor is entitled in rela¬
tion to the obligee is only excluded if the
obligor acquired his claim after the seizure,
or if his claim only became due after the
seizure and later than the seized claim.
§392
Aufrechnung gegen
beschlagnahmte Forderung
Durch die Beschlagnahme einer Forderung
wird die Aufrechnung einer dem Schuldner
gegen den Gläubiger zustehenden Forderung
nur dann ausgeschlossen, wenn der Schuldner
seine Forderung nach der Beschlagnahme er¬
worben hat oder wenn seine Forderung erst
nach der Beschlagnahme und später als die in
Beschlag genommene Forderung fällig gewor¬
den ist.
A. Function
I. Purpose
§ 392 deals with this set-off against a seized claim. The provision clarifies the cases in which 1
the seizure of a claim excludes the possibility for a set-off. This is only the case if the obligor
acquired his claim after the seizure, or if his claim only became due after the seizure and later
than the seized claim. The purpose of § 392 is to align the rules for a set-off with other
provisions of the German law, first and foremost with the enforcement provisions of the ZPO.
II. Scope of application
Upon seizure of the main obligation against which a set-off is to be declared, the obligor is 2
prohibited from performance under § 362 (§ 829(1) ZPO). Therefore, the obligor shall also
be prohibited from a set-off in order to protect the available assets.1 However, cases in which
2 MüKo BGB/Schlütcr, § 391 BGB mn. 2.
3 BGH 17.12.1998 - VII ZR 272/97, NJW 1999, 1179.
1 BGH 9.3.2005 - VIII ZR 330/03, NJW-RR 2005, 1029.
E. Oehm
657
§ 393 1-2 Division 4. Extinction of obligations
the set-off situation already existed at the time of the seizure or in which the obligor at least
had a justified prospect of a set-off are excluded from the scope of § 392. A parallel provision
exists in § 406 for the assignment of a claim.
B. Explanation
I. Permitted scenarios
3 § 392 stipulates two instances in which offsetting against a seized main obligation is
permissible: (i) if the obligor has already acquired his counter obligation before the seizure of
the main obligation or (ii) if his counter obligation has become due before the seizure and at
the latest together with the main obligation. In order to maintain the right of a set-off, it
suffices if the underlying legal relationship for the counter obligation existed at the time of
the seizure of the main obligation.2 A set-off in violation of § 392 is invalid vis-ä-vis the
pledgee of the claim.
II. Insolvency
4 Special provisions for insolvency proceedings exist in §§ 94 et seq. InsO.
§393
§393
No set-off against a claim in tort
Keine Aufrechnung gegen
Forderung aus unerlaubter
Handlung
Set-off is not permissible for a claim on the
basis of an intentionally committed tort.
Gegen eine Forderung aus einer vorsätzlich
begangenen unerlaubten Handlung ist die
Aufrechnung nicht zulässig.
A. Function
I. Purpose and underlying principle
1 § 393 stipulates that a set-off is not permissible for a damage claim on the basis of an
intentionally committed tort. The underlying concept of § 393 is that the obligee of a claim
for damages arising from intentional tort should be able to obtain redress within a reasonable
period of time without having to deal with counterclaims in the context of a set-off. Another
purpose of § 393 is to avoid situations where an obligee (or, to be more precise, creditor) ot a
claim which cannot be recovered intentionally causes the obligor a damage in an act of
revenge. As such, § 393 serves the purpose to protect the rule of law.
II. Scope of application
2 § 393 excludes set-off against a main obligation arising from an intentional unlawful
act. Unlawful acts are all tortious acts under the BGB (§§ 823 et seq.) or other civil laws.
Claims for damages arising from the breach of contract do not fall under § 393. If.
however, both a contractual claim and a tortious claim exist, § 393 applies. It is irrelevant
if the limitation period for the claim in tort has lapsed or if the injured person has not
asserted said claim.* 1
2 BGH 22.11.1979 - VII ZR 322/78, NJW 1980, 584.
1 BGH 24.11.1976 - IV ZR 232/74, NJW 1977, 529.
658
£ Oehm
No set-off against an unpledgeable claim
1-2 § 394
B. Explanation
I. Requirements
§ 393 requires that the obligor must have acted intentionally in the meaning of § 276. If 3
this is the case, § 393 generally applies. Even if the obligor is liable for the intentional
unlawful act ot another party (e.g. the legal entity for its organs pursuant to § 312 *), § 393
applies. In the absence of intent within the meaning of § 276, a set-off prohibition may exist
because of an inadmissible exercise of a right under § 242?
II. Scope of costs
§ 393 covers consequential costs of the tortious claim, e. g. the claim for reimbursement of 4
legal costs.4 5 The burden of proof for intent lies with the party invoking the prohibition of
§ 393?
§394
No set-off against an
unpledgeable claim
!To the extent that a claim is not subject to
pledge, no set-off occurs against the claim.
2However, contributions owed may be set off
against withdrawals to be made from health
insurance funds, assistance funds or burial
funds, in particular from miners’ provident
funds and funds of miners’ providential so¬
cieties.
§394
Keine Aufrechnung gegen
unpfändbare Forderung
'Soweit eine Forderung der Pfändung nicht
unterworfen ist, findet die Aufrechnung ge¬
gen die Forderung nicht statt. 2Gegen die aus
Kranken-, Hilfs- oder Sterbekassen, insbeson¬
dere aus Knappschaftskassen und Kassen der
Knappschaftsvereine, zu beziehenden Hebun¬
gen können jedoch geschuldete Beiträge auf¬
gerechnet werden.
A. Function
§ 394 serves to secure a certain standard of living above the poverty line (Existenzmi- 1
nimum). The 1st St. stipulates that to the extent that a claim is not subject to pledge,
no set-off occurs against the claim. This means that it is not possible to dispose of such
a claim by way of a set-off which is necessary for the owner of the claim to secure his
living.
B. Context
The prohibition of offsetting in § 394 relates to the prohibitions of seizure under §§ 850 2
et seq. ZPO. These primarily serve to safeguard the obligor and his family from being
deprived of the assets needed to secure their living. § 394 indirectly also protects those
persons who would need to support the obligor if the seizure or set-off were fully admissible.
In view of the social welfare system in Germany, however, § 394 ultimately also serves to
relieve the burden on social welfare institutions?
2 BavObLG 30.10.1984 - 2 Z 14/84, BayObl.GZ 1984, 269.
’ BGH 1 10 2009 - Hl ZR 18/09, NJW-RR 2010, 167.
< OIG Karlsruhe 13.11.1968 - 5 U 188/67. MDR 69, 483.
5 BGH ?4 10.1993 - HI ZR 156/92, NJW 1994, 253.
1 BGH 8.5.2013 - XII ZB 192/11, NJW 2013, 2592.
E. Oehm
659
§395
Division 4. Extinction of obligations
C. Explanation
I. Mandatory nature
3 § 394 is a mandatory provision. Parties cannot agree on a different rule.
IL Prohibitions of seizure
4 The 1st St. prohibits offsetting against an unseizable claim in order to ensure its fulfilment
in kind. The requirement for its application is the existence of a prohibition of seizure at the
time the claim becomes due. Prohibitions of seizure result in particular from §§ 850 et seq.
ZPO. For example, § 850a No. 4 ZPO stipulates that Christmas bonuses up to the amount of
half the monthly earned income, capped at an amount of 500 euro, are unseizable and
therefore also not subject to a set-off. Also, highly personal claims under § 399 and § 851(2)
ZPO, such as holiday rights, are covered by § 394.
III. Unilateral set-off/offsetting agreements
5 § 394 excludes the possibility for a set-off in the case of unilaterally declared offsetting
(§§ 387, 388). Furthermore, the provision also applies in the case of offsetting agreements.2 3 4
Here, the parties contractually agree on a certain set-off rather than one side unilaterally
declaring the set-off. Offsetting agreements are of course legally possible as part of the
freedom of contract under German law? However, offsetting agreements for claims which
have already become due are not limited by § 394?
IV. Claims from funds
6 The 2nd St. allows offsetting against claims from health insurance funds, assistance funds
or burial funds. This makes sense because the owner of such a claim cannot expect to receive
the relevant remuneration undiminished without fulfilling his obligation to pay the current
contributions. It is not relevant whether the benefits are provided by public or private funds.
It is solely decisive that the claims represent a support with pension character according to
their purpose. §§ 51(2), 52 SGB I and § 51(3) BeamtVG contain similar provisions.
V. Good faith
7 Finally, in exceptional cases it can be impossible to rely on § 394 because of good faith
considerations (§ 242) to such an extent that set-off must be permitted. For example, it is
possible to declare a set-off with a claim for damages under tort against a maintenance claim
if both claims are based on the same facts.5
§395
Set-off against claims of public¬
law corporations
Set-off is permissible against a claim of the
Federal Government or of a Land or against a
claim of a municipality or another associa-
§395
Aufrechnung gegen Forderungen
öffentlich-rechtlicher
Körperschaften
Gegen eine Forderung des Bundes oder
eines Landes sowie gegen eine Forderung ei¬
ner Gemeinde oder eines anderen Kotn-
2 BGH 25.2.1999 - IX ZR 353/98, NJW 1999, 3264.
3 MüKo BGB/Schlüter, § 387 BGB mn. 51.
4 BAG 18.8.1976 - 5 AZR 95/75, NJW 1977, 1168.
5 BGH 16.6.1993, XII ZR 6/92, NJW 1993, 2105.
660
E. Oehm
More than one claim
§396
tion of municipalities only if the performance
is to be rendered to the same fund from
which the claim of the party setting off is to
be discharged.
munalverbands ist die Aufrechnung nur zu¬
lässig, wenn die Leistung an dieselbe Kasse zu
erfolgen hat, aus der die Forderung des Auf¬
rechnenden zu berichtigen ist.
A. Function
L Purpose
§ 395 establishes stricter requirements for a set-off against certain claims of public bodies. 1
Generally, a set-off is possible regardless of whether the main and the counter obligation exist
under private or public law. However, § 395 sets stricter requirements for reciprocity for
offsetting against claims of public corporations. Thus, § 395 contains a privilege for public
bodies.
IL Scope of application
§ 395 is directly applicable if the main obligation in the set-off is a claim under private 2
law of the Federal Government, a Land, a municipality or another association of munici¬
palities. §§ 387 et seq. and thus also § 395 apply mutatis mutandis to main and counter
obligations under public law, unless special provisions prohibit a set-off or the legal nature
of the obligation under public law conflicts with the institute of a set-off.1 For example, a
special provision prohibiting a set-off exists for tax claims (§ 226(3) AO). It is not possible
for a private person to declare a set-off vis-ä-vis the tax authorities regarding taxes.
However, § 395 does not restrict the possibility of the tax authorities to declare a set-off
themselves.
B. Explanation
The requirement of reciprocity is a general requirement for a set-off.2 The obligor can 3
only set-off main and counter obligations if they are equal. If the opposing party is a private
person or exists under private law it is (usually) easy to determine the account to which a
claim should be credited. However, in case of public bodies, different treasuries manage
accounts or funds. Treasuries are public offices of a public corporation that independently
manage accounts for specific purposes. These accounts shall only be used for their specific
purpose and not for any other purposes. Therefore, a set-off is only possible if the claims are
to be discharges against the same public account.
§396
More than one claim
(1) ‘If one or another party has more than
one claim suitable for set-off, the party set¬
ting off may specify the claims that are to be
set off against each other. 2If the set-off is
declared without such a specification or if the
other party objects without undue delay, the
provision of § 366(2) applies with the neces¬
sary modifications.
§396
Mehrheit von Forderungen
(1) ‘Hat der eine oder der andere Teil
mehrere zur Aufrechnung geeignete Forde¬
rungen, so kann der aufrechnende Teil die
Forderungen bestimmen, die gegeneinander
aufgerechnet werden sollen. 2Wird die Auf¬
rechnung ohne eine solche Bestimmung er¬
klärt oder widerspricht der andere Teil unver¬
züglich, so findet die Vorschrift des § 366
Abs. 2 entsprechende Anwendung.
> BVerwG 12.2.1987 - 3 C 22/86, NJW 1987, 2530.
2 See above, § 387.
£. Oehm
661
§ 396 1-4
Division 4. Extinction of obligations
(2) If the party setting off owes the other
party interest and costs in addition to the
principal performance, the provision of
§ 367 applies with the necessary modifica¬
tions.
(2) Schuldet der aufrechnende Teil dem
anderen Teil außer der Hauptleistung Zinsen
und Kosten, so findet die Vorschrift des § 367
entsprechende Anwendung.
A. Function
1 § 396 extends the rules for crediting of performance to more than one claim in §§ 366,367
to the situation of a set-off.1 The purpose of § 396 is to establish a default rule. The parties
are free to agree on a different repayment sequence.
B. Explanation
I. Order
2 If several claims are set-off against each other, whether as a result of multiple claims on the
obligee’s or obligor’s side or on both sides, Sub. 1 1st St. gives the offsetting party, Le. the
holder of the counter claims, the legai power to determine the repayment effect. In other
words: first and foremost, the order of set-off pursuant to Sub. 1 1st St. shall be determined by
the specification of the offsetting party. Sub. 1 2nd St., however, gives the other party a right to
object without undue delay. Without undue delay has the same meaning as in § 121(1) Is* St,
i. e. latest within two weeks. Sub. 1 applies in case of multiple main obligations or counter
obligations.2 In the absence of a specification or if the other party validly objects, the
statutory order of § 366(2) applies. This means that obligations first due are set-off against
each other; among more than one due obligation, the one offering the obligee the least
security; among more than one equally secure obligation, the more onerous one; among
more than one equally onerous obligation, the oldest obligation; and where all are equally
old, each obligation proportionally.
II. Burden of proof
3 The obligor must prove that he has specified a claim for set-off. Alternatively, the obligor
must prove that he has not made a declaration but that the repayment of the claim follows
§ 366(2). The obligee must prove his objection under Sub. 1 2nd St. as well as the existence of
further claims of the obligor which are to be settled by the set-off as a result of the objection.
Moreover, the obligee must prove that the specification made by the obligor contradicts a
previous agreement of the parties.
III. Interest and costs
4 Sub. 2 stipulates that if the party setting off owes the other party interest and costs in
addition to the main performance, the provision of § 367 applies with the necessary
modifications. In other words: if the offsetting party owes the other party interest and
costs in addition to the main obligation, the rule stipulated in § 367 shall apply. This
means that a set-off not sufficient to redeem the entire obligation is first credited to the
costs, then to the interest and finally to the main obligation. However, if the offsetting
party determines another method of crediting the set-off becomes moot (§ 367(2)).
1 BGH 6.5.1981 - IVa ZR 170/80. NJW 1981, 1729.
2 BGH 9.1.2013 - VIII ZR 94/12, NJW 2013, 1367.
662
E. Oehm
Contract oj forgiveness, acknowledgement of non-indebtedness 1-3 § 397
Title 4
Forgiveness
Titel 4
Erlass
§397
Contract of forgiveness,
acknowledgement of non¬
indebtedness
(1) The obligation expires if the obligee
forgives the obligor the debt by contract.
(2) The same applies if the obligee ac¬
knowledges by contract with the obligor that
there is no obligation.
§397
Erlassvertrag, negatives
Schuldanerkenntnis
(1) Das Schuldverhältnis erlischt, wenn der
Gläubiger dem Schuldner durch Vertrag die
Schuld erlässt.
(2) Das Gleiche gilt, wenn der Gläubiger
durch Vertrag mit dem Schuldner anerkennt,
dass das Schuld Verhältnis nicht bestehe.
A. Function
I. Purpose
§ 397 is an important provision of German law as it allows the obligee to forgive a debt. The 1
enforcement of the claim depends on the will of the obligee. If - for whatever reason - an
obligee does not want to enforce his claim he can simply not assert said claim or declare a
procedural waiver (§ 306 ZPO). However, both options do not have any material effects, i.e.
the obligation as such continues to exist. Therefore, § 397 provides for the possibility to release
the obligor from his obligation by way of a contract between the obligee and the obligor, either
as a contract of forgiveness (Sub. 1) or as an acknowledgment of non-indebtedness (Sub. 2).
Importantly, unilateral forgiveness by the obligee does not have any material effects, i.e. the
obligation does not expire.1 In other words, the obligee can unilaterally decide to forgive a debt,
but later change his mind and still assert his claim as long as he did not conclude a contract
with the obligor. Consequently, § 397 provides legal certainty, especially for the obligor.
II. Scope of application
§ 397 applies to individual claims or obligations. It does not apply to entire contracts. In 2
case an entire contract is supposed to be terminated, it is possible to conclude an agreement
to terminate a contract which, however, is not governed by § 397. The forgiveness of an
obligation requires that the obligation has validly existed. Only valid claims can be forgiven
under German law. A claim which has already ceased to exist can no longer be forgiven.
B. Context
I. Contract of disposition
§ 397 illustrates the general principle of freedom of contract under German law. Parties are 3
free to agree on the expiry of an obligation for whatever reason. A contract under § 397
contains a contract of disposition or Verfügungsgeschäft. The contract of forgiveness as well as
the acknowledgement of non-indebtedness both have material or in rem effect. A valid contract
under § 397 directly terminates the obligation. Since § 397 contains a Verfügungsgeschäft,
§ 185 is applicable and the obligee can consent to a forgiveness given by a third-party.
1 BGH 4.12.2015 - V ZR 142/14, WM 2016, 1402.
E. Oehm
663
§ 397 4-8
Division 4. Extinction of obligations
II. Prohibition of forgiveness
4 It is generally possible to forgive any claim or obligation under German law. Only limited
restrictions apply. It is not possible to validly forgive certain indispensable rights, such as the
right to avoid one’s declaration on the grounds of deceit or duress under § 123. As an -
abstract - contract of disposition (Verfügungsgeschäft), the contract under § 397 can only be
void because of public policy in exceptional circumstances (§ 138(1)).2 3 A forgiveness clause’
in standard terms is generally invalid under § 307 unless the contract contains a clear and
express waiver.
III. Burden of proof
5 The obligor bears the burden of proof that the parties concluded a contract of forgiveness
or that the obligee acknowledged that there is no obligation.4
C. Explanation
I. Waiver
6 The contract of forgiveness (Sub. 1) and the acknowledgement of non-indebtedness
(Sub. 2) are special forms of contractual waivers which lead to the extinction of a debt as
fulfilment surrogates. Sub. 1 allows parties to waive an existing claim. Sub. 2 allows parties -
in case of doubt or dispute about the existence ot a claim - to waive a claim through an
acknowledgement of non-indebtedness.
II. Forgiveness
1. Contract of forgiveness
7 Sub. 1 contains the contract of forgiveness. The obligee can forgive the obligor the debt
by contract with the consequence that the obligation expires. Sub. 1 deals with the situation
that the obligor and the obligee are certain that an obligation exists. In case of doubt about
a claim, Sub. 2 applies. Sub. 1 does not require any specific form. Parties can conclude a
contract of forgiveness in writing or orally. This is true even if the obligation itself required
a specific form,5 e.g. notarial recording under § 128. A contract under Sub. 1 can even be
established by context,6 e.g. by returning a promissory note. In this case, the obligor’s
declaration of acceptance is not required to be received by the obligee pursuant to § 151. In
any case, the legal will to waive the obligation must clearly result from the contract or the
circumstances.
2. Legal consequence
8 The legal consequence of the contract of forgiveness is the immediate expiry of the
obligation. This effect also occurs if the reason why the parties agreed to forgive an
obligation (i.e. the so-called Kausalgeschäft on which the forgiveness is based) is ineffective.
Sub. 1 is an abstract contract of disposition. In this case, however, the obligee ot the expired
obligation can claim the re-establishment of the obligation from the obligor.
2 BGH 17.1.2007 - VIII ZR 37/06, NJW 2007, 1058.
3 BGH 10.10.1997 - V ZR 74/96, NJW-RR 1998, 590.
4 BGH 2.7.1992 - 1 ZR 181/90, NJW-RR 1992, 1386.
5 BGH 14.3.1996 - VII ZR 75/95, NJW 1996, 728.
6 BGH 20.5.1981 - IV b ZR 570/80, BeckRS 1981, 31074817.
664
E. Oehm
Assignment
§398
III. Acknowledgement
1. Acknowledgement of non-indebtedness
Sub. 2 contains the acknowledgement of non-indebtedness. It stipulates that the obligee 9
may acknowledge by contract with the obligor that there is no obligation. The wording of the
provision makes clear that it requires a contract between obligee and obligor. As such, Sub. 2
supplements the contract ot forgiveness under Sub. 1. Sub. 2 would not have been necessary
in order to regulate the cases in which the parties expect that the obligation still exists. Here,
the contract ot forgiveness is sufficient. The legislator enacted Sub. 2 because of the great
practical significance of contracts which are concluded only to acknowledge that no debt
exists tor clarification purposes, in particular also in the context of settlements. If parties are
uncertain or in dispute about the existence of a claim, they can resort to Sub. 2. Unlike the
(positive) acknowledgement of a debt under § 781, Sub. 2 does not require any specific form.
2. Legal consequence
The legal consequence of the acknowledgement of non-indebtedness is the immediate 10
expiry of the obligation. In case of an ineffective Kausalgeschäft (e.g. as a result of avoidance
based on § 123), the obligee may retract the acknowledgement under §§ 812 et seq. If, however,
the obligee was aware of the (possible) existence of the claim, the reason for the acknowl¬
edgement is usually a gift (§ 516) or a settlement (§ 779). This excludes a later retraction under
§812 since the gift or the settlement constitute the legal ground for the acknowledgment.
Division 5
Transfer of a claim
Abschnitt 5
Übertragung einer Forderung
§ 398
Assignment
*A claim may be transferred by the obligee
to another person by contract with that per¬
son (assignment). 2When the contract is en¬
tered into, the new obligee steps into the
shoes of the previous obligee.
§398
Abtretung
’Eine Forderung kann von dem Gläubiger
durch Vertrag mit einem anderen auf diesen
übertragen werden (Abtretung). 2Mit dem
Abschluss des Vertrags tritt der neue Gläubi¬
ger an die Stelle des bisherigen Gläubigers.
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
I. Historical 4
II. Comparative 5
1. DCFR 6
2. Private international law 7
C. Explanation 8
I. Assignment contract 8
1. Form 9
2. Blank assignment 10
Uhlmann
665
§398 1
Division 5. Transfer of a claim
II. Power of disposition
III. Claim
1. Securitisation model
2. Determinability ot the claim
3. Future claims
4. Majority of claims/partial assignment
5. Transferability
IV. Legal consequences
1. Secondary claims
2. Ineffectiveness
V. Assignment by way of security
1. Characteristics
2. Non-accessory instrument
3. Ineffectiveness of assignment by way of security
a) Initial overcollateralisation (anfängliche Übersicherung)
b) Subsequent overcollateralisation (nachträgliche Übersicherung)
c) Gagging
VI. Special manifestations of the transfer of claims
1. Collection assignment
2. Direct debit authorisation
3. Distinction
VII. Factoring
VIII. Transfer of contract
11
12
13
14
15
16
17
18
19
20
21
22
23
24
24
25
26
27
27
28
29
30
31
A. Function
I. Purpose and underlying principles
1 §§ 398 et seq. stipulate the transfer of claims and other rights. In this respect, claims and
other rights can participate in economic life in a variety of forms, such as assets and as
security rights.1 As the transfers of claims are dispositions, the principles of separation and
abstraction apply.2 The initial consequence of this principle is that a distinction must be
made between the assignment (disposition transaction, Verfügungsgeschäft) and the legal
transaction underlying the assignment (obligation transaction, Verpflichtungsgeschäft). This
is to denote as the principle of separation (Trennungsprinzip). With respect to the obligation
transaction provisions are not located in §§ 398 et seq. but in special section of the law of
obligations. Typically, a purchase of rights (§ 453), a gift (§ 516), a security agreement or
nongratuitous management of the affairs of another (§ 675) are concluded under the law of
obligations beside the assignment.3 In addition, the effectiveness of both legal transactions
must be examined independently of each other (principle of abstraction, Abstraktionsprin¬
zip).4 A legal ground (causa) is not a prerequisite for the effectiveness of the assignment.5 If
one legal transaction is ineffective, in principle, the other transaction is not ineffective as well.
However, this may not obscure the fact that both legal transactions can be concluded uno
actu.6 Additionally, a reason that leads to ineffectiveness of one legal transaction, e.g., the
obligation transaction, may also cause the other transaction to be ineffective as well.7 This is
usually the case when it comes to violations in respect to § 138. In this respect, the
ineffectiveness of the obligation transaction entails the ineffectiveness of the disposition
transaction.
i
2
3
4
5
See Kotz, Assignment, in: The Max Planck Encyclopedia of European Private Law
MüKo «^Roth/K'enmger, § 391!I BGB mn. 2 On these principles see Introduction mn. 40-42.
See Palandt BGB/Grunebcrg, § 398 BGB mn. 2.
e.g. BGH 26.11.1990 - II ZR 92/90, N|W 1991, 1414.
MüKo BGB/Roth/Kieninger, § 398 BGB mn. 23.
6 See BGH 18.11.1968 - VIII ZR 189/66 , NJW 1969,40.
7 MüKo BGB/Roth/Kieningcr, § 398 BGB mn. 26.
666
Uhlntann
Assignment
2-6 § 398
II. Position within the BGB
The transfer of claims and of other rights transferable according to §§ 398 et seq. are 2
dispositions. Above all, dispositions can be found in property law; in this respect, in
particular when it comes to the transfer of ownership (see for instance § 929). Probably by
reason of proximity to the object at disposal, the historical legislator has refrained from
locating the provisions concerning the transfer of claims and of other rights in property law.
III. Scope of application
§§ 398 et seq. stipulate the transfer of claims and other rights for which the transfer is not 3
specifically regulated. On some occasions, special prerequisites are laid down in other areas of
law for the transfer of special claims, e.g. the prerequisite to make the declaration of
assignment in writing and to hand over the mortgage certificate when assigning mortgage-
backed claims, § 1154(1). §§ 398 et seq. apply directly to the transfer of claims under private
law. However, also claims which are subjected to public law fall under the scope of §§ 398 et
seq.8 This applies without restrictions only to the extent that there are not special prerequi¬
sites laid down in public law.9 The latter is the case, for example, with respect to tax refund
claims (§ 46 AO10).
B. Context
I. Historical
§§ 398 et seq. cannot be directly traced back to Roman law. A change in the person of the 4
creditor which is made possible by §§ 398 et seq. was alien to classical Roman law. Instead,
other instruments were used to achieve the same economic result as an assignment.11 §§ 398 et
seq. were essentially incorporated into the BGB by the Second Commission. In the more than
one-hundred-year history of the BGB, the law of assignment has not undergone any changes.
IL Comparative
From a comparative perspective, it is interesting to note that the assignment in German 5
law does not require an act of publicity, such as, inter alia, a delivery pursuant to § 929, in the
broader sense. It is neither necessary to notify the debtor of the assignment, nor does the fact
of the assignment have to be entered in a register.12 This enables a so-called ‘silent assign¬
ment’ (stille Zession). From a German perspective, the background to this model, particularly
in the case of assignments by the way of security, is predominantly seen in the assignor’s
interest in secrecy. If the assignment is disclosed to third parties, e.g. the debtor, they could
draw conclusions in respect to the economic situation of the assignee.13
1. DCFR
The DCFR also deals with assignment. In comparison to §§ 398 et seq. the following 6
differences are being highlighted: firstly, the DCFR requires a causa (Art. 111.-5:102(2)
8 See RG 3.1.1934 - V 168/33.
9 Palandt BGB/Grüneberg, § 398 BGB mn. 9.
10 An English translation of the AO is available under www.gesetze-im-internet.de.
11 Zimmermann, The Law of Obligations (Clarendon 1996), p. 58 et seq.
12 See exemplary for other European legal systems Kieninger, Das Statut der Forderungsabtretung im
Verhältnis zu Dritten, RabelsZ 1998, 679, 683 et seq. See also Kötz, Assignment, in: The Max Planck
Encyclopedia of European Private Law.
13 See Looschelders, Schuldrecht Allgemeiner Teil (16th edn, Vahlen 2018), § 52 mn. 67.
Uhlmann
667
§ 398 7-10 Division 5. Transfer of a claim
DCFR) for the effectiveness of the assignment, which may, however, be included in the same
legal act with the disposition transaction (Art. 111.-5:104(3) DCFR). Secondly, a notice of
assignment plays a greater role than it does under German law (cf. § 409), It is not
prerequisite for the effectiveness of the assignment (cf. Art. 111.-5:104 DCFR). However, if the
same claim is assigned several times, the claim is acquired by the assignee who first notifies
the debtor of the assignment, provided that this assignee does not know that the respective
claim was assigned several times (Art. 111.-5:121(1) DCFR).14
2. Private international law
7 With respect to private international law, reference should be made to Art. 14 Rome I.
Accordingly, the law applicable to the contract under the obligation transaction (Vertrags¬
statut - contractual statute) can be freely chosen between assignor and assignee, Art 14(1) 1
Rome I. Otherwise, it is governed by Arts 3 et seq. Rome I. The applicable law in the
relationship between the assignee and the debtor always depends on the law which is
applicable in respect to the (assigned) claim (Forderungsstatut - claim statute).15 However,
the question which law applies to the disposition transaction is controversial The predomi¬
nant view in German literature seems to favour the application of the contractual statute in
this respect.16 This question has yet neither been clarified by the CJEU nor the BGH.
C. Explanation
I. Assignment contract
8 The first requirement is a contract between the old creditor (Zedent - assignor) and the new
creditor (Zessionar - assignee), in which is stipulated that the claim is being transferred.1’The
debtor does not participate in this proceeding; neither has he to be informed by the fact of the
assignment, nor is his consent required for the effectiveness of the assignment.18
1. Form
9 The assignment contract is, basically, free of any form.19 This applies even if the assigned
claim results from an obligation transaction which is subjected to a certain form (e.g. from a
contract in which one party undertakes to transfer ownership of a piece of land (§ 31 ItyB
1st St.)).20 Exceptions to the principle of freedom of form exist by virtue of special Statuten’
orders, such as, for example, the transfer of claims secured by mortgages pursuant to § 1154(11
2. Blank assignment
10 If the assignee has not yet been determined, German law allows a so-called blank assign¬
ment (Blankozession), i.e. the transfer is made to an assignee unknown at the time of the
assignment. In respect to blank assignment, the assignor initially acts as an agent without
authority of the as yet unknown assignee. Once the assignee has been named, the assignment
is consented and thus becomes effective.21 According to a BGH decision, in the meantime,
the first assignor remains the owner of the claim.22
14 See also Kötz, Assignment, in: The Max Planck Encyclopedia of European Private Law.
15 e.g. BeckOK BGB/Spickhoff, Art. 14 Rom 1-VO mn. 8.
,h See BeckOK BGB/Spickhoff, Art. 14 Rom 1-VO mn. 2 et seq. xvith further references.
17 MüKo BGB/Roth/Kieninger, § 398 BGB mn. 3 and 13.
18 MüKo BGB/Roth/Kieninger, § 398 BGB mn. 39.
I’ Palandt BGB/GrOneberg, § 398 BGB mn. 6.
20e.g. BGH 11.11.1983 - V ZR 211/82, NIW 1984,973.
21 BGH 31.10.1956 - V ZR 177/55, NJW 1957, 137.
22 See BGH 31.10.1956 - V ZR 177/55, NJW 1957, 137.
668
Uhlmann
Assignment
11-15 § 398
II. Power of disposition
The second requirement for the assignment to become effective is that the assignor has the 11
power to dispose of the respective claim. The power of disposition lies in the actual owner of
the claim who is not limited in his power of disposal (Verfügungsberechtigung). If he has
already assigned the claim before, the second assignment is ineffective. In this respect, the
principle of priority applies.23 The owner may also lack the power of disposal if an
insolvency proceeding has been opened against him (§ 80(1) InsO). On the other hand, the
owner ot the claim may also authorise a third party to dispose of the claim (§ 185(1)).24
III. Claim
The claim to be assigned must exist and the assignor must be the owner of the respective 12
claim. If these requirements are not met, the assignment is ineffective.25 German law is not
familiar with a good faith acquisition with respect to claims (exception, for example, within
the limits of §§ 405 and 2366).26 If the claim exists but with a different content, e.g. the
amount of the claim is lower than it is presumed by the parties, whether this claim is covered
by the assignment is to be decided by interpretation of the assignment contract.27
1. Securitisation model
From an economic perpective, in order to increase fungibility of claims, also the securitisa- 13
tion model is used in particular. Under this model, claims are transferred to a company
established solely for this purpose, which then issues securities.28 As securities are generally
held in collective deposit (Sammelverwahrung), they can be acquired in good faith (see §§ 5
and 6 DepotG).
2. Determinability of the claim
Since the assignment is a disposition, the principle of speciality applies (Spezialitätsprin- 14
zip). This means that the claim to be assigned must be described so precisely alone on the
basis of the assignment contract that it can be individualised.29 Criteria for individualisation
are, inter alia, the content of the claim, the debtor and the legal grounds in respect to the
underlying obligation transactions.30
3. Future claims
Future claims that do not yet exist may also be assigned. In this respect, determinability in 15
accordance with the assignment agreement is sufficient at the time when the claim arises.31 In
particular, the debtor of the claim to be assigned does not yet have to be determined; the
assignment ‘of all existing and future claims arising from deliveries of goods and services
from the initial letters’ A to Z is sufficiently determined.32 However, the assignment does not
23 e g bgH 24.4.1968 - VIII ZR 94/66, NfW 1958. 1516.
24 MuKo BGB/Roth/Kienmger, § 398 BGB mn. 28.
23 MuKo BGB/Roth/Kieninger, § 398 BGB mn. 27.
26 HK BGB/Schulze, § 398 BGB mn. 2.
27 MuKo BGB/Roth/Kieninger, § 398 BGB mn. 27.
2* See exemplary in this respect Kern, Die Sicherheit gedeckter Wertpapiere (Mohr Siebeck 2004), p. 45
et seq.; Schwarcz, The Universal Language of International Securitization, Duke J. Comp. & Int’l L 2002,
285 et seq Sturner, Verkauf und Abtretung von Darlehensforderungen, ZHR 2009, 363, 364 et seq.
29 e.g. BGH 25.10.1952 - I ZR 48/52, NJW 1953, 21.
w MuKo BGB/Roth/Kieninger, § 398 BGB mn. 66.
u e g BGH 25 10.1952 - I ZR 48/52, NJW 1953, 21.
32 See BGH 29.11.2007 - IX ZR 30/07, NJW 2008, 430.
Uhlmann
669
§ 398 16-19 Division 5. Transfer of a claim
become effective until the claim has arisen.33 In this respect, it is disputed whether the claim
directly belongs to the assignee (Direkterwerb - direct acquisition) or whether the claim - fOr
one legal second - belongs to the assignor (Durchgangserwerb - transit acquisition). The
BGH assumes an insolvency-proof direct acquisition for such claims where the assignee has
acquired a secured legal position (gesicherte Rechtsposition) before, e.g., an insolvency
proceeding is opened against the assignor. This is the case if the claim cannot be effectively
impaired either by the assignor or by the debtor without the assignee s consent.34 35
4. Majority of claims/partial assignment
16 When assigning a vast majority of claims (Forderungsmehrheit), it must be clearly identifi¬
able which claim is to be assigned and in what amount.33 A partial assignment (Teilabtretung)
of a claim is also permissible.36 As a result, two independent claims arise. A prerequisite,
however, is that the claim is divisible, which is generally assumed for monetary claims.37
5. Transferability
17 In addition to §§ 399 and 400, the transferability of the claim may also be excluded by
special provisions (e.g. § 613 2nd St.).38
IV. Legal consequences
18 An effective assignment results in a change in the position of creditor. In principle, the
assignee enters into the creditor position of the assignor at the time the assignment takes
effect.39 The content of the claim does not change; the modalities of performance (e.g. place
and time of benefit) remain identical.40 At the same time, an obligation in the broader sense
(Schuldverhältnis im weiteren Sinne) arises between the assignor and the assignee.41 The
assignor, on the other hand, remains the contracting party of the debtor. In a bilateral
contract (zweiseitigen Vertrag), the assignor continues to be obliged to the debtor.
1. Secondary claims
19 Of particular interest is who is entitled to execute so-called secondary claims (Sekundär¬
ansprüche), e.g. claims for damages, and rights which alter the legal relationship (Gestal¬
tungsrechte) associated with the claim to be assigned. In respect to claims for damages
pursuant to § 280(1) (Schadensersatzansprüche neben der Leistung), the assignee is undisput-
edly entitled to assert such claims if damage arise after the assignment has taken place. If the
damage arose before the assignment, the assignor is to be entitled. However, such claims for
damages may be comprised by the assignment, which is to be assumed if there are no
indications to the contrary.42 Claims for damages pursuant to § 280(3) remain, in principle
with the assignor.43 This also applies in respect to rights which completely alter the legal
relationship,44 e.g. the declaration of avoidance and the right of revocation remain with the
33 See BGH 7.3.1973 - VIII ZR 204/71, WM 1973, 489.
34 e.g. BGH 26.1.2012 - IX ZR 191/10, NJW 2012, 1510,
35 See MüKo BGB/Roth/Kieninger. § 398 BGB mn 70
36 e.g. BGH 8.12.1966 - VII ZR 144/64, NJW 1967, 388.
37 MüKo BGB/Roth/Kieninger, § 398 BGB mn. 64.
3K See, in this respect, also § 399 mn. 1.
39 Palandt BGB/Grüneberg, § 398 BGB mn. 18.
40 See HK-BGB/Schulze, § 398 BGB mn. 1.
41 HK-BGB/Schulze, § 398 BGB mn. 6.
42 See HK-BGB/Schuize, § 401 BGB mn. 2.
43 e.g. BGH 21.6.1985 - V ZR 134/84. NJW 1985 ^40
44 See * § 401 mn. 3.
670
Dhlmann
Assignment 20-22 § 398
assignor.4- This also means that the debtor’s rights to alter the legal relationship must be
declared to the assignor.46
2. Ineffectiveness
In addition to § 399, the ineffectiveness of the assignment may also result from other
provisions. Firstly, § 134 is to be mentioned. Therefore, the assignment is ineffective if it
violates a statutory prohibition. A violation of a statutory prohibition is assumed in
particular with respect to the assignment of claims where the creditor (here the assignor) is
obliged to secrecy. This is, inter alia, the case with the assignment of fee claims from medical
treatment4 and from legal advice48. The prior consent of the debtors is required for the
assignment to become effective.49 On the other side, infringements of banking secrecy and
data protection regulations do not impair the effectiveness of the assignment.50 The
ineffectiveness ot an assignment may also result from § 138(1). This provision plays a role
in particular in assignments by way of security (Sicherungszession). In this respect, the
following groups of cases have developed: initial and subsequent overcollateralisation
(anfängliche und nachträgliche Übersicherung), gagging (Knebelung) and temptation to
breach the contract (Verleiten zum Vertragsbruch). The ineffectiveness of an assignment can
also result from the provisions laid down in § 307(1) or § 305c(l).51 However, lis pendens of
the claim does not lead to its non-assignability (§ 265 ZPO).
20
V. Assignment by way of security52 * *
In the case of assignment by way of security (Sicherungszession), guarantors’ claims (here 21
the assignor) against third parties are assigned to a collateral taker (here the assignee) as
security for claims of the collective taker against the guarantor. The collective taker may be a
credit institution which has granted a loan to the guarantor. On certain occasions, a supplier
of goods can also be considered as a collateral taker. The latter applies in particular when a
so-called extended retention of title (verlängerter Eigentumsvorbehalt) takes place (§ 449).
The assignment by way of security is permissible despite the possibility of pledging claims
1274 et seq.).^
1. Characteristics
Legally, the assignment by way of security is characterised by two instruments: firstly, the 22
assignment of claims. In this respect, the foregoing explanations apply without restrictions; in
particular, it is not a prerequisite for the effectiveness of the assignment that the guarantor
notifies his debtor that the claims are to be assigned. Since the assignment by way of security
is generally structured as a global assignment (e.g. assignment of all claims from a certain
business relationship, Globalzession), particular attention must be paid to the determinability
of the claims to be assigned. Secondly, in addition to the assignment a security agreement
(Sicherungsabrede) arises under the law of obligations between the guarantor and the secured
party.M It generally contains the obligation of the collective taker not to realise the assigned
claims until the event defined in the security agreement (usually in the case of the guarantor’s
4 ’ On the question of whether these claims or rights can be transferred separately from the claim, see ►
413.
* HK BGB/Schulze, § 404 BGB mn. 3.
4"eg BGH 10 7 1991 - VIII ZR 296/90, NJW 1991,2955.
4*e g. BGH 25.3.1993 - IX ZR 192/92. NJW 1993, 1368.
49 Jauermg BGB/Sturner, 399, 400 BGB mn. 6.
BGH 27 2 2007 - XI ZR 195/05. NJW 2007, 2106.
See BGH 27.11.1997 - GSZ 1 u. 2/97. NJW 1998,671.
See with respect to transfer of goods by security > § 930 mn. 10 et seq.
' * MuKo BGB/Roth/Kieninger, § 398 BGB mn. 104.
* HK BGB/Schulze, § 398 BGB mn. 14 et seq.
Uhlmann
671
§ 398 23-27 Division 5. Transfer of a claim
default) has been triggered55 and to transfer the assigned claims back to the guarantor when
the purpose of the security has been fulfilled (usually in the case when the limit of cover
(Deckungsgrenze) specified in the security agreement is being exceeded).56
2. Non-accessory instrument
23 The security assignment is a non-accessory instrument of security. However, a link is being
established by the security agreement under the law of obligations with the claims to be
secured and the security assignment. This creates a fiduciary legal relationship.57 The
collateral taker becomes the owner of the claims and can dispose of it freely and without
restrictions. Should he, however, violate his obligations under the security agreement, he will
be liable to pay damages to the guarantor (§ 280).
3. Ineffectiveness of assignment by way of security
24 a) Initial overcollateralisation (anfängliche Übersicherung). An initial overcollateralisa¬
tion leads to ineffectiveness of the assignment by way of security according to § 138(1 J.58
This is the case if it is already certain when the security agreement is concluded that in the
event of realisation there will be a noticeable disproportion between the realisable value of the
claims assigned as security and the claims to be secured. Binding value limits, however,
cannot be identified in the case law of the BGH and lower courts. In some cases, a limit of
200 percent, in other cases, a limit of 300 percent is used.59
25 b) Subsequent overcollateralisation (nachträgliche Übersicherung). If a noticeable dis¬
proportion arises after the security assignment has been concluded, with respect to § 138(1),
the assignment by way of security is not ineffective.60 However, the guarantor has a claim to
release the assigned claims, irrespective of the collective takers discretion. The claim for
release arises when 110 percent of the realisable value of the assigned claims in relation to the
claims to be secured (or 150 percent when the realisable value of the assigned claims cannot
be readily determined) is exceeded.61 Conflicting agreements in security agreements, which
fall under the scope of §§ 305 et seq., are ineffective according to § 307(2) No. 2.62
26 c) Gagging. The invalidity of the assignment by way of security pursuant to § 138(1) may
also occur if the economic freedom of the guarantor is unreasonably impaired bv the collective
taker (Knebelung - gagging).63 However, ineffectiveness with respect to gagging cannot easily
be assumed, in particular when it coincides with subsequent overcollateralisation. Special
attention must be paid to the particularities of the individual case. Indications are, for example,
that unreasonable control or reporting obligations are imposed on the guarantor.04
VI. Special manifestations of the transfer of claims
27
1. Collection assignment
In a collection assignment (Inkassozession), the assignee assigns claims to the as¬
signee against the backdrop that the assignee collects the claims on behalf of the
55 See BGH 11.7.1995 - VI ZR 409/94, NJW-RR 1995 1369
56 BGH 27.11.1997 - GSZ 1 u. 2/97, NJW 1998, 671. '
57 HK-BGB/Schulze, § 398 BGB mn. 14.
58 BGH 12.3.1998 - IX ZR 74/95, NJW 1998, 2047.
™ BGB/Roth/Kieninger, § 398 BGB mn. 131 with farther references.
“BGH 27.11.1997 -GSZ 1 u. 2/97, NJW 1998,671.
61 BGH 27.11.1997 - GSZ 1 u. 2/97, NJW 199«, 671.
62 BGH 27.11.1997 - GSZ 1 u. 2/97, N)W 1998, 671,
63 See BGH 8.10.1986 - VIII ZR 342/85, NJW 1987, 487.
M See MüKo BGB/Armbriister, § 13« BGB mn. 71 et seq.
672
Uhlmann
Assignment 28-31 § 398
assignee.6- In this respect, a distinction must be made between two levels. As a result of the
assignment, the assignee becomes the owner of the claims.* 66 However, he is obliged under
the law of obligations towards the assignor only to dispose in respect of the assigned
claims according to the agreement underlying the collection assignment.67 If he infringes
this agreement, he is liable to pay damages to the assignor (§ 280). As with the assignment
by way of security, this is also a fiduciary legal relationship.68
2. Direct debit authorisation
The direct debit authorisation (Einziehungsermächtigung) is based on the same interests as 28
the collection assignment.69 * In contrast to the collection assignment, the debtor authorises
another party pursuant to § 185 to collect the claim in his own name but for the account of
the authorising party. 0 The authorising party remains the owner of the claim.71 The
authorisation can also be revoked at any time.72 Since the rights of the debtor are not to
deteriorate as a result ot this assignment-like construction, the debtor is entitled to raise all
objections against the authorised party which he is entitled to raise against the creditor.73
This is justified against the backdrop that there is no change in the person of the creditor.
3. Distinction
The question ot whether the parties concluded a collection assignment or a direct debit 29
authorisation depends on the interpretation of contract. The decisive criterion is whether
the parties wanted that the party collecting the claim has exuberant legal authority (then
collection assignment) or whether the parties wanted to limit the powers of the party
collecting the claim with respect to third parties (then direct debit authorisation).74
VII. Factoring
At the level of disposition, the phenomenon known as factoring is also based on the 30
assignment of claims.75 With respect to the level of the law of obligations, the legal nature of
the factoring agreement is controversial. The prevailing opinion distinguishes which party
has to bear the default risk. If the factoring company bears this type of risk, it is a purchase of
claims (§ 453(1)). If the assignor has to bear the default risk, it is a loan (§ 488).76
VIII. Transfer of contract
In contrast to the isolated assignment of a claim, the term transfer of contract (Vertragsii- 31
bernahme) refers to a complete replacement of a contractual partner. The new contractual
partner enters into the contract in its entirety and therefore assumes all rights and obligations
in respect of the contract.77 The transfer of contract requires a tripartite legal transaction
between the three parties in order to be effective.78 An alternative option is a bilateral
65
66
67
6*
69
70
71
72
73
74
75
76
77
78
MüKo BGB/Roth/Kieninger, § 398 BGB mn. 41.
BGH 10.12.1951 - GSZ 3/51, NJW 1952, 337.
See MuKo BGB/Roth/Kieninger, § 398 BGB mn. 44.
e g. BGH 3.4.2014 - IX ZR 201/13, NJW 2014, 1963.
MuKo BGB/Roth/Kieninger, § 398 BGB mn. 41.
BGH 10.12.1951 - GSZ 3/51, NJW 1952, 337.
Palandt BGB/Gruncberg, § 398 BGB mn. 32.
MuKo BGB/Roth/Kieninger, § 398 BGB mn. 47.
BGH 15 3 2012 - IX ZR 249/09, NJW-RR 2012, 1004.
BGH 3.4.2014 - IX ZR 201/13, NJW 2014, 1963.
MuKo BGB/Roth/Kieninger, § 398 BGB mn. 158.
Palandt BGB/Grüneberg, § 398 BGB mn. 39 et seq.
MuKo BGB/Roth/Kieninger, § 398 BGB mn. 4.
BGH 3 12.1997 - XII ZR 6/96, NJW 1998, 531.
Uhlmann
673
§ 399 1-3 Division 5. Transfer of a claim
contract between the leaving and the entering party with the consent of the remaining
party.79 A clause in respect to which a contractual partner (e.g. the lender) has the right to
have another person take his place can be effectively agreed within the limits of § 309 No. 10
in general terms and conditions.
§399
Exclusion of assignment in case of
change of contents or by
agreement
A claim may not be assigned if the perfor¬
mance cannot be made to a person other than
the original obligee without a change of its
contents or if the assignment is excluded by
agreement with the obligor.
§399
Ausschluss der Abtretung bei
Inhaltsänderung oder
Vereinbarung
Eine Forderung kann nicht abgetreten wer¬
den, wenn die Leistung an einen anderen als
den ursprünglichen Gläubiger nicht ohne Ver¬
änderung ihres Inhalts erfolgen kann oder
wenn die Abtretung durch Vereinbarung mit
dem Schuldner ausgeschlossen ist
A. Function
1 Firstly, § 399 excludes the fungibility of certain claims. Secondly, § 399 allows the parties
to exclude fungibility of a claim by agreement. The exclusions of assignment are not
comprehensively regulated in § 399.* 1 Further exclusions of claims may result from other
provisions, such as, inter alia, §§ 473, 613 2nd St. and 717.
B. Explanation
I. Assignment excluded due to the claim’s content
2 Two distinctions are made with respect to claims which cannot be assigned on the basis of
its content. In practice, however, an exact differentiation between the two groups of claims is
sometimes omitted.2 3 Since there are no differences in the legal consequences, this is not
necessary from a practical legal perspective.
1. Person
3 The first group of claims is linked to the person of the assignor? Thus, highly personal
claims (höchstpersönliche Ansprüche) are not transferable.4 They are so closely linked to
the person that their transferability is out of the question. This includes, inter alia, the
right to holiday leave,5 6 the right to re-establishment of marital cohabitation according
to § 1352(1) 2nd St. (Wiederherstellung der ehelichen Lebensgemeinschaft)* the duty of
service according to § 613 2nd St.7 and the right to use the leased propertv pursuant to
§ 535(1) 1st St.8 t t
79 Palandt BGB/Grüneberg, § 398 BGB mn. 42.
1 Palandt BGB/Grüneberg, § 399 BGB mn. 2.
2 In this direction HK-BGB/Schulze, § 399 BGB mn. 2.
3 MüKo BGB/Roth/Kieninger, § 399 BGB mn. 7.
4 Palandt BGB/Grüneberg, § 399 BGB mn. 6.
5 MüKo BGB/Roth/Kieninger, § 399 BGB mn. 11.
6 Looschelders, Schuldrecht Allgemeiner Teil (16’h edn, Vahlen 2018), § 52 mn. 2ö.
7 MüKo BGB/Roth/Kieninger, § 399 BGB mn. 24.
8 BGH 2.7.2003 - XII ZR 34/02, NJW 2003, 2987.
674
Uhlmann
Exclusion of assignment in case of change of contents 4-8 § 399
2. Content
The second group of claims is linked to the claim’s content. Unassignability is to be 4
assumed if the content of the claim would change as a result of the assignment; the claim
cannot be detached from its legal context. This includes, inter alia, the claim for release from
an obligation (§ 257).9
3. Ancillary rights
For the sake of completeness, it should be mentioned that accessory security rights 5
(akzessorische Sicherungsrechte) and auxiliary rights (Hilfsrechte) cannot be assigned in
isolation from the claim.10 They follow the claim and are therefore transferred to the assignee
upon transfer of the claim (§ 401).11
IL Assignment excluded by agreement
The transferability of the claim can also be excluded on the basis of an agreement (pactum 6
de non cedendo) between creditor and debtor. In this respect, an exception is made to § 137
1st St. according to which the power of disposition cannot be excluded or limited by legal
transaction.12 An exclusion of assignment can also be agreed both implicitly13 and in general
terms and conditions.14 As a rule, an exclusion of assignment in general terms and
conditions usually withstands the test of reasonableness of contents pursuant to §§ 307 et
seq. Nevertheless, such an agreement may be ineffective with respect to § 307(1) if no
interests of the user (cf. § 305) worthy of protection are discernible and aspects of the other
contracting part}’ worthy of protection prevail.15
1. Restrictions
As maiore ad minus to exclude assignability, the transferability of a claim may be limited, 7
e.g. to certain assignees, or its effectiveness may be subject to certain requirements, e.g. the
consent of the debtor.16
2. Legal consequences
If an exclusion of assignment exists, the claim is not assignable. The exclusion’s effect is 8
erga omnes (absolute Unwirksamkeit); its effects are therefore not limited to a certain group
of persons (such as in the case of violations of § 135).17 In this respect, § 185 is not
applicable; the assignment contrary to an assignment exclusion cannot be remedied.18 The
subsequent consent of the debtor legally constitutes a new assignment under cancellation of
the assignment exclusion.19 It therefore only takes effect ex nunc; it has no retroactive effect.20
Also, the new assignment provides only remedy in respect of the exclusion of assignment. If
the non-assignability results from the claim’s content, even a new assignment does not lead
to the assignability of the claim.
9 BGH 14.1.1975 - VI ZR 139/73, NJW 1975, 687.
10 Sec in this respect § 401 mn. 2 et seq.
n MuKo BGB/Roth/Kieninger, § 399 BGB mn. 19.
12 See BGH 19.2.1992 - IV ZR 111/91, NJW-RR 1992, 790.
b e u BGH 27 2 2007 - XI ZR 195/05, NJW 2007, 2106.
14 e g BGH 24 9 1980 - VIII ZR 273/79, NJW 1981, 117.
15 See BGH 9.11.1981 - II ZR 197/80, NJW 1982,992.
16 e g BGH 19 2 1992 - IV ZR 111/91, NJW-RR 1992, 790.
ne I BGH 31 J0.1990 - IV ZR 24/90, NJW 1991, 559.
Palandt BGB/Grüneberg, § 399 B(iB mn. 12.
19 Palandt BGB/Grunehcrg, § 399 BGB mn. 12.
20 BGH 1.2.1978 - VIII ZR 232/75, NJW 1978, 813.
Uhlmann
675
§ 400 1-3
Division 5. Transfer of a claim
3. Exception
9 An exception regarding the assignment excluded by agreement is located in § 354a(l)
HGB. Accordingly, the assignment of a pecuniary claim is effective despite the agreed
exclusion of assignment if, inter alia, the claim arises from a mutual commercial transaction.
Furthermore, the debtor may effectively also make payment to the former creditor (assignor),
and this irrespective of whether he is aware of the assignment, § 354a(l) 2" St HGB.21
4. Good faith
10 Under special circumstances, the debtor may be denied the right to invoke the assignment
exclusion pursuant to § 242. This was occasionally assumed where the debtor lacked an
interest worthy of protection.22
§400
Exclusion in case of unpledgeable
claims
A claim may not be assigned to the extent
that it is not subject to pledge.
§400
Ausschluss bei unpfändbaren
Forderungen
Eine Forderung kann nicht abgetreten wer¬
den, soweit sie der Pfändung nicht unterwor¬
fen ist.
A. Function
1 The exclusion of the assignability of unpledgeable claims stipulated by § 400 is to be read
in connection with the regulations of §§ 850 et seq. ZPO dealing with exemptions from
attachment. The minimum subsistence level protected by these attachment provisions shall
in any case be maintained for the debtor; even against his will.* 1 In this respect, § 400
safeguards the prohibition laid down by the provisions dealing with exemption from
attachment on the level of substantive law; the debtor should not be able to waive the
protection guaranteed by the attachment provisions in legal transactions either. Also, the
general public benefits from the exclusion in case of unpledgeable claims stipulated in § 400
as otherwise the debtor would probably be dependent on state assistance.2
B. Explanation
I. Requirements
2 Which claims are excluded from attachability is regulated in §§ 850 et seq. ZPO. In
particular, reference is to be made to the limits on seizure for earned income (§ 850c ZPO).
With respect to § 400, the non-attachability of a claim also results in its non-assi^nabilitv. The
prohibition shall also apply to the collection assignment3 and the direct debit authorisation.4
II. Restriction
3 The synchronicity between the non-attachability and the non-assignabilitv produced bv
§ 400 is subject to a restriction. If the debtor (here the assignor) deceives an equivalent
21 BGH 26.1.2005 - VIII ZR 275/03, NJW-RR 2005. 624.
22 See BGH 21.4.2004 - IV ZR 113/03. NJW-RR 2004, 1100
1 HK-BGB/Schulze, § 400 BGB mn. 1.
2 Looschclders, Schuldrccht Allgemeiner Teil (16,h edn, Vahlen 2018), 8 52 mn. 23.
3 MuKo BGB/Roth/Kieninger, § 400 BGB mn. 3.
4 Palandt BGB/Grüneberg, § 398 BGB mn, 37.
676
Uhhnann
Passing of accessory rights and preferential rights 1-3 § 401
senice of economic nature (gleichwertige Leistung wirtschaftlicher Art) from the assignee,
§ 400 is not applied.5
§401
Passing of accessory rights and
preferential rights
(1) With the assigned claim the mortgages,
ship mortgages or security rights attaching to
them as well as the rights under a suretyship
created for them pass to the new obligee.
(2) A preferential right linked to the claim
to provide for the case of execution of judg¬
ment or insolvency proceedings may also be
asserted by the new obligee.
§401
Ausschluss bei unpfandbaren
Forderungen
(1) Mit der abgetretenen Forderung gehen
die Hypotheken, Schiffshypotheken oder
Pfandrechte, die für sie bestehen, sowie die
Rechte aus einer für sie bestellten Bürgschaft
auf den neuen Gläubiger über.
(2) Ein mit der Forderung für den Fall der
Zwangsvollstreckung oder des Insolvenzver¬
fahrens verbundenes Vorzugsrecht kann
auch der neue Gläubiger geltend machen.
A. Function
Certain security rights depend in their amount and in their existence on the amount and 1
the existence of the claim to be secured (akzessorische Rechte - accessory rights), such as
suretyship (§ 765) and pledge (§ 1204). By stipulating in Sub. 1 that in the case of an
assignment of a claim its accessory rights are automatically passed to the assignee, the law
takes this connection into account. § 401 is non-mandatory, permitting the parties to exclude
its application. If the application of § 401 is excluded by the parties, the accessory rights
expire in the event of transfer of the claim analogously to § 1250(2).' It should be noted that
§ 1153(2), which stipulates the accessoriness of the mortgage, is mandatory.* 1 2
B. Explanation
I. Accessory rights
Accessory security rights (akzessorische Sicherungsrechte) are the mortgage (§ 1153(2)), the 2
ship mortgage, the suretyship, the pledge (§ 1250(1)) and the registered pledge on aircrafts
(§98(2) LuftFzgG).
II. Dependent security rights/other types of ancillary rights
§ 401 also applies to dependent security rights (unselbstständige Sicherungsrechte) and 3
other types of ancillary rights or auxiliary rights (andere Nebenrechte oder Hilfsrechte).
Dependent security rights are rights, which analogous to accessory security rights, have a
close connection to the claim but their accessoriness is not stipulated by law. This
encompasses, for example, the priority notice (Vormerkung).3 The term other ancillary rights
or auxiliary rights’ refers to rights on which the new creditor (assignee) is necessarily
dependent in order to collect the claim.4 5 In this respect, the duty of information and the
duty to render account should be mentioned as examples.5
5 e g BGH 9 11 1994 - IV ZR 66/94, N|W 1995, 323.
1 See BGH 19 9.1991 - IX ZR 296/90, NJW 1991, 3025.
2 .MuKo BGB/Roth/Kieninger, § 401 BGB mn. 3.
’ BGH 21.6.1957 - V ZB 6/57. NJW 1957, 1229.
1 Palandt BGB/Gruneherg, § 401 BGB mn. 4.
5eg. BGH «.I J.2005 - XI ZR 90/05, NJW 2006, 217; see also § 4I3 mn. 5.
Uhlmann
677
§402 1
Division 5. Transfer of a claim
III. Preferential rights
4
According to Sub. 2, preferential rights (Vorzugsrechte) also pass to the new creditor upon
transfer of the claim. This includes, for example, the pledge deriving out of attachment
(§ 804(2) ZPO, Pfandungspfandrecht) and the positions mentioned in §§ 49-51 InsO.6
IV. Non-accessory security rights
Non-accessory security rights (nichtakzessorische Sicherrungsrechte) do not fall under
Sub. 1. They must be transferred by a separate legal transaction.7 Non-accessory security
rights are, for example, the land charge and the property by way of security.8 9 In some cases,
the security agreement under the law of obligations may entitle the assignee against the
assignor to transfer the non-accessory security analogously with the provision of § 401? This
is generally the case with respect to land charges established as security for a claim.10
§402
Duty of information;
provision of documents
The previous obligee is obliged to provide
the new obligee with the information re¬
quired to assert the claim and to provide
him with documents serving as proof of the
claim, to the extent that they are in his
possession.
§402
Auskunftspflicht;
Urkundenauslieferung
Der bisherige Gläubiger ist verpflichtet,
dem neuen Gläubiger die zur Geltendma¬
chung der Forderung nötige Auskunft zu
erteilen und ihm die zum Beweis der Forde¬
rung dienenden Urkunden, soweit sie sich in
seinem Besitz befinden, auszuliefern.
A. Function
1 The assignment of a claim as a disposition transaction has a very limited content for the
ease of trade: the parties, the claim and that the claim is to be transferred to the assignee.1
The law with respect to disposition transactions is basically not familiar with obligations
exceeding that limited content; instead, additional duties are generally found in the law of
obligations in the form of ancillary obligations (leistungsbezogene Nebenpflichten) and non-
performance-related ancillary obligations (nichtleistungsbezogenen Nebenpflichten). This is
where § 402 comes in: the assignor’s obligation to provide the assignee with information and
with documents is intended to facilitate the assertion of the claim for the assignee.2 It is a
duty of information on the level of substantive law. However, it is controversial whether
§ 402 stipulates additional obligations at the level of the disposition transaction or at the level
of the law of obligations. Against the backdrop that elements regulated in § 402 are generally
foreign to the disposition transaction, the latter approach is preferable.3 With respect to
6 MuKo BGB/Roth/Kieninger, § 401 BGB mn. 16.
7 MüKo BGB/Roth/Kieninger, § 401 BGB mn. 14.
fl BGH 25.1.1967 - VIII ZR 124/64, BeckRS 1967, 31178085.
9 Jauernig BGB/Stürner, § 401 BGB mn. 5.
10 e.g. BGH 27.3.1981 - V ZR 202/79, NJW 1981, 1554.
1 Sec exemplary Grigoleit, Abstraktion und Wdlensmängel - Die Anfechtbarkeit des Verhütung
gcschalts, 199 AcP (1999), 379, 381 et seq. However, it should be noted that the content of a dechrauon
ot will with respect to disposition transactions is rarely defined.
2 MüKo BGB/Roth/Kieninger, § 402 BGB mn. I.
5 As is also the view of MüKo BGB/Roth/Kieninger, § 402 BGB mn. 2; Palandt BGBGrüneber^ * 402
BGB mn. 1.
678
Uhlmann
Duty of notarial recording 1 § 403
§ 402, from the legislator’s perspective it cannot be assumed that he intended to alter the
fundamental content of obligation transactions and disposition transactions. This dispute is
relevant to the question of whether the right laid down in § 402 also exists if the contract
under the law of obligations underlying the assignment is ineffective. According to the
understanding applied here, no rights would then arise from § 402.
B. Explanation
L Duty of information
The assignor's duty to provide information comprises all information which is required for 2
the assignee to successfully assert the claim.4 This includes, in particular, the indication of the
time and of the place of performance, the obligation to provide information with respect to
the debtor's place of residence and, if necessary for enforcement purposes, the obligation to
pass on information on the debtor’s economic situation.5
IL Provision of documents
The assignor shall provide all documents in his possession to the assignee which serve as 3
proof of the assigned claim.6 This duty comprises only those documents which are in the
assignor's possession. It therefore does not create an obligation on the assignor to produce or
to collect documents.7 It is controversial whether § 402 entitles the assignee to transfer
ownership of the documents or whether § 402 only gives a right to hand over the possession
of the respective documents. Since the assignor usually lacks any legitimate interest in
retaining of the respective documents after the assignment, a right to transfer of ownership
is, in accordance with the prevailing opinion, to be assumed here.8 Otherwise, such a right
may also arise from § 242. However, the situation is different if, in individual cases, the
assignor has a legitimate interest in respect of the ownership of the documents.9
§403
Duty of notarial recording
1The previous obligee must, upon demand,
issue the new obligee with a publicly certified
document on the assignment. 2The new ob¬
ligee must bear and advance the costs.
§403
Pflicht zur Beurkundung
’Der bisherige Gläubiger hat dem neuen
Gläubiger auf Verlangen eine öffentlich be¬
glaubigte Urkunde über die Abtretung aus¬
zustellen. 2Die Kosten hat der neue Gläubiger
zu tragen und vorzuschießen.
A. Function
§ 403 has to be read in conjunction with § 410. It enables the assignee to clearly legitimise 1
himself vis a-vis the debtor and thus to exclude the debtor’s right to refuse performance
pursuant to §410(1) 1st St. Since the publicly certified document serves exclusively the
interest of the assignee, it is justified to let him bear the costs (2nd St.).1
4 See BGH 11.5.2000 - IX ZR 262/98.
s HK-BGB/Schulze, § 402 BGB mn. 2; Palandt BGB/Grüneberg, § 402 mn. 2.
6 See BGH 22.12.1988 - VII ZR 266/87.
7 Palandt BGB/Gruneberg, § 402 BGB mn. 3.
8 As is also the view of MuKo BGB/Roth/Kieninger, § 402 BGB mn. 7.
9 MuKo BGB/Roth/Kieninger, § 402 BGB mn. 7.
* HK-BGB/Schulze, § 403 BGB mn. 1.
Uhbnann
679
§ 404 1-3
Division 5. Transfer of a claim
B. Explanation
2 The lsl St. gives the assignee a claim against the assignor to issue him a publicly certified
document (§ 129) on the assignment of the claim. He is also entitled to this right if the
debtor has been notified of the assignment by the assignor pursuant to § 409(1) 1« St? The
assignor shall have a right of retention against the assignee under § 273 until the advance
payment with respect to the costs (§ 409 2nd St.) has been provided?
§404
Objections of the obligor
The obligor may raise against the new ob¬
ligee the objections that he was entitled to
raise against the previous obligee at the time
of assignment.
§404
Einwendungen des Schuldners
Der Schuldner kann dem neuen Gläubiger
die Einwendungen entgegensetzen, die zur
Zeit der Abtretung der Forderung gegen den
bisherigen Gläubiger begründet waren.
A. Function
1 § 404 is a central debtor protection provision within the law of assignment. By the fact that
the debtor may also raise objections from the relationship to the assignor against the
assignee, compensation is created for the fact that the debtor is not involved in the assign¬
ment. The debtor’s defence possibilities should not deteriorate as a result of the assignment* 1
It corresponds to this that the good faith of the assignee with respect to the freedom of
objection of the claim is not protected.2 This means that there is no acquisition in good faith,
neither in respect of the existence of the claim, nor in respect of the claim’s freedom of
objection. In addition, § 404 expresses the general principle that the content of the claim is
not changed by assignment. Finally, one can additionally conclude from § 404 that the
creditor cannot transfer more than he has; he cannot transfer to the assignee a better legal
position in relation to the debtor than he had himself.3
B. Context
2 The provision stipulated in § 404 corresponds in principle to the provisions of
Art. 111.-5:116(1) DCFR.4
C. Explanation
I. Objections
The term objections is to be understood broadly in the context of § 404 due to its
protective purpose. It comprises the two kinds of objections in German law: the objection
named Einwendung and the objection named Einrede.5 However, the distinction between
2 MüKo BGB/Roth/Kieninger, § 403 BGB mn. 1.
3 RG 20.6.1932 - VIII 185/32, BeckRS 1932, 00008.
1 e.g. BGH 19.10.2005 - XII ZR 224/03, NJW 2006, 219. See also The Max Planck Encyclopedia ot
European Private Law/Kotz Assignment.
2 See BGH 21.2.2013 - IX ZR32/12, NJW 2013, 2282.
3 See BGH 28.1.1960 - II ZR 236/57, NJW 1960, 864.
« See also The Max Planck Encyclopedia of European Private Law/Kötz Riment
se.g. BGH 9.11.1959 - 111 ZR 136/58, NJW I960, 241.
680
Uhlmann
Objections of the obligor 4-6 § 404
these kinds of objection is mainly of a technical nature. With respect to Einreden, the debtor
has to invoke the objection. Einwendungen have to be taken into account ex officio. With
respect to § 404, objections (Einwendungen) include, for example: the aspect that the claim
violates a statutory prohibition (§ 134), constitutes a breach of public policy (§ 138), is
ineffective through avoidance (§ 142(1)), withdrawal (§ 355(1)), revocation (§ 346), or that
the claim expired by performance (§ 362) or sett-off (§ 389).6 Additionally, the term
objections comprises objections (Einreden) whether they are substantial or procedural nature
such as, e.g., the right of retention (§ 273),7 the defence of non-performance of a reciprocal
contract (§ 320),8 and the objection of limitation (§ 214).9 These objections apply whether or
not the assignee is aware of them (see, however, § 405).10
1. Ineffectiveness
In addition, the debtor may also object to the assignee that the assignment was ineffective 4
(Einwand der fehlenden Aktivlegitimation - objection of a lack of legitimacy).11 For the sake
ot clarification, it should be mentioned that this type of objection exits irrespective of § 404.
§ 404 only applies to objections arising from the legal relationship between the assignor and
the debtor. However, the debtor cannot raise objections against the assignee arising from the
relationship between the assignor and the assignee under the law of obligations.12
2. Temporal scope of application
The wording of § 404 states that the debtor may raise these kinds of objections against the 5
assignee that he was entitled to raise against the assignor. From a temporal point of view, this
means the following: unproblematically, the objections are covered by § 404 which already
existed at the time of the assignment.13 However, the objection does not have to be fully
realised at the time as the assignment took place. It is sufficient that the objection had its
legal basis in the relationship between the assignor and the debtor. The objection might then
fully arise after the time of the assignment.14 In this respect, it is not decisive if all
prerequisites of the objection are met at the time of the assignment.15 This broad under¬
standing results on the one hand from the wording of § 404 (begründet), on the other hand
upon reversion to § 1137(1) 1st St. (zustehen).
3. Objections and reciprocal contract
In concreto, in the case of a reciprocal contract, the debtor may raise objections against the 6
assignee that arise from the further development of the contractual relationship between the
debtor and the assignor.16 This means, for example, that rights such as avoidance, revocation,
withdrawal and termination can still be based on the conduct of the assignor after the
assignment has taken place and can therefore be raised against the assignee. Generally
speaking, rights which alter the legal relationship (Gestaltungsrechte) can be exercised even
after the assignment has taken place.17 The objection of non-performance of a reciprocal
contract (§ 320) may also be based on aspects which arose after the assignment took place.
6 HK BGB/Schulze § 404 BGB mn. 2.
7 HK-BGB/Schulze § 404 BGB mn. 2.
8 BGH 5.12.2003 - V ZR 341/02, NJW-RR 2004, 1135.
9 BGH 10.7.1967 - Ill ZR 78/66, NJW 1967, 2199.
10 HK BGB/Schulze, § 404 BGB mn. 2.
11 MuKo BGB/Roth/Kieninger, § 404 BGB mn. 14.
12 HK-BGB/Schulze, § 404 BGB mn. 2.
H See BGH 28.11.1955 - II ZR 153/54, NJW 1956.
14 BGH 16.10.1985 - VIII ZR 287/84, NJW 1986, 919.
h e.g. BGH 26.6.1957 - V ZR 148/55, NJW 1957, 1553.
16 HK BGB/Schulze, § 404 BGB mn. 3.
17 BGH 16.10.1985 - VIII ZR 287/84, NJW 1986, 919.
Uhlmann
681
§ 405 Division 5. Transfer of a claim
The same applies to the objection of limitation. In this respect, the period of time already
elapsed at the time of the assignment may be raised against the assignee.18
IL Waiver
7 The debtor may waive his right to raise objections against the assignee. Such a waiver can
be agreed with the assignor19 or the assignee20 in an individual contract. Additionally, a
waiver might also be found in general terms and conditions. Such a provision does not per
se violate § 307(I).21
III. Assignment confirmation
8 The assignee often arranges for the debtor to make a declaration that he acknowledges the
claim, confirms the claim or accepts the assignment (Abtretungsbestätigung — assignment
confirmation). The legal consequence to be attributed to such a declaration in respect of
objections to which the debtor is entitled has to be answered by interpretation.22 In principle,
the declaration cannot be interpreted as an ‘entire’ waiver also applying to objections
irrespective of whether the debtor is aware of them or not.23 Normally, only those objections
are excluded which are known to the debtor at the time of the assignment or which the
debtor must expect.24 The opposite applies if such an entire waiver has been expressly
declared.25 However, if the debtor has merely stated that he has taken note of the assignment,
there shall be no exclusion of objections.26
IV. Legal consequences
9 The debtor may raise the respective objection against the assignee. If the debtor never¬
theless performs to the assignee, he may be entitled to reclaim in accordance with the law of
unjust enrichment.27
§405
Assignment with presentation of
documents
If the obligor has issued a document relat¬
ing to the debt then, if the claim is assigned
and the document is presented at the same
time, he may not, in relation to the new
obligee, invoke the fact that the entering into
or acknowledgement of the obligation is only
occurring for the sake of appearance or that
the assignment is excluded by agreement with
the original obligee, unless the new obligee
was aware of or ought to have known of the
circumstances on assignment.
§405
Abtretung unter
Urkundenvorlegung
Hat der Schuldner eine Urkunde über die
Schuld ausgestellt, so kann er sich, wenn die
Forderung unter Vorlegung der Urkunde abge¬
treten wird, dem neuen Gläubiger gegenüber
nicht darauf berufen, dass die Eingehung oder
Anerkennung des Schuldverhältnisses nur zum
Schein erfolgt oder dass die Abtretung durch
Vereinbarung mit dem ursprünglichen Gläubi¬
ger ausgeschlossen sei, es sei denn, dass der
neue Gläubiger bei der Abtretung den Sach¬
verhalt kannte oder kennen musste.
18 BGH 10.7.1967 - III ZR 78/66, NJW 1967, 2199
19 RG 20.4.1909 - III 302/08.
20 BGH 17.11.1969 - VII ZR 83/67, NJW 1970, 321
21 See BGH 19.6.1985 - IVa ZR 227/83, WM 1985. 1177.
22 e.g. BGH 23.6.1971 - VIII ZR 40/70, NJW 1971, 2220.
21 Palandt BGB/Grüneberg, § 404 BGB mn. 7.
24 c.g. BGH 23.3.1983 - Vlli ZR 335/81, NJW 198\ 190^
25 cf. BGH 23.3.1983 - VIII ZR 335/81. NJW 1983, 1903.
26 MuKo BGB/Roth/Kieninger, § 404 BGB mn. 23.
27 See Jauernig BGB/Stürner, § 404 BGB mn. 4 et seq.
682
Uhlmann
Assignment with presentation of documents
1-6 § 405
A. Function
With the exception ot the principle that the BGB does not recognise the acquisition of a 1
claim in good faith, § 405 enables the acquisition of a claim in good faith to a limited extent.
This is justified against the backdrop that the debtor has created a document in respect to the
claim on which the acquirer (in this case the assignee) may place his trust.1
B. Explanation
I. Document
For both variants, the debtor must issue a document on the debt. This document must 2
originate from the debtor and must be brought into the legal transaction (in den Rechtsver¬
kehr) with the debtor’s will.2 The latter is not the case if the document has been lost by the
debtor. Furthermore, the document must be intended to prove the existence of the claim and
the creditor status ot the assignor.3 These requirements will not be satisfied if the document
only makes occasional reference to these two aspects.4 *
IL Presentation
The assignment shall be made upon presentation of the document. A delivery of the 3
document is not necessary. It suffices if the document is presented to the assignee at the time
of assignment? An earlier presentation of the document also satisfies this requirement as
long as a close temporal connection with the assignment is maintained.6
III. Sham transaction/Exclusion of assignment by agreement
The acquisition of a claim in good faith opened up by § 405 relates only to the cases of 4
sham transaction (§ 117) and exclusion of assignment by agreement (§ 399).7 Other obstacles
to assignment cannot be overcome with § 405.8 There is no acquisition of a claim in good
faith assigned under presentation of documents with respect to further objections which are
not mentioned in § 405.9
IV. Good faith
The assignee must not be aware of the circumstances that this is a sham transaction or that 5
assignability is excluded by agreement. In this respect, awareness means negligent ignorance.
Due to the negative wording in § 405, however, there is a presumption of good faith on the
part of the assignee.10
V. Legal consequences
If the requirements of § 405 are met, the aspects of a sham transaction or the exclusion of 6
assignment shall be overcome. In the first case, the claim originates in the person of the
1 HK BGB/Schulze, § 405 BGB mn. 1.
2 Palandt BGB/Gruneberg, § 405 BGB mn. 3.
3 MuKo BGB/Roth/Kieninger, § 405 BGB mn. 5.
4 Palandt BGB/Gruneberg, § 405 BGB mn. 3.
MuKo BGB/Roth/Kieninger, § 405 BGB mn. 7.
6 HK BGB/Schulze, § 405 BGB mn. 1.
7 RG 20.4.1909 - III 302/0«.
M MuKo BGB/Roth/Kieninger, § 405 BGB mn. 9.
9 See MuKo BGB/Roth/Kieninger, § 405 BGB mn. 14.
10 HK BGB/Schulze, § 405 BGB mn. 2.
Uhlmann
683
§ 406 1-4 Division 5. Transfer of a claim
assignee; in the second case, the claim is transferred to the assignee. However, the other
requirements of §§ 398 et seq. must still be met.
§406
Set-off in relation to the
new obligee
The obligor may set off a claim against the
previous obligee to which he is entitled
against the new obligee as well, unless, when
acquiring the claim, he was aware of the
assignment or the claim only became due
after he obtained knowledge of this and later
than the assigned claim became due.
§406
Aufrechnung gegenüber dem
neuen Gläubiger
Der Schuldner kann eine ihm gegen den
bisherigen Gläubiger zustehende Forderung
auch dem neuen Gläubiger gegenüber auf¬
rechnen, es sei denn, dass er bei dem Erwerb
der Forderung von der Abtretung Kenntnis
hatte oder dass die Forderung erst nach der
Erlangung der Kenntnis und später als die
abgetretene Forderung fällig geworden ist
A. Function
I. Purpose
1 § 406 also expresses that the debtor’s legal position should not deteriorate as a result of the
assignment.* 1 In this respect, § 406 entitles the debtor to set-off against the assignee with a
claim against the assignor even after the assignment of the claim. The cases of § 406 which
exclude the right to set-off established in principle by § 406 (unless...) are characterised by
the fact that the debtor is not worthy of protection.
II. Scope of application
2 § 406 comprises the circumstance in which the debtor declares to the assignee that he will
set-off a claim against the assignor in awareness of the assignment.2 3 The situation is different
in which the debtor sets off against the assignor before assignment. The claim to be assigned
then expires (§ 389). The debtor may raise this objection against the assignee by way of § 404.'
It has to be mentioned that § 406 alone overcomes the requirement of reciprocity within the
offsetting provisions (§ 387).4 The other requirements of §§ 387 et seq. must still be met
B. Explanation
I. Set-off before assignment
3 § 406 covers two different scenarios. In the first, both the assignor and the debtor were
able to set-off with their claims against each other before assignment; the ‘set-off situation'
(Aufrechnungslage) therefore existed before the assignment of the claim. In this case. § 406
enables the debtor to effectively declare the set-off to the assignee. In this respect, the debtor's
trust to set-off is protected.
II. Set-off after assignment
4 In the second scenario, neither the assignor nor the debtor was able to set-off with their
claims against each other; the 'set-off situation' therefore arises after the assignment has
11 MüKo BGB/Roth/Kieninger, § 405 BGB mn. 9.
1 e.g. BGH 27.4.1972 - II ZR 122/70, NJW 1972, 119}
2 BGH 5.12.1985 - IX ZR 165/84, NJW-RR 1986, 5*6
3 BGH 26.6.2002 - VIII ZR 327/00, NJW 2002, 2865.
4 See HK BGB/Schulze, § 406 BGB mn. 1.
684
Uhlmann
Legal acts in relation to the previous obligee §«7
taken place. Even under such circumstances, the debtor’s trust to set-off is protected to a
certain extent, so that he can set-off against the assignee. However, this does not apply within
the scope of the second part of § 406.
1. Acquisition in awareness of the assignment
The debtor cannot set-off against the assignee if he acquired the claim against the assignee 5
after the assignment and if he was aware of the assignment. With respect to the acquisition of
the claim by the debtor from a temporal point of view, the decisive factor is the time at which
the legal basis for the claim arose.5 Generally speaking, that is the conclusion of contract.
With respect to this scenario, the debtor is not worthy of protection because he knew that the
claim against him and his claim against the assignor was never be able to set-off against each
other.6
2. Due later than the assigned claim
Here the debtor is deprived of the right to set-off if his claim becomes due later than the 6
assigned claim directed against him and he was aware of the assignment before his claim
became due. This exclusion of set-off applies both if the debtor acquires his claim before the
assignment and if he acquires the claim after the assignment. This exclusion of set-off is
justified against the backdrop that the debtor under such circumstances always had to reckon
with the duty to perform without being able to set-off.7 To effectively set-off, both claims
must be due (§ 387).
III. Legal consequences
If the two exclusions do not apply, the debtor shall be entitled to set-off after assignment 7
of the claim against the assignee. The set-off must then be declared to the assignee.8 The
assignee may, however, raise the objections against the debtor to which the assignor was
entitled vis-a-vis the debtor.9
§407
Legal acts in relation to the
previous obligee
(1) The new obligee must allow perfor¬
mance that the obligor renders to the pre¬
vious obligee after the assignment, as well as
any legal transaction undertaken after assign¬
ment between the obligor and the previous
obligee in respect of the claim, to be asserted
against him, unless the obligor is aware of the
assignment upon performance or upon un¬
dertaking the legal transaction.
(2) If, in a legal dispute that became pend¬
ing at court between the obligor and the pre¬
vious obligee after the assignment, a final and
non-appealable judgment on the claim has
§407
Rechtshandlungen gegenüber dem
bisherigen Gläubiger
(1) Der neue Gläubiger muss eine Leistung,
die der Schuldner nach der Abtretung an den
bisherigen Gläubiger bewirkt, sowie jedes
Rechtsgeschäft, das nach der Abtretung zwi¬
schen dem Schuldner und dem bisherigen
Gläubiger in Ansehung der Forderung vorge¬
nommen wird, gegen sich gelten lassen, es sei
denn, dass der Schuldner die Abtretung bei
der Leistung oder der Vornahme des Rechts¬
geschäfts kennt.
(2) Ist in einem nach der Abtretung zwi¬
schen dem Schuldner und dem bisherigen
Gläubiger anhängig gewordenen Rechtsstreit
ein rechtskräftiges Urteil Uber die Forderung
s See BGH 28.11.1955 - II ZR 153/54, NJW 1956, 257.
6 HK-BGB/Schulze, § 406 BGB mn. 3.
7 MüKo BGB/Roth/Kieninger, § 406 BGB mn. 10 et scq.
8 MuKo BGB/Roth/Kieninger, § 406 BGB mn. 13.
9 See BGH 27.6.1961 - VI ZR 205/60, NJW 1961, 1966.
Uhlmann
685
Division 5. Transfer of a claim
§ 407 1-3
been rendered, the new obligee must allow the
judgment to be asserted against him, unless
the obligor was aware of the assignment when
legal proceedings became pending.
ergangen, so muss der neue Gläubiger das
Urteil gegen sich gelten lassen, es sei denn,
dass der Schuldner die Abtretung bei dem
Eintritt der Rechtshängigkeit gekannt hat.
Contents
mn.
A. Function *
I. Purpose 1
II. Scope of application 2
B. Context $
C. Explanation 4
I. Sub. 1 4
1. Performance 5
2. Legal transaction 6
3. Awareness 7
4. Legal consequences 9
II. Sub. 2 10
1. Effects 11
2. Unawareness 12
III. Debtor’s right to choose — 13
A. Function
I. Purpose
1 § 407 also belongs to the category of regulations which protects the debtor. It mainly
comprises the circumstance in which the assignment has taken place but the debtor is
unaware that the claim has been transferred to the assignee. Therefore, the debtor continues
to assume that the original creditor (the assignor) is the owner of the claim.1 Since the debtor
does not participate in the assignment and neither the assignor nor the assignee has to notify
the debtor, the assignment must not result in any disadvantages for the debtor. Otherwise,
the debtor would i.a. run the risk of having to pay twice. The payment to the original creditor
would then not be a fulfilment; the original creditor is no longer the owner of the claim by
virtue of assignment.
II. Scope of application
2 Sub. 1 regulates the case in which the debtor performs to the oriitinal creditor (here the
assignor) or in which he undertakes a legal transaction in respect of the claim with the
original creditor (here the assignor) in ignorance of the assignment. This also includes the
declaration of set-off.2 The set-off against the assignee, i.e. in awareness of the assignment, is
covered by § 406.3
B. Context
3 The DCFR also deals with the question of what legal consequences arise it the debtor
performs to the original creditor in ignorance of the assignment. In this respect, the notice ot
assignment plays a decisive role. It such a notice is lacking, performance to the assignor is
1 MüKo BGB/Roth/Kieninger, § 407 BGB mn. 1.
2 BGH 5.12.1985 - IX ZR 165/84, NJW-RR 1986, 536.
1 MiiKo BGB/Roth/Kieninger, § 406 BGB mn. 4.
686
Uhlmann
Legal acts in relation to the previous obligee 4-8 § 407
effective if the debtor was unaware of the assignment (Art. 111.-5:119(1) DCFR). This
corresponds to the provision in § 407.
C. Explanation
I. Sub. 1
Sub. 1 regulates two scenarios. Both require that the claim has been effectively assigned to 4
the assignee. Sub. 1 does not protect any trust in the effectiveness of the assignment.4
1. Performance
The term performance means not only performance in a strict sense (§ 362) but also 5
acceptance in lieu ot performance (364(1)) and other performances on account of fulfilment
accepted by the obligee (Leistungen erfüllungshalber).5
2. Legal transaction
Sub. 1 covers all legal transactions or similar legal transactions (geschäftsähnliche Hand- 6
hingen) undertaken in respect of the claim.6 These include, for example, the conclusion of a
deferral, a forgiveness (§ 397), a settlement, and all agreements that alter the claim to the
detriment of the assignee.7 It should be noted, however, that Sub. 1 does not apply to acts of
legal transaction which have a negative effect on the debtor.8 It is just a regulation protecting
the debtor. For example, setting a period of time or a warning notice is ineffective when done
by the original creditor (in this case the assignor) due to a lack of legitimacy.9
3. Awareness
The debtor must not be aware of the assignment upon performance or upon under- 7
taking the legal transaction. From a temporal point of view, the decisive factor with respect
to performance shall be the point where the action by the debtor according to the contract
was conducted (Zeitpunkt der Leistungshandlung). The point in time of the success of
performance (Zeitpunkt des Leistungserfolgs), i.e. when the performance owed by contract
materialises, is not decisive.10 In general, the debtor is not obliged to prevent the success
of performance from occurring after the action according to the contract has been
conducted.11
Awareness of the assignment means positive awareness. Mere negligent ignorance is not 8
sufficient.12 The debtor is not obliged to investigate doubts with respect to the ownership of
the claim but may continue to rely on the creditor status of the original creditor.13 However,
if the debtor is aware of the facts justifying the assignment, he has positive awareness of the
assignment of the claim.14 Additionally, a notice of assignment from the assignor in the
form of § 409 leads to positive awareness of the assignment.15 With respect to a notice of
4 Jauernig BGB/Sturner, § 407 BGB mn. 1.
See BGH 21.6.1976 - II ZR «5/75, NJW 1976, 1842.
' Palandt BGB/Gruneberg, (j 407 BGB mn. 4.
7 See BGH 28 3.1990 - Vlll ZR 17/89, NJW 1990, 1785.
’ MuKo BGB/Roth/Kieninger, § 407 BGB mn. 8.
'' RG 29.9.1902 - VI 166/02.
BGH 21 6.1976 - II ZR 85/75, NJW 1976, 1842.
" BGH 27.10.1988 - IX ZR 27/8«, NJW 19«9, 905.
12 e g. BGH 5.3.1997 - Vlll ZR 11H/96, NJW 1997, 1775.
" MuKo BGB/Roth/Kientnger, § 407 BGB mn. 14.
14 MuKo BGB/Roth/Kieninger, tj 407 BGB mn. 14.
' • BGH 18.3.21X14 - IX ZR 177/03, NJW-RR 2004, 1145.
Uhlmann
687
§ 408 Division 5. Transfer of a claim
assignment from the assignee, this only applies if the notice ‘appears^to be trustworthy and
does not leave any reasonable doubt with respect to the assignment.
4. Legal consequences
9 The transaction made with the original creditor (the assignor) is effective, i.e. the assignee
must allow it.16 17 A payment to the original creditor (the assignor) leads to fulfilment and thus
to extinction of the claim. As a rule, the new creditor is then entitled to a claim of unjust
enrichment against the assignor (§ 816(2)).18
IL Sub. 2
10 Sub. 2 shall apply if, after assignment of the claim, legal action is brought against the
debtor by the original creditor (the assignor). The claim needs to be assigned before the legal
action is pending. The legal dispute must become pending after the assignment19 The legal
consequences of an assignment during a pending court procedure are governed solely by
procedural law (§§ 325, 265 ZPO).20
1. Effects
11 Sub. 2 protects the debtor from conducting a legal dispute about the claim with the original
creditor (assignor) while he (i.e. the debtor) is unaware of the assignment The judgment shall
then have res judicata to the detriment of the assignee to the extent that it also has effect vis-ä-vis
the original creditor (the assignor).21 Due to the debtor-protective nature of Sub. 2, the judgment
is only effective in favour of the debtor. As a legal consequence, the assignee cannot rely on a
judgment against the debtor which is favourable to him and which results from a legal dispute
between the assignor and the debtor.22 * § 407(2) shall apply mutatis mutandis to arbitral awards.-
2. Unawareness
12 Sub. 2 shall apply only if the debtor has no positive awareness of the assignment when the
legal dispute becomes pending.24
III. Debtor’s right to choose
13 § 407 intends to protect the debtor. However, the debtor may waive the protection
granted by Sub. 1 and Sub. 2. In this respect, the debtor has the right to choose whether or
not he wants to benefit from § 407.25
§408
Multiple assignment
(1) If an assigned daim is once again as¬
signed by the previous obligee to a third
party, and if the obligor renders performance
§408
Mehrfache Abtretung
(1) Wird eine abgetretene Forderung von
dem bisherigen Gläubiger nochmals an einen
Dritten abgetreten, so finden, wenn der
16 BGH 18.3.2004 - IX ZR 177/03, NJW-RR 2004, 1145.
17 See MüKo BGB/Roth/Kieninger, § 407 BGB mn. 12.
18 See BGH 15.5.2003 - IX ZR 218/02, NJW 2003, 1490
” HK-BGB/Schulze, § 407 BGB mn. 7.
20 Palandt BGB/Grüneberg, § 407 BGB mn. 10.
21 BGH 15.5.1961 - VII ZR 181/59, NJW 1961, 1457.
22 e.g. BGH 28.5.1969 - V ZR 46/66, N|W 1969, 1479
»See BGH 17.3.1975 - VIII ZR 245/73, NJW 1975, 1121
24 MüKo BGB/Roth/Kicninger, § 407 BGB mn 25
25 BGH 21.6.1976 - II ZR 85/75, NJW 1976. 1842.
688
Ulilmunn
Multiple assignment
1-3 § 408
to the third party, or if, between the obligor
and the third party, a legal transaction is
undertaken or a legal dispute becomes pend¬
ing, the provisions of § 407 will be applied
with the necessary modifications for the ben¬
efit of the obligor in relation to the previous
acquirer.
(2) The same applies if the claim already
assigned is transferred to a third party by
court decision or if the previous obligee ac¬
knowledges to the third party that the claim
already assigned has passed to the third party
by operation of law.
Schuldner an den Dritten leistet oder wenn
zwischen dem Schuldner und dem Dritten ein
Rechtsgeschäft vorgenommen oder ein
Rechtsstreit anhängig wird, zugunsten des
Schuldners die Vorschriften des § 407 dem
früheren Erwerber gegenüber entsprechende
Anwendung.
(2) Das Gleiche gilt, wenn die bereits abge¬
tretene Forderung durch gerichtlichen Be¬
schluss einem Dritten überwiesen wird oder
wenn der bisherige Gläubiger dem Dritten
gegenüber anerkennt, dass die bereits abge¬
tretene Forderung kraft Gesetzes auf den
Dritten übergegangen sei.
A. Function
§ 408 takes up the objective of § 407 and transfers it to the situation of multiple assign- 1
ment (Sub. 1) or to the circumstance in which a seizure of the claim occurs after assignment
(Sub. 2). Since the second assignment and the attachment and transfer of the debtor’s claim
pursuant to 829, 835 ZPO are ineffective - the creditor is then no longer the owner of the
claim - protection of the debtor is required if he performs in ignorance of the first
assignment but in awareness of the second assignment to the second assignee} The actual
owner of the claim is the person to whom the claim was firstly assigned.
B. Explanation
I. Sub. 1
Under Sub. 1, the debtor is only aware of the second assignment. In this case, the 2
protection granted by § 407 is transferred to the debtor’s interactions with the second
assignee.* 2 * The actual owner of the claim must then allow performance as well as any legal
transaction undertaken after assignment. The prerequisite, however, is that a second assign¬
ment has actually taken place which, apart from the lack of power of disposition, was
effective} Sub. 1 is applied mutatis mutandis to the situation in which the debtor is unaware
which assignment was conducted first.4
IL Sub.2
Sub. 2 extends the protection of § 407 to the situation in which the debtor, unaware of the 3
previous assignment, interacts with the person designated as the creditor in the attachment
and transfer order pursuant to §§ 829, 835 ZPO which is issued after the first assignment.5 In
this respect, the actual creditor must also allow performance and any other transaction in
the sense of § 407. The same applies if an acknowledgement of the original creditor
designates the second assignee as the owner of the claim. The original creditor’s acknowl¬
edgement is not subject to any form requirement.6 In both constellations, a third party (the
second assignee) is wrongly designated as the owner of the claim. Sub. 2 shall apply mutatis
* See BGH 9.11.1988 - IVa ZR 122/87, NJW 1989, 899.
2 MuKo BGB/Roth/Kieninger, § 408 BGB mn. 7.
' BGH 9 11 1988 - IVa ZR 122/87, NJW 1989, 899.
4 HK BGB/Schulze, $ 408 BGB mn. 1.
'• MuKo BGB/Roth/Kieninger, § 408 BGB mn. 11.
6 BGH 17.12.1953 - Hl ZR 95/52, NJW 1954, 755.
Uhlmann
689
§ 409 1-3 Division 5. Transfer of a claim
mutandis to the following scenario: after assignment, an event arises which, in principle,
triggers a transfer of claim by operation of law. If, in this circumstance, the original creditor
acknowledges the transfer of claim by operation of law vis-ä-vis the third party, the debtor
benefits from the protection granted by Sub. 2.7
§409
Notice of assignment
(1) ’If the obligee notifies the obligor that
he has assigned the claim» he must allow the
notified assignment to be asserted against
him in relation to the obligor, even if it does
not occur or is not effective. 2It is equivalent
to notice if the obligee has issued a document
relating to the assignment to the new obligee
named in the document and the latter pre¬
sents it to the obligor.
(2) The notice may only be retracted with
the approval of the person who has been
named as the new obligee.
§409
Abtretungsanzeige
(1) ’Zeigt der Gläubiger dem Schuldner an,
dass er die Forderung abgetreten habe, so
muss er dem Schuldner gegenüber die ange¬
zeigte Abtretung gegen sich gelten lassen,
auch wenn sie nicht erfolgt oder nicht wirk¬
sam ist. 2Der Anzeige steht es gleich, wenn
der Gläubiger eine Urkunde über die Abtre¬
tung dem in der Urkunde bezeichneten neuen
Gläubiger ausgestellt hat und dieser sie dem
Schuldner vorlegt.
(2) Die Anzeige kann nur mit Zustimmung
desjenigen zurückgenommen werden, welcher
als der neue Gläubiger bezeichnet worden ist
A. Function
I. Purpose
1 Within the direct scope of § 409, i.e. the ineffectiveness of the assignment, its primary
purpose is the protection of the debtor.* 1 Since the debtor is not involved in the assignment
his trust in the notice of assignment of the original creditor (the assignor) must be protected.2
In contrast, § 409 may also have an effect in favour of the assignee. This is the case if the
assignment is effective.3 The debtor is then made aware of the assignment through the
notification of the original creditor (the assignor). The debtor protection provisions § 407
and the exceptions under § 406 will then no longer apply.
II. Scope of application
2 While § 407 and § 408 protect the debtor if he is unaware of the assignment, § 409
regulates the reverse case. Here the original creditor (the assignor) notifies the debtor ot
the (ineffective) assignment. In this respect, the debtor’s trust in the notice of assignment
is worthy of protection. However, the claim must be assignable in principled §409
therefore does not apply if the assignment ot the corresponding claim violates a Statuten’
prohibition.4
B. Context
The DCFR also deals with the issue ot a notice of assignment. In this respect, it contains
the following provision: ii the assignor has notified the debtor of the assignment, the original
7 BGH 17.12.1953 - III ZR 95/52, N|W 1954, 755.
1 See Palandt BGB/Gruneberg, § 409 BGB mn. I.
2 See BGH 5.7.1978 - Vlll ZR 182/77, N|W 1978, 2025.
3 Jauernig BGB/Stiirncr. § 409 BGB mn. 1.
4 BGH 12.7.2012 - IX ZR 210/11, NJW-RR 2012, 1130.
690
Uhlmann
Notice of assignment 4-7 § 409
creditor has to allow payment that the debtor renders to the assignee named in the notice of
assignment. This applies even if this assignee is not the owner of the claim, provided that the
debtor is not aware of this fact (Art. 111.-5:119(2) DCFR). If the notice of assignment
originates from the assignee, performance to the assignee is only effective if the creditor has
caused the debtor reasonably and in good faith to believe that the right has been assigned to
that person (Art. 111.-5:119(3) DCFR).
C. Explanation
I. Notice of assignment
The notice ot assignment pursuant to the 1st St. has to originate from the original creditor 4
(here the assignor) who was actually the owner of the claim.5 It is only justified in such a case
tor the original creditor to be subject to the legal consequences of the notice of assignment
despite the inettectiveness of the assignment. A notice of assignment is not subjected to any
torm requirement; the notice can therefore be given orally.* 6 It is a similar legal transaction
(geschäftsähnliche Handlung) and may therefore be contested.7
IL Document relating to the assignment
Instead of a notice of assignment, the assignor may, pursuant to the 2nd St., also issue a 5
document relating to the assignment to the new creditor (the assignee), which the assignee
may then present to the debtor. Written form according to § 126(1) suffices for the
assignment document.8 It must also originate from the actual creditor (here the assignor)9
and it has to be brought into the legal transaction (in den Rechtsverkehr) with the assignor’s
will.10 A counterfeit does not have any effect with respect to § 409.11 Whether the presenta¬
tion of a copy instead of the original document is also sufficient has yet to be decided by the
BGH.12 The literature predominantly rejects such possibility and demands the presentation
of the original document.13
III. No effective assignment
§ 409 regulates the case that the assignment is ineffective.14 The original creditor (the 6
assignor) then continues to be the owner of the claim. The person identified as the owner of
the claim in the notice of assignment or in the document relating to assignment is not
entitled to any claim against the debtor, both the notice and the document have no legal
effect in this respect.15
IV. Legal consequences
If the debtor performs to the third party designated in the notice of assignment or in the 7
document relating to assignment, the actual creditor must allow this legal interaction. The
claim then expires by virtue of performance. This also applies if the debtor is aware that the
se.g. BGH 5.2.1987 - IX ZR 161/85, NJW 1987, 1703.
6 MuKo BGB/Roth/Kieninger, § 409 BGB mn. 7.
7 Palandt BGB/Gruneherg, § 409 BGB mn. 3.
8 MuKo BGB/Roth/Kieninger, § 409 BGB mn. 7.
9 e g. BGH 5.2.1987 - IX ZR 161/85, NJW 1987, 1703.
10 HK BGB/Schulze § 409 BGB mn. 2.
11 MuKo BGB/Roth/Kieninger, § 409 BGB mn. 6.
12 See BGH 24.11.2006 - LwZR 6/05, NJW 2007, 1269.
H MuKo BGB/Roth/Kieninger, § 409 BGB mn. 7.
14 e g BGH 12.7.2012 - IX ZR 210/11, NJW RR 2012, 1130.
is See BGH 13.3.1975 - VII ZR 69/74, NJW 1975, 1160.
Uhlmann
691
§ 410 1 Division 5. Transfer of a claim
assignment is ineffective.16 However, an exception shall be made in cases where the debtor
colludes with the third party designated in the notice or the document to the detriment of the
actual creditor.17 Nevertheless, the debtor may also perform to the actual creditor.18 The
notification or the document has no effect on the issue who is actually the owner of the
claim.19
1. Debtor’s right of retention
8 As the original creditor remains the owner of the claim, he is in principle entitled to claim
performance from the debtor until the debtor has performed to the person designated as the
creditor in the notice or in the document pursuant to Sub. 1. However, the debtor is entitled
to a right of retention analogous to §§ 273, 274 until the approval of the person designated in
the notice or in the document has been obtained (Sub. 2).20 If the notice or the document is
being retracted, the legal consequences of Sub. 2 will be eliminated ex nunc.21
2. Approval
9 The actual owner of the claim is entitled to demand approval in accordance with Sub. 2
under § 812(1) 1st St. against the creditor designated in the notice or in the document22 If the
debtor performs to the person designated in the notice or in the document, the actual
creditor may proceed against this person under § 816(2).
§410
Delivery of the
assignment document
(1) ’The obligor is only obliged to the new
obligee to perform in return for the delivery
of the document relating to the assignment
issued by the previous obligee. 2Notice of
termination or a warning by the new obligee
is only ineffective if it occurs without presen¬
tation of such a document and if the obligor
rejects it without undue delay for that reason.
(2) These provisions are not applicable if
the previous obligee notified the obligor of
the assignment in writing.
§410
Aushändigung der
Abtretungsurkunde
(1) ’Der Schuldner ist dem neuen Gläubi¬
ger gegenüber zur Leistung nur gegen Aus¬
händigung einer von dem bisherigen Gläubi¬
ger über die Abtretung ausgestellten Urkunde
verpflichtet. 2Eine Kündigung oder eine Mah¬
nung des neuen Gläubigers ist unwirksam,
wenn sie ohne Vorlegung einer solchen Ur¬
kunde erfolgt und der Schuldner sie aus die¬
sem Grunde unverzüglich zurückweist.
(2) Diese Vorschriften finden keine An¬
wendung, wenn der bisherige Gläubiger dem
Schuldner die Abtretung schriftlich angezeigt
hat.
A. Function
§ 410 aims to protect the debtor. Since a notice to the debtor is not a requirement tor
effective assignment, for the sake of the protection of the debtor it must be guaranteed that
he is only obliged to perform if he benefits from the protection granted bv § 409. i.e. if the
claim expires with performance to the (fictitious) assignee. If the debtor performs to the new
16 e g. BGH 10.12.1958 - V ZR 70/57, NJW 1959, 431.
” MuKo BGB/Roth/Kieninger, § 409 BGB inn. 12.
'"e.g. BGH 19.10.2000 - IX ZR 255/99, NJW 2001, 231.
19 e.g. BGH 13.6.2008 - V ZR 114/07, NJW 2008, 2852
20 See BGH 5.7.1978 - VIII ZR 182/77, NJW 1978, 2025.
21 MuKo BGB/Roth/Kieninger. § 409 BGB mn. 16.
22 MüKo BGB/Roth/Kienmger. § 409 BGB mn. 16.
692
Uhlnninn
Delivery of the assignment document 2-5 § 410
creditor (the assignee) without notice of assignment pursuant to § 409(1), he does so at his
own risk.1 It the assignment is ineffective or has not taken place, the debtor is entitled to a
claim from the right of unjust enrichment (Leistungskondiktion: § 812(1) 1st St.) in the event
ot performance to the alleged new creditor.2 However, the debtor is still obliged to perform to
the actual creditor.3
B. Context
A comparable regulation can be found in the DCFR. Accordingly, the debtor has the right 2
to demand from the assignee reliable proof of the assignment of the claim (Art. 111.-5:120(3)
DCFR). As long as this proof has not been provided, the debtor can refuse performance
(Art. 111.-5:120(4) DCFR).
C. Explanation
L Document/written notice
The debtor is only obliged to perform to the (fictitious) assignee if the (fictitious) assignee 3
delivers a document to him which is issued by the assignor (Sub. 1 1st St.) or if the assignor
has notified the debtor of the assignment in writing (Sub. 2). With respect to the require¬
ments with which the document must comply, the provisions set out in § 409 shall apply
mutatis mutandis. If it is impossible to deliver the document, another source of legitimation
may be provided which, from the perspective of debtor’s protection, is equivalent to a
document in the sense of Sub. I.4 This is the case, for example, with documents within the
meaning of § 808. It is disputed whether the delivery of a copy instead of the original
document is sufficient. The BGH has not yet decided this question;5 the literature predomi¬
nantly demands the presentation of the original document.6
IL Formal requirements
In contrast to § 409(1) 1st St., here the notification from the original creditor (the 4
assignor) must be made in writing. This is to be seen against the backdrop that § 410
intends to provide the debtor with evidence of the assignment.7 Therefore, the document
must also be delivered to the debtor (Sub. 1 1st St.).
III. Notice of termination/Warning
A notice of termination or a warning shall only be effective if, either they are made upon 5
presentation of a corresponding document relating to the assignment or a written notice
in the sense of Sub. 2, or, i.e if they are made without presentation, the debtor does not
reject them without undue delay within the meaning of § 121 Sub. 1 2nd St.). This provision
also applies to other rights which alter the legal relationship8 (Gestaltungsrechte). such as
set-off.9
1 See BGH 12.11.1992 - I ZR 194/90, NJW 1993, 1468.
2 e g, BGH 28.11.1990 - XII ZR 130/89, NJW 1991,919.
3 e g. BGH 12.11.1992 - I ZR 194/90, NJW 1993, 1468.
4 See BGH 23.8.2012 - VII ZR 242/11, NJW 2012, 3426.
s See BGH 23.8.2012 - VII ZR 242/11, NJW 2012, 3426.
6 MuKo BGB/Roth/Kieninger, § 410 BGB mn. 5.
7 e g. BGH 12.11.1992 - I ZR 194/90, NJW 1993, 1468.
8 HK BGB/Schulze, § 410 BGB mn. 2.
9 BGH 16.1.1958 - VIII ZR 66/57, NJW 1958, 666.
Uhlmann
693
§412
Division 5. Transfer of a claim
IV. Legal consequences
6 If there is a lack of delivery of a document or a written notification, the debtor may refuse
performance to the assignee in accordance with §§ 273, 274.10 Since it is an objection in the
sense of an Einrede (§ 404), the debtor must invoke that objection.11 12 If the objection is raised
subsequently, the right of retention will have an ex nunc effect.
§411
Assignment of salary
'If a military person, an official, a clergy¬
man or a teacher at a public institution of
education assigns the transferable portion of
his official income, inactive status pay or
retirement pay, the disbursing fund must be
notified of the assignment by delivery of a
publicly or officially certified document is¬
sued by the previous obligee. 2Pending notice,
the fund is deemed to be unaware of the
assignment.
§411
Gehaltsabtretung
’Tritt eine Militärperson, ein Beamter, ein
Geistlicher oder ein Lehrer an einer öffentli¬
chen Unterrichtsanstalt den übertragbaren
Teil des Diensteinkommens, des Wartegelds
oder des Ruhegehalts ab, so ist die auszah¬
lende Kasse durch Aushändigung einer von
dem bisherigen Gläubiger ausgestellten, öf¬
fentlich oder amtlich beglaubigten Urkunde
von der Abtretung zu benachrichtigen. 2Bis
zur Benachrichtigung gilt die Abtretung als
der Kasse nicht bekannt
A. Function
1 In the event of violation, this provision shall not render the assignment ineffective.1 It
only leads to a higher level of debtor protection in favour of the public sector. § 411 is also
applied to employees and manual workers in the public sector who are not listed in the
provision.2
B. Explanation
2 The increased level of debtor protection can be seen in two places. Firstly, in comparison
to § 410, the 1st St. demands a publicly (§ 129) or officially certified document (§65 BeurkG).
As long as such a document is not delivered, the disbursing fund can refuse to perform
pursuant to § 410. Secondly, since it is simulated that the disbursing fund is unaware ot the
assignment until the delivery of documents according to the 1st St. (2nd St.), it can eenerallv
profit longer from the provisions laid down in §§ 406, 407.
§412
Statutory passing of claims
The provisions of §§ 399 to 404 and 406 to
410 apply with the necessary modifications to
the transfer of a claim by operation of law.
§412
Gesetzlicher Forderungsübergang
Auf die Übertragung einer Forderung kraft
Gesetzes finden die Vorschriften der §§ 399
bis 404, 406 bis 410 entsprechende Anwen¬
dung.
10 e.g. BGH 21.11.1985 - VII ZR 305/84. NJW 1986. 977.
11 e.g. BGH 24.11.2006 - LwZR 6/05, N|W 2007. 1269.
12 BGH 17.2.1969 - II ZR 102/67. NJW 1969. HK).
’ e.g. BGH 17.12.1953 - lii ZR 95/52. N|W 1954, 755.
2 Palandt BGB/Gnincberg, § 411 BGB mn. 1.
694
Ulibnann
Transfer of other rights
§413
A. Function
L Purpose
In contrast to 398 et seq., which deal with the transfer of a claim by transaction of the 1
parties, § 412 covers the transfer of a claim by operation of law. As a rule, a transfer of a
claim by operation ot law is stipulated for reasons of recourse. The owner who acquires the
claim by operation ot law should be able to take recourse against the debtor.1 2
II. Scope of application
§ 412 shall apply mutatis mutandis on the transfer of a claim by sovereign act (e.g. § 835 2
ZPO)- and the universal succession among living persons (e.g. § 613a).3 However, § 412 shall
not apply to universal succession in the event of death (§ 1922).4
B. Explanation
I. Transfer of a claim by operation of law
§ 412 demands a provision which stipulates a transfer of a claim by operation of law. 3
Such a provision must be outside the law of assignment. This is, for example, the case with
268(3), 426(2), 774(1), 1143(1), 1225 and 1250. There is no transfer of a claim by operation
ot law where the law merely stipulates an obligation to assign a claim (§§ 255 and 285).5
IL Timing
The timing of the transfer of a claim by operation of law is of major importance.6 The 4
question as to when the claim will be transferred depends in principle on the respective
provision which stipulates the transfer of the claim by operation of law.7
III. Legal consequences
As a matter of principle, §§ 398 et seq. apply mutatis mutandis. In this respect, it should be 5
noted that the principle on which §§ 398 et seq. are based, that the assignment may not lead to
any deterioration of the debtor’s legal situation, must be taken into account in the correspond¬
ing application of 398 et seq.8 The aforementioned does not apply to such provisions which
are precisely tailored to the transfer of claims by transactions of parties, such as § 405 and § 411.
§413
Transfer of other rights
The provisions relating to transfer of
claims are applied with the necessary modifi¬
cations to the transfer of other rights unless
otherwise provided by law.
§413
Übertragung anderer Rechte
Die Vorschriften über die Übertragung von
Forderungen finden auf die Übertragung an¬
derer Rechte entsprechende Anwendung, so¬
weit nicht das Gesetz ein anderes vorschreibt.
1 See MuKo BGB/Roth/Kieninger, § 412 BGB mn. 4.
2 See RG 21.12.1915 - III IH9/15.
' HK BGB/Schulze. § 412 BGB mn. I.
4 Jauernig BGB/Sturner, § 412 BGB mn. 2.
’ MuKo BGB/Roth/Kieninger, § 412 BGB mn. 2.
'• lauernig BGB/Sturner, § 412 BGB mn. 1.
7 See BGH 13.2.1996 - VI ZR 318/94, NJW 1996, 1674.
* See RG 26.1.1905 - VI 99/04.
Uhlmann
695
§413 1-3
Division 5. Transfer of a claim
A. Function
I. Purpose
1 Two principles can be inferred from the provision: firstly, § 413 states that rights which are
not claims can also be transferred and thus actively participate in economic life. Secondly, it
extends the principle of freedom of form from the assignment provisions to the transfer of
other rights.1
IL Scope of application
2 According to the wording unless otherwise provided by law, the provision only applies if
there are no special statutory provisions with respect to the transferability of the correspond¬
ing right. Therefore, the provision is not of especially great significance.2 For example, § 413
does not apply to the transfer of ownership of things because of its subsidiarity clause.3 With
respect to the transfer of shares or GmbH-shares special provisions apply.4 Rights covered by
§ 413 are in particular industrial property rights (gewerbliche Schutzrechte) such as a patent
(§ 15 PatG), a trademark (Marke, § 27 MarkenG), a design (§ 29 DesignG). Membership
rights in associations and partnerships (Personengesellschaften) are also transferable under
this provision if permitted by the articles of association or with the agreement of all
shareholders.5
B. Explanation
3 A distinction between ‘independent’ (selbstständig) and ‘dependent’ (unselbstständig) rights
which alter the legal relationship (Gestaltungsrechte) is necessary with respect to the question
of whether such rights can also be transferred under § 413.6 Independent rights are only
loosely linked to the underlying claim and can therefore principally be transferred. This
includes, for example, the right of appropriation (§ 958) and the right of repurchase pursuant
to § 456. Rights which alter the legal relationship that are not independent are characterised
by a particularly strong connection with the underlying claim. So-called auxiliary rights
(Hilfsrechte)7 or claim-related rights (forderungsbezogene Rechte), which sene the exercise
and enforcement of the claim, cannot be transferred separately from the claim.8 This
includes, inter alia, the right to demand payment of the claim and the right to specify
performance in accordance with §§ 315 et seq.9 However, dependent rights which alter the
legal relationship that are not by their very nature so closely connected with the underhing
claim can be transferred separately from the claim.10 These include, for example, the right to
revoke the contract (§ 346)11, the right to reduce the purchase price (§ 441 )12 and the right to
terminate the contract (§ 314).13 It is controversial whether the right of contestation can also
1 See MüKo BGB/Roth/Kieninger. § 413 BGB mn. 15.
2 Palandt BGB/Grüneberg. § 413 BGB mn. 2.
3 See BGH 4.2.1970 - VIII ZR 174/68. NJW 1970, 699.
4 See MüKo BGB/Roth/Kieninger. § 413 BGB mn. 10 with father references.
5 e.g. BGH 28.4.1954 - II ZR 8/53. NJW 1954, 1155.
6 MuKo BGB/Roth/Kieninger, § 413 BGB mn. 11.
7 See in this respect § 401 mn. 3.
8 Palandt BGB/Grüneberg, § 413 BGB mn. 4.
9 MuKo BGB/Roth/Kieninger, § 413 BGB mn. 12.
10 Palandt BGB/Grüneberg. § 413 BGB mn S
" BGH 1.6.1973 - V ZR 134/72, NJW 1973. 1793, if the right of nation is assigned together
the claim.
12 BGH 11.7.1985 - VII ZR 52/83, NJW 1985. 2822
" BGH 26.1.2012 - IX ZR 191/10, NJW 2012, 1510.
696
Uhlmann
Contract between obligee and transferee 1-4 §414
be transferred. This is partly denied in the literature with reference to the highly personal
character of the right of contestation.14 A clarifying decision by the BGH on this question is
still outstanding.
Division 6
Abschnitt 6
Assumption of debt
Schuldübernahme
§414
Contract between obligee and
transferee
A debt may be assumed by a third party by
contract with the obligee in such a way that
the third party' steps into the shoes of the
previous obligor.
§414
Vertrag zwischen Gläubiger und
Übernehmer
Eine Schuld kann von einem Dritten durch
Vertrag mit dem Gläubiger in der Weise
übernommen werden, dass der Dritte an die
Stelle des bisherigen Schuldners tritt.
A. Function
I. Purpose and underlying principles
The provision regulates the releasing assumption of debt by contract between the obligee 1
and a third party without the participation of the obligor. From a dogmatic perspective, the
contract between the obligee and the third party contains a disposition of the obligee over the
debt and an obligation of the third party to assume that debt. The contractual assumption of
debt is the counterpart to the subrogation.
II. Scope of application
The provision only regulates the assumption of debt by a contract between the obligor and 2
a third party. A third party may also assume the debt of the obligor by agreement with him;
this has to be approved by the obligee. However, such scenario is not within the scope of
§414. §§414 et seq. are applicable by way of analogy to provisions regulating consumer
credit agreements (§§491 et seq.).
B. Context
The provision is identical to § 414 in the version effective before the reform of the law of 3
obligations in 2002 and has since remained unchanged.
C. Explanation
I. Existing debt
The provision requires an existing debt between the obligor and the obligee which 4
can be either an act or a forbearance. If the debt is for some reason void, the contract
between the obligee and the third party concerning the assumption of debt is void
respectively.
14 For assignability MuKo BGB/Roth/Kieninger, § 413 BGB mn. 12. Against assignability Palandt BGB/
Gruneberg, § 413 BGB mn. 5.
Wendland
697
§415
Division 6. Assumption of debt
IL Contract
5 The provision requires a contract between the obligee and the third party in which both
parties agree that the third party assumes the debt of the obligor and therefore replaces him in
its position vis-ä-vis the obligee. Whether the parties concluded such an agreement or rather
agreed on a cumulative assumption of debt in which the third party is liable beside the obligor
is a matter of proper interpretation of the parties’ intent. If it is not entirely clear that the
obligor is willing to release the obligor from his liability and is content with the liability of the
third party only, then the agreement has to be interpreted as a cumulative assumption of debt1
The obligee would otherwise be in danger to lose the very obligor he has chosen. Such an intent
has to be expressed clearly due to the severe consequences.2 The receipt of payments by the
third party, the payment of interest by a third party3 or the transcription of bills to the third
party’s account4 cannot be interpreted as the intent of the obligee to release the existing obligor
from his liability. In case of deceit by the obligor, the third party can only avoid the contract
with the obligee if the obligee has been in bad faith with respect to the deceit (§ 123(2)).
1. Form
6 The contract between the obligee and the third party can be concluded either expressly or
by conduct.5 The required form follows that of the assumed obligation. If the third party’
assumes an obligation between the obligor and the obligee which is subject to a specific form,
such formal requirements also apply to the contract between the obligee and the third party.6
2. Consent
7 The contract between the obligee and the third party does not require the obligor's
consent, since he will be released from his obligation. He is not entitled to reject the release;
§ 333 is not applicable.
III. Legal consequences
8 In assuming the debt, the third party supersedes the obligor in his position vis-a-vis the
obligee. While the content of the debt is not changed, the person of the obligor is replaced.
The third party becomes liable for the debt and the original obligor is released. Pursuant to
§417(1) 1st St., the third party as the new obligor can raise anv objections arising from the
obligee’s contract with the original obligor and from his own contract with the obligee.
However, he cannot raise any objections arising from a possible contract with the original
obligor (§ 417(2)). The accessory security rights expire pursuant to § 418.
§415
Contract between obligor and
transferee
(1) ’If the assumption of the debt is agreed
between the third party and the obligor, its
effectiveness is subject to ratification by the
§415
Vertrag zwischen Schuldner und
Übernehmer
(1) ’Wird die Schuldübemahme wn dem
Dritten mit dem Schuldner vereinbart, so hangt
ihre W irksamkeit von der Genehmigung des
‘ BGH 13.12.1990 - IX ZR 79/90, NIW-RR 1991, 817. 818; BGH X) 10 198^ - IVi ZR 81 81.
1983, 678, 679; BGH 8.12.1977 - III ZR 88/76, WM 1978 151 H a
2 BGH 20.10.1982 - IVa ZR 81/81, NJW 1983. 678. 679; BGH Ts U >000 - Vlll ZR 99 XIW RR
2001,987; BGH 21.3.1996 -IX ZR 195/95. WM 1996 8U U U
’ RG. 10.3.1906 - V 387/05, RGZ 63. 42. 44.
4 BGH 12.4.2012 - VH ZR 13/11, NJW-RR 2012, 741
5 BGH 21.12.1973 - IV ZR 158/72. NJW 1974 85>
ftBGH 31.1.1991 - BI ZR 150/88. NJW 1991. \o95* 1098
698
Contract between obligor and transferee
1 § 415
obligee. Ratification may only occur when
the obligor or the third party has informed
the obligee of the assumption of the debt.
3Until ratification, the parties may alter or
cancel the contract.
(2) 4t ratification is refused, assumption of
the debt is deemed not to have occurred. * 2If
the obligor or the third party requests the
obligee, specifying a period of time, to make
a declaration relating to the ratification, the
ratification may only be declared before the
end of the period of time; if it is not declared
it is deemed to be refused
(3) *As long as the obligee has not granted
ratification, then in case of doubt the trans*
feree is obliged to the obligor to satisfy the
obligee in good time. 2The same applies if the
obligee refuses ratification.
Gläubigers ab. 2Die Genehmigung kann erst
erfolgen, wenn der Schuldner oder der Dritte
dein Gläubiger die Schuldübernahme mitgeteilt
hat. 'Bis zur Genehmigung können die Parteien
den Vertrag ändern oder aufheben.
(2) !Wird die Genehmigung verweigert, so
gilt die Schuldübcrnahme als nicht erfolgt.
Rordcrt der Schuldner oder der Dritte den
Gläubiger unter Bestimmung einer Frist zur
Erklärung über die Genehmigung auf, so
kann die Genehmigung nur bis zum Ablauf
der Frist erklärt werden; wird sie nicht er¬
klärt, so gilt sie als verweigert.
(3) ’Solange nicht der Gläubiger die Ge¬
nehmigung erteilt hat, ist im Zweifel der
Übernehmer dem Schuldner gegenüber ver¬
pflichtet, den Gläubiger rechtzeitig zu befrie¬
digen. 2Das Gleiche gilt, wenn der Gläubiger
die Genehmigung verweigert.
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Existing debt 4
II. Contract 5
III. Informing the obligee 7
IV. Ratification by the obligee 8
1. Disposition theory 9
2. General terms and conditions 10
3. Time period 11
V. Legal consequences 12
A. Function
I. Purpose and underlying principles
The provision regulates the releasing assumption of debt by contract between the obligor 1
and a third party, the transferee. The dogmatic construction of the provision is controver¬
sial. According to the ‘disposition theory’ (Verfügungstheorie) upheld primarily by the
courts, the contract between the original obligor and the transferee already contains both
(i) a disposition of both parties over the debt and (ii) the obligation of the transferee to
assume a new obligation with the same content as the existing obligation of the original
obligor vis-a-vis the obligee.1 Since both parties are not entitled to dispose over the debt -
only the obligee is - they need the obligee’s ratification according to § 185(1) or (2) 1st St 1st
Alt. In consequence, the subsequent ratification pursuant to § 185(2) 1st St 1st Alt. has
retrospective effect according to § 184 1M St. In contrast, the offering theory’ (Ange¬
botstheorie) assumes a tripartite contract concluded between the original obligor, the
transferee and the obligee.2 The offer is, pursuant to Sub. 1 2nd St., seen in the fact that
• BGH 8 12 1959 - VHI ZR 134/58, NJW 1960,621.
2 l.ippmann, Beitrage zur Theorie der Schuldubernahme des Bürgerlichen Gesetzbuches, 107 AcP
(1911). 72, Böhmer, Grundlagen der Bürgerlichen Rechtsordnung, Vol. 11 1 (Mohr 1951), § 8 IV 1.
Wendland
699
§ 415 2-8 Division 6. Assumption of debt
the obligor or the third party informs the obligee of the debt. The ratification by the obligee
is considered as the necessary acceptance with ex nunc effect.
II. Scope of application
2 The provision only regulates the assumption of debt by a contract between the obligor and
the transferee. In contrast, the assumption of debt by a contract between the obligor and the
obligee is covered by § 414.
B. Context
3 The provision is identical to § 415 in the version effective before the reform of the law of
obligations in 2002 and has since remained unchanged.
C. Explanation
I. Existing debt
4 As in § 414, § 415 requires an existing debt between the obligor and the obligee which can
be either an act or a forbearance. If the debt is for some reason void then the contract
concerning the assumption of the debt is void respectively.
IL Contract
5 The provision requires a contract between the original obligor and the third party’, the
transferee, in which both parties agree that the third party assumes the debt of the obligor
and therefore replaces him in its position vis-a-vis the obligee. In case of deceit by the
obligor, the offering theory requires the third party to avoid the contract by declaration vis-a-
vis the obligor and the obligee alike.3 According to the disposition theory, however, the
declaration of avoidance only needs to be made to the original obligor. The obligee does not
need to be in bad faith with regard to the obligor’s deceit.4
6 The contract between the obligee and the third party can be concluded either expressly or
by conduct.5 6 The required form follows that of the assumed obligation. If the third party
assumes an obligation between the obligor and obligee which is subject to a specific form,
such formal requirements also apply to the contract between the obligee and the third party .0
III. Informing the obligee
7 Sub. 1 2nd St. requires the obligor or the third party to inform the obligee ot the
assumption of the debt. The obligee can be informed either expressly, bv conduct or bv
using an intermediary such as a notary. However, it will not suffice for the the obligee to
learn of the assumption of debt by other means unless one of the parties refers to it vis-ä-vis
the obligee. The information pursuant to Sub. 1 2nd St. is neither subject to a specific form
nor is it to be declared within certain period of time.
IV. Ratification by the obligee
8 Sub. 1 1st St. requires the contract between the original obligor and the transferee to be
ratified by the obligee according to § 185(2) lsl St. lsl Alt., § 184(1) for he is now confronted
with an obligor he himself has not chosen. In contrast with § 415, consent pursuant to § IS3
J B(JH 3.12.1997 - XII ZR 6/96, NIW 1998. 532.
4 BGH 8.12.1959 - VIII ZR 134/58. NJW I960, 621.
s BGH 21.12.1973 - IV ZR 158/72, N|W 1974, 852.
6 BGH 31.1.1991 - III ZR 150/88, NJW 1991, 3095, 3098.
700
VVwi(//cUh/
Contract between obligor and transferee 9-13 § 415
prior or at the time of the conclusion of the contract is sufficient;7 it is not required to inform
the obligee pursuant to Sub. 1 2nd St. Until the ratification by the obligee, the parties are free
to alter or cancel the contract. Furthermore, as long as the obligee has not granted
ratification, then in case of doubt the transferee is obliged to the obligor to satisfy the obligee
in good time (Sub. 3 1st St.).
1. Disposition theory
Under the disposition theory the obligee can declare his ratification or the denial8 of a 9
ratification expressly as well as by conduct;9 mere silence is not sufficient.10 The declaration is
not subject to a specific form, even if the contract between the obligor and the transferee
requires a specific form.
2. General terms and conditions
The obliges ratification may be ineffective according to §§ 309 No. 10, 307(1) if it is part of 10
the general terms and conditions. The reason for this effect lies in the unreasonable
disadvantage to the other parts. However, compliance with Art. 3(3) in conjunction with
Annex (l)(p) EU Unfair Terms Directive requires interpretation of § 309 No. 10 in a
manner that requires ratification by the consumer. The provision will not be satisfied if the
terms and conditions grant the consumer the right to release himself from the contract.
3. Time period
According to Sub. 2 2nd St., the obligor or the third party may request the obligee to make 11
a declaration relating to the ratification within a specific period of time, thereby ending the
uncertainty concerning the validity of the assumption of debt. The ratification may only be
declared before the end of the period of time otherwise it is deemed to have been refused.
V. Legal consequences
Pursuant to Sub. 1 1st St. the legal effects are - apart from the dogmatic construction - the 12
same as with § 414. In assuming the debt, the transferee supersedes the obligor in its position
vis-a-vis the obligee. While the content of the debt is not changed, the person of the obligor is
replaced. The third party becomes liable for the debt and the original obligor is released.
Pursuant to § 417(1) 1st St. the third party as the new obligor can raise any objections arising
from the obligee’s contract with the original obligor and from his own contract with the obligee.
However, he cannot raise any objections arising from a possible contract with the original
obligor (§ 417(2)). The accessory security rights expire pursuant to § 418. The assumption of
debt pursuant to Sub. 1 1st St. does not have the effect of a procedural legal succession within
court proceedings in the sense of §§ 265, 325, 727 ZPO.11
The assumption of debt will fail if the obligee does not declare the necessary ratification 13
pursuant to Sub. 1 1st St. The original obligor is not released from the debt. However, if no
other contracts are concluded, in doubt he has a claim against the transferee originating in
the contract concluded with him to fulfil the obligation of the original obligor vis-i-vis the
obligee (Sub. 3 2nd St.). The same applies as long as the obligee has not granted ratification
(Sub. 3 1st St.).
7 BGH 25 10 1995 - IV ZR 22/95, NJW-RR 1996. 193, 194; BGH 9.3.1998 - II ZR 366/96, NJW 1998,
1645, 1646; BGH 25.10.1995 - IV ZR 22/95, NJW-RR 1996, 193, 194.
« For the declaration of denial by conduct BGH 16.1.1996 - XI ZR 116/95, NJW 1996. 926, 927.
9 BGH 16.1.1996 - II ZR 366/96, NJW 1996, 926, 927; BGH 15.1.1975 - VIII ZR 235/73, WM 1975,
331
BGH 21.3.1996 - IX ZR 195/95, ZIP 1996, 846; BGH 8.12.1982 - VIII ZR 219/81, NJW 1983, 678,
679.
11 BGH 9 3.1998 - II ZR 366/96, NJW 1998, 1645, 1646.
Wendland
701
§416 1-2
Division 6. Assumption of debt
§416
Assumption of a mortgage debt
(1) ‘If the acquirer of a plot of land as¬
sumes a debt of the alienor for which there is
a mortgage on the land, by contract with the
latter, the obligee may only ratify the assump¬
tion of the debt if the alienor notifies him of
it. 2If six months have passed since receipt of
the notice, the ratification is deemed to have
been granted unless the obligee has pre¬
viously refused it to the alienor; the provision
of § 415(2) sentence 2 does not apply.
(2) ‘Notice by the alienor may only be
made when the acquirer has been entered in
the Land Register as owner. 2It must be made
in writing and must include the statement
that the transferee steps into the shoes of the
previous obligor unless the obligee declares
his refusal within that period of six months.
(3) ‘The alienor must, on the demand of
the acquirer, notify the obligee of the as¬
sumption of debt. 2As soon as the grant or
refusal of the ratification is definite, the alie¬
nor must inform the acquirer.
§416
Übernahme einer
Hypothekenschuld
(1) ’Übernimmt der Erwerber eines Grund¬
stücks durch Vertrag mit dem Veräußerer
eine Schuld des Veräußerers, für die eine
Hypothek an dem Grundstück besteht, so
kann der Gläubiger die Schuld übernähme
nur genehmigen, wenn der Veräußerer sie
ihm mitteilt. 2Sind seit dem Empfang der
Mitteilung sechs Monate verstrichen, so gilt
die Genehmigung als erteilt, wenn nicht der
Gläubiger sie dem Veräußerer gegenüber vor¬
her verweigert hat; die Vorschrift des § 415
Abs. 2 Satz 2 findet keine Anwendung.
(2) ’Die Mitteilung des Veräußerers kann
erst erfolgen, wenn der Erwerber als Eigentü¬
mer im Grundbuch eingetragen ist. 2Sie muss
schriftlich geschehen und den Hinweis ent¬
halten, dass der Übernehmer an die Stelle
des bisherigen Schuldners tritt, wenn nicht
der Gläubiger die Verweigerung.
(3) ‘Der Veräußerer hat auf Verlangen des
Erwerbers dem Gläubiger die Schuldüber¬
nahme mitzuteilen. 2Sobald die Erteilung
oder Verweigerung der Genehmigung fest¬
steht, hat der Veräußerer den Erwerber zu
benachrichtigen.
A. Function
I. Purpose and underlying principles
1 The provision facilitates the assumption of a mortgage debt by the acquirer of a plot of
land. According to § 442(2), the acquirer can demand the unencumbered transfer of owner¬
ship of the acquired plot of land. The alienor has to remove any ri^ht registered in the Land
Register even if the acquirer is aware thereof. However, often the parties a^ree that the
acquirer assumes the mortgage debt which then is invoiced at the price. Due to the strong
accessory nature of the mortgage the assumption of a mortgage also requires the assumption
of secured personal debt. The regulation of § 416 now eases the requirements concerning the
obligee’s ratification which, pursuant to Sub. 1 2nd St., now can also be seen in his mere
silence. The obligor is not disadvantaged since he is already secured bv the mort^e in the
sense of § 1113.
II. Scope of application
2 The provision regulates the assumption of a mortgage debt in the cases of § 414 and 415
alike. It also aPPhes to mortgages which have been secured bv a priority notice onlv and to
land charges by way of analogy.
702
Wcndland
Objections of the transferee
§417
B. Context
The provision is identical to § 416 in the version effective before the reform of the law of 3
obligations in 2002 and since then has remained unchanged.
C. Explanation
L Debt
Pursuant to Sub. 1 T4 St. the provision requires a debt which is secured by a mortgage in 4
the sense of § 1113.
IL Alienor
The alienor has to be identical with the personal obligor.
III. Notification
Sub. 1 1st St. requires further that the alienor notifies the obligee of the assumption of the 5
mortgage debt. However, the notification is subject to two further requirements. Firstly, the
notice by the alienor may only be made when the acquirer has been entered in the Land
Register as owner (Sub. 2 1st St.). Secondly, the notice must be made in writing and must
include the statement that the transferee steps into the shoes of the previous obligor unless
the obligee declares his refusal within that period of six months (Sub. 2 2nd St.). These
provisions cannot be waived by the parties. Sub. 1 2nd St. makes clear that § 415(2) 2nd St. is
not applicable which would otherwise allow the obligor or the third party to request the
obligee, specifying a period of time, to make a declaration relating to the ratification with
the effect that ratification may only be declared before the end of the period of time.
IV. Legal consequences
The major legal consequence of the provision lies in the fictional ratification pursuant to 6
Sub. 1 2nd St. If six months have passed since receipt of the notice, the ratification is deemed
to have been granted unless the obligee has previously refused it to the alienor. This rule
facilitates the assumption of a mortgage since it puts a highly effective incentive on the
obligee to give a timely answer otherwise his silence would be considered as a ratification.
The assumption of the mortgage debt will fail should the obligee refuse the ratification to the
alienor.
§417
Objections of the transferee
(1) ’The transferee may raise against the
obligee the objections that arise from the
legal relationship between the obligee and
the previous obligor. 2He may not set off a
claim to which the previous obligor is en¬
titled.
(2) The transferee may not derive objec¬
tions relating to the obligee from the legal
§417
Einwendungen des Übernehmers
(1) ‘Der Übernehmer kann dem Gläubi¬
ger die Einwendungen entgegensetzen, wel¬
che sich aus dem Rechtsverhältnis zwischen
dem Gläubiger und dem bisherigen Schuld¬
ner ergeben. 2Eine dem bisherigen Schuld¬
ner zustehende Forderung kann er nicht
aufrechnen.
(2) Aus dem der Schuldiibernahme zu¬
grunde liegenden Rechtsverhältnis zwischen
Wendland
703
§417 1-4
Division 6. Assumption of debt
relationship between the transferee and the
previous obligor on which the assumption of
debt is based.
dem Übernehmer und dem bisherigen Schuld¬
ner kann der Übernehmer dem Gläubiger ge¬
genüber Einwendungen nicht herleiten.
A. Function
I. Purpose and underlying principles
1 The provision regulates the legal effect of objections that arise from the legal relationship
between the obligee and the previous obligor. Pursuant to Sub. 1 the transferee may raise these
objections against the obligee. There is a threefold rationale underlying this rule: (i) the content
of the transferred debt is not changed by the replacement of the obligor in the course of the
assumption; (ii) although the obligee shall not be disadvantaged by the assumption of debt he
shall also not be advantaged; (iii) otherwise the balance in system of the synallagmatically
interwoven rights and duties would be unsettled and the transferee would be highly disadvan¬
taged if he would not be entitled to raise such objections. In assuming the debt, the transferee
steps fully and totally into the previous obligor’s position vis-ä-vis the obligee. If he assumes his
liability, he also has to be entitled to raise his objections. Pursuant to Sub. 2, the transferee may
not raise objections relating to the obligee from the legal relationship between the transferee
and the previous obligor on which the assumption of debt is based. This provision is the very
consequence of the abstract nature of the real contract concerning the assumption of debt in
relation to the underlying legal relationship between the obligee and the previous obligor.
IL Scope of application
2 The provision only regulates the objections the transferee may raise against the obligee.
Other legal relationships are not covered. However, the provision might be applicable
by way of analogy, as it is a case with the obligor of a cheque or a bilk He may raise
against the obligee all objections that arise from the legal relationship between the obligee
and the obligor.1 Sub. 1 1st St. may be waived by the parties. However, the mere fact that
the transferee assumes the debt of the previous obligor cannot be interpreted as his
implied intent to waive this rule. If the previous obligor waives the objections, the
transferee is only bound to the obligor’s waiver if it has been declared prior the
assumption of debt. Once the transferee has effectively assumed the debt, onlv he is
entitled to waive the objections that arise from the legal relationship between the obligee
and the previous obligor.
B. Context
3 The provision is identical to § 417 in the version effective before the reform of the law of
obligations in 2002 and has since remained unchanged.
C. Explanation
I. Legal relationship between the obligee and previous obligor
4 Pursuant to Sub. 1 1« St. the transferee may raise against the obligee the objections that
arise from the legal relationship between the obligee and the previous obligor. The obiectiens
' BGH 8.11.1982 - 11 ZR 44/82, BGHZ 85, 346, 349; BGH 30.1.1986 - H ZR 257 85, NIW WSo.
704
Wendland
Objections of the transferee 5-9 § 417
need to have been arisen at the time of the assumption of debt. This rule also applies in the
case of §415 if the debt is assumed by contract between the previous obligor and the
transferee» as the obligee’s ratification has retroactive effect according to § 184(1). Applica¬
tion of Sub. 1 1st St. does not require the previous obligor to already be entitled to raise the
objections. It suffices if the objections have arisen at the time the assumption of debt has
become effective. The transferee can thus raise the objection that the debt has not been
effectively established i.e. pursuant to §§ 117, 118, 134, 138, 142, 155, that it has been already
terminated i.e. pursuant to §§ 362 et seq., that it is subject to a reduction of price according
to § 441, that it is barred pursuant to § 214 or that it is not enforceable due to a right of
retention pursuant to §§ 273, 320, 1000 1st St.
1. Other rights
The right to alter a legal relationship by unilateral declaration such as avoidance (§§ 119, 5
123) or revocation remain with the previous obligor as far as they are connected with him. The
transferee is entitled to exercise such rights if they are connected to the debt (such as with
§ 262). Consequently, the right to set off a claim to which the previous obligor is entitled is
excluded by Sub. 1 2nd St. because the transferee cannot dispose over the previous obligor’s
claim. However, such rights to alter a legal relationship by unilateral declaration may be
transferred to the transferee by an independent agreement with the previous obligor.
2. Surety
§ 770(1), whereby the surety may refuse to satisfy the obligee as long as the principal 6
obligor is entitled to avoid the legal transaction on which the obligation is based, does not
apply either directly or by way of analogy. The same is true for § 770(2) with the
consequence that the surety’ does not have the authority to refuse to satisfy the obligee
pursuant to § 770(1).
IL Legal relationship between the transferee and the previous obligor
Pursuant to Sub. 2, the transferee may not derive objections relating to the obligee from 7
the legal relationship between the transferee and the previous obligor on which the assump¬
tion of debt is based. The abstract nature of the real contract concerning the assumption of
debt in relation to the underlying legal relationship between the obligee and the previous
obligor shall not be touched. However, both contracts might be connected according to § 139
if they form an economic unity.2 This provision aims to protect the obligee. In the case of
deceit of the transferee by the previous obligor, the transferee may then declare avoidance
pursuant to §§ 123(1), 143(2).
Pursuant to the underlying transaction between the transferee and the previous obligor, 8
the transferee is typically obliged to assume the debt by contract with the previous obligor
(§ 415) or by contract with the obligee (§ 414).3 However, the transferee does not have any
objection to raise against the obligee should his contract with the previous obligor (contain¬
ing the obligation to assume the debt according to § 415) be ineffective.
III. Legal relationship between the transferee and the obligee
The provision does not cover objections that arise from the legal relationship between the 9
transferee and the obligee. Consequently, the general rules such as §§ 138, 387 et seq. apply.
Accordingly, the transferee may raise any objections that arise from the legal relationship with
the obligee, such as set-off or claims that arise from a positive violation of contractual duty
2 BGH 8.12.1959 - VIH ZR 134/58, NJW 1960, 621.
' BGH 11.2.1963 - VIII ZR 23/62, NJW 1963, 900.
Wendlancl
705
§ 418 1-3 Division 6. Assumption of debt
pursuant to §§ 280(1), 241(2)? In the case of deceit of the transferee by the previous obligor, the
transferee may the declare avoidance vis-ä-vis the obligee pursuant to § 123(2) l5t St.
§418
Extinction of security rights and
preferential rights
(1) ‘As a result of the assumption of debt,
the suretyships and security rights created for
the claim are extinguished. 1 2If there is a
mortgage or a ship mortgage for the claim
the same thing occurs as if the obligee waives
the mortgage or the ship mortgage. 3These
provisions do not apply if the surety or the
party that owns the mortgaged object at the
time of the assumption of debt gives his
consent.
(2) A preferential right linked to the claim
in case of insolvency proceedings may not be
asserted in the insolvency proceedings relat¬
ing to the assets of the transferee.
§418
Erlöschen von Sicherungs- und
Vorzugsrechten
(1) ‘Infolge der Schuldübemahme erlöschen
die für die Forderung bestellten Bürgschaften
und Pfandrechte. 2Besteht für die Forderung
eine Hypothek oder eine Schiffshypothek, so
tritt das Gleiche ein, wie wenn der Gläubiger
auf die Hypothek oder die Schiffshypothek ver¬
zichtet. 3Diese Vorschriften finden keine An¬
wendung, wenn der Bürge oder derjenige, wel¬
chem der verhaftete Gegenstand zur Zeit der
Schuldübernahme gehört» in diese einwilligt
(2) Ein mit der Forderung für den Fall des
Insolvenzverfahrens verbundenes Vorzugs¬
recht kann nicht im Insolvenzverfahren über
das Vermögen des Übernehmers geltend ge¬
macht werden.
A. Function
I. Purpose
1 The provision protects the provider of security rights in the context of the assumption of
debt: the person of the obligor and his solvency are crucial for the provider’s decision to
provide security rights in light of the high level of trust involved. If the person of the
obligor changes by assumption of debt, the security rights shall not persist without his
consent (Sub. 1 1st and 3rd St.). To avoid legal uncertainty, subsequent ratification pursuant
to § 184(1) does not suffice.
IL Scope of application
2 The provision is directly applicable to accessory security’ rights onlv. The provision
applies by analogy to the security notice, the land charge,1 to independent secuntv rights
such as the transfer by way of security and to statutory security rights which srant the
provider of the security the right to select the obligor such as § 566(2) 1* St.: Undoes not
apply to statutory pledges. It applies by analog}’ to the transfer of contract by virtue of
novation,3 but not to the accession to a contract,
B. Context
3 The provision is identical to § 418 in the version effective before the reform of the law of
obligations in 2002 and has since remained unchanged.
1 BGH 27.3.1990 - XI ZR 200/88, WM 1990 839
' BGH 1.10.1991 - XI ZR 186/90, NJW 1992, Uo; BGH 8 3 ’OB - V ZR u m,w mb
2 BGH 11.6.1992 -IX ZR 161/91, NJW 1992, 2286 " ’ ' ZR 4-
'OLG Hamm 30.8.1989 - 31 U 39/89, NJW-RR 1991 48 49
706
Wcndland
Divisible performance
§420
C. Explanation
L Extinction of security rights
Pursuant to Sub. 1 1st St., as the result of the assumption of debt, the suretyships and 4
security rights created for the claim are extinguished. However, this does not apply if the
surety or the party that owns the mortgaged object at the time of the assumption of debt
gives his consent (Sub. 1 3rd St., 182(2), 183). The consent is not subject to any formal
requirements and can also be declared by conduct.4 However subsequent ratification in the
sense ot § 184(1) is not sufficient. In the case of a land charge, the consent of the owner of
the plot ot land for which the land charge is given is required, even if another person is
entitled to claim restitution.5
IL Mortgage or ship mortgage
Sub. 1 2nd St. covers cases in which there is a mortgage or a ship mortgage for the claim: as 5
the result of the assumption of debt mortgages or ship mortgages for the claim are then
extinguished, as if the obligee waives them. They are converted into a land charge in favour
of the owner pursuant to § 1168(1). However, if the Land Register contains a priority notice
in respect to a future transfer of property the consent of the future - but not yet registered -
owner of the property is not sufficient.6
III. Extinction of preferential rights
Pursuant to Sub. 2, a preferential right linked to the claim in case of insolvency proceed- 6
ings may not be asserted in the insolvency proceedings relating to the assets of the transferee.
The provision protects the further obligees of the transferee. However, it is only of marginal
importance in practice as the preferential rights pursuant to §§ 61 et seq. of the former
Konkursordnung (Bankruptcy Act) have been abolished.
§419
( repealed)
§419
(weggefallen)
Division 7
More than one obligor and
obligee
§420
Divisible performance
If more than one person owes divisible
performance or if more than one person may
demand divisible performance, then in case
Abschnitt 7
Mehrheit von Schuldnern und
Gläubigern
§420
Teilbare Leistung
Schulden mehrere eine teilbare Leistung
oder haben mehrere eine teilbare Leistung zu
fordern, so ist im Zweifel jeder Schuldner nur
4 BGH 8 5.2015 - V ZR 56/14, NJW 2015, 2872.
5 BGH 4.7.2017 - XI ZR 233/16, NJW 2017, 2995; BGH 1.10.1991 - XI ZR 186/90, NJW 1992, HO,
111.
6 BGH 4.7.2017 - XI ZR 233/16, NJW 2017, 2995.
Sattler/Keilmann
707
§ 420 1-5 Division 7. More than
of doubt each obligor is only obliged to ren¬
der an equal proportion and each obligee is
only entitled to an equal proportion.
one obligor and obligee
zu einem gleichen Anteil verpflichtet, jeder
Gläubiger nur zu einem gleichen Anteil be¬
rechtigt.
A. Function
I. Purpose
1 8 420 provides a default rule for divisible performance by stipulating two rebuttable
presumptions: one for the division of the obligation/entitlement, and one for the equal
proportion of performance.
IL Scope of application
2 In principle, § 420 applies to all types of obligations. In practice, at least for cases with
more than one debtor, the clause is often overruled by leges speciales, e. g. § 427 in case of
contracts or the §§ 830, 840 in case of tort. § 420 does also not apply if the parties have
reached an agreement as to the allocation.
B. Context
I. History of §§ 420 et seq.
3 The question of how to deal with situations involving several debtors or obligees was
already addressed in Roman law. The wording of §§ 420 et seq. has been largely consistent
since the introduction of the BGB. In particular, §§ 420 et seq. were left untouched by the
2002 modernisation of the law of obligations. Changes in the general application of §§ 421 et
seq. (if any) have come through case law, not the legislator. There have been, however, a
number of legislative changes since the introduction of the BGB concerning the application
of the §§421 et seq. in specific cases. These changes are not reflected in the BGB, but in other
laws, for example the Act against Restraints of Competition (§ 33f GWB1) or the Insurance
Contract Act (§ 115 VVG2).
II. Structure of §§ 420 et seq.
4 Division 7 features a considerable amount of legal content, packed into comparatively tew
provisions. § 420 provides a default both for cases of several debtors and of several obligees.
§§ 421-427, 431 address only the former, §§ 428-430, 432 only the latter.
III. International comparison of §§ 420 et seq.
5 Although codified French law is structured differently than §§ 420 et seq., it generally
produces similar results. One notable exception is that suspension of a limitation period
works for the benefit of all obligees, unlike in German law (Art. 1312 Code civil: contrast
§§ 429(3), 425). §§ 420 et seq. also work similarly to the treatment of joint and several
liability under the laws of England and Wales, although there are a few differences. For
example, the obligee is, as a rule, at liberty to sue any or all of the debtors. Finallv. §§ 420 et
seq. have considerable similarities to the Principles of European Contract Law. However,
unlike in § 420, the divisibility of the performance (or lack thereof^ is of no relevance for
determining whether an obligation is solidary under Art. 10:101 PECL.
• An English translation of (he GWB is available under xmw.gesetze-unrinternet.de.
An English translation ot the VVG is available under www.gesetzerinvinternet.de.
708
Sattler/Keibnann
Joint and several debtors
§421
C. Explanation
I. Divisibility
For § 420 to apply, the performance obligation must not only rest on the same legal basis 6
(e.g. a contract) but must also be divisible, i.e. possible to be effected in several instalments of
the same type without changing its nature or overall value. Accordingly, payment obligations
are divisible, as is e.g. an obligation to deliver 100 cows of a certain type, whereas an
obligation to deliver a single (living) cow is not.
IL Presumption of divided obligation/divided entitlement
(Teilglüubigerschaft/Teilschuld)
§ 420 provides that in case of doubt, the debtors’ obligation is divided, rather than e.g. 7
joint according to the §§421 et seq. Similarly, § 420 provides that in case of doubt, the
obligees’ entitlement is divided, rather than e.g. joint according to the §§ 428 et seq. As this
presumption is rebuttable, § 420 is of comparatively minor relevance in practice.
III. Presumption of equal proportions
If the debtors' obligation is divided, then the debtors are, as a rule, obliged in equal 8
proportion. Conversely, if the obligees’ entitlement is divided, they are, as a rule, entitled in
equal proportion. This presumption is rebuttable.
IV. Legal connection
Although the performance is divisible, its individual parts are still connected by the same 9
legal basis. For this reason, the defence of unperformed contract (§ 320(1) 2nd St.) works
against all obligees, and the right of revocation (§ 351) and reduction of price (£ 441(2)) may
be exercised only by all and against all debtors or obligees (as the case may be).
§421
Joint and several debtors*
’If more than one person owes perfor¬
mance in such a way that each is obliged to
effect the entire performance, but the obligee
is only entitled to demand the performance
once (joint and several debtors), the obligee
may at his discretion demand full or part
performance from each of the obligors. 2Un-
til the entire performance has been effected
all obligors remain obliged.
§421
Gesamtschuldner
’Schulden mehrere eine Leistung in der
Weise, dass jeder die ganze Leistung zu be¬
wirken verpflichtet, der Gläubiger aber die
Leistung nur einmal zu fordern berechtigt ist
(Gesamtschuldner), so kann der Gläubiger
die Leistung nach seinem Belieben von jedem
der Schuldner ganz oder zu einem Teil for¬
dern. 2Bis zur Bewirkung der ganzen Leistung
bleiben sämtliche Schuldner verpflichtet.
Contents
mn.
A. Function 1
I. Purpose 1
II. Position within the BGB 2
III. Scope of application 3
’Translation comment: the translation of Gesamtschuldner as joint and several debtors is misleading
due to the distinction between joint liability and several liability, rhe translation as joint debtors is more
accurate. See in this respect the translation of § 421 in The German Law ot Contract, p. 912.
Sattler/Kcilmann
709
§ 421 1-4
Division 7. More than one obligor and obligee
B. Context
C. Explanation
I. Only entitled to demand the performance once
II. Identical performance
III. Identical interest
IV. Not required: identical legal bases
V. Equal ranking
1. Suretyship
2. Insurance
VI. Not applicable to recourse under § 426
VII. Consequences
VIII. Remedies
5
6
6
7
8
9
10
11
12
13
14
15
A. Function
I. Purpose
1 § 421 is the basic provision governing joint and several obligations; it stipulates in the
abstract the cases in which §§ 421 et seq. shall apply. § 421 entitles the obligee to demand full
performance from a debtor of his choosing. This provides a considerable advantage to the
obligee, who can request performance from the most solvent debtor and then leave it to the
debtors to sort out the responsibility in their relationship among each other.
IL Position within the BGB
2 §§421 et seq. can apply to all types of obligations, including contract, tort, and unjust
enrichment. Their application is not limited to cases where it is expressly stipulated in the
BGB. Examples of application in practice include - among many others - claims against
joint venture members (§128 HGB), D&O disputes (§ 93(2) AktG), and cartel damage
claims.
III. Scope of application
3 §§ 421 et seq. provide an extensive and detailed legal framework for joint and several
obligations. Quite often the application is expressly stipulated in law. Examples include
§ 840 (joint liability for tort), § 2058 (joint liability of heirs) and § 115 \~VG for compul¬
sory liability insurance (joint liability of the insurer and the policy holder). However, this
does not mean (by way of an argumentum e contrario) that the §§ 421 et seq. are not
applicable in other cases as well. Quite to the contrary, the §§ 421 et seq. have been held to
be applicable in a vast number of situations by the courts, and are of considerable practical
relevance.
4 In many respects it is incumbent upon the parties to tlesh out this framework. It the
parties fail to or choose not to do so. §§ 421 et seq. provide default solutions. Furthermore,
for certain specific cases, the detault solutions of the 421 et seq. are overruled bv leges
speciales. For example, §§ 421 et seq. address the liability quota of the debtors among each
other only tor the default case (§ 426). In some instances (e.g. § 840(2)), one or more debtors
may be internally liable by law for the entire performance. In manv other cases, the liability
quota will be determined by some other way, e.g. by the debtors’ culpabilitv.1 For this reason,
application of the detault rule is rare in practice.
1 Sec the commentary to § 426 mn. 16 et seq.
710
Sattler/Keihnann
Joint and several debtors
5-10 §421
B. Context
When introducing the BGB, the legislator deliberately phrased §§ 421 et seq. broadly to 5
avoid having them mired in dogmatic disputes about the proper categorisation of cases with
several debtors.2
C. Explanation
I. Only entitled to demand the performance once
It the obligee is entitled to demand performance several times from different debtors, the 6
§§ 421 et seq. do not apply. For example, a business may conclude purchase contracts for fuel
oil with several suppliers to minimise the supply risk; this is not a case for the §§421 et seq.
IL Identical performance
Conversely, the §§421 et seq. presuppose that the obligee is entitled to demand the entire 7
performance from any debtor. If and to the extent that a part of the performance is only
owed by individual debtors, the §§ 421 et seq. do not apply. It is indeed possible that some
performances in a specific legal relationship are subject to the §§421 et seq. whereas others
are not.
III. Identical interest
While the §§421 et seq. do not require that each debtor’s performance obligation is 8
exactly the same, they do require that the obligee has an identical interest in the respective
performance. For example, in construction projects, the architect and the main contractor are
not jointly and severally liable for the erection. They are, however, jointly and severally liable
for defects, and they are so even if the architect is liable for monetary damages and the
contractor for remedying the defects.3 Similarly, sub-contractors with consecutive work
streams are not jointly and severally liable for the performance of their respective works.
However, if there is only one way to remedy defects, then the subcontractors are jointly and
severally liable for doing so.4 5
IV. Not required: identical legal bases
Earlier case law had held that the debtors’ obligations had to rest on an identical legal basis; 9
this opinion is now outdated. As long as the other requirements of § 421 are met, §§ 421 et seq.
apply, even if the debtors are liable based on different legal grounds. Damage claims in
particular may have different legal bases (e.g. contract and tort) but the damaging parties are
still, as a rule, liable jointly and severally. Similarly, if two security providers have granted
different securities for the same claim, and the obligee only demands performance from one of
them, then this security provider can take recourse against the other according to § 426?
V. Equal ranking
For the §§ 421 et seq. to apply, the debtors must be ranked equally in the obligee's eyes. 10
This is not the case if the obligee is aware that his claims against a specific debtor only
2 por more detail sec the commentary to § 430 mn. 3 et seq.
3 BGH 19.12.196« - VI1 ZR 23/66, NJW 1969, 653.
4 BGH 26.6.2003 - VII ZR 126/02. NJW 2003, 2980.
5 BGH 29.6.1989 - IX ZR 175/88, NJW 1989, 2530.
Sattler/Kcilniann
711
§ 421 11-15 Division 7. More than one obligor and obligee
serve the purpose to provide additional liquidity, and not the purpose of putting a
commercial burden on this debtor. On the other hand, debtors can rank equally even if
one of them is internally liable for the entire performance according to § 426. Hence, this
fact does not in itself bar the obligee from demanding performance from the other debtors
under § 421.
1. Suretyship
11 One example of non-equal ranking is a suretyship, even if the surety provider is a principal
debtor (§ 773(1) No. 1). While the suretyship grants the obligee a direct claim against the
surety provider, the obligee is aware that the surety provider is not the party who will
ultimately be responsible for the financial burden, as the surety provider will obtain the
obligee’s claim against the main debtor by way of a cessio legis (§ 774).
2. Insurance
12 Similarly, damage insurers and damaging parties are, as a rule, not jointly liable the
injured party knows that the damage insurer, while providing relief, will ultimately not be
responsible for the financial burden of the damaging event. Rather, the insurer will acquire
the injured party’s claim against the damaging party (§ 86(1) WG). § 115 WG therefore
provides an exception to the norm by stipulating a joint liability.
VI. Not applicable to recourse under § 426
13 If the obligee demands performance from only one debtor, this debtor may be entitled to
take recourse against the other debtors according to § 426. This raises the question whether
the other debtors are jointly and severally liable for this recourse. The governing opinion is
that the §§ 421 et seq. do, as a rule, not apply in this situation, so that the other debtors are
not jointly and severally liable. Case law makes an exception from this rule if the debtor
who is seeking recourse is internally not liable at all.6
VIL Consequences
14 The obligee can choose the debtor whom he demands performance from, either in part or
in total. This provides a considerable benefit to the obligee, as he can pick the most solvent
debtor, or the one against whom legal recourse is the easiest, or the one who has the most
attractive assets. The obligee may demand performance from a specific debtor even if he
knows that a different debtor will be internally liable (i.e. under §426) for the entire
amount.7 The only restriction to the obligee’s rights is set by the principle of good faith
(§ 242). However, this restriction only applies in exceptional cases, e.g. where the obligee is
deliberately seeking to harm a specific debtor.
VIII. Remedies
15 Concerning legal remedies, the obligee can pursue his claim in court against any
number of debtors. An obligee who opts to sue several debtors simultaneously can do so
in the same lawsuit (§ 59 ZPO). but can also choose to initiate different lawsuits instead?
In the former case, and if the obligee prevails, the judgment will explicitly state that the
debtors obligation is joint. The debtors will then also be jointly liable for the obligee's legal
costs (§ 100(4) ZPO).
6 RG 7.6.1915 - Rep VI. 7/15, RGZ 87. 64.
7 BGH 22.1.1991 - XI ZR 342/89, N|W 1991, 1289.
" BAG 20.11.2003 - 8 AZR 580/02, N|W 2004, 2848.
712
Sitttlcr/Kcilnmnn
Effect of performance
1-5 § 422
§422
Effect of performance
(1) 'Performance by a joint and several
debtor is also effective for the other obligors.
2The same applies to performance in lieu of
performance of contract, to deposit and to
set-off.
(2) A claim to which a joint and several
debtor is entitled may not be set off by the
other obligors.
§422
Wirkung der Erfüllung
(1) 'Die Erfüllung durch einen Gesamt¬
schuldner wirkt auch für die übrigen Schuld¬
ner. 1 2Das Gleiche gilt von der Leistung an
Erfüllungs statt, der Hinterlegung und der
Au frech innig
(2) Eine Forderung, die einem Gesamt¬
schuldner zusteht, kann nicht von den übri¬
gen Schuldnern aufgerechnet werden.
A. Function
§ 422 stipulates two different principles. Sub. 1 complements § 421: as the obligee is only 1
entitled to performance once, performance by any debtor necessarily extinguishes the entire
claim. Sub. 2 clarifies that joint and several debtors (just as ordinary debtors) may only set off
with claims which belong to them.
B. Explanation
I. Requirements (Sub. 1)
Sub. 1 addresses cases where one debtor effects performance (§ 362) or one of the 2
surrogates: performance other than that owed (§ 364), deposit (§§ 372 et seq.) or set-off
387 et seq.). Sub. 1 also addresses cases in which a third party effects performance, to the
extent that this is permissible (§ 267).
II. Consequences (Sub. 1)
The obligee’s claim is extinguished with effect for all debtors. The obligee and the 3
performing debtor cannot conclude an agreement to the contrary.1 To the extent that the
performing debtor can take recourse against the other debtors, the claim is not extinguished,
but passes on to the performing debtor (§ 426(2)).
III. Requirements (Sub. 2)
Sub. 2 applies where one of the joint and several debtors has a claim against the obligee. 4
IV. Consequences (Sub. 2)
The provision clarifies that the other debtors may not use this claim to extinguish the 5
obligee’s claim against them, as there is no reciprocity between the two claims (cf. § 387).
However, heirs who are jointly liable under § 2058 may be entitled to refuse performance in
analogous application of § 770(2)?
1 BGH 1«. 1.1984 - IV a ZR 73/82, NJW 1984, 1463.
2 BGH 24.10.1962 - V ZR 1/61, NJW 1963, 244.
Sattlcr/Kcilnuinn
713
§ 423 1-5
Division 7, More than one obligor and obligee
§423
Effect of forgiveness
Forgiveness agreed between the obligee and
a joint and several debtor is also effective for
the other obligors if the parties to the con¬
tract intended to terminate the whole obliga¬
tion.
§423
Wirkung des Erlasses
Ein zwischen dem Gläubiger und einem
Gesamtschuldner vereinbarter Erlass wirkt
auch für die übrigen Schuldner, wenn die
Vertragschließenden das ganze Schuldverhält¬
nis aufheben wollten.
A. Function
I. Purpose
1 The provision is largely declaratory. If the obligee and one debtor agree that the
forgiveness shall also be effective for the other debtors, then the other debtors can invoke
this agreement against the obligee. Otherwise they cannot. In the latter case, the forgiven
debtor still bears the risk that the other debtors - if the obligee holds them responsible for the
entire amount - take recourse against him under § 426.
II. Scope of application
2 The legal act of forgiveness is addressed in § 397. Settlements (§ 779) will often include a
partial forgiveness. § 423 therefore applies in cases where the obligee and one of the debtors
settle their dispute bilaterally.
B. Explanation
I. Agreement
3 § 423 merely requires an agreement of forgiveness between the obligee and one debtor (or
several debtors, but not all of them).
IL Consequences
4 The effect of the forgiveness depends on the parties’ intent, which is determined - if
necessary - through interpretation (§§ 133, 157). The forgiveness may be bilateral, partialh’
global, or global.
1. Bilateral forgiveness
5 The parties may agree that only one debtor is forgiven, but not the others. The obligee
remains entitled to pursue his claims against the other, non-forgiven debtors. If he does so.
the other debtors may seek recourse against the forgiven debtor (§ 42o). The forgiven
debtor in this case may not invoke the forgiveness" to defend against the recourse -
otherwise the forgiveness would effectively be an (invalid) agreement at the expense of
a third party, i.e. the non-forgiven debtors (who would be deprived of their rights under
§ 426). As a result, the forgiven debtor obtains no actual commercial benefit from a
bilateral forgiveness. Nevertheless, bilateral forgiveness is the default interpretation ot
a forgiveness agreement between the obligee and a debtor1 because the obligees forgive¬
ness can usually not be interpreted to mean that the obligee forgoes the entiretv of his
claims.
1 Will 21.3.20(10 - IX ZK 39/99, NIW 2000, 1942.
714
Siittler/Keihiiiinn
Effect of default by the obligee
1-3 § 424
2. Partial global forgiveness
The parties may agree that one debtor is forgiven, and that the obligees claim against the 6
other debtors is reduced by the forgiven debtor’s share of liability. Such an agreement frees
the forgiven debtor from the risk that the other debtors take recourse against him. This is the
default interpretation of settlements in cartel damage disputes (§ 33f Competition Act, which
implements Art. 19(1) EU Directive 2014/104/EU), although the parties in such disputes are at
liberty to agree otherwise. In other cases, this default interpretation does not apply, and the
respective settlements can only be read to include a partial global forgiveness if there is any
indication that the parties intended to release the forgiven debtor from the aforementioned risk.2
3. Global forgiveness
The parties may also agree that all debtors are forgiven, i.e. that the obligee cannot 7
pursue claims against any debtor. While legally possible, there is no default interpretation
to this effect,3 and the agreement must again show the parties’ intention to release all
debtors. However, such intention may be deducted from the circumstances, e.g. if both
parties know that the forgiven debtor is internally (i.e. towards the other debtors)
responsible for the entire performance.4
§424
Effect of default by the obligee
The default of the obligee in relation to a
joint and several debtor is also effective for
the other obligors.
§424
Wirkung des Gläubigerverzugs
Der Verzug des Gläubigers gegenüber ei¬
nem Gesamtschuldner wirkt auch für die üb¬
rigen Schuldner.
A. Function
§ 424 governs cases where the obligee is in default of acceptance (§§ 293 et seq.). As 1
performance by one debtor is effective for all debtors (§ 422), the same goes for an offer for
performance by one debtor, and the resulting default.
B. Explanation
I. Requirements
The requirements for default of the obligee are stipulated in §§ 293 et seq. If the obligee 2
announces his willingness to accept the performance to the specific debtor who had put him
in default, then the default ends with effect for all debtors. In contrast, if the obligee only
informs a different debtor than the one who had put him in default, then the default only
ends in the relationship to the informed debtor.
II. Consequences
§ 424 works for the benefit of the other debtors. Along with the other effects of default, 3
as long as the obligee remains in default, debtors are only liable for intent and gross
negligence (§ 300(1)), and they do not have to pay interest (§ 301).
2 BGH 22.12.2011 - VII ZR 7/11, NJW 2012, 1071.
i BGH 22.12.2011 - VII ZR 7/11, NJW 2012, 1071.
4 BGH 21.3.2000 - IX ZR 39/99, NJW 2000, 1942.
Sattlcr/Kcilmann
715
§ 425 1-2
Division 7. More than one obligor and obligee
§425
Effect of other facts
(1) Facts other than those cited in §§422
to 424 are only effective, unless the obligation
leads to a different conclusion, for and
against the joint and several debtor person¬
ally affected by them.
(2) This applies in particular, without lim¬
itation, to notice of termination, to default, to
fault, to impossibility of performance in the
person of a joint and several debtor, to limita¬
tion and to the new beginning, suspension and
suspension of expiry of a period of limitation,
to the merger of the claim with the debt and to
a final and absolute judgment.
§425
Wirkung anderer Tatsachen
(1) Andere als die in den §§422 bis 424
bezeichneten Tatsachen wirken, soweit sich
nicht aus dem Schuld Verhältnis ein anderes
ergibt, nur für und gegen den Gesamtschuld¬
ner, in dessen Person sie eintreten.
(2) Dies gilt insbesondere von der Kündi¬
gung, dem Verzug, dem Verschulden, von der
Unmöglichkeit der Leistung in der Person
eines Gesamtschuldners, von der Verjährung,
deren Neubeginn, Hemmung und Ablauf¬
hemmung, von der Vereinigung der Forde¬
rung mit der Schuld und von dem rechts¬
kräftigen Urteil.
Contents
mn.
A. Function 1
I. Purpose — 1
II. Scope of application 2
B. Explanation 3
I. Requirements 3
II. Notice of termination 4
III. Default . _ 5
IV. Fault 6
V. Impossibility of performance 7
VI. Limitation periods „ 8
1. Expiration 9
2. Suspension 10
VII. Merger 11
VIII. Judgments 12
IX. Exceptions 13
1. Insurance claims 14
2. Attribution of fault 15
3. Assignment of claims 16
A. Function
I. Purpose
1 § 425 stipulates the general default rule that facts only apply for and against individual
debtors, unless mentioned otherwise in the §§ 422 to 424,
II. Scope of application*
2 § 425 provides a default rule; the parties may, in principle, agree otherwise. As alwavs,
§§ 133, 157 apply for interpreting their agreement(s). Agreements between the obligee and
individual debtors at the expense of the other debtors are not permissible.
1 For more detail sec the commentary to § 421.
716
Sattler/Keibnann
Effect of other facts
3-9 § 425
B. Explanation
I. Requirements
§ 425 applies whenever facts may have an impact on one debtor’s obligation towards the 3
obligee. Sub. 2 merely provides examples of such facts. The list is not conclusive, although the
tacts named therein are among the most relevant in practice. As a rule, facts only apply for
and against individual debtors.
II. Notice of termination
This refers only to the so-called maturity termination, e.g. of loan contracts (§ 488(3)), 4
and not to the termination ot contracts for continuing performance.2 The latter must be
terminated by a notice to all debtors, otherwise the termination is invalid.3 Therefore, § 425
does not apply. As tor the related issue of revoking the contract under § 323, § 351 applies,
meaning that the obligee must again exercise the revocation against all debtors.
III. Default
The requirements tor default of a debtor are stipulated in § 286. A warning notice from 5
the obligee (§ 286(1)) only puts the receiving debtor in default, not all debtors. Accordingly,
only the receiving debtor has to pay default interest (§ 288).
IV. Fault
As a rule, debtors are only liable for their own culpability. In practice, this will often 6
prevent that a joint a several liability arises at all, especially in case of damage claims: damage
claims usually require fault (e.g. 280, 823), and a party acting without own or attributed
fault will not be liable for damages in the first place. However, the parties’ contractual
relationship may foresee - or may in some cases be interpreted to the effect - that debtors
shall be liable for each other’s culpability.
V. Impossibility of performance
The fact that one debtor cannot effect performance (§ 275(1) 1st Alt.) does not mean that 7
the other debtors are released from their obligation. Nor does it mean that the obligee can
terminate the entire relationship towards all debtors according to § 326(1). If the debtor who
is unable to perform is at fault for this inability, the obligee may have a claim for damages
against him, and only him (§§ 280, 283). The other debtors will still be liable for perfor¬
mance, unless performance is impossible for them, too.
VI. Limitation periods
For a limitation period to begin, the obligee must obtain knowledge of the circumstances 8
giving rise to the claim and of the identity of the debtor, or must fail to do so with gross
negligence (§ 199(1)). For this reason, the limitation periods of claims against different joint
and several debtors may well commence at different times, e.g. if the obligee learns about
the identities of debtors at different times.
1. Expiration
A joint and several debtor whose obligation has not yet expired may not refuse perfor- 9
mance (§ 214(1)) on the sole basis that the obligation of another joint and several debtor has
2 BOH 13.3.2013 - XII ZR 34/12, NJW 2013, 3232.
3 BGH 9.7.2002 - XI ZR 323/01, NJW 2002, 2866.
Sattlcr/Kcilmann
717
§ 425 10-15 Division 7. More than one obligor and obligee
already expired. This is true despite the fact that such expiry will undermine the first debtor’s
ability to seek recourse against the other debtor under § 426(2).
10
11
12
13
14
15
2. Suspension
Similarly, if the obligee suspends the limitation period by bringing an action for performance
(§ 204(1) No. 1) or by some other means, this suspension only affects the debtor against whom
the claim is pursued in this fashion. For this reason, while the obligee is at liberty to choose
against which debtor he wants to pursue his claim (§ 421), he must be mindful that his claims
against the other debtors may become time-barred in the meantime.
VII. Merger
This refers to cases where claim and debt end up at the same person, e.g. because the
debtor inherits the claim from the original obligee. Such merger extinguishes the claim, but
only insofar as this specific debtor is concerned. This debtor (who is now the new obligee)
retains the claim against the other debtors. However, this claim is reduced to the extent that
the new obligee would have been internally liable for the claim while it still rested with the
old obligee, as determined according to § 426.4
VIII. Judgments
Judgments take effect only for or against the debtor who participated in the lawsuit
(§ 325 ZPO). Accordingly, the other debtors, when the obligee demands performance from
them, cannot invoke the fact that the obligee’s lawsuit against one debtor was dismissed.
Conversely, the fact alone that the obligee’s lawsuit against one debtor was successful does
not help the obligee when pursuing his claims against the other debtors.
IX. Exceptions
As § 425 only provides a default rule (unless the obligation leads to a different conclu¬
sion), the circumstances, including the parties’ agreement, may lead to a different outcome.
Examples include the following:
1. Insurance claims
§ 115(1) WG provides for certain cases that the insurer and the policyholder are liable as
joint and several debtors.5 This rule applies in particular for compulsory liability insurance,
including vehicle insurance. § 115(2) WG stipulates a deviation from §425: the claim
against the insurer is subject to the same limitation period as the claim against the policy-
holder, and any suspension, end of suspension, and re-commencement of the limitation
period equally applies to the insurer and to the policyholder.
2. Attribution of fault
The legal relationship between the obligee and the debtors may (expressly or implicitly)
provide that the debtors shall be liable for each other’s culpability. Case law has ruled along
this line for a malpractice claim against four cooperating medical doctors where only one was
acting culpably6 and for a similar claim against lawyers.7 The same can be true for
contractors contributing to the same works in a construction projeci.8
4 BAG 24.4.1986 - 8 AZR 577/84. NJW 1986, 3104,
5 An English translation of the WG is available under www.gesetze-iin-internet de.
6 BGH 8.11.2005 - VI ZR 319/04, NJW 2006, 437,
7 BGH 24.1.1978 - VI ZR 264/76, NJW 1978. 996^
H BGH 18.10.1951 - III ZR 138/50, NJW 1952, 217.
718
Sattler/Keihnann
Duty to adjust advancements, passing of claim
§426
3. Assignment of claims
The obligee may assign his claims against all debtors to a third party (§§ 398 et seq.). He 16
may, in principle, instead assign only the claim against one debtor to a third party, and retain
the claims against the other debtors. However, as this leads to a complex mixture of joint
liability and joint entitlements, case law and the governing opinion hold that the latter
outcome is not, as a rule, the result which the parties intend to bring about. Therefore, if an
obligee ot joint obligations assigns his claims to a third party, there is a factual presumption
that the obligee intends to assign his claims against all debtors.9
§426
Duty to adjust advancements,
passing of claim
(1) 'The joint and several debtors are ob-
liged in equal proportions in relation to one
another unless otherwise determined. 2If the
contribution attributable to a joint and sev¬
eral debtor cannot be obtained from him, the
shortfall is to be borne by the other obligors
obliged to adjust advancements.
(2) ’To the extent that a joint and several
debtor satisfies the obligee and may demand
adjustment of advancements from the other
obligors, the claim of the obligee against the
other obligors passes to him. 2The passing of
ownership may not be asserted to the disad¬
vantage of the creditor.
§426
Ausgleichungspflicht,
Forderungsübergang
(1) lDie Gesamtschuldner sind im Verhält¬
nis zueinander zu gleichen Anteilen verpflich¬
tet, soweit nicht ein anderes bestimmt ist.
2Kann von einem Gesamtschuldner der auf
ihn entfallende Beitrag nicht erlangt werden,
so ist der Ausfall von den übrigen zur Aus¬
gleichung verpflichteten Schuldnern zu tragen.
(2) ’Soweit ein Gesamtschuldner den Gläu¬
biger befriedigt und von den übrigen Schuld¬
nern Ausgleichung verlangen kann, geht die
Forderung des Gläubigers gegen die übrigen
Schuldner auf ihn über. 2Der Übergang kann
nicht zum Nachteil des Gläubigers geltend
gemacht werden.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Explanation 3
I. Claim for indemnification 3
1. Claim becomes due 4
2. Claim for compensation 5
3. Recourse 6
4. Limitation period 7
a) Commencement 8
b) Risk for paying debtor 9
c) Suspension 10
5. Other defences 11
II. Passing of claim 12
III. Internal allocation of responsibility 14
1. By statute 15
2. By agreement 16
3. By contribution/culpability 17
IV. Disrupted joint and several liability 18
1. Issue 19
2. Solution 20
9 OLG Hamm 22.9.1997 - 6 W 14/97, NJW RR 1998, 486.
Satller/Keilmann
719
§ 426 1-6 Division 7. More than one obligor and obligee
A. Function
I. Purpose
1 This is the key provision for the internal relationship between joint and several debtors,
especially for recourse. § 426 stipulates two different rules: Sub. 1 provides a statutory claim
for indemnification, Sub. 2 provides a cessio legis.
II. Scope of application1
2 In some cases, the joint and several debtors may have agreements in place which govern
the recourse if one of them is held responsible by the obligee. This can be the case especially
if the joint liability results from a contractual relationship. Often though there will be no
such agreement, especially if the obligee’s claims against different debtors come from
different legal bases, or in cases of tort. Therefore, § 426 is of considerable practical
relevance.
B. Explanation
I. Claim for indemnification
3 To the extent that the other debtors are internally liable, Sub. 1 provides that any joint and
several debtor has a claim for indemnification against them. This claim does not presuppose
that the debtor actually effects performance towards the obligee. Rather, the claim arises
together with the joint and several liability itself. This means inter alia that the limitation
period may commence from that point.
1. Claim becomes due
4 As a rule, the indemnification claim becomes due with the obligee’s claim against the
joint and several debtors.2 From this point on a debtor can request the other debtors to
indemnify him to the extent of their respective internal liability, so that the need for other
recourse (i.e. after one debtor pays the obligee in full) does not arise in the first place. A
debtor may also ask his co-debtors to defend him against unmerited requests for perfor¬
mance by the obligee.3
2. Claim for compensation
5 As soon as the debtor seeking recourse actually effects performance, the indemnification
claim turns into a claim for compensation. This is still considered to be the same claim
though (albeit now aimed at a different type of performance by the other debtors). As a
result, the limitation period for the debtor s recourse against the other debtors does not
commence anew.4
3. Recourse
6 The other debtors are not jointly and severally liable to the debtor seeking recourse. In
practice, this means that the debtor seeking recourse will have to determine the share ot
liability for each other debtor, rather than just approaching one of them and demanding
compensation for the entire amount.
1 See the commentary to § 421.
2 BGH 7.11.1985 - III ZR 142/84, NJW 1986, 978
3 BGH 15.10.2007 - II ZR 136/06, NJW-RR 2008, 256
4 BGH 18.6.2009 - VII ZR 167/08, NJW 2010, 60.
720
Sattler/Kcilniann
Duty to adjust advancements, passing of claim 7-12 § 426
4. Limitation period
The limitation period for the indemnification claim is three years (§ 195). 7
a) Commencement. The limitation period commences at the end of the year in which the 8
indemnification claim arose and the obligee (i.e. the debtor seeking indemnification) obtains
knowledge ot the circumstances giving rise to the claim and of the identity of the obligor (i.e.
his co-debtors), or would have obtained such knowledge if not for his gross negligence
(§ 199(1)). For the limitation period to commence it is not required that one of the debtors
actually pays the main obligee. As a result, the indemnification claim under Sub. 1 can
become time-barred before any debtor has paid the obligee.
b) Risk for paying debtor. For any debtor who ultimately does pay out the obligee, this 9
provides a considerable risk that he is left without recourse against his co-debtors. This is
especially the case where one debtor is approached by the obligee, but considers the claim
unfounded and takes no actions against his co-debtors. If the obligee’s claim then turns out
to have merit, the debtor may end up having to bear the entire financial burden, even if he
was not actually responsible internally.
c) Suspension. In practice, debtors who are approached by an obligee often address this risk 10
by concluding agreements with their co-debtors which extend or suspend the limitation period
(within the limits provided by § 202). However, if the co-debtors are unwilling to conclude
such agreements, the debtors approached by the obligee have to make use of other means of
suspending the limitation period, such as a claim against their co-debtors for declaratory relief
(§ 204( 1) No. 1). If the obligee has already taken the matter to the courts, the defending debtor
may file a third-party notice against his co-debtors (§ 204(1) No. 6). This will often be the most
cost-efficient solution; however, it is generally not an option in arbitration.
5. Other defences
The debtors of the recourse claim cannot invoke the fact that the obligee’s claims against 11
them have expired.5 Otherwise the expiry would effectively work against the debtor who is
asking for recourse; this would be at odds with § 425. An exception may be made if the
obligee’s conduct qualifies as an abuse of right. However, merely letting the limitation period
expire for some debtors - even consciously - does not in itself qualify as such.6 Conversely,
governing opinion in legal literature holds that the debtors of the recourse claim cannot
invoke the fact that the debtor claiming recourse could have used the defence of the right to
refuse performance against the obligee (§ 214). In other words, even if the obligee’s claim
against a specific debtor was time-barred, but this debtor paid nevertheless, this debtor may
still seek recourse under § 426. This is, in general, certainly correct, because the expiration
works only for and against the individual debtor, not all debtors (again: § 425). However, if a
debtor has obvious and serious defences against the obligee’s claim, but still pays the obligee,
then recourse against the other debtors may constitute an abuse of right.7
II. Passing of claim
Sub. 2 stipulates a cessio legis. §§ 399 et seq. apply as provided for in § 412 (Statutory 12
Passing of Claims). The obligee’s claims pass to the paying debtor only to the extent that he
can take recourse against the other debtors, i.e. as described in the preceding paragraphs.
' BGH 9 7 2009 - VII ZR 109/08, NJW 2010, 62.
6 BGH 25.11.2009 - IV ZR 70/05, NJW 2010, 435.
7 OLG München 16.1.2008 - 7 U 3972/07, NJW 2008, 3505 (obiter dictum).
Sattler/Keilmann
721
§ 426 13-19 Division 7. More than one obligor and obligee
13 As Sub. 2 does not provide for a new claim» merely for a cessio legis, the limitation period
depends on the type ot claim. This period may be shorter than the three years for the claim
under Sub. 1» or it may be the same, or it may be longer. For example, D&O damage claims
may be subject to a limitation period of five or even ten years (§ 93(6) AktG). Application of
the §§ 399 et seq. puts the paying debtor at a considerable risk that his rights under Sub. 2 are
not enforceable. Under § 404, the non-paying debtors may raise against the paying debtor the
objections that they were entitled to raise against the (original) obligee at the time of the cessio
legis. This includes the right to refuse performance under § 214, if the limitation period for the
original obligation has expired. As a result, the original obligee s claims against the non-paying
debtors may alreadv be time-barred by the time the paying debtor obtains these claims by way
of the cessio legis. This may leave the paying debtor without any means of enforceable recourse
against his co-debtors at all, especially if his claim under Sub. 1 is also already time-barred.
III. Internal allocation of responsibility
14 Under the default rule of Sub. 1 (which also applies to Sub. 2), joint and several debtors are
liable in equal proportions to one another. A debtor seeking recourse against his co-debtors
bears the burden of proof for any deviation from this default rule that he wants to rely on
(e.g. the existence of a deviating agreement).
1. By statute
15 For some cases (e.g. § 840(2)), the internal allocation of responsibility is stipulated in
statute. This does not affect the obligee’s rights to request full performance from a debtor of
his choosing.
2. By agreement
16 If the co-debtors have some sort of contractual relationship, this will often be determi¬
native for their internal allocation of responsibility. For example, joint venture contracts in
the construction industry frequently stipulate (in percent) a specific allocation of liability.
3. By contribution/culpability
17 § 254 applies in a case of a joint and several liability for damages. This means that the
internal allocation of responsibility is first determined on the basis of the debtors’ respective
contribution to the damaging event, then on the basis of the debtors’ respective culpability.
IV. Disrupted joint and several liability
18 In some cases, especially damage claims, the obligee’s claim against one or more debtors
(= privileged debtors) may be subject to some limitation, while the obligee’s claim against the
other (non-privileged) debtors is not. For example, the obligee may have a contract with one
of the debtors which contains an exclusion of liability for ordinary negligence. In other cases,
the limitation of liability may follow from statute law, such as the limitation of parents’
liability towards their children (§ 1664).
1. Issue
19 Such cases are commonly referred to as disrupted joint and several liability (gestörte
Gesamtschuld). I hey have in common that no matter how they are resolved, one parly will
be disadvantaged by the end: either (i) the non-privileged debtor (if he is not allowed to
take recourse against the privileged debtor), or (ii) the privileged debtor (if the non-
pnvileged debtor is allowed to take recourse against him, thus undermining the limitation
722
Sattler/Kcibnann
Joint contractual duty 1-3 § 427
of liability), or (iii) the obligee (if the non-privileged debtor is also allowed to invoke the
limitation of liability).
2. Solution
The disrupted joint and several liability has been subject of considerable debate. For 20
§ 1664, the courts* solution is that the privileged debtor (i.e. the parents) can invoke the
limitation against the non-privileged debtor, except in cases of traffic accidents. For
contractual limitations of liability, several authors take the position that the non-privileged
debtor should be allowed to also rely on the limitation of liability when approached by the
damaged party, i.e. that the damaged party (= the obligee) should bear the final burden. In
contrast, case law holds that contractual limitations of liability cannot, as rule, be invoked by
the privileged debtor against the non-privileged debtor. However, the BGH has indicated the
possibility that the non-privileged debtor may in special cases be entitled to rely on a
contractual limitation of liability between the damaged party and the privileged debtor if
this limitation can be interpreted to also cover other debtors.8
§427
Joint contractual duty
If more than one person jointly binds him¬
self by contract to render divisible perfor¬
mance then, in case of doubt, they are liable
as joint and several debtors.
§427
Gemeinschaftliche vertragliche
Verpflichtung
Verpflichten sich mehrere durch Vertrag
gemeinschaftlich zu einer teilbaren Leistung,
so haften sie im Zweifel als Gesamtschuldner.
A. Function
I. Purpose
This provision is lex specialis to § 420. It creates a rebuttable presumption for cases where 1
a divisible performance is owed based on a contract.
II. Scope of application* 1
§431 applies to indivisible performances based on contracts. § 420 applies to divisible 2
performances in general.
B. Explanation
I. Divisible performance
The debtors do not have to be obliged under the same contract.2 Rather, there can be 3
several contracts, as long as they provide for the same performance and each debtor
expected the other debtors to take on this performance.3 Case law also holds that § 427
may apply in cases of assumption of agency (§ 6«3), i.e. if the voluntary agent acts in the
interest of several principals.4
« BGH 27.2.1989 - II ZR 182/88, NJW 1989, 2386.
1 See the commentary to § 421.
2 See the commentary to § 420 for indivisible performance.
5 BGH 29 9 1959 - VIII ZR 105/58, NJW 1959, 2160.
1 BayObl.G 16.4.1987 - BReg. 2 Z 133/86, NJW-RR 1987, 1038.
Sattlcr/Keibnann
723
§428 1
Division 7. More than one obligor and obligee
II. Consequences
4 § 427 provides a rebuttable presumption for joint and several liability. In other words: the
mere fact that the performance is divisible does not mean that the performance obligation is
actually divided; rather, the presumption is to the contrary. Within its scope, § 427 thereby
supersedes § 420.
III. Rebutting the presumption
5 § 427 only applies in case of doubt. The parties are at liberty to agree otherwise. Even if
they do not do so explicitly, the circumstances of their relationship may still be such that the
presumption of joint and several liability is rebutted. This has been held by case law for a
construction contract for a housing complex (i.e. homeowners are not jointly and severally
liable for the entire construction costs)’ and for a school trip (i.e. pupils and their parents are
not liable jointly and severally for the expenses of all other pupils).5 6
§428
Joint and several creditors
!If more than one person is entitled to
demand performance in such a way that each
may demand the entire performance but the
obligor is only obliged to effect the perfor¬
mance once (joint and several creditors), the
obligor may at his discretion effect perfor¬
mance to each of the obligees. 2This also
applies if one of the obligees has already
sued for performance.
§428
Gesamtgläubiger
!Sind mehrere eine Leistung in der Weise
zu fordern berechtigt, dass jeder die ganze
Leistung fordern kann, der Schuldner aber
die Leistung nur einmal zu bewirken ver¬
pflichtet ist (Gesamtgläubiger), so kann der
Schuldner nach seinem Belieben an jeden der
Gläubiger leisten. 2Dies gilt auch dann, wenn
einer der Gläubiger bereits Klage auf die Leis¬
tung erhoben hat.
Contents
mn.
A. Function 1
B. Context 2
C. Explanation 3
I. Characteristics and legal consequence 3
II. Risks 4
III. Benefits 5
IV. Occurrences 6
1. Agreement 7
2. By law 8
3. Rights m rem 9
V. Independence of claims 10
VI. Procedural issues 11
A. Function
1 This provision is the counterpart to § 421 concerning joint and several debtors. It detines
when joint and several creditors exist (Ist St.) and sets out the legal consequences. Join’ '"’J
several creditors are rare in practice. There is no presumption in favour of that concept. 1°
the contrary, if the performance is divisible, it should first be checked whether § 420 applies.
5 BGH 18.6.1979 - VII ZR 187/7«, NJW 1979, 2101,
6 OLG Frankfurt a.M. 23.1.1986 - 1 U 40/85, NJW 1986, 1941,
724
Sattler/Keilmann
Joint and several creditors 2-7 §428
which provides tor divided rights. If the performance is indivisible, § 432 (More than one
obligee ot indivisible performance) is the rule, and § 428 is the exception.
B. Context
The concept ot joint and several creditors was already known in Roman law. It is part of 2
many European legal systems such as, for example, Art. 150 Swiss OR. Art. 111.-4:202(1)
DCFR also contains this concept, therein named a solidary right to performance.
C. Explanation
I. Characteristics and legal consequence
The concept of joint and several creditors is characterised by two facts: the fact that each 3
obligee - and not only the community of obligees - may demand the entire performance, and the
fact that the obligor is only obliged to effect the performance once. The legal consequence then is
that the obligor may effect the whole performance to any of the obligees. This choice remains
with the obligor even when faced with demands from all or any of the obligees. Of course, the
obligor is free to effect parts of the performance to several obligees so that, in total, 100 percent of
the debt is performed. Yet, performing to only one obligee will usually be easier for the obligor.
II. Risks
§ 428 provides for solidarity of rights. This involves the factual risk that one obligee may 4
claim and squander the whole funds in disregard of § 430 (Duty of the joint and several
creditors to adjust advancements). Thus, the concept involves a significant risk for the
obligees. It is not entirely beneficial for the obligor either. The obligor may be faced with
several obligees claiming performance. This will become particularly relevant if the obligor is
of the view’ that he does not owe performance.
III. Benefits
The 2nd St. puts the obligor in a relatively comfortable situation: even if one of the obligees 5
has sued for performance, the obligor may still effect performance with debt-discharging
effect to any of the other obligees. The obligor thus can choose the obligee to which
performance can be effected with the least effort. Also, the obligor does not have to take
care about the shares to which each obligee may be entitled in relation to the other obligees.
Finally, the obligor may benefit from special circumstances in relation to one of the obligees,
e.g. a right to declare set-off (§ 387).1
IV. Occurrences
§ 428 does not stipulate itself under what conditions more than one person is entitled to 6
demand performance in a way that joint and several creditors come into existence. Such
situations can be created by contract or by law.
1. Agreement
Due to the risk for the obligees, the parties rarely agree on the concept of joint and several 7
creditors. The main example in practice is the so-called Oder-Konto, a joint bank account
with individual power of disposal, as it is often used by spouses. Yet, in this specific case, the
concept is modified: the bank is not free to perform to any of the obligees but has to perform
to the spouse requesting performance.
1 See also MüKo BGB/Bydhnski, § 428 BGB mn. 3,
Sattler/Keilmann
725
§ 429 1 Division 7. More than one obligor and obligee
2. By law
8 Joint and several creditors may also come into existence by way of law. However, it is
relatively rare that the law expressly provides so. The main examples are § 2151(3) (Legacy
to more than one person) and § 117 SGB X concerning damage claims in case that various
funding agencies provided social benefits. Apart from that, there are a number of occasions
in which the courts have assumed joint and several creditors. One example is when various
joint guarantors being entitled to compensation claim against another joint guarantor.2
Also, it is frequently held that two spouses being entitled to performance in the context of
transactions to provide the necessities of life (§ 1357) are joint and several creditors.
3. Rights in rem
9 An entitlement according to § 428 can also be given in case that several persons are the
holders of a right in rem such as a mortgage or a usufruct. The entitlement has to be
designated as such in the Land Register. Yet, § 428 does not apply accordingly to property
and property-type rights.
V. Independence of claims
10 The obligees’ claims are interlinked in the sense that effecting performance to one of the
obligees extinguishes the other obligees’ claims. Apart from that, the claims remain
independent. This means that each obligee is allowed to assign its claim.3 Also, the limitation
period runs independently for each obligee.4
VI. Procedural issues
11 Each obligee alone is entitled to claim that the performance (in whole or in parts) be
effected to him. However, the obligees are free to claim jointly according to § 59 ZPO.
§429
Effect of changes
(1) The default of a joint and several cred¬
itor is also effective against the other obligees.
(2) If claim and debt are combined in the
person of a joint and several creditor, the
rights of the other obligees against the obli¬
gor expire.
(3) 1 Apart from this, the provisions of
§§ 422, 423 and 425 apply with the necessary
modifications. 2In particular, without limita¬
tion, if a joint and several creditor transfers
his claim to another party, the rights of the
other obligees are unaffected.
§429
Wirkung von Veränderungen
(1) Der Verzug eines Gesamtgläubigers
wirkt auch gegen die übrigen Gläubiger.
(2) Vereinigen sich Forderung und Schuld
in der Person eines Gesamtgläubigers, so er¬
löschen die Rechte der übrigen Gläubiger
gegen den Schuldner.
(3) *Im Übrigen finden die Vorschriften
der §§ 422, 423, 425 entsprechende Anwen¬
dung. insbesondere bleiben, wenn ein Ge¬
samtgläubiger seine Forderung auf einen an¬
deren überträgt, die Rechte der übrigen
Gläubiger unberührt.
A. Function
1 The purpose of the provision is to regulate the relationship between joint and several
creditors and the obligor. The relationship among the various obligees is dealt with in § -»30.
2 RG 4.4.1927 - IV ZR 608/26.
3 BGH 4,3.1959 - V ZR 181/57, N)W 1959, 984
3 BGH 21.2.1985 - VIJ ZR 72/84, NJW 1985, 1551.
726
Sattler/Kcibnann
Effect of changes
2-6 § 429
B. Context
§ 429 supplements § 428 and stipulates whether circumstances affecting the claim have an 2
impact only on the individual obligee’s claim or whether they have a global impact on all
obligees' claims. According to Sub. 3, as a matter of principle, the same rules apply as for
joint and several debtors.
C. Explanation
I. Global impact
According to Sub. 1, the obligor may rely on the default of one of the joint and several 3
creditors also in relation to the other obligees. This means that the obligor extensively
benefits from §§ 300 et seq. (Effects of default by the obligee). A global impact is also given if
claim and debt are combined in the person of a joint and several creditor (Sub. 2). This is
different from the stipulation regarding joint and several debtors in § 425(2). If the obligor
performs to one of the obligees, the claims of the other obligees expire according to Sub. 3
1st St., § 422(1). The same applies to performance in lieu of performance of contract, to
deposit, and to set-off (§ 422(1) 2nd St.).
As Sub. 3 refers to § 423, forgiveness agreed between the obligor and a joint and several 4
creditor may be effective for the other obligees, provided that the parties intended to
terminate the whole obligation. However, this only applies if the joint and several creditor
declaring forgiveness was entitled to dispose of the whole obligation, which is rare in practice.
The same principles apply in relation to a settlement concluded between one of the joint and
several creditors and the obligor. Thus, unless this creditor acts with authority also for and on
behalf of the remaining creditors, the settlement only has an impact on the relationship
between the obligor and the individual creditor.
II. Individual impact
Due to the reference in Sub. 3 to § 425, other facts only relating to the person of one of the 5
obligees have no effect for and against the other obligees. This is true, for example, for
limitation and for the new beginning, suspension and suspension of expiry of a period of
limitation. In addition, breaches of duty by the obligor only have an impact in relation to
the obligee affected by them. Moreover, neither fault nor knowledge of a joint and several
creditor has an effect for or against the other obligees. As a matter of principle, a termination
as well as a warning only has an effect for and against the obligee in the person of which the
preconditions for a termination or a warning are fulfilled. This is, however, different if the
obligee is authorised to act for and on behalf of the other obligees. To sum it up: the
individual impact is the rule, the global impact is restricted to the cases expressly mentioned
(default by the obligee, combination of claim and debt, effect of performance and forgive¬
ness).
III. Rights to alter the legal relationship
As a matter of principle, rights to alter the legal relationship only have effects for and 6
against the other obligees if they are exercised jointly by all obligees. If an individual obligee
exercises such a right, this is invalid. An exemption from that principle may apply in case of
§ 1357 (Transactions to provide the necessities of life (for spouses)).
Sattler/Kcilmann
727
§ 430 1-5
Division 7. More than one obligor and obligee
IV. Transfer of claim
7 As each obligee may demand the entire performance (§ 428). he is entitled to transfer his
claim (Sub. 3 2nd St.). The assignee takes the place of the assignor (§ 398 2n St.). Sub. 3
2nd St. ensures that the rights of the other obligees remain unaffected by the transfer of claim.
§430
Duty of the joint and several
creditors to adjust advancements
The joint and several creditors are entitled
in equal proportions in relation to each other
unless otherwise specified.
§430
Ausgleichungspflicht der
Gesamtgiäubiger
Die Gesamtgläubiger sind im Verhältnis
zueinander zu gleichen Anteilen berechtigt,
soweit nicht ein anderes bestimmt ist.
A. Function
1 The subject matter of this provision is the relationship between the various joint and
several creditors. As the obligor may perform to any of the obligees - regardless of the
relationship between the joint and several creditors - it remains to be determined whether
and to what extent this obligee has to adjust advancements. § 430 is a self-standing legal
basis for the other obligees’ claims to adjust advancements. Yet, such claims may also be
based, if applicable, on the agreement between the obligees.
B. Context
2 § 430 is the corollary to § 426 (Duty to adjust advancements in case of joint and several
debtors).
C. Explanation
I. Adjustment
3 The obligees are entitled to equal shares of the claim. Yet, this only applies as a default
rule, i.e. if the obligees have not agreed otherwise or the law provides otherwise (as it is the
case, for example, in § 2151(3) 3rd St.). As with regard to § 426, the nature or the purpose of
the legal relationship may also lead to the conclusion that the obligees are not entitled as per
§ 430. For joint bank accounts of spouses, for example, it is accepted that during the duration
of the marriage there is no duty to adjust advancements.1
II. Emergence of duty
4 The duty to adjust advancements arises once one obligee has received more than corresponds
to his entitlement. This also applies if the obligee has not received performance in nature such
as in the cases of set-off or combination of debt and claim in the person of the obligee.
III. Instalments
5 It is argued that if the performance can be made in instalments, each obligee is entitled to
participate in the instalments.2 This follows the principle expressed in § 426(2) 2nd St. for
joint and several debtors.
1 BGH 29.11.1989 - IV b ZR 4/89, NJW 1990, 705.
2 MuKo BGB/Bydlinski, § 430 BGB mn. 3.
728
Sattler/Keilmann
More than one obligor of indivisible performance
1-5 §431
§431
More than one obligor of
indivisible performance
If more than one person owes indivisible
performance, they are liable as joint and
several debtors.
§431
Mehrere Schuldner einer
unteilbaren Leistung
Schulden mehrere eine unteilbare Leistung,
so haften sie als Gesamtschuldner.
A. Function
The provision could be read to be mandatory law (in contrast to §§ 420, 427 on divisible 1
performance which contain the wording in doubt). However, it is held that it is allowed to
agree on a joint debt also when the performance is indivisible. According to this prevailing
view, § 431 basically is a rule of interpretation.1 In doubt, however, the rules of joint of
several debtors apply. This is beneficial for the obligee.
B. Context
It the conditions ot § 431 are met, the provisions on joint and several debtors (§§ 421 et 2
seq.) apply (possibly with some modifications resulting from the indivisibility of the
performance).
C. Explanation
I. Indivisible performance
§431 only concerns factual (and not legal) indivisibility. Whether performance is 3
divisible or indivisible depends on whether performance can be rendered in multiple parts
without changing the nature and value of the performance. In other words, performance is
divisible if the performance in parts factually leads to the same result as performance as a
whole (typical examples being monetary debts or debts concerning fungible things (§ 91)).
An example for an indivisible debt would be the duty of various lessees to return the leased
property after termination of the lease (§ 546(1)).
IL Delimitation
§ 431 has to be distinguished from cases of joint debt. Joint and several debtors each owe 4
the whole performance. In contrast, in case of a joint debt, each obligor only owes to perform
in cooperation with the other obligors. The obligee may only demand joint performance by
all obligors.
In case that performance can only be rendered by all obligors together, it is a question of 5
interpretation of the parties’ agreement whether the obligors are joint debtors or joint and
several debtors. In doubt, the interpretation will lead to the result that the obligors are only
joint debtors. This is because in this specific case each obligor alone is not in a position to
perform the whole obligation. To give an example: if four musicians undertake to perform a
string quartet, in doubt, they will not have agreed to be joint and several debtors because each
musician alone would not be in a position to perform the contract.2 In such a situation, § 431
does not fit.
J MuKo BGB/Bydlinski, § 431 BGB mn. 2.
2 MuKo BGB/Bydbnski, § 431 BOB mn. 3.
Sattler/Kcilniann
729
§ 432 1-4
Division 7. More than one obligor and obligee
§432
More than one obligee of
indivisible performance
(1) Hf more than one person is to demand
indivisible performance, then to the extent
that they are not joint and several creditors,
the obligor may only effect performance to all
of them jointly and each obligee may only
demand performance for all of them. 2Each
obligee may demand that the obligor deposit
the thing owed for all obligees or, if it is not
suitable for deposit, that it be surrendered to
a court-appointed depositary.
(2) Apart from this, a fact only relating to
the person of one of the obligees has no effect
for and against the other obligees.
§432
Mehrere Gläubiger einer
unteilbaren Leistung
(1) 1 Haben mehrere eine unteilbare Leis¬
tung zu fordern, so kann, sofern sie nicht
Gesamtgläubiger sind, der Schuldner nur an
alle gemeinschaftlich leisten und jeder Gläu¬
biger nur die Leistung an alle fordern. 2Jeder
Gläubiger kann verlangen, dass der Schuldner
die geschuldete Sache für alle Gläubiger hin¬
terlegt oder, wenn sie sich nicht zur Hinterle¬
gung eignet, an einen gerichtlich zu bestellen¬
den Verwahrer abliefert.
(2) Im Übrigen wirkt eine Tatsache, die nur
in der Person eines der Gläubiger eintritt,
nicht für und gegen die übrigen Gläubiger.
A. Function
1 § 432 sets out the principle that in case of plurality of obligees the obligees have a joint
right unless the performance is divisible. In the latter case, § 420 applies according to which,
in case of doubt, each obligor is only obliged to render an equal proportion and each obligee
is only entitled to an equal proportion.
B. Context
2 This provision contains the rule (with § 428 being the exception) for the legal situation in
case of more than one obligee of indivisible performance. In many national laws, the notion
of joint rights cannot be found expressly in the law but only in doctrine. The notion is,
however, contained in Art. 111.-4:202(3) DCFR.
C. Explanation
I. Occurrences
3 The provision applies in case that various obligees are entitled to an indivisible perfor¬
mance. The main occurrence of a plurality of obligees is the co-ownership by defined
shares (§741). In this case, more than one person is jointly entitled to a right so that
performance is legally indivisible. For the relationship among the obligees, §§741 et seq.
apply. The relationship between the obligees and the obligor is governed by § 432. A second
occurrence is the joint ownership. Examples are the joint ownership of spouses on the
marital property (§1419), which is rare in practice, or joint heirs (§§ 2033(2), 2040).
However, especially in the latter cases, the right of the joint obligees to demand performance
is regularly modified by the rules concerning the management of the assets of common
funds. § 432 is also applicable to rights hi rem.
II. Legal consequences
4 C Ea.ih r°Ll,gC!?as 3 ri.ght t0 demand Performance, yet he may only demand performance
for all of the obligees. I he obligor may only perform to all obligees jointly (without having to
1 See * § 431 mn. 3 for the determination of indivisibility.
730
Sat tier/Keilmann
More than one obligee of indivisible performance 5-9 § 432
concern himself with the share to which each obligee may be entitled in relation to the other
obligees). As the obligor may only effect performance to all obligees jointly, the obligor
cannot set-off a claim he has against only one obligee. If the obligor performs to only one of
the obligees, as a matter of principle, he is not discharged of the debt. This is different in case
that the obligee is entitled to receive the performance according to an agreement among the
obligees or by authority.
III. Obligee's right to demand deposit
The right to demand deposit is granted to each obligee. If the thing is deposited or 5
surrendered to a court-appointed depositary, this has a discharging effect (§ 362).
IV. No global impact of facts only relating to the
person of one of the obligees
Apart from the cases set out in Sub. 1, a fact only relating to the person of one of the 6
obligees has no effect for or against the other obligees (Sub. 2). This corresponds to the
principles for joint and several debtors (§ 425) and joint and several creditors (§ 429(3)).
However, this provision is rarely applicable in practice because in case of joint obligees there
are hardly any facts which only relate to the person of one of the obligees. Also, Sub. 2 may
be overruled by the rules applicable to the relationship among the obligees. These may
provide that one of the obligees may act with effect for and against the other obligees.
V. Forgiveness
Contrary to 429(3), 423, Sub. 2 does not contain a provision on forgiveness. According 7
to case law, no obligee may validly agree on forgiveness with the obligor with effect for the
other obligees unless the obligee was entitled to dispose of the whole obligation due to a
special competence.2
VI. Rights to alter the legal relationship
Rights to alter the legal relationship can only be exercised jointly by all obligees. Also, one 8
obligee alone cannot validly declare a termination because he regularly is not entitled to
dispose of the whole obligation.
VII. Duty of the joint obligees to adjust advancements
§ 432 is silent in that regard. Yet, generally, there will be no need to adjust advancements 9
when performance is effected to all obligees jointly. Apart from that, the relationship between
the joint obligees is governed by their agreement or, by default, §§ 741 et seq. (co-ownership
by defined shares).3
2 BGH 18 7.2003 - V ZR 187/02, NJW 2003, 3205.
* ß(,H 20.11.1981 - V ZR 245/80, NJW 1982,928.
Sattler/Kcilmann
731
§433
Division 8. Particular types of obligations
Division 8
Particular types of obligations
Title 1
Purchase, exchange
Subtitle 1
General provisions
§433
Typical contractual duties in a
purchase agreement
(1) 'By a purchase agreement, the seller of
a thing is obliged to deliver the thing to the
buyer and to procure ownership of the thing
for the buyer. 2The seller must procure the
thing for the buyer free from material and
legal defects.
(2) The buyer is obliged to pay the seller
the agreed purchase price and to accept deliv¬
ery of the thing purchased.
Abschnitt 8
Einzelne Schuldverhältnisse
Titel 1
Kauf, Tausch
Untertitel 1
Allgemeine Vorschriften
§433
Vertragstypische Pflichten beim
Kaufvertrag
(1) ’Durch den Kaufvertrag wird der Ver¬
käufer einer Sache verpflichtet, dem Käufer
die Sache zu übergeben und das Eigentum an
der Sache zu verschaffen. 2Der Verkäufer hat
dem Käufer die Sache frei von Sach- und
Rechtsmängeln zu verschaffen.
(2) Der Käufer ist verpflichtet, dem Ver¬
käufer den vereinbarten Kaufpreis zu zahlen
und die gekaufte Sache abzunehmen.
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
I. Historical 4
II. European 5
III. Comparative 6
C. Explanation 8
I. Purchase agreement 8
II. Transfer of ownership 10
III. Subject-matter of the purchase agreement 11
IV. Obligations of the seller 12
1. Delivery 13
2. Transfer of ownership 15
3. Procurement free from defects 16
4. Secondary obligations 17
a) Collateral obligations 18
b) Obligations of protection 19
V. Obligations of the buyer 20
1. Payment 21
2. Accepting delivery 22
3. Secondary obligations 23
VI. Burden of Proof 24
732
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Typical contractual duties in a purchase agreement
1-5 § 433
A. Function
I. Purpose and underlying principles
§ 433 is the initial and key provision for purchase agreements, focusing (at least in 1
terminology) on the buyer’s, and not, as most international sets of rules, on the seller’s
obligation. However, this seems to be mainly a difference in terminology, not in substance, as
the seller's obligation is the one which is characteristic of the contract. Therefore, in the
tollowing text, the expressions purchase agreement and contract of sale are used with similar
connotations, especially as much of 433 et seq. is based on the EU Consumer Sales
Directive, which uses the term sale. and not purchase. The principal duties of the parties are
set out in § 433, which also helps to distinguish purchase agreements from other types of
contract (to which different provisions may apply). As for the duties of the parties, § 433
provides grounds of claims for performance of these duties; the respective parts of the
provision therefore have to be mentioned if the buyer demands delivery (Sub. 1 1st St.) or if
the seller claims payment (Sub. 2).
IL Position within the BGB
§ 433 is part of the Law of Obligations and the first provision in Division 8 (particular 2
types of obligation) as well as in the Title on purchase and exchange.
III. Scope of application
The provision applies to all contracts of purchase, including consumer sales and even 3
commercial sales transactions as provided for in 373 et seq. HGB. However, regard is to
be had to special rules, such as §§ 474 et seq. for consumer sales contracts, §§ 506 et seq. for
contracts by which an entrepreneur grants a consumer a non-gratuitous postponement of
payment or other non-gratuitous financing assistance, § 510 for contracts for delivery by
instalments, 2371 et seq. for the purchase of an accrued inheritance, and §§ 373 et seq.
HGB for commercial sales transactions. 433 et seq. are supplemented by provisions in the
general law of obligations (especially §§ 280 et seq., §§ 323 et seq.), which are frequently
referred to in 433 et seq. 312 et seq. also have to be taken into account, especially in cases
of distance contracts. § 433 also applies to contracts dealing with the supply of movable things
to be produced or manufactured, by reference from § 650 1st St. The CISG takes precedence
when it is applicable, i.e. in certain cases with an international element (Art. 1, 2 CISG).
B. Context
I. Historical
§ 433 has been part of the BGB since its inception. A substantial modification of Sub. 1 4
2nd St. took place in 2002 when the German law of obligations was modernised, following the
EU Consumer Sales Directive. The reference to the purchase of rights was deleted in § 433
(in favour of the new rule in § 453) and the seller’s duty to procure the thing purchased free
from material and legal defects was added, stating that the procurement of a thing with
defects cannot be accepted as delivery.
II. European
As the EU Consumer Sales Directive is implemented in 433 et seq., in cases of 5
consumer sales, § 433 has to be construed in accordance with the minimum standards set
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733
§ 433 6-8 Division 8. Particular types of obligations
out by this Directive (Art. 8(2)). In cases of doubt, a reference to the CJEU is advisable (or,
for courts of last instance, obligatory), according to the general rules (especially Art. 267
TFEU). Therefore, different interpretations of the same provision in cases of consumer sales
and in other purchase agreements are possible in theory but do not seem to have featured
prominently so far (except in some cases concerning the expenses for removing a defective
thing or installing the repaired or newly delivered thing1) and probably will not in future, as
the German legislator has extended some of the rules on consumer sales contracts to all
contracts of purchase as from 1 January 2018.
III. Comparative
6 § 433 differs from Arts IV.A.-1:101 et seq. DCFR, where the contracts covered are described
in much more detail. § 433 rather reflects the general character of the provisions in the BGB,
which have been drafted in a broad manner in order to cover new cases and situations as far
as possible. However, § 433 has much in common with the definitions of a sales contract in
Art. 2(k) CESL (draft) and Art. 2(a) Draft EU Online and Distance Sales Directive. On the
other hand, it deviates from Arts 1 et seq. CISG, as more types of contract are covered in § 433.
In general, §§ 433 et seq. have a wider range of application than the rules of CISG, DCFR or
CESL (draft), as they cover all sorts of sales contracts, including the sale of land.
7 The obligations of the seller and of the buyer set up in § 433 are in substance quite similar
to those mentioned in Arts 30 et seq., 53 et seq. CISG, Arts IV.A.-2:101 et seq., IV.A.-3:101
et seq. DCFR, Arts 91 et seq., 123 et seq. CESL (draft), though the CISG, DCFR and CESL
(draft) provisions are much more detailed. Delivery of the goods and transfer of property are
the normal duties of the seller; conformity of the goods with the contract is not mentioned in
the CISG, but features in the DCFR and the CESL (draft). All three sets of rules provide for
an obligation of the seller to deliver documents representing or relating to the goods, which is
not expressly included in § 433. However, it can be deduced from general rules of German
law.2 A corresponding obligation of the buyer to take over such documents is mentioned in
Art. IV.A.-3:101 DCFR and Art. 23(1 )(c) CESL (draft) but not in § 433, but it can be seen as
part of the buyer’s obligation to accept delivery.3 In the EU Sale of Goods Directive and in
the EU Directive on the Supply of Digital Content, the obligations of the parties are not
defined as clearly as in the other sets of rules, only emphasising certain duties of the
supplier, such as the conformity of the goods or the digital content with the contract (Arts
5 et seq. EU Sale of Goods Directive, Arts 6 et seq. EU Directive on the Supply of Digital
Content) or the supply of digital content (Art. 5 EU Directive on the Supply of Digital
Content).
C. Explanation
I. Purchase agreement
8 A purchase agreement is a bilateral contract by which ownership (of a thing) or rights
(§ 453) are conferred from the seller to the buyer. The buyer, on the other side, is under an
obhgation to pay a price for that transfer. The buyer’s obligation to pay a (monetary) price
marks- the difference between a contract of purchase and a contract of exchange (§ 480). The
mam difference between a contract of purchase and a contract to produce a work (§§ 631 et
seq.), on the other hand, is the seller’s obligation - to confer ownership of a thing which
either exists or will come into existence independently of the seller’s work in a purchase
con ract, or to procure for a certain result in a contract to produce a work. Both types ol
' See in particular BGH 17.10.2012 - VII ZR 226/11, NJW 2011 220
2 See ’ § 433 mn. IB. ’ z''
3 See * § 433 mn. 22.
734
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Typical contractual duties in a purchase agreement 9-15 § 433
contract overlap when producing a work results in a movable thing to be transferred to the
other party: In these cases, according to § 651 (which has much in common with Art, 3(1)
CISG), the provisions tor purchase contracts are applicable with a few modifications.
The formation ot the purchase agreement follows the general rules on the formation of 9
contracts as laid down in §§ 145 et seq. No particular form is required, subject to special
rules (such as, for example, § 311b).
II. Transfer of ownership
433 et seq. are restricted to the obligations of the parties arising from the contract of 10
sale, but do not extend to the transfer of ownership, which is separate and independent from
the contract ot sale (the famous two principles in German law: Trennungsprinzip and
Abstraktionsprinzip). The transfer of ownership of things is regulated in §§ 929 et seq., the
transfer ot rights takes place according to §§ 413, 398 et seq. Separation of these transactions
(Trennungsprinzip) means that the contract of sale and the transfer of ownership are two
different contracts, and independence (Abstraktionsprinzip) means that the validity of both
transactions has to be determined for each without regard to the other transaction, as a rule,
so that one transaction could for example be valid whereas the other is invalid.4
III. Subject-matter of the purchase agreement
The subject-matter of the purchase agreement can be things (§90) - either movables or 11
immovables - but §§ 433 et seq. also apply to the purchase of rights (via § 453) and of
animals (via § 90a). It is possible to conclude a contract of purchase for things (or rights)
which do not exist at the time of the purchase agreement, as § 311a(l) provides for the
validity of the contract. It is also possible to purchase goods which are still unascertained at
the time of the parties’ agreement.5
IV. Obligations of the seller
The seller’s main obligations are, according to Sub. 1, delivery of the goods, transfer of 12
ownership, and procurement free from material and legal defects. The seller is also subject to
secondary' obligations, according to the general rules on obligations.
1. Delivery
The first main obligation of the seller is delivery of the goods to the buyer (Sub. 1 1st St.), 13
i.e. the seller has to procure possession (§ 854(1)) to the buyer. In cases of purchase of
unascertained goods, ascertainment of the thing to be purchased has to take place at the time
of delivery', at the latest. The place of delivery depends on the place of performance (§ 269) as
provided for in the contract; the same applies to the costs of delivery (§ 448(1)). Delivery is
not only part of the performance of the seller but also has the effect that the risk of accidental
destruction and accidental deterioration of the goods passes to the buyer, that the emolu¬
ments of the goods accrue to the buyer and that the buyer bears the charges of the goods.
Delivery has to be clearly distinguished not only from transfer of ownership, but also from 14
delivery of the thing in § 438(2)6 and from handing over the thing to the forwarder (§ 447).
2. Transfer of ownership
The second main obligation of the seller is the transfer of ownership (Sub. 1 1M St.). The 15
ownership in movables is transferred according to §§ 929 et seq., the ownership in im¬
movable according to §§ 873, 925 (the buyer bearing the costs of the notarial recording of the
4 See * Introduction mn. 40 et seq.
5 See * § 243 mn. 1 et seq.
6 See > § 438 mn. 9.
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735
§ 433 16-18 Division 8. Particular types of obligations
purchase agreement and of the declaration of conveyance as well as those of the registration
in the Land Register and the declarations necessary for registration - § 448(2)). In cases of
retention of title (§ 449), property does not pass before the purchase price is paid in full.
3. Procurement free from defects
16 Thirdly, the seller is under an obligation to procure the thing for the buyer free from
material and legal defects, Sub. 1 2nd St. (for material and legal defects see §§ 434, 435). This
means that, in principle, delivery of a defective thing is not performance, which may have an
impact on the question when the buyer is in default of acceptance (§§ 293 et seq.). Once the
buyer has accepted the detective thing or right as performance by the seller (with the
consequence that the seller’s obligation is extinguished, § 362), he can resort to the remedies
following from 437 et seq./ demanding in particular that the defect is remedied or that
goods free from defects are supplied.
4. Secondary obligations
17 Secondary obligations of the seller can be explicitly or implicitly provided for in the
contract of purchase, or they can be deduced from the general rules of the law of obligations,
especially from § 241 and from the principle of good faith (§ 242). The secondary obligations
differ from case to case, in particular with regard to the subject-matter of the contract of sale.
Examples mentioned by the drafters of the rule are packaging, sending, insuring the thing
sold, giving instructions or advice relating to the goods sold, warning of risks related to the
goods, providing instructions for use, cooperating with the buyer, providing spare parts or
supplying correct balances in cases of sale of an enterprise.7 8 Two types of secondary
obligations can be distinguished: collateral obligations and obligations of protection.9
18 a) Collateral obligations. Collateral obligations take effect alongside with the principal
obligations of the seller. The probably most frequent collateral obligations in contracts of sale
are duties of information. They can be deduced from §§ 402, 413 for the purchase of rights
or - for special types of sales contracts - from § 507(2) for instalment payment transactions
(applicable also in cases of starting up a new business, § 512), § 482 and § 312d for doorstep
and distance sales contracts (§§ 312b, 312c). As can be seen from these rules, the seller is not
under a general duty ot information.10 Instead, he is only obliged to provide information in
special cases, about facts which the buyer must know,11 and only if the seller knows or ought
to know these facts.12 An obligation to inform the buyer can for example arise if the seller is
an expert13 or involves an expert to inform the buyer about certain characteristics of the
object of sale,14 or if such information is in accordance with custom and usage.15 The duty to
provide information about the object of the sale can include the duty to provide instructions
for use.16 In certain cases, there may be a duty of accounting, especially if the buyer needs an
account for tax purposes according to § 14(1) UStG.17 In certain cases, there is a duty to
7 See also * § 437 mn. 8.
8 BT-Drs. 14/6040 of 14.5.200], p. 203.
9 Jauernig BGB/Berger, § 433 BGB mn. 22 et seq.
■ BGB/Wes,crmann- §433 BGB mn. 61; HK-BGB/Saenger, § 433 BGB mn. 11; BGH
16.6 2004 - VJIJZR 303/03, N|W 2004, 2301,2302.
“ BeckOK BGB/Faust, () 433 BGB mn. 49.
12 HK-BGB/Saenger, § 433 BGB mn. 11.
’’ BGH 5.4.1967 - VIH ZR 32/65, NJW 1967, 1805, 1806; BGH 23.7.1997 - VIII 7R 238/96, N)W 1997,
3227. 3228; BGH 16.6.2004 - VIII ZR 303/03, NJW 2004, 2301 2302
14 BGH 13.7.1983 - VHI ZR 112/82. NJW 1983, 2697, 2698.
15e.g. BGH 16.3.1977 - VIII ZR 283/75, NJW 1977, 1055, 1056.
16 HK-BGB/Saenger, § 433 BGB mn. II.
” BGH 24.2.1988 - VIII ZR 64/87, NJW 1988. 2042, 2042; BGH 2.12.1992 - VIII ZR 50/92. NJW 1993,
536.
736
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Typical contractual duties in a purchase agreement 19-22 § 433
provide documents, e.g. when a car is sold, the seller has to hand over the certificate of
registration to the buyer,18 or if the buyer has to take over a contract of hire according to
§ 566 (also applicable to contracts of usufructuary lease via §581(2)), the seller has to
provide the buyer with the documents relating to the contract he takes over.19 The seller of
serial products is also obliged to provide spare parts.20
b) Obligations of protection. Obligations of protection arc principally provided for in 19
§ 241. In addition to the obligations arising from this provision, the seller is especially obliged
to provide tor adequate packaging,21 loading22 and unloading23 of the goods.
V. Obligations of the buyer
The buyer's main obligation is payment of the purchase price (Sub. 2 1st Alt.). Accepting 20
delivery (Sub. 2 2nd Alt.) usually is a secondary obligation. Other secondary obligations may
arise from general rules.
1. Payment
Payment ot the purchase price is the main obligation of the buyer. As a consequence, the 21
rules on reciprocal contracts (§§ 320 et seq.) apply to this obligation. The price is determined
by the parties, and it usually includes the sales turnover tax (Umsatzsteuer)24 25 if the parties
have not provided otherwise. The usual form of payment, from the legislator’s perspective, is
cash payment.However, making use of party autonomy, the parties can agree on non-cash
payment, and they often do. The place of payment usually is the seller’s residence or place of
business, § 270. The time of payment is determined by § 271. As the payment is related to
delivery and transfer of ownership via §§ 320 et seq., the buyer can make payment dependent
on the fulfilment of the seller’s obligations. However, the parties can agree that the buyer has
to pay in advance, which is often done in standard clauses such as cash against documents.
2. Accepting delivery
Accepting delivery’ usually is a secondary obligation of the buyer.26 In exceptional cases, it 22
can be a main obligation when the parties have agreed on that, e.g. if a main purpose of the
sale is that the seller gets rid of the thing sold as he does not have enough storage space.2'
The main difference is that §§ 320 et seq. apply in full to a main obligation, whereas only
§§ 323 et seq. (and, as always, §§ 280 et seq.) apply to a secondary obligation, and the special
rules for secondary’ obligations have to be taken into account. In any case, accepting delivery
is a duty and not just an obligation of the buyer, so that in cases of delay of acceptance, not
onlv the rules on default by the obligee (§§ 293 et seq.), but also the rules on default by the
obligor (§§ 286 et seq.) apply.28 Accepting delivery usually means taking immediate posses¬
sion of the thing sold and, in cases of sale of immovables, the buyer has to take an active part
18 BGH 25.6.1953 - HI ZR 353/51, NJW 1953, 1347.
19 BeckOK BGB/Faust, $ 433 BGB mn. 49.
*’e g. LG Köln 16.10.1997 - 83 O 26/97, NJW-RR 1999, 1285, 1286.
BGH 7.3.1983 - VIII ZR 331/81, NJW 1983, 1496, 1497.
22 BGH 28.4.1976 - VIII ZR 244/74, MDR 1976, 835; BGH 9.2.1994 - VIII ZR 282/93, NJW-RR 1994,
601, 602.
23 BGH 18.1.1983 - VI ZR 97/81, NJW 1983, 1108, 1109.
24 e g. BGH 24.2.1988 - VIII ZR 64/87, NJW 1988, 2042; BGH 11.5.2001 - V ZR 492/99, NJW 2001,
2464; BGH 28.2.2002 - I ZR 318/99, NJW 2002, 2312, 2312 et seq.
25 BeckOK BGB/Faust, $ 433 BGB mn. 59; HK-BGB/Saenger, § 433 BGB mn. 7.
26 e g. BeckOK BGB/Faust, § 433 BGB mn. 60 with further references.
27 e g RG 23.2.1904 - Rep. IL 298/03, RGZ 57, 105. 112; BGH 30.9.1971 - VII ZR 20/70, N|W 1972,
99.
2,1 e g. Jauernig BGB/Berger, § 433 BGB mn. 30; HK-BGB/Sacnger, § 433 BGB mn. 15.
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737
§ 434 Division 8. Particular types of obligations
in the declaration of conveyance (§ 925).29 * Acceptance in Sub. 2 does not include acceptance
of the thing delivered as in conformity with the contract of sale and therefore differs from
acceptance in contracts to produce a work (§ 640). rlhe costs of acceptance have to be borne
by the buyer (§ 448).
3. Secondary obligations
23 Other secondary obligations ot the buyer can arise from the agreement of the parties or
from statutory provisions. According to § 446 2nd St., the buyer has to bear the charges on
the thing sold, once it has been delivered. § 448 provides that the buyer has to bear the costs
of acceptance, of delivering the thing to a place other than the place of performance, and that
the buyer of a plot of land bears the costs of the necessary notarial and registration acts. In
commercial sales transactions, there are special duties and obligations of the buyer, arising
from §§ 373 et seq. HGB, among which the duty of specification according to § 375 HGB
and the lesser obligations (not duties but rather Obliegenheiten™) to examine the goods and
to notify the seller of defects of the goods according to § 377 HGB are particularly important
in practice. Other secondary obligations of the buyer can arise from general rules, especially
from §§ 241, 242. An important duty of the buyer can be ordering release of the goods, if
agreed in the contract,31 and the buyer is also under an obligation not to make false claims
against the seller.32
VI. Burden of Proof
24 The burden of proof for the conclusion of a contract of purchase is, according to general
rules, on the party who claims something from the contract. So, for example, the seller
claiming payment of the purchase price has to state and prove that the contract is valid and
that the sum demanded is the price the parties have agreed on. On the other hand, if the
buyer demands delivery, he has to state and prove that the contract is valid and that he is
entitled to delivery of the thing to which his claim relates.
§434
Material defects
(1) ,The thing is free from material defects
if, upon the passing of the risk, the thing has
the agreed quality. 2To the extent that the
quality has not been agreed, the thing is free
of material defects
1. if it is suitable for the use intended
under the contract, [otherwise]
2. if it is suitable for the customary use and
its quality is usual in things of the same kind
and the buyer may expect this quality in view
of the type of the thing.
’Quality under sentence 2 No. 2 above in¬
cludes characteristics which the buyer can
§434
Sachmangel
(1) ’Die Sache ist frei von Sachmängeln,
wenn sie bei Gefahrübergang die vereinbarte
Beschaffenheit hat. 2Soweit die Beschaffenheit
nicht vereinbart ist, ist die Sache frei von
Sachmängeln,
1. wenn sie sich für die nach dem Vertrag
vorausgesetzte Verwendung eignet, sonst
2. wenn sie sich für die gewöhnliche Ver¬
wendung eignet und eine Beschaffenheit aut-
weist, die bei Sachen der gleichen Art üblich
ist und die der Käufer nach der Art der Sache
erwarten kann.
’Zu der Beschaffenheit nach Satz 2 Nr. 2
gehören auch Eigenschaften, die der Käufer
29 BGH 173.1972 - V ZR 53/70, NJW 1972, 875, 876; BGH 20.1.1989 - V ZR 137/87, N1W-RR lqsQ'
650 et seq.
3)1Translation note: the term Obliegenheit is often translated as obligation, however this is misleading as
the failure to perform an Obhegenheit does not entitle the other party to sue lor breach, but rather may
prevent the party in breach from asserting a right e.g. Io seek cure.
11 e g. BGH 10.12.1975 - VIII ZR 201/74, WM 1976, 124, 125
32 BGH 16.1.2009 - V ZR 133/08, NJW 2009, 1262, 1262 (mn 8)
738
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Material defects
1 §434
expect from the public statements on specific
characteristics of the thing that are made by
the seller, the producer (§4(1) and (2) of the
Product Liability Act [Produkthaftungsge¬
setz]) or his assistant, including without lim¬
itation in advertising or in identification,
unless the seller was not aware of the state¬
ment and also had no duty to be aware of it,
or at the time when the contract was entered
into it had been corrected in a manner of
equal value, or it did not influence the deci¬
sion to purchase the thing.
(2) lIt is also a material defect if the agreed
assembly by the seller or persons whom he
used to perform his obligation has been car¬
ried out improperly. 2ln addition, there is a
material defect in a thing intended for assem¬
bly if the assembly instructions are defective,
unless the thing has been assembled without
any error.
(3) Supply by the seller of a different thing
or of a lesser amount of the thing is equiva¬
lent to a material defect.
nach den öffentlichen Äußerungen des Ver¬
käufers, des Herstellers (§ 4 Abs. 1 und 2 des
Produkthaftungsgesetzes) oder seines Gehil¬
fen insbesondere in der Werbung oder bei
der Kennzeichnung über bestimmte Eigen¬
schaften der Sache erwarten kann, es sei denn,
dass der Verkäufer die Äußerung nicht
kannte und auch nicht kennen musste, dass
sie im Zeitpunkt des Vertragsschlusses in
gleichwertiger Weise berichtigt war oder dass
sie die Kaufentscheidung nicht beeinflussen
konnte.
(2) ‘Ein Sachmangel ist auch dann gegeben,
wenn die vereinbarte Montage durch den
Verkäufer oder dessen Erfüllungsgehilfen un¬
sachgemäß durchgeführt worden ist. 2Ein
Sachmangel liegt bei einer zur Montage be¬
stimmten Sache ferner vor, wenn die Monta¬
geanleitung mangelhaft ist, es sei denn, die
Sache ist fehlerfrei montiert worden.
(3) Einem Sachmangel steht es gleich, wenn
der Verkäufer eine andere Sache oder eine zu
geringe Menge liefert.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
I. Histoneal 3
II. European 4
III. Comparative 6
C. Explanation 7
I. Detective goods 7
1. Definition 8
2. Minor damage 9
II. Conformity with the contract 10
1. Agreed quality 11
2. Suitability for intended use 13
3. Suitability for customary use 14
a) General 15
b) Public statements 16
III. Defective assembly or assembly instructions 19
1. Defective assembly 20
2. Defective assembly instructions 21
IV. Supply of a different thing 22
V. Supply of a lesser amount 23
VI. Burden of proof 24
A. Function
I. Purpose
§ 434 defines when the object of the sale is in conformity with the contract. From that 1
definition, it can be deduced what amounts to a material defect of the object of sale, which is
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739
§ 434 2-6 Division 8. Particular types of obligations
the precondition for all remedies following from § 437. Therefore, § 434 is one of the key
provisions for remedies of the buyer. It is also needed to determine whether the thing has
been procured by the seller free from material and legal defects (§ 433(1) 2” St.). § 434 sets a
primarily subjective standard by referring to the party agreement in the first place and taking
into account other circumstances in addition to that.
II. Scope of application
2 § 434 applies to all contracts of purchase, including consumer sales and commercial sales
transactions (§§ 373 et seq. HGB). It also applies for example to contracts of barter (§ 480),
to contracts for the supply of movable things to be produced or manufactured (§ 651), to
winding up partnerships (§ 757), and to defects of something given in lieu of performance
(§ 365). However, the application of § 434 is limited in the case of public auctions (§ 445), in
cases of purchase of an accrued inheritance (§ 2376(2)), and excluded in cases of compulsory
enforcement (§ 806 ZPO, § 56 3rd St. ZVG). § 434 is supplemented by a rule reversing the
burden of proof for consumer sales contracts in certain cases in § 477. § 434 is subject to the
disposition of the parties (see § 444), but such disposition is limited especially in consumer
sales contracts (§ 476(1)). However, liability for the quality of the goods on which the parties
have explicitly agreed according to Sub. 1 lsl St. cannot be excluded, as such an exclusion
would render the agreement on quality worthless.1
B. Context
I. Historical
3 § 434 has been part of the BGB since it entered into force in 1900, but it was substantially
modified in 2002, as the EU Consumer Sales Directive led to a modernisation of the German
law of obligations.
II. European
4 § 434 implements Art. 2 EU Consumer Sales Directive and therefore has to be construed
in conformity with the requirements set out in the Directive in cases of consumer sales. In
other cases, a different interpretation would be permissible but not advisable, as the German
legislator has chosen a uniform rule for all sorts of contracts of purchase.
5 Art. 2(1) and (2) EU Consumer Sales Directive set up a presumption of conformity with
the contract, which is not reflected in § 434. Rather, Sub. 1 provides a definition of conformity
with the contract. Since this is even more favourable to the buyer, it can be taken to be in
accordance with the Directive, which only sets a minimum standard of consumer protection as
it is a minimum harmonisation instrument (Art. 8(2)).2 Sub. 2 implements Art. 2(5) of the
Directive, whereas Sub. 3 has no basis in the European rules (but should be deemed to be in
conformity with the Directive, as it only provides for special cases of defects).
III. Comparative
§ 434 and Art. 35 CISG have many common features, even though the party agreement
seems to be envisaged as an exception in Art. 35 CISG. Although the party agreement is the
starting point in § 434, there does not seem to be a difference in the practical outcome
between § 434 and the CISG. § 434 has even more in common with Arts 1V.A.-2:3O1 et seq.
DCFR: many aspects of conformity with the contract are covered in both sets of rules, and
16 NIW’iS' V,]^R ?7lu 6’ N,W 2°18, l46' 147 (mn- nGH 9.2.2018 - V ZR 274/
16, NJW 2018, 1954, 1956 (mn. 22) - both with further references
2 Bl -Drs. 14/6040 of 14.5.2001, p. 212.
740
Schaub
Material defects 7-10 § 434
both focus on the provisions made by the parties as a starting point. However, the rules of the
DCFR are much more detailed than those in § 434, reflecting a difference in the drafting of
legislation. The same is true for Arts 99 et seq. CESL (draft), which also contain special
provisions tor the supply of digital content, Arts 5 et seq. EU Sale of Goods Directive and
Arts 6 et seq. EU Directive on the Supply of Digital Content.
C. Explanation
I. Defective goods
§ 434 determines when the goods sold are in conformity with the contract. From this, it can 7
be deduced e contrario when they are not, as this amounts to a material defect (as opposed to a
legal detect under § 435), which will give rise to remedies of the buyer. § 434 is the clue for the
specific remedies of the buyer provided for in §§ 437 et seq. Therefore, it is important to
determine exactly what amounts to a defect, and to distinguish the defects referred to by § 434
from other breaches ot duty by the seller, which may give rise to the application of the general
rules of the law of obligations, in particular §§ 280 et seq. et §§ 323 et seq.
1. Definition
The goods sold are defective, according to § 434, if they do not have the agreed quality, 8
Sub. 1 1st St., otherwise if they are not suitable for the use intended under the contract,
Sub. 1 2nd St. No. 1, or if they are not suitable for the customary use or their quality is not the
usual quality’ in things of the same kind which the buyer may expect in view of the type of the
thing, Sub. 1 2nd St. No. 2, including characteristics which the buyer can expect from public
statements made by the seller, the producer or his assistants on specific characteristics of the
goods, Sub. 1 3rd St. A defect of the goods can also result from improper assembly of the
product by the seller or persons whom he used to perform his obligation, or from defective
instructions, unless the thing has been assembled without any error, Sub. 2, or from supply of
a different thing or a lesser amount of the thing, Sub. 3. The relevant time for the defect to
initiate the buyer’s remedies is the actual or fictitious time of passing of the risk to the buyer,
as determined especially by 446, 447.
2. Minor damage
A defect may be denied in cases of minor damage, which is of practical relevance when used 9
goods, especially used cars, are sold. Minor damage is damage which would not reasonably
have any influence on the decision of the buyer whether to purchase the thing or not.3
However, there seem to be only very few cases in which minor damage could be assumed,
e.g. if a used car only has slightest scratches. If there is any further damage to the body of the
car or if it has been involved in an accident, this is deemed to be more than just minor damage
and therefore amounts to a defect if the other requirements of § 434 are fulfilled.4
II. Conformity with the contract
The different factors for determining whether the goods are in conformity with the 10
contract have, according to the wording of § 434(1), to be assessed in the order of the text
of the provision.5 So, first, it has to be determined whether there has been an agreement as to
the quality of the goods (Sub. 1 St.). If there is no such agreement, the suitability for the
3 BGH 10.10.2007 - VIII ZR 330/06, N|W 200«, 53, 54 (mn. 20).
4 See BGH 10.10.2007 - VIII ZR 330/06, NJW 200«, 53, 54 (mn. 20).
5 The English translation is not correct on this point; after No. 1, otherwise has to be added in order to
reflect the true meaning of the provision.
Schaub
741
§ 434 11-12 Division 8. Particular types of obligations
use intended under the contract is the decisive factor (Sub. 1 2nd St. No. 1). If there is no
specific use intended under the contract, the suitability for the customary use of the goods
has to be determined (Sub. 1 2nd St. No. 2), taking into account public statements of the
seller, the producer or his assistants on specific characteristics of the goods (Sub. 1 3rd St.).
Additional factors which may make a thing defective are defective assembly or assembly
instructions, Sub. 2, the supply ot a ditterent thing, Sub. 3 T' Alt., or the supply of a lesser
amount, Sub. 3 2nd Alt.
1. Agreed quality
11 The starting point for determining whether the goods delivered by the seller are in
conformitv with the contract is an agreement on the quality of the goods (Sub. 1 1st St.). If
the actual state of the thing sold differs from the state it should be in according to the
agreement of the parties, the thing is defective. The agreement must be part of the contract
of purchase - it can be explicit or implicit,6 but an implicit agreement will be assumed only if
there is clear indication for such an agreement.7 If the contract is subject to certain formal
requirements, the agreement on the quality of the goods generally has to fulfil the same
requirements.8 However, not every averment of the seller vis-a-vis the buyer amounts to an
agreement on the quality of the goods. Especially if the seller only refers to statements on the
quality’ of the goods made by other people, e.g. the former owner of the car sold, this, of
itself, does not amount to an agreement on the quality of the goods.9 And if the buyer has
special demands as to the quality of the goods, the seller has to agree in order for Sub. 1 1st St.
to apply.10
12 The agreement must relate to the characteristics of the goods. These include all features
which are a constituent part of the thing itself. However, there is a debate whether character¬
istics which are not closely related to the thing (e.g. its value or proceeds, or rights and
encumbrances) can be included.11 In 2002, the German legislator did not decide on this
question,12 which had been much debated before the modernisation of the law of obligations,
but Art. 3(1) EU Consumer Sales Directive provides that the seller shall be liable for any lack of
conformity. Recent case-law indicates that a broad interpretation is being favoured by the
BGH.13 So, for example, the characteristics of a plot of land may include the proceeds and
operating expenses14 or environmental impacts which determine the value of the land, such as
contaminated ground water, coming from an adjacent plot of land,15 and the characteristics of
a car may include a producer’s guarantee.16 What is still under debate is whether aspects which
6 BGH 20.5.2009 - VIII ZR 191/07, NJW 2009, 2807, 2807 (mn. 9); BGH 6.2.2013 - VIII ZR 374/11,
NJW 2013, 1365, 1365 (mn. 10); BGH 29.6.2016 - VIII ZR 191/15, NJW 2016, 3015, 3016 (mn. 18 et seq.)
with further references; BGH 18.10.2017 - VIH ZR 32/16, NJW 2018, 150, 151 et seq. (mn. 16, 20).
7 BGH 15.6.2016 - VIII ZR 134/15, NJW 2016, 2874, 2875 (mn. 16); BGH 29.6.2016 - VIII ZR 191/15,
NJW 2016, 3015, 3018 (mn. 35); BGH 26.4.2017 - VIII ZR 80/16, NJW 2017, 2817, 2818 (mn. 13); BGH
6.12.2017 - VIII ZR 219/16, NJW-RR 2018, 822, 823 (mn. 25); BGH 27.9.2017 - VIII ZR 271/16, NfW
2018, 146, 146 (mn. 18); BGH 18.10.2017 - VIII ZR 32/16, NJW 2018, 150, 151 (mn. 16), each with
further references.
H BGH 6.11.2015 - V ZR 78/14, NJW 2016, 1815, 1816 (mn. 15 et seq.); BGH 19.1.2018 - V ZR 256/16,
NJW RR 2018, 752, 753 (mn. 8); BGH 9.2.2018 - V ZR 274/16, N|W 2018, 1954, 1954 (mn. 7) - both in
relation to the sale of land, and therefore not in conflict with the EU Consumer Sales Directive, which
does not apply to such cases.
Vl“ ZR 253/°5, N,W 2008> l517’ 1571 e‘ s«l- (nm. 12 et seq.); BGH 13.3.2013 -
VIII ZR 186/12, NJW 2013, 2107, 2108 (mn. 22). H
BGH 20.5.2009 - VIII ZR 191/07, NJW 2009, 2807, 2807 et seq. (mn. 9).
i" nr TZ” °f *hc?,a,e °f thlS dcba,c can bc f,)und in BeckOK BGB/Iaust. () 434 BGB mn. W stX>'
,2BI -Drs. 14/6040 of 14.5.2001, p. 213.
” See especially BGH 15.6.2016 - VIII ZR 134/15, NJW 2016 2874
BGH 5.11.2010 - V ZR 228/09, NJW 2011, 1217, 12)8 (mn. 12 et sen.)
15 BGH 30.11.2012 - V ZR 25/12, NJW 2013, 1671, 1672 (mn 10)
" BGH 15.6.2016 - VIII ZR 134/15, NJW 2016, 2874, 2874 (mn. 8 et seq.).
742
Schaub
Material defects 13-15 § 434
have a - probably very detached - relationship to the thing sold can be characteristics of the
goods,17 e.g. a personal right of pre-emption.18 The fact that the costs of physiotherapy using
the thing sold will not be reimbursed by health insurance companies has been held not to be
sufficiently related to the machine itself.19 So, a line seems to be drawn only in rather
exceptional cases. In general, a broad interpretation of the characteristics of the goods seems
to prevail. Especially with regard to the requirements of European law, this seems to be a good
solution. Therefore, characteristics of the goods, which are separable from the thing itself, but
still somehow related to it, like in the examples mentioned, will be covered by § 434.
2. Suitability for intended use
If there is no agreement on the quality of the goods, their suitability for the use intended 13
under the contract (Sub. 1 2nd St. No. 1) has to be assessed, taking into account the
agreement itself but also all the circumstances of the agreement.20 However, in some cases
Sub. 1 Pl St. and Sub. 1 2nd St. No. 1 may be both applicable. According to the wording of the
provision, Sub. 1 1st St. takes precedence if there are no special circumstances pointing to an
exception, e.g. when the buyer has mainly relied on a specific use of the goods and the
agreement on the quality has been made on this basis but not in accordance with the
intended use.21 The use intended under the contract can be deduced from the parties’
dealings; it does not have to fulfil the same formal requirements as the contract.22 Sub. 1
2nd St. No. 1 may apply even if the suitability for the intended use is reduced only; the
provision does not require that the goods are not suitable for the intended use at all.23
3. Suitability for customary use
The next step in assessing the conformity of the goods with the contract is their suitability 14
for the customary use (Sub. 1 2nd St. No. 2). This may also overlap with No. 1, e.g. in cases
when the use intended under the contract is not the customary use. The wording in Sub. 1
2nd St. No. 1 (otherwise)24 indicates that No. 1 takes precedence. This can be reconciled with
Art. 2(2) EU Consumer Sales Directive (in which both alternatives are equal), as the Directive
still gives precedence to party autonomy,25 which is expressed in the parties’ dealings relating
to the use intended under the contract.26 The suitability for the customary use can be
determined according to Sub. 1 2nd St. No. 2 or with reference to public statements of the
seller, the producer or his assistant, Sub. 1 3rd St.
a) General. In general, the suitability of the goods for the customary use is determined by 15
drawing a comparison with similar goods. The decisive factor is what an average buyer can
reasonably expect.27 For example, a used car has to be compared with other used cars of the
same type, and with a comparable age and mileage.28 Other factors have to be taken into
17 Left open in BGH 15 6.2016 - VIII ZR 134/15, NJW 2016, 2874, 2875 (mn. 13).
" BGH 19.4.2013 - V ZR 113/12, NJW 2013, 1948, 1949 (mn. 15).
BGH 26.8.2014 - VIII ZR 335/13, BeckRS 2014, 17609 (mn. 16 et seq.).
20 BGH 6.12.2017 - VIII ZR 219/16, NJW-RR 2018, 822, 824 (mn. 30 et seq.).
21 e g. BeckOK BGB/Faust, $ 434 BGB mn. 49.
22 As can be deduced from BGH 16.3.2012 - V ZR 18/11, NJW-RR 2012, 1078, 1078 (mn. 15 et seq.);
confirmed now in BGH 19.1.2018 - V ZR 256/16, NJW-RR 2018, 752, 753 (mn. 10) and BGH 9.2.2018 -
V ZR 274/16, NJW 2018, 1954, 1956 (mn. 21).
23 BGH 26 4.2017 - VIII ZR 80/16, NJW 2017, 2817, 2818 (mn. 18) with further references.
24 See ♦ § 434 mn. 10 footnote No. 5.
23 Recital 8 2nd St. EU Consumer Sales Directive.
26 See BeckOK BGB/Faust, § 434 BGB mn. 50.
27 eg. BGH 29.6.2011 - VIII ZR 202/10, NJW 2011, 2872, 2873 (mn. 12) with further references; BGH
29.6 2016 - VIII ZR 191/15, NJW 2016, 3015, 3017 (mn. 42).
* See e g. BGH 10.10.2007 - VIII ZR 330/06, NJW 2008, 53, 54 (mn. 19); BGH 29.6.2016 - VIII ZR
191/15, NJW 2016, 3015, 3019, 3019 et seq. (mn. 42, 52).
Schaub
743
§ 434 16-18 Division 8. Particular types of obligations
account as well, such as the price or characteristics which are obvious for the buyer.29 For
example, a four-year-old car has been deemed to be suitable for the customary use with a
substitute varnishing - if the buyer wants the original varnish, he has to make an agreement
on this quality according to § 433(1) 1st St.30 New cars and Jahreswagen (cars which have run
for up to one year after their initial registration, and have been driven by one person only -
usually an employee of the car manufacturer) are suitable for the customary use if their initial
registration has taken place within twelve months after production at the latest.31 However,
for used cars other than Jahreswagen, there is no such limit.32 If a building cannot be used for
lack of a valid construction permit, this amounts to a defect.33 In some cases, even a
suspected defect can be sufficient if it substantially impairs the expected use of the goods.34
16 b) Public statements. The quality of the goods can, according to Sub. 1 3rd St., also by
determined by reference to public statements on specific characteristics of the goods made by
the seller, the producer or his assistant. As to statements of the seller, this provision will only
apply in exceptional cases, when there is such a statement but not an agreement with the
buyer (to which Sub. 1 1st St. would apply35), e.g. if an implicit agreement is denied36 or if the
statement is contained in a sales brochure (even one made by a person different from the
seller, such as a broker).37 More frequent will be the situations in which the buyer relies on
statements of the producer, as determined by § 4(1) and (2) ProdHaftG (Produkthaftungsge¬
setz - Product Liability Act38), which implements the EU Product Liability Directive.
Statements of an assistant are also included. However, it is not entirely clear whether only
the producer’s assistant or also the seller’s assistant is meant; there seems to be a tendency to
include both.39 In any case, as the seller and the producer are explicitly mentioned,
intermediate sellers (as a third group) should - e contrario - not be included.40
17 The provision aims at public statements in advertising or labelling41 on characteristics of
the goods sold. There are no formal requirements for such statements, and the BGH has held
that Sub. 1 3rd St. even applies to contracts which are subject to certain formal require¬
ments,42 but liability might still be excluded in the contract itself.43
18 The seller can avoid liability if he states and proves that either he was not aware of the
statement and had no duty to be aware of it (or rather, according to the EU Consumer Sales
Directive, could not reasonably have been aware of it), or that the statement had been
corrected in a manner of equal value at the time when the contract was entered into (but it
29 BGH 10.10.2007 - VIII ZR 330/06, NJW 2008, 53, 54 (mn. 16).
30 BGH 20.5.2009 - VIII ZR 191/07, NJW 2009, 2807, 2808 (mn. 11 et seq.).
31 BGH 15.10.2003 - VIII ZR 227/02, NJW 2004, 160, 160; BGH 7.6.2006 - VIII ZR 180/05, NJW 2006,
2694, 2695; BGH 29.6.2016 - VIII ZR 191/15, NJW 2016, 3015, 3019 (mn. 45-46).
32 BGH 29.6.2016 - VIII ZR 191/15, NJW 2016, 3015, 3020 (mn 50 et seq )
33 BGH 12.4.2013 - V ZR 266/11, NJW 2013, 2182, 2183 (mn. 9).
34 e.g. BGH 16.4.1969 - VIII ZR 176/66, NJW 1969, 1171, 1171 et seq. - meat which was suspected to
be infected with salmonella could not be resold and was therefore held to be defective; BGH 8.7.2016 - V
ZR 35/15, NJW-RR 2017, 468, 469 (mn. 11) and BGH 21.7.2017 - V ZR 250/15, NJW 2018, 389, 389
(mn. 6 et seq.) - the former use of a piece of land leads to a danger of contamination.
See e.g. BeckOK BGB/Faust, § 434 BGB mn. 77.
36 See BGH 27.9.2017 - VIII ZR 271/16, NJW 2018, 146, 146 (mn 21)
3' e.g. BGH 19.1.2018 - V ZR 256/16, NJW-RR 2018, 752, 753 (mn 10)
“ An Eu^,t ,otnsla,lon of ,he ProdHaf,G is avaliable under www.gesetze-im-internet.de.
e.g. HK-BGB/Saenger, §434 BGB mn. 15; BeckOK BGB/Faust. §434 BGB mn.81 with further
references. "
BeckOK BGB/Faust, § 434 BGB mn. 82.
n°te: *r|ansla,'"n of K™nzeichnunX as identification is not appropriate in this context,
if A^// > fu7°re SU C1‘ra?S,a,IOn and al’° corresPl>nds «o the wording used it the Enghsh version
« Rf H A t ,n?,nSUTvu3 CS 'rCC,iVC ("’C GCrman VCrSi°n UkettLnx).
23/15bz i^r™ 2°12’io78-1078 * -v zr
« BGH 22.4.2016 - V ZR 23/15, NJW 2017, 150, 151 (mn. 18).
744
Schaub
Material defects 19-22 § 434
may be corrected by a different person44), or that the statement did not influence the buyer’s
decision to purchase the goods, e.g. if the buyer did not actually know the statement.45
III. Defective assembly or assembly instructions
Defective assembly or assembly instructions can also amount to a defect in the goods. 19
1. Defective assembly
Improper assembly ot the thing sold by the seller or by persons whom he used to perform 20
his obligation amounts to a defect if the assembly is part of the seller’s obligations. Sub. 2
1st St. applies regardless of a defect in the product itself and is therefore particularly
important in cases in which Sub. 1 does not come into play, especially if the product itself
is in conformity with the contract, and only the assembly is defective, e.g. if just the seller’s
installation of the product is not correct.
2. Defective assembly instructions
According to the wording of Sub. 2 2nd St., defective assembly instructions (not instrue- 21
tions for use, which have to be considered under § 433(1)) amount to a material defect in the
goods, unless the thing has been assembled without any error. This could amount to a
privilege for the seller, as usually defective assembly instructions would render the product
detective according to § 433(1). However, Sub. 2 2nd St. does not implement Art. 2(5) 2nd St.
EU Consumer Sales Directive correctly. What is meant in the Directive is that an incorrect
installation by the consumer, which has been caused by defective installation instructions,
gives rise to remedies of the buyer, including repair of the defect by the seller. As the wording
of Sub. 2 2nd St. can hardly be interpreted in conformity with the Directive, it should be
preferred not to apply this provision in cases of consumer sales46 and rather apply § 433(1),
taking into account that, according to the Directive, defective assembly by the consumer in
the cases mentioned in Art. 2(5) 2nd St. of the Directive does not exclude a defect. § 433(2)
2nd St. can be applied to other contracts of purchase to the effect that a thing is - deviating
from § 433( 1) - not defective if it has been supplied with defective assembly instructions but
was correctly assembled by the buyer.
IV. Supply of a different thing
Sub. 3 1st Alt., which is not based on the EU Consumer Sales Directive, states that the 22
supply of a different thing is equivalent to a material defect. This makes it easier to establish a
defect of the thing sold, as it is immaterial whether the thing supplied is (still) defective or
(already) different, which is particularly important for the purchase of unascertained goods.
Where the purchase of specific goods is concerned, there is a debate whether Sub. 3 lsl Alt.
applies or whether the supply of a different thing constitutes no performance at all. Relying
on the wording of the provision and the intention of the legislator to apply the same rules to
all types of sales,47 it seems preferable to apply Sub. 3 1st Alt. also to the purchase of specific
goods.48 The legal consequences of the supply of a different thing may, especially when
specific goods are purchased, differ from the normal consequences of the supply of defective
goods, e.g. cure may not be possible.49
44 e.g. Jauernig BGB/Berger, § 434 BGB mn. 17; MüKo BGB/Westermann, § 434 BGB mn. 34.
*'-> e.g. BeckOK BGB/Faust, § 434 BGB mn. 90.
46 See also BeckOK BGB/Faust, § 434 BGB mn. 97.
47 BT-Drs. 14/6040 of 14.5.2001, p. 261.
48 See also BeckOK BGB/Faust, § 434 BGB mn. 110 et seq. with further references.
49 See * § 439 mn. 18.
Schaub
745
§435 1
Division 8. Particular types of obligations
V. Supply of a lesser amount
23 Similarly, the supply of a lesser amount of the thing sold is deemed to be equivalent to a
material defect, Sub. 3 2nd Alt. (subject to § 377 HGB in commercial sales transactions). This
does not include cases in which the supply of a lesser amount is obvious, as in those cases the
general rules on part performance (especially § 266 or §§ 280, 281, 323) apply. Sub. 3
2nd Alt. also, at least according to the majority opinion in literature,50 does not apply when
a larger quantity of the thing sold is supplied, as those cases are neither covered by the
wording nor do they fit with the consequences of an application of Sub. 3 2nd Alt. The
provision rather aims at cases in which the buyer has an interest in obtaining the full quantity
of goods at one time, especially when two separate instalments may differ slightly (e.g. in
colour or texture) from each other.51 In these situations, the buyer has the right to demand
supply of a whole new lot, according to § 439(1) 2nd Alt. What is not clear is whether Sub. 3
2nd Alt. also extends to the application of the general rules on defective performance, which
would mean that the rules on defective performance (§§ 281(1) 3rd St. and § 323(5) 2nd St.)
applied instead of the rules on partial performance (§§ 281(1) 2nd St., 323(5) 1st St.).52 To
avoid contradictions, the rules on defective performance should be applied.
VI. Burden of proof
24 The burden of proof for the defect is, according to the general rules, on the buyer, once he
has accepted the goods.53 If one of the parties relies on special agreements as to the quality of
the goods, each party has to contend and prove the facts on which it relies.54 As to the
relevant time for the existence of the defect, this is subject to the special provision for
consumer sales contracts in § 477.
§435
Legal defects
’The thing is free of legal defects if third
parties, in relation to the thing, can assert
either no rights, or only the rights taken
over in the purchase agreement, against the
buyer. 2It is equivalent to a legal defect if a
right that does not exist is registered in the
Land Register.
§435
Rechtsmangel
’Die Sache ist frei von Rechtsmängeln,
wenn Dritte in Bezug auf die Sache keine
oder nur die im Kaufvertrag übernommenen
Rechte gegen den Käufer geltend machen
können. 2Einem Rechtsmangel steht es gleich,
wenn im Grundbuch ein Recht eingetragen
ist, das nicht besteht.
A. Function
I. Purpose
1 § 435 defines what amounts to a legal defect (as opposed to a material defect - § 434),
giving nse to the buyer's remedies according to §§ 437 et seq. The 2nd St. extends the notion
of legal defect to certain cases of the purchase of land, when the Land Register lists a non-
existing right relating to the object of purchase.
50 See e. g. BeckOK
further references.
BGB/Faust, § 434 BGB mn. 120; MüKo BGB/Westermann, § 434 BGB mn. 49 with
51
52
53
54
See BT-Drs. 14/6040 of 14.5.2001, p. 216.
See BeckOK BGB/Faust. § 434 BGB mn. 117 with further references
BGH 2.6.2004 - Vlll ZR 329/03, NJW 2004, 2299, 2300
BeckOK BGB/Faust, § 434 BGB mn. 121.
746
Schaub
Legal defects
2-6 § 435
II. Scope of application
The provision applies to the purchase of things as well as (via § 453) to the purchase of 2
rights or other objects. Its application is limited when a thing is sold in a public auction
(§ 445), or when it is part ot the purchase of an accrued inheritance (§ 2376(1)). § 435 does
not apply in cases of compulsory enforcement (§ 806 ZPO, § 56 3rd St. ZVG).
B. Context
I. Historical
§ 435 follows the former §§ 434, 435, uniting them in one provision and adapting them to 3
the new liability regime introduced by the modernisation of the law of obligations in 2002.
II. European
It is not clear whether § 435 has a basis in the EU Consumer Sales Directive, as the 4
Directive does not directly refer to legal defects and mainly seems to aim at material defects.
However, since § 435 rather enhances consumer protection, it is in accordance with the
directive and should therefore not be challenged from the point of view of European law.1
III. Comparative
Arts 41 et seq. CISG, Arts 102 et seq. CESL (draft) and Arts IV.A.-2:305 et seq. DCFR 5
establish the seller’s liability for legal defects, too, all of them with a special emphasis on
rights or claims of third parties based on industrial property or other intellectual property
rights. However, Art. 103 CESL (draft) states a notable exception for the supply of digital
content. Art. 9 EU Sale of Goods Directive and Art. 10 EU Directive on the Supply of Digital
Content both contain shorter provisions for third party rights.
C. Explanation
I. Legal defect
Generally, the thing sold will suffer from a legal defect if it is not free from third party rights, 6
except for those which are provided for in the contract of sale. The 1st St. only refers to existing
rights of third parties, not to alleged rights - with an exception in the 2nd St.2 * 4 This differs from
Art. 41 1st St. CISG, where a legal defect is excluded if the buyer takes the goods subject to the
right or claim of a third party, but is in conformity with Art. IV.A.-2:305 DCFR and Art. 102
CESL (draft). The relevant time normally is the time when the buyer acquires ownership or the
right? The separation between the contract of sale and the acquisition of ownership has to be
taken into account again here? Therefore, legal defects existing at the time of the conclusion of
the contract of purchase are irrelevant if they do not exist any longer when the buyer acquires
ownership. In cases of retention of title, the relevant time is when the condition (payment of
‘ See also BeckOK BGB/Faust, § 435 BGB mn. 4 with further references.
2 See * below mn. 9.
5 See e £ BeckOK BGB/Faust, § 434 BGB mn. 5 with further references; hut sec also BGH 18.2.2004 -
VIII ZR 78/03, NJW 2004, 1802; BGH 18.1.2017 - VIII ZR 234/15, NJW 2017, 1666, 1667 (inn. 21) -
time of passing of risk, but in a situation in which it was not clear whether ownership could be acquired
at all.
4 See ► § 433 mn. 10.
Schaub
747
§ 436 Division 8. Particular types of obligations
the price) is fulfilled (§ 449(D).5 It is immaterial whether the legal defect is negligible or
whether there is a party agreement on a particular use of the thing sold.
1. Examples
7 Examples of legal defects in goods are especially absolute rights of third parties, such as
property rights, charges, industrial or intellectual property rights, but also entitlements to
possession. It is debated whether it also amounts to a legal defect if the seller is not the owner
of tire goods sold, but the BGH is right in applying § 433(1) I5' St. in such cases, which
logically excludes a legal defect, which would come under § 433(1) 2" St. For legal defects in
cases of purchase of rights see § 453.6 * 8
8 Encumbrances or restrictions of use deriving from rules of public law can also amount to
legal defects, e.g. the confiscation of the goods,9 the entry of a car in an international
database of stolen or missing vehicles10 or restrictions on the use of a flat subsidised with
public funds.11 However, when a plot of land is purchased, public charges affecting every¬
body do not amount to legal defects (see § 436(2)). The difference between legal and material
defects (§ 434) is not entirely clear (but see the rather general rule set up by the BGH: if
public law rules apply as a consequence of a defect in the goods themselves, this is a material
defect, if not, it is a legal defect12), but not decisive as both sorts of defects lead to the same
legal consequences (see in particular § 437).
2. Purchase of Land
9 Where land is purchased, § 435 2nd St. extends the notion of legal defect to situations in
which the Land Register lists a non-existing right relating to the object ot purchase. This deviates
from the general rule that alleged rights do not constitute a legal defect13 because non-existing
rights in land mentioned in the Land Register might lead to a good faith acquisition of such a
right in certain cases (§ 892), and it could impair the buyer’s dispositions of the plot of land.
II. Consequences
10 If there is a legal defect, the buyer has the remedies deriving from §§ 437 et seq., of which
cure (§ 439(1) 1st Alt.) may be of particular importance.
§436
Public charges on plots of land
(1) Unless otherwise agreed, the seller of a
plot of land is obliged to bear public services
development charges and other municipal
development charges for measures the con¬
struction of which began before the contract
was entered into, irrespective of the point of
time when they became payable.
§ 436
Öffentliche Lasten von
Grundstücken
(1) Soweit nicht anders vereinbart, ist der
Verkäufer eines Grundstücks verpflichtet, Er¬
schließungsbeiträge und sonstige Anliegerbei¬
träge für die Maßnahmen zu tragen, die bis
zum Tage des Vertragsschlusses bautechnisch
begonnen sind, unabhängig vom Zeitpunkt
des Entstehens der Beitragsschuld.
6 rt ZR 24/60’ N,W 1961> 1251 1253 wi,h further references.
6 Bf-Drs. 14/6040 of 14.5.2001, p. 218
’ See ej. BGH 19.10.2007 - V ZR 211/06, NJW 2007, 3777, 3779 (mn. 27) with further references.
8 * 9 453 mn. 6.
9 BGH 18.2.2004 - VHI ZR 78/03, NJW 2004 1802
10 BGH
11 BGH
12 BGH 18.1.2017 - VIIJ ZR 234/15, NJW 2017, '1666.'
13 See ► § 435 mn. 6.
18.1.2017 - VIII ZR 234/15, NJW 2017, 1666, et seq. (mn. 18 et seq )
14.9.2018 - V ZR 165/17, MDR 2018, 1433 (mn. 4) * '
748
Schaub
Public charges on plots of land
1-4 § 436
(2) The seller of a plot of land is not liable
for the land being free from other public
levies and other public charges that are not
suitable to be entered in the Land Register.
(2) Der Verkäufer eines Grundstücks haftet
nicht für die Freiheit des Grundstücks von
anderen öffentlichen Abgaben und von ande¬
ren öffentlichen Lasten, die zur Eintragung in
das Grundbuch nicht geeignet sind.
A. Function
§ 436 contains special rules for the sale of land (and of similar rights1). Sub. I modifies 1
§ 446 2nd St., whereas Sub. 2 is a special rule on legal defects, excluding certain public charges
from the application of § 435. § 436 can be modified by the parties of the contract of sale.2
B. Context
Sub. 2 has been in the BGB since 1900 (back then as § 436), whereas Sub. 1 was inserted in 2
2002 as part of the modernisation of the law of obligations. As § 436 applies to the sale of
land only, it is neither within the range of application of the EU Consumer Sales Directive
(Art. 1 (2)(b)) nor does it have any equivalents in international rules on sales law, such as the
CISG, DCFR or CESL (draft).
C. Explanation
I. Development charges
Sub. 1 refers to public services and other municipal development charges. According to the 3
general rule in § 446 2nd St. (in connection with § 103) these charges would have to be borne
by the buyer. Sub. 1 states an exception to this rule by providing that if such charges are due
for construction measures which began before the contract was entered into,3 the seller is
obliged to bear these charges. This rule, which only applies to the contract of sale, not vis-a-
vis third parties, is meant to protect the buyer, as such charges may be collected by the public
authorities later than they accrued, sometimes even after the construction work has been
finished.4 The decisive point of time is the start of the construction works, which can be
determined rather easily. When Sub. 1 applies, the buyer can either make the seller pay such
charges or - if he has paid them first - get restitution from the seller.5
II. Public levies or charges
Sub. 2 refers to public levies or charges (which are not covered by Sub. 1) which are related 4
to the plot of land sold and therefore are always to be borne by the owner, such as real estate
tax (Grundsteuer). It only covers charges, not other encumbrances to be borne by the buyer
which may derive from public law rules, such as a right of pre-emption by a public authority
or building restrictions.6 The charges covered by Sub. 2 do not amount to a legal defect
435). The provision only includes such charges which cannot be entered into the Land
Register, as § 435 applies in the latter cases.7
1 See e.g. HK BGB/Saenger, § 436 BGB mn. 5.
2 See the wording of § 436(1) and BGH 2.7.1993 - V ZR 157/92, NJW 1993, 2796, 2797 for § 436(2).
’Translation note: sonstige Anliegerbeitrage für die Maßnahmen fzu tragen/, die bis zum Tage des
Vertragsschlusses bautechnisch begonnen sind would be belter translated as development charges for
construction measures which began before the contract was entered into.
4 BT-Drs. 14/6040 of 14.5.2001, p. 219.
5 See eg. BeckOK BGB/Faust, § 436 BGB mn. 7 with further references.
6 B'l Drs. 14/6040 of 14.5.2001, p. 219.
7 See e.g. BeckOK BGB/Faust, § 436 BGB mn. 10,
Schaub
749
§437 1
Division 8. Particular types of obligations
§437
Rights of buyer in the case of
defects
If the thing is defective, the buyer may,
provided the requirements of the following
provisions are met and unless otherwise spe¬
cified,
1. under § 439, demand cure,
2. revoke the agreement under §§ 440, 323
and 326(5) or reduce the purchase price un¬
der § 441, and
3. under §§440, 280, 281, 283 and 311a,
demand damages, or under § 284, demand
reimbursement of futile expenditure.
§437
Rechte des Käufers bei Mängeln
Ist die Sache mangelhaft, kann der Käufer,
wenn die Voraussetzungen der folgenden
Vorschriften vorliegen und soweit nicht ein
anderes bestimmt ist,
1. nach § 439 Nacherfüllung verlangen,
2. nach den §§ 440, 323 und 326 Abs. 5 von
dem Vertrag zurücktreten oder nach §441
den Kaufpreis mindern und
3. nach den §§ 440, 280, 281, 283 und 311a
Schadensersatz oder nach § 284 Ersatz ver¬
geblicher Aufwendungen verlangen.
Contents
mn.
A. Function 1
I. Purpose 1
IL Scope of application 2
B. Context 3
I. Historical 3
II. European 4
III. Comparative 5
C. Explanation 6
I. General preconditions 6
II. Relationship of the buyer’s remedies 7
III. Buyer’s remedies 8
IV. Rescission 9
1. Character 9
2. Preconditions 10
3. Special problems in consumer sales cases 12
V. Damages 15
1. General preconditions 15
2. System 16
a) Damages in lieu of performance 17
b) Damages alongside performance 21
VI. Reimbursement of futile expenditure 24
VII. Relationship to general remedies 25
1. Performance 26
2. Culpa in contrahendo 27
3. Damages 28
4. Interference with the basis of the transaction 29
5. Avoidance 30
6. Liability in tort 31
A. Function
I. Purpose
1 § 437 is the key provision for the rights (or: remedies) of the buyer when the thing sold is
defective. The provision itself does not provide for the remedies in full, but enumerates them
750
Schaub
Rights of buyer in the case of defects 2-6 § 437
and refers to the relevant provisions (though not completely1) which state the preconditions for
those remedies. Therefore, the main function of § 437 is to open up the path to the buyer’s
remedies, providing a starting point and linking the general rules of the law of obligations with
some special rules ot sales law in order to adapt them to contracts of sale.
II. Scope of application
§ 437 applies to all contracts of sale - to the sale of goods as well as (via § 453) to the sale 2
of rights or other objects. It covers all cases of material (§ 434) or legal (§ 435) defects. It has
to be applied in conjunction with the subsequent provisions, with regard to the special rules
on limitation in § 438. § 437 is subject to the disposition of the parties.
B. Context
I. Historical
§ 437 was introduced in 2002 as part of the modernisation of the law of obligations, 3
following the EU Consumer Sales Directive.
IL European
The provision partly implements Art. 3(5) EU Consumer Sales Directive (Nos 1 and 2), 4
but (in No. 3) goes further; this is in conformity with the Directive, as the Directive only sets
a minimum standard of harmonisation, Art. 8(2). On the other hand, one aspect of Art. 3(5)
EU Consumer Sales Directive is not fully implemented in § 437 (or elsewhere): the consumer
may require an appropriate reduction of the purchase price or have the contract rescinded if
the seller has not completed cure within a reasonable time or not without significant
inconvenience to the buyer. For rescission of the contract, there is an appropriate rule in
§ 440, but there is no equivalent for the reduction of the purchase price (§ 441), and it must
be doubted whether the delay of cure or the inconvenience can be compensated via the rules
on damages, which depend on the seller’s responsibility according to § 276?
III. Comparative
The buyer’s remedies provided for in § 437 are quite similar to the remedies according to 5
the CISG and the CESL (draft) - only reimbursement of futile expenditure is not separately
provided for in the CISG or in the CESL (draft). The system of remedies in the DCFR differs
from these two systems, as the remedies are provided for in the General Law of Obligations
and are only slightly modified for the sale of goods.
C. Explanation
I. General preconditions
§ 437 is based on § 433(1) 2nd St. which establishes that delivery of a defective thing is a 6
breach of contract. § 437 is applicable if the thing sold is defective, irrespective of whether it
suffers from a material (§ 434) or legal (§ 435) defect. In commercial sales, the requirements
of § 377 HGB have to be met, too. It is debated whether § 437 applies from the time when
the risk has passed to the buyer or once the buyer has accepted the defective goods as
delivery (§ 363)? as the remedies are closely linked to delivery, the second opinion is the
1 Below > § 437 mn. 25 et seq.
2 See also BeckOK BGB/Faust, § 441 BGB mn. 30 et seq.
3 See BeckOK BGB/Faust, § 437 BGB mn. 4 cl seq. with further references for both opinions.
Schaub
751
§ 437 7-9 Division 8, Particular types of obligations
more convincing one. The burden of proof for the prerequisites of the buyer's remedies is
basically on the buyer, according to the general rules.
IL Relationship of the buyer’s remedies
7 The buyer is not completely free to choose between the remedies established by § 437. This
follows from a deeper analysis of the provisions to which § 437 refers. The buyer first has to
ask for cure, specifying a period of time for the seller to remedy the defect. This follows from
the provisions on revocation (or rather: rescission) of the agreement and reduction of the
purchase price, the application of which generally depends on cure having failed within a
certain period of time specified by the buyer (see especially § 323(1), which is also referred to
in § 442(1)). The buyer can demand damages without asking for cure first when the damages
do not relate directly to the defect of the thing sold but, for example, to the breach of
collateral duties or to a delay in performance. Once the period of time specified by the buyer
has expired without cure being successful, or if the buyer does not have to ask for cure (e.g.
under § 323(2)-(4) or § 440), he can choose freely between all the other remedies. Rescission
of the contract and reduction of the purchase price are mutually exclusive, as they are
Gestaltungsrechte, which means that they modify the original contract. However, both do not
in general exclude the right to demand damages or reimbursement of futile expenditure (see
§ 325), although the implications of this rule are not completely clear. According to case law
in relation to a contract to produce a work, the buyer can still claim damages for the
reduction of value of the thing sold (kleiner Schadensersatz).4 The situation is less clear in
respect of damages for recovery of the buyer’s complete loss (großer Schadensersatz). While
the BGH left this point open first,5 it ruled recently that the buyer cannot claim damages for
his complete loss once he has demanded reduction of the purchase price and thus exercised
his Gestaltungsrecht,6 but this is not universally accepted in the legal literature.7 In any case,
the buyer cannot get double compensation for the same defect, of course, and compensation
for use is provided for in the rules relating to rescission, to the effect that the benefits of use
will not be deduced from the buyer’s damages.8 Reimbursement of futile expenditure (§ 284)
and damages in lieu of performance (§ 281) are mutually exclusive as well as revocation of
the agreement and reduction of the purchase price (see Nos 2 and 3).
III. Buyer’s remedies
8 The buyer has a variety of remedies at his disposal: cure, rescission, reduction of the
purchase price, damages (in different forms), and reimbursement of futile expenditure. Cure
and reduction of the purchase price are explained in detail under § 439 and § 442, respectively.
IV. Rescission
1. Character
9 In general, the buyer can rescind (revoke) the agreement according to §§ 437 No. 1, 323.
zn6 44°,' [escission transforms the contract of sale into a different' sort of obligation
(Ruckgewahrschuldverhaltnis), which is merely directed at reversing the performance by the
parties which has taken place so far (§§ 346 et seq.). Due to this special character of
rescission as a Gestaltungsrecht, it is not subject to the normal rules on limitation, but
covered by § 218, to which § 438(4) I'1 St. refers.
. 9 2017 " V” ZR 235/l5’ N,W 2017’ l6n7' 1«» (mn. 48 et seq )
5 BGH 19.1.2017 - VII ZR 235/15, NJW 2017, 1607. 1610 (mn 49)
‘ BGH 9.5.2018 - Vlll ZR 26/17, NJW 2018, 2863, 2865 (mn 19 et sou )
See e.g. BeckOGK BGB/Stober. (j 441 BGB mn. 24 with further references
B.,H 30.6.2017 - V ZR .3«!., N|W 2017. 3.3», 34« 2»
752
Schaub
Rights of buyer in the case of defects
10-15 § 437
2. Preconditions
The preconditions of rescission under No. 2 1st Alt. arc: a contract of purchase (§ 433), a 10
material or legal defect of the thing sold (§§ 434, 435) which is not trivial (§ 323(5) 2nd St.),
and fruitless expiry' ot a reasonable period of time for cure which the buyer has specified to
the seller. The rescission must not be excluded by § 326(6) or § 442.
The focus of discussion will often be on the questions whether the buyer did not have to 11
wait tor cure, e.g. because the specification of a period of time for cure could be dispensed
with (§ 323(2)), or whether the period of time set by the buyer was reasonable. There is no
general rule as to how long the time for cure should be; the time limit has to be determined
with regard to the tacts of each particular case (see also Art. 3(3) 3rd St. EU Consumer Sales
Directive). The buyer does not have to specify a certain period of time; he can just ask for
immediate cure or cure as quickly as possible.9 If the period of time specified by the buyer
turns out to be too short, with regard to the particular case, the buyer’s demand for cure is
nevertheless taken as the starting point for an adequate period of time for cure.10 If the seller
specifies a certain period of time for cure, this is also deemed to be reasonable - even if it
might be too short, applying objective criteria.11
3. Special problems in consumer sales cases
The requirement of specification of a reasonable period of time for cure by the consumer 12
does not have a basis in Art. 3(5) EU Consumer Sales Directive. Therefore, it must be doubted
whether it is in conformity with European law as it puts the consumer at a disadvantage. To
ensure conformity with the Directive, the requirement should not be applied in cases of
consumer sales, either by applying § 440 1st St.12 or by referring to § 323(2) No. 313.
Another discrepancy' between § 437 and the EU Consumer Sales Directive can be noted with 13
regard to Art. 3(5) of the Directive, which even gives room for rescission of the contract or a
reduction of the purchase price if cure has not been completed within a reasonable time or not
without significant inconvenience to the consumer. However, these factors can be taken into
account by applying § 440 (for the reduction of the price, in conjunction with § 441) to the
effect that § 437 can be taken to be in conformity with European law in this respect.14
Finally, the application of § 323(6) might also not be in conformity with Art. 2(3) EU 14
Consumer Sales Directive in so far as it excludes rescission of the contract by the consumer
in cases of default by the obligee.15 The applicability of this rule in a case of a consumer sale
might therefore be a question to be referred to the CJEU.
V. Damages
1. General preconditions
No. 2 refers to some of the general rules of the law of obligations on damages for the sale 15
of a defective thing, combining - and thereby modifying - them for some cases with § 440.
9 BGH 12.8.2009 - VIII ZR 254/08, NJW 2009, 3153, 3154 (mn. 10-11); BGH 18.3.2015 - VHI ZR 176/
14, NJW 2015, 2564, 2565 (mn. 11); BGH 13.7.2016 - VIII ZR 49/15, NJW 2016, 3654, 3655 (mn. 25-26);
however, there is a debate in the legal literature whether this is appropriate, see e.g. Hopfner,
Anforderungen an die Fristsetzung - Bestimmtheitsgebot und Angemessenheit der Frist, NJW 2016,
3633, 3635 et seq. with further references.
10 BGH 12.8.2009 - VIII ZR 254/08, NJW 2009, 3153, 3154 (mn. 11); BGH 13.7.2016 - VIII ZR 49/15,
NJW 2016, 3654, 3655 (mn. 31).
11 BGH 13.7.2016 - VIII ZR 49/15, NJW 2016, 3654, 3655 (mn, 36).
12 BI Drs. 14/6040 of 14.5.2001, p. 222.
13 BeckOK BGB/Faust, § 437 BGB mn. 18.1.
11 See BT-Drs. 14/6040 of 14.5.2OO1, p. 223.
15 See BeckOK BGB/Faust § 437 BGB mn. 47 with further references.
Schaub
753
§ 437 16-20 Division 8. Particular types of obligations
The general preconditions for an action for damages because of the sale of a defective thing
are: a contract of purchase (§ 433). a breach of duty (the contents of which depend on the
sort of damages claimed) by the seller, and the seller’s responsibility for the breach of duty
(§§ 276, 278), which is presumed according to § 280(1) 21' St. and §311a(2) 2nd St.
respectively or can be substituted if the seller has either given a guarantee or assumed the
risk of procurement (§ 276(1) 1st St.). Depending on the basis ot claim in each particular case,
more preconditions can follow from special rules (§§ 280(2) and (3), 281, 283, 311a, 440).
The limitation of these claims is governed by § 438.
2. System
16 Apart from these general preconditions which all claims for damages starting from No. 2
have in common, the system of the different actions for damages is rather complicated, as
No. 2 refers to several bases for a claim. On the one hand, it is useful to distinguish between
damages in lieu of performance, which are a substitute for an action for performance of the
primary obligation of the seller, and damages alongside performance, which can be claimed
in addition to performance. On the other hand, it should be borne in mind that the basis for
claims for damages is either § 280(1) (standing alone or in connection with neighbouring
provisions) or § 311a(2) when the defect cannot be cured and existed already when the
contract of purchase was concluded.
17 a) Damages in lieu of performance. Damages in lieu of performance can only be awarded
if cure has failed or if the buyer does not have to demand cure first. This follows from the
references to §§ 440, 281 in § 437 No. 3. A distinction has to be made between defects which
can be repaired and such which cannot.
18 If the defect can be repaired, §§ 280(1) and (3), 281 apply. The breach of duty can either be
a breach of the duty to cure or - although sometimes debated - the supply of a defective thing
itself, § 433(1) 2nd St.16 According to §281, the buyer has to ask for cure and specify a
reasonable period of time for it, except in the special cases mentioned in § 281(2) and (3) and
§ 440 (e.g. the buyer of an animal which develops a sudden, serious illness may take the animal
to the next veterinarian available without having to ask for cure first (§ 281(2)).* 17 Damages can
be awarded either in full (covering the buyer’s complete loss resulting from the defect) if the
buyer returns the defective thing (großer Schadensersatz) or partly if the buyer keeps the
defective thing but claims damages for the remaining loss resulting from the defect, e.g. the
reduction of value of the thing sold (kleiner Schadensersatz)}8 The buyer can choose between
both, but the first alternative is restricted in certain cases according to § 281(1) 2nd and 3rd St.
19 If the seller s breach of the duty to supply a thing without defects coincides with the breach
of a duty to take account of the rights, legal interests and other interests of the buyer (§ 241(2)),
§ 282 can also apply via § 280(1), (3), even though it is not explicitly mentioned in No. 3.19
20 If the defect cannot be repaired, the contract of sale is still valid (see § 31 la(D) but the
seller is excused from performance according to § 275. In these cases, § 311 a(2) applies if the
defect existed already when the contract of sale was concluded, and §§ 280(1) and (3), 283
apply if the defect came into existence after the contract of sale was concluded. If the defect
existed at the time when the contract of sale was concluded, the breach of duty by the seller
consists of not having been aware of the obstacle to performance, if he is legally responsible
for this lack of awareness, § 31 la(2) 2nd St. If the defect came into existence al a later point of
time (§ 283), the seller’s breach of duty is either the breach of the duty to cure or - although
debated here, again20 21 - the supply of a defective thing.2' Again, damages in lieu of
P ^US V?n 3/7r,BGB mn 86 Ct SCq’ with h,r,hcr rclercnccs for the diverging opinions.
17 BGH 22.6.2005 - VIH ZR 1/05, NJW 2005, 3211, 3212 et sea
18 See >§ 281 mn. 15-16. *’
19 See BeckOK BGB/baust, § 437 BGB mn. 60.
20 See ► § 437 mn. 18.
21 See BeckOK BGB/l-aust. § 437 BGB mn. 130 with further references for the diverging opinions.
754
Schaub
Rights of buyer in the case of defects 21-26 § 437
performance can take two forms (großer Schadensersatz, kleiner Schadensersatz).22 The buyer
can also claim return of what the seller has received in reimbursement or an assignment of
the seller s claim to reimbursement under § 285, even though this provision is not mentioned
in § 437. § 285 applies as part of the general law of obligations; in detail, there is a debate
whether § 438 and § 442 apply in these cases.23
b) Damages alongside performance. Damages alongside performance also fall into 21
different categories. They can refer to consequential harm caused by the defect (Mangelfol¬
geschaden) or to harm following from a delay in cure (Verzugsschaden).
Damages for consequential harm caused by the defect (Mangelfolgcschaden) can be 22
awarded under § 280(1) or - if the defect existed already when the contract of sale was
concluded - under § 31 la(2). In these cases, the breach of the seller’s duty to supply a thing
without material or legal defects often coincides with the breach of a duty to take account of
the rights, legal interests and other interests of the buyer, § 241(2). This does not make a
practical difference, as long as those rules are always applied in connection with No. 3, so
that the special rules on limitation in § 438 apply. However, the basis for the application of
§ 437 always is a defect in the thing sold. Therefore, all cases of breach of a duty to protect
the interests of the buyer (§241(2)) which is not related to the defect are outside § 437 to the
effect that the general rules on limitation (§§ 195, 199) apply.24 In all other cases, §§ 280(1),
311 a(2) are applied via § 437 No. 3. Damages may include loss of use at the time when cure
is still possible; the special prerequisites of § 286 do not apply in these cases.25
Damages for harm following from a delay in cure can be awarded according to §§ 280(1), 23
(2), 286. The breach of duty is the delay in cure. In addition to the general preconditions for
a claim for damages, the delay in cure must amount to a default of the seller meeting the
requirements of § 286.
VI. Reimbursement of futile expenditure
The buyer can also demand reimbursement of futile expenditure according to §§ 437 24
No. 3, 284. In these cases, the requirements of a claim for damages in lieu of performance26
have to be met and the buyer must have incurred futile expenditure, e.g. costs of concluding
the contract of sale, costs of transport or assembly of the thing sold, thereby relying on
getting a thing without a defect.
VII. Relationship to general remedies
Even though the special remedies of the buyer provided for in § 437 take precedence, 25
the buyer may have other remedies, covering cases outside the range of application of
§ 437, i.e. cases in which the buyer has a remedy for another reason than a defect of the
thing sold.
1. Performance
The buyer can have a claim for performance of the contract (§ 433(1)) or raise the defence 26
of unperformed contract (§ 320). The latter defence can be raised if the seller has not
performed at all but also if the seller does not fulfil his secondary duties which replace his
primary duty to procure the thing free from material or legal defects, such as cure or damages
in lieu of performance.
22 See § 437 mn. 2«.
23 See BeckOK BGB/Faust, § 437 BGB mn. 163 with further references.
24 See > § 437 mn. 28.
25 See especially BGH 19.6.2009 - V ZR 93/08, NJW 2009, 2674, 2676 (mn. 12 ct seq.) with further
references to the debate in legal literature; BT-Drs. 14/6040 of 14.5.2001, p. 225.
26 See * § 437 mn. 17 et seq.
Schaub
755
§ 437 27-31
Division 8. Particular types of obligations
2. Culpa in contrahendo
27 The buyer may also have a claim for damages arising from the general rules on culpa in
contrahendo (§311(2)). This will for example be relevant if the seller has not provided
certain information before the contract of sale was concluded. However, the claim from culpa
in contrahendo cannot be used to circumvent the general requirements of the buyer’s
remedies under §§ 437, 438. Therefore, the buyer generally cannot rely on § 311(2) if the
seller s breach of duty is related to the defect of the thing sold. Exceptions may be made
especially when the seller has acted fraudulently.27
3. Damages
28 The buyer can also claim damages according to the general rules, e. g. damages for breach
of collateral duties, §§ 241(2), 280(1). These claims are subject to the general rules on
limitation in §§ 195, 199. As in the cases of culpa in contrahendo, it is important not to
circumvent the general requirements set up in §§ 437, 438. Therefore, damages according to
the general rules can only be claimed for breach of duties which are not related to the defect
of the thing sold.
4. Interference with the basis of the transaction
29 The same principles apply to the relationship between § 437 and the rules on interference
with the basis of the transaction (§ 313). This means that § 313 only applies in relation to
circumstances which are either not related to the defect or cannot be remedied according to
§ 437.28
5. Avoidance
30 The rules on avoidance of the contract of sale might also be in conflict with §§ 437, 438, if
applied alongside. In general, a contract can be avoided under § 119(1), as mistakes which
come under this rule are usually not related to defects of the thing sold. However, the
situation is different for avoidance of the contract of sale under § 119(2) because of a mistake
about characteristics of the thing sold. § 119(2) would cover the same cases as the special
rules on remedies of the buyer. Therefore, the predominant view is that § 119(2) is not
applicable alongside § 437.29 As to avoidance for deceit or duress (§ 123), on the other hand,
the requirements for avoidance are quite high, to the effect that it is generally assumed that
avoidance under § 123 is not excluded by the special rules on remedies of the buyer in §§ 437
et seq.
31
6. Liability in tort
The seller s liability in tort is neither excluded nor affected by his liability under § 437.
According to general rules of German civil law, there is concurrence (Anspruchskonkurrenz)
between contract and tort claims,30 i.e. the buyer can rely on both claims and they are
independent of each other. This does not usually impair the functioning of the special rules
27 See in particular BGH 27.3.2009 - V ZR 30/08. NJW 2009, 2120, 2122 (mn 19 et seq.); BGH
16.12.2009 - VIII ZR 38/09. NJW 20)0. 858, 859 (mn. 20); BGH 30 11 2012 V ZR 25/12. NJW 2013.
^m’a673vTn 2^in? M.1.9 '-2018 ' V ZR 256/16’ N,WRR 2«18- 752. 753 et seq. (mn. 12. 19); BGH
9.2.20)8 - V ZR 274/16, NJW 2018, 1954. 1956 (mn 28)
I«7/17eeNTwH7mQ9'2.as J/'" ’’ N'W 2°‘2> 373’ 374 (mn’ 12 et s«> )= ' V,U ZR
187/17, NJW 2019, 145, 146 (mn. 14 et seq.).
p B(’R/Wes,en"ann- ^37 BGB mn. 53 with further references and BeckOK BGB/
Faust, § 437 BGB mn. 185 et seq. for the diverging opinion
See e.g. BGH 28.4.1953 - 1 ZR 47/52. NJW 1953, 1180;' BGH 27.1.2005 - VII ZR 158/03. NJW 2005.
1423, 1425 with further references.
756
Schaub
Limitation of claims for defects § 438
on the buyer’s remedies» as the requirements for actions in tort are often different, and if they
are met it usually does not put the seller at an intolerable disadvantage.
§438
Limitation of claims for defects
(1) The claims cited in § 437 Nos 1 and 3
become statute-barred
1. in thirty years, if the defect consists [of]
a) a real right of a third party on the basis
of which return of the purchased thing may
be demanded, or
b) some other right registered in the Land
Register,
2. in five years
a) in relation to a building, and
b) in relation to a thing that has been used
for a building in accordance with the normal
way it is used and has resulted in the defec¬
tiveness of the building, and
3. otherwise in two years.
(2) In the case of a plot of land the limita¬
tion period commences upon the delivery of
possession, in other cases upon delivery of the
thing.
(3) ’Notwithstanding subsection (1) Nos 2
and 3 and subsection (2), claims become sta¬
tute-barred in the standard limitation period
if the seller fraudulently concealed the defect.
2In the case of subsection (1) No. 2, however,
claims are not statute-barred before the end
of the period there specified.
(4) ’The right of revocation referred to in
§437 is subject to §218. Notwithstanding
the fact that a revocation is ineffective under
§218(1), the buyer may refuse to pay the
purchase price to the extent he would be so
entitled on the basis of revocation. 3If he
makes use of this right, the seller may revoke
the agreement.
(5) §218 and subsection (4) sentence 2
above apply with the necessary modifications
to the right to reduce the price set out in
§437.
§438
Verjährung der Mängelansprüche
(1) Die in § 437 Nr. 1 und 3 bezeichneten
Ansprüche verjähren
in 30 Jahren, wenn der Mangel
a) in einem dinglichen Recht eines Dritten,
auf Grund dessen Herausgabe der Kaufsache
verlangt werden kann, oder
b) in einem sonstigen Recht, das im
Grundbuch eingetragen ist,
besteht
2. in fünf Jahren
a) bei einem Bauwerk und
b) bei einer Sache, die entsprechend ihrer
üblichen Verwendungsweise für ein Bauwerk
verwendet worden ist und dessen Mangelhaf¬
tigkeit verursacht hat, und
3. im Übrigen in zwei Jahren.
(2) Die Verjährung beginnt bei Grundstü¬
cken mit der Übergabe, im Übrigen mit der
Ablieferung der Sache.
(3) ’Abweichend von Absatz 1 Nr. 2 und 3
und Absatz 2 verjähren die Ansprüche in der
regelmäßigen Verjährungsfrist, wenn der
Verkäufer den Mangel arglistig verschwiegen
hat. 2Im Falle des Absatzes 1 Nr. 2 tritt die
Verjährung jedoch nicht vor Ablauf der dort
bestimmten Frist ein.
(4) ’Für das in § 437 bezeichnete Rück¬
trittsrecht gilt § 218. 2Der Käufer kann trotz
einer Unwirksamkeit des Rücktritts nach
§218 Abs. 1 die Zahlung des Kaufpreises in¬
soweit verweigern, als er auf Grund des Rück¬
tritts dazu berechtigt sein würde. 3Macht er
von diesem Recht Gebrauch, kann der Ver¬
käufer vom Vertrag zurücktreten.
(5) Auf das in § 437 bezeichnete Min¬
derungsrecht finden §218 und Absatz 4
Satz 2 entsprechende Anwendung.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 4
I. Historical 4
II. European 5
III. Comparative 6
C. Explanation 7
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757
§ 438 1-4
Division 8. Particular types of obligations
I. Limitation
1. Limitation periods
2. Fraudulent concealment
3. Commencement
4. Suspension
IL Gestaltungsrechte
7
7
8
9
10
11
A. Function
I. Purpose
1 § 438 sets up special limitation periods for the buyer’s remedies deriving from § 437,
deviating from the general rules on limitation (§§ 195 et seq.) and taking into account
different types of purchase and different types of defects. Since the right of revocation and the
right to reduce the purchase price are not claims but Gestaltungsrechte transforming the
nature of the contract of sale,1 special rules (Subs 3 and 4) are needed for those.
IL Scope of application
2 § 438 applies to the remedies specified in § 437, drawing a line between the real remedies,
to which Subs 1, 2 and 3 apply (therefore, also to damages for consequential harm caused by
the defect2) and Gestaltungsrechten (rescission of the contract, reduction of the purchase
price), which are provided for in Subs 4 and 5. A special rule for the recourse of the
entrepreneur against his supplier, which supersedes § 438, is to be found in § 445b(2). § 438
does not apply to other remedies which are not related to a defect of the thing sold, like
damages arising from culpa in contrahendo (§311(2)) or according to the general rules
(§§ 280(1), 241(2)), the rules on interference with the basis of the transaction (§313) or
claims in tort, as these rules are only applicable if they do not interfere with the remedies of
the buyer provided for in § 437 3rd St.3 and are therefore in these cases not subject to the
special limitation rules for defective goods.
3 § 438 may be modified by party agreement. The limitation period can be prolonged,
according to - and within the limits of - § 202(2), even in standard business terms.4
Agreements on a shorter limitation period are also possible within the limits of § 202(1),
but further limited by § 476(2) for consumer sales and by the rules on standard business
terms, especially §§ 309 Nos 7 (if claims for damages of the kind mentioned there are
affected5), 8b, 9.
B. Context
4
I. Historical
The rules on limitation have been changed substantially in the course of the modernisation
of the law of obligations in 2002. During the years before, especially the short limitation
period for the buyer’s claims for defects in chattels (six months from the passing of risk,
according to the former § 477(1) P' St.) had led to much confusion and also to attempts to
circumvent this rule by extending other rules to which longer limitation periods applied, such
’See > § 437 mn. 9, >§441 mn. 8.
opinion/ § 437 mn’ 22: BeCk°K B(jB/’;aUS'’ § 438 BGB 9 wi,h fur,hcr ,or diWrgi,’g
3 See > § 437 mn. 25 et seq.
4 See BGH 5.10.2005 - VIII ZR 16/05, NJW 2006, 47 et seq.
5 BGH 15.11.2006 -VIII ZR 3/06, NJW 2007, 674, 675 (mn. 19).
758
Schaub
Limitation of claims for defects 5-7 § 438
as culpa in contrahendo or tort law. These problems - and the confusion relating to them -
have been considerably reduced by the rules introduced in 2002.
II. European
§ 438 has to be construed in accordance with Art. 5(1) EU Consumer Sales Directive (in 5
connection with Recital 17 - the second sub-sentence of which is misleading in the German
language version - geltend machen können, but meaning that consumers can only exercise
their rights within the two-year period)» which basically provides that in consumer sales
cases» the limitation period tor the remedies of the buyer laid down in Art. 3(2) must not be
shorter than two years.
III. Comparative
The international rules on limitation show some diversity. According to Arts 8 et seq. 6
LN Convention on the Limitation Period in the International Sale of Goods (1974), as
amended by the Protocol amending the Convention on the Limitation Period in the
International Sale of Goods (1980), which applies, inter alia, to the CISG, the normal
limitation period is four years, as from the date on which the claim accrues. However, it
has to be borne in mind that the Convention does not apply to consumer sales (Art. 4(a)).
On the other hand, under Art. 179 CESL (draft) there is a short period of prescription of two
years, and a long period of ten years (or, in the case of a right to damages for personal
injuries, thirty years). In the DCFR, the general period of prescription is three years
(Art. 111.-7:201), and there are no special rules on contracts of sale. This diversity as to the
time limits indicates that there is not a general consensus on the adequacy of such rules.
Therefore, the German rule in § 438 setting up different limitation periods according to the
kind of defect and according to the nature of the thing sold seems to be a reasonable
compromise for the specific problems of different contracts of sale.
C. Explanation
I. Limitation
1. Limitation periods
The standard limitation period under § 438 is two years, according to Sub. 1 No. 3, which 7
extends the rules provided for in Art. 5(1) EU Consumer Sales Directive to all contracts of sale
to which no special rules - No. 1 or 2 - apply. To buildings or things which have been used
(and are commonly used) for a building (even if they were affixed by the buyer6), a five-year
limitation period applies (Sub. 1 No. 2), which is in accordance with the rules for contracts to
produce a work ($ 634a(l) No. 2) and should be construed in the same way.7 If the defect
consists of8 a real right of a third party on the basis of which return of the purchased thing
may be demanded (e.g. a pledge, but not a property right, as those cases would not be cases of
a defect in the thing sold but of non-performance;9 however, there are good reasons to apply
Sub. 1 No. la to property rights, too10) or of some other right registered in the Land Register,
the limitation period is thirty years (Sub. 1 No. 1). This is in general accordance with the thirty-
year limitation period for these claims (§ 197( 1) No. 2) which the buyer may be exposed to, but
6 BGH 9.10.2013 - VIII ZR 318/12, NJW 2014, «45, «46 (mn. 1«).
7 BGH 9.10.2013 - VIII ZR 318/12» NJW 2014, 845, «46 (mn. 19); BGH 24.2.2016 - VIII ZR 38/15,
NJW 2016, 2645, 2649 (mn. 44).
h The term of is missing in the translation.
9 See ♦ § 435 mn. 7.
10 BeckOK BGB/Faust, § 43« BGB mn. 15 with further references.
Schaub
759
§ 438 8-11 Division 8. Particular types of obligations
still with a possibility of diverging results, as both limitation periods may start at different
times.11 An analogy to Sub. 1 No. 1 may be drawn when a right was purchased if the buyer may
lose the right because of claims of third parties,12 e.g. if a patent sold is extinguished because of
a third party’s claim. If it is not clear which period of limitation applies, the onus is on the
seller to state and prove that the standard limitation period in Sub. 1 No. 3 - and thus no
longer period according to No. 2 or No. 1 - applies13 - at least within Sub. 1).
2. Fraudulent concealment
8 If the seller has fraudulently concealed (or rather: not disclosed) the defect, the standard
limitation period (three years, §§ 195, 199) applies, Sub. 3 1st St. However, in cases of defects
in buildings, this period is prolonged to the end of the period specified in Sub. 1 No. 2, Sub. 3
2nd St. There may be fraud on the part of the seller if he has an intention not to disclose a
defect, even if he makes allegations right into the blue, knowing that he does not have the
exact information but deeming it possible that there may be a detect.15
3. Commencement
9 The limitation periods direcdy provided for in § 438 normally commence from delivery of
the thing sold (which is identical to delivery in § 377 HGB,16 and may take place at the same
time as the passing of risk according to § § 446 et seq., but not necessarily so) or - if a plot of
land is sold - from delivery of possession (Sub. 2). If a right is sold, the limitation period
should start when the right is actually transferred to the buyer.17 Another precondition for
the start of the limitation period, though not explicitly mentioned in § 438, is a valid claim,
which also means that the contract of sale must be in force (and not, for example, still be
subject to a condition).18 The start of limitation periods in Subs 1 and 2 is determined by
objective criteria only, without regard to subjective factors, such as the buyer’s awareness of
the defect. However, the standard limitation period which applies according to Sub. 3,
commences at a different point in time (§ 199), and will in cases of defective goods often
depend on the buyer’s knowing or having to know of the defect (§ 199(1) No. 2).
4. Suspension
10 Suspension of limitation and its consequences are not mentioned in § 438, thus the general
rules (§§ 203 et seq.) apply.
II. Gestaltungsrechte
11 The term Gestaltungsrecht is used to describe rights which entitle a party to unilaterally
shape (gestalten) the legal relationship, such as through creation, change or destruction.
Examples of Gestaltungsrechte include e.g. avoidance, rescission, withdrawal, and reduction
of the purchase price. These rights can, by their very nature, not be subject to limitation,
Subs 4 and 5 provide for an application of § 218 to the effect that rescission of the contract
or reduction of the purchase price become ineffective if the claim for performance or for cure
11 BeckOK BGB/Faust, § 438 BGB mn. 12.
12 BeckOK BGB/Faust, § 438 BGB mn. 17 et seq
» BGH 24.2.2016 - VIII ZR 38/15, NJW 2016, 2645. 2649 (mn 42 et seq )
CÄKwÄTms 26«.“ Anlor<k™"«m - Mr
vin S NIW 2“'2”’-M ■’ “ 1,G" 1’A*''
ioo<;^«|8fwi85 ’ VIH ZR 238/831 N,W l9K5, l333, 13341 BGH 27.9.1995 - VIII ZR 257/94. N)W
17 See also BT-Drs. 14/6040 of 14.5.2001, p. 227.
'* See e.g. Jauernig BGB/Berger. § 438 BGB mm 4; HK-BGB/Saenger, § 438 BGB mn. 9.
760
Schaub
Cure §439
is statute-barred and the sellers invokes this. However, Sub. 4 2nd St. (in connection with
Sub. 5) preserves the buyer’s right to refuse to pay the purchase price to the extent that he
would be so entitled on the basis of the rescission or the reduction of the price. If the buyer
exercises this right - in cases of rescission only (as Sub. 5 only refers to Sub. 4 2nd St., not the
3rd St.) - the seller can revoke the contract of sale, Sub. 4 3rd St. If the buyer has already paid
the purchase price, however, he cannot claim back the purchase price (wholly or in part),
218(2), 214(2) P’ St. On the whole, Sub. 4 1st St. and § 438(5) have an effect quite similar
to an application of the limitation rules in the preceding Subs 1-3, and they are supplemen¬
ted by the rules in Sub. 4 2nd and 3rd St.
§439
Cure
(1) As cure the buyer may, at his choice,
demand that the defect is remedied or a thing
free of defects is supplied.
(2) The seller must bear all expenses re¬
quired for the purpose of cure, in particular
transport, workmen’s travel, work and mate¬
rials costs.
(3) ’If the buyer has installed the defective
thing in another thing in accordance with its
nature and purpose of use or has affixed it to
another thing, the seller is obliged within the
scope of cure to reimburse the buyer for the
expenses necessary’ for removing the defective
thing and for the installation or affixing of
the repaired or newly delivered thing free of
defects. 2§ 442(1) is to be applied with the
proviso that in respect of the buyer’s knowl¬
edge the conclusion of the contract of sale is
substituted by the installation or affixing of
the defective thing by the buyer.
(4) ’Without prejudice to § 275(2) and (3),
the seller may refuse to provide the kind of
cure chosen by the buyer, if this cure is
possible only at disproportionate expense.
2In this connection, account must be taken
in particular, without limitation, of the value
of the thing when free of defects, the impor¬
tance of the defect and the question as to
whether recourse could be had to the alter¬
native kind of cure without substantial detri¬
ment to the buyer. 3The claim of the buyer is
restricted in this case to the alternative kind
of cure; the right of the seller to refuse the
alternative kind of cure too, subject to the
requirements of sentence 1 above, is unaf¬
fected.
(5) If the seller supplies a thing free of
defects for the purpose of cure, he may de¬
mand the return of the defective thing in
accordance with 346 to 348.
§439
Nacherfüllung
(1) Der Käufer kann als Nacherfüllung
nach seiner Wahl die Beseitigung des Mangels
oder die Lieferung einer mangelfreien Sache
verlangen.
(2) Der Verkäufer hat die zum Zwecke der
Nacherfüllung erforderlichen Aufwendungen,
insbesondere Transport-, Wege-, Arbeits¬
und Materialkosten zu tragen.
(3) ’Hat der Käufer die mangelhafte Sache
gemäß ihrer Art und ihrem Verwendungs¬
zweck in eine andere Sache eingebaut oder an
eine andere Sache angebracht, ist der Verkäu¬
fer im Rahmen der Nacherfüllung verpflichtet,
dem Käufer die erforderlichen Aufwendungen
für das Entfernen der mangelhaften und den
Einbau oder das Anbringen der nachgebesser¬
ten oder gelieferten mangelfreien Sache zu
ersetzen. 2§ 442 Absatz 1 ist mit der Maßgabe
anzuwenden, dass für die Kenntnis des Käu¬
fers an die Stelle des Vertragsschlusses der
Einbau oder das Anbringen der mangelhaften
Sache durch den Käufer tritt.
(4) ’Der Verkäufer kann die vom Käufer
gewählte Art der Nacherfüllung unbeschadet
des § 275 Abs. 2 und 3 verweigern, wenn sie
nur mit unverhältnismäßigen Kosten möglich
ist. 2Dabei sind insbesondere der Wert der
Sache in mangelfreiem Zustand, die Bedeu¬
tung des Mangels und die Frage zu berück¬
sichtigen, ob auf die andere Art der Nach¬
erfüllung ohne erhebliche Nachteile für den
Käufer zurückgegriffen werden könnte. 3Der
Anspruch des Käufers beschränkt sich in die¬
sem Fall auf die andere Art der Nacherfül¬
lung; das Recht des Verkäufers, auch diese
unter den Voraussetzungen des Satzes 1 zu
verweigern, bleibt unberührt.
(5) Liefert der Verkäufer zum Zwecke der
Nacherfüllung eine mangelfreie Sache, so
kann er vom Käufer Rückgewähr der mangel¬
haften Sache nach Maßgabe der 346 bis
348 verlangen.
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§ 439 1-4
Division 8. Particular types of obligations
Contents
mn.
A. Function
I. Purpose *
IL Scope of application 2
B. Context $
1. Historical
II. European 4
III. Comparative 5
C. Explanation &
I. Cure by seller 6
1. Preconditions 7
2. Forms 9
3. Costs 11
II. Cure by buyer 12
1. Scope of application 13
2. Necessary expenses 15
3. Limitation 16
4. Mandatory nature 17
III. Exceptions 18
IV. Legal consequences 21
A. Function
I. Purpose
1 § 439 is the key provision for cure, which is the buyer’s primary remedy if the thing sold
is defective. § 439 sets out the main requirements for, and limitations of, cure. The buyer has
a right to cure, but is also required to ask for cure first before invoking other remedies. The
seller, who takes advantage of the precedence of cure, has to bear the costs.
IL Scope of application
2 § 439 applies to all contracts of purchase. In consumer sales cases, Subs 3 and 4 are
modified by § 475(4), § 439(5) is modified by § 475(3), § 475(6) extends the buyer’s rights
arising from Subs 2 and 3, and § 476(1) prohibits deviations from § 439 to the disadvantage
of the consumer as well as circumventions.
B. Context
L Historical
3 The rules relating to cure in § 439 were introduced in 2002 as part of the modernisation of
the law of obligations, following the EU Consumer Sales Directive. Before 2002, only a partial
right to cure (delivery of a thing without defects) had been established for the purchase of
generic goods in the former version of § 4«0( 1). § 439 has been modified as from 1 January
2018: Sub 3 has been inserted and the former Subs 3 and 4 have become Subs 4 and 5.
respectively.
II. European
4 The provision implements Art. 3(2) and (3) (supplemented by Art. 3(4) and (5)) FU
Consumer Sales Directive, to be read in conjunction with Recital 10 However § 439 is not
restricted to consumer sales, but extends to all contracts of sale. Here, again, in non-
consumer sales cases, the provision might be construed without regard to the EU Consun,er
762
Schaub
Cure
5-8 § 439
Sales Directive, but such an approach should be avoided as the German legislator has opted
for one single rule for all contracts of sale. The newly inserted Sub. 3 builds on CJEU case
law, some of which had been initiated by the BGH.1
III. Comparative
A right to cure has been known in several sets of rules on contracts (of sale). However, its 5
precedence over other remedies of the buyer seems to be a rather modern development in
consumer sales cases. According to Arts 46, 47 CISG the buyer may ask for cure, subject to a
number of restrictions, and according to Arts 48, 49 CISG the seller may, under certain
conditions, remedy at his own expense any failure to perform his obligation. Art. 109 CESL
(draft) allows for cure by the seller and Arts 110 et seq. CESL (draft) state that the buyer is
entitled to require performance of the seller’s obligation, under certain preconditions, but this
is not a precondition for other remedies of the buyer. The buyer’s remedies are not subject to
cure by the seller if the buyer is a consumer, Art. 106 No. 3a CESL (draft). Arts 111.-3:201 et
seq. DCFR provide for cure, too, but generally allow for an accumulation of remedies
(Art. 111.-3:102). Often, if the buyer has required cure, he may not resort to (most) other
remedies during the period of cure (Art. 47(2) CISG, Art. 109(7) CESL (draft),
Art. 111.-3:204(1) DCFR). A more far-reaching precedence of cure over other remedies seems
to have been introduced by Art. 3 EU Consumer Sales Directive. A quite similar right to cure
(and its precedence over other remedies) is also established in Arts 13 et seq. EU Sale of
Goods Directive and in Art. 14 EU Directive on the Supply of Digital Content.
C. Explanation
I. Cure by seller
§ 439 regulates cure, which is the buyer’s primary remedy in cases of defective goods; 6
however, it does not suit for the purchase of rights. The buyer’s right to demand cure
corresponds with the seller’s right to a second tender. Cure can mean either remedying the
defect or supplying a substitute free of defects. The provision applies as from the passing of
risk (§§ 446 et seq.); before that point of time, the rules on performance, especially § 433(1),
apply. The rules in § 439 can be modified by the parties, but such modifications are subject to
a number of limitations: in consumer sales cases, deviations from § 439 to the disadvantage
of the consumer cannot be invoked by the entrepreneur (§ 476(1) 1st St.), and circumven¬
tions of § 439 are prohibited (§ 476(1) 2nd St.). Modifications in standard business terms are
limited especially by § 309 No. 8b.
1. Preconditions
The preconditions of cure are delivery of a defective thing (with any of the defects 7
mentioned in § 434) and that the buyer has demanded cure, specifying the defect,2 and
offered the defective thing to the seller.3 Cure itself does not depend on setting a time limit -
this is only a precondition for other remedies, such as rescission of the contract, a claim for
damages or reduction of the purchase price (§§ 440, 441).
What is not clear is where cure has to take place. The place of cure is important, as the 8
buyer can only fulfil his obligation to offer the defective thing to the seller if he offers it at the
right place. According to the BGH, § 269 has to be applied to cure, with particular regard to
’See > §439 mns. 10, 11,20.
2 BGH 15.6.2011 - VIII ZR 139/09, NJW 2011, 3708, 3709 (mn. 7); Erman BGB/Gnmewakl, §439
BGB mn. 21; Jauernig BGB/Berger, § 439 BGB mn. 18.
3 BGH 10.3.2010 - VIII ZR 310/08, NJW 2010, 1448 (mn. 12); BGH 19.12.2012 - VIII ZR 96/12, NJW
2013, 1074, 1076 (mn. 24).
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§ 439 9-10 Division 8. Particular types of obligations
Art. 3(3) 3rd St. EU Consumer Sales Directive which requires that repair or replacement shall
be completed ‘without any significant inconvenience to the consumer .4 5 This means that
normally cure will take place at the place of residence of the seller, who is the obligor in
respect of cure. However, another place of performance for cure may arise from the
circumstances of the particular case if the buyer has installed the defective thing in another
thing or has affixed it to another thing, as in those cases the place of cure will often be the
place where the thing is located, especially if it cannot be moved easily.
2. Forms
9 Cure can take two different forms: either rectification (remedying) of the defect or
supplementary performance (supplying a substitute free of defects). The buyer can choose
the form of cure he prefers, subject to the general rules on impossibility (§ 275(1)) and to
Sub. 4. The dogmatic explanation of the buyer’s choice is much debated,6 which bears e.g. on
the questions whether - and when - the buyer is bound by his choice and how the seller can
proceed if the buyer does not exercise his choice. If specific goods are purchased, cure is not
limited to remedying the defect; the seller can also deliver a substitute which is equivalent to
the thing purchased.7
10 What is not dear since Sub. 38 was inserted is whether cure in Sub. 1 still includes the
costs of removing the defective thing and of installing or affixing the repaired or newly
delivered thing9 or whether the buyer is now obliged to provide for these actions himself
and claim his expenses from the seller according to Sub. 3.10 * The intention of the German
legislator (Sub. 3 was modified in this respect during the legislation procedure11) and
methodical arguments (insertion of a special rule in Sub. 3 without any modifications of
Subs 1 or 2) point to the second opinion. However, the purpose of Sub. 3 with regard to the
preceding CJEU case law point to the first way of interpretation. The CJEU has held that
‘the seller is obliged either himself to remove the goods [...] and to install the replacement
goods or else to bear the cost of that removal and installation of the replacement goods’,12
which points to a right of choice on the part of the buyer in correlation to the alternative
obligations of the seller.13 The German legislator wanted to protect especially traders in a
supply chain,14 but the arguments relating to these cases do not apply in the same way to
consumer sales cases.15 Also, Sub. 3 1st St. mentions the scope of cure which could be
interpreted to the effect that the measures listed in this provision are meant to be within
this scope. Therefore, the costs of removing the defective thing and of installing or affixing
4 BGH 13.4.2011 - VIII ZR 220/10, NJW 2011, 2278, 2281 (mn. 35 et seq.); BGH 19.12.2012 - VIII ZR
96/12, NJW 2013, 1074, 1076 (mn. 24); affirmed in BGH 19.7.2017 - VIII ZR 278/16, NJW 2017, 2758,
2759 et seq. (mn. 21 et seq.).
5 See especially Huber, Das neue Kaufrecht, NZBau 2018, 72, 72.
6 See BeckOK BGB/Faust, § 439 BGB mn. 9 et seq. with further references.
7 See only BGH 7.6.2006 - VIH ZR 209/05, NJW 2006, 2839, 2840 et seq.
"Translation by Renate Schaub.
’ Advocated by Grunewald/Tassius/I.angenbach, Die gesetzliche Neuregelung zu Ein- und Ausbaukos¬
ten im Kaufrecht, BB 2017, 1673, 1673, partly advocated by Nietsch/Osmanovic. Die kaufrechthche
achmängeIhaftung nach dem Gesetz zur Änderung des Bauvertragsrechts. NJW 2018 1, 3 for installing
or affixing the repaired or newly delivered thing.
HoPfnt'ri/l'allmann' Ule Reform des kaufrechtlichen Gewährleistungsrechts 2018, NJW
nin nil’ T48 e,uSeK; r?n' AUS‘ Und Wk’dert,mbaukosten im Rahmen der Nachertüllung, JuS 201/.
1)50, 1)51 et seq.; Huber, Das neue Kaufrecht, NZBau 2018 72 74
" z^Mr,'DrSJ18/8486 °f 185 2°16' P- 9’ 40 a,ul ,hc Pr«™> version of Sub. 3.
„ G ’°'ned cascs C-65/09 and <>«7/09 Wcber/Putz ECLl:EU:C:2011:396 (mn. 62).
no? «nV S<> P,Cht’ Gese,z«cbcnsche Aus- und Einbauten in der kaufrechtlichen Nacherfüllung. IZ 2017.
ov/, öUV.
14 See BT-Drs. 18/8486 of 18.5.2016, p. 40.
3745^3748° HÖpfnCr/Fa,,mann- D,c Rcform dts ^(rechtlichen Gewahrleistungsrechts 2018. N|W
764
Schaub
Cure 11-14 §439
the repaired or newly delivered thing should be included in Sub. 1 - and then, conse¬
quently, in Sub. 2, too.
3. Costs
The seller has to bear the costs of cure, i.e. all costs related to remedying the defect 11
(Sub. 2). These expenses are not limited to those explicitly mentioned in Sub. 2, but also
include, according to the CJEU, expenses for removing the defective thing and for installing
or affixing the repaired or newly delivered thing.16 This follows from Art. 3(2) and (3) 3rd St.
EU Consumer Sales Directive and is now also emphasised in Sub. 3. However, since the new
Sub. 3 directly relates to the costs of cure incurred by the buyer only, Sub. 2 still has to be
construed in conformity with the Directive with regard to the costs of removing the defective
thing and installing or affixing the repaired or newly delivered thing, as they are part of cure
as defined in Sub. 1. With regard to non-consumer sales, a uniform interpretation should be
adopted, as the legislator explicitly intended to extend these rules to all sorts of sales.17 Other
expenses covered by Sub. 2 are costs for determining the defect18 or lawyer’s fees which have
been incurred tor enforcing cure.19 The duty of the seller to bear the expenses for cure covers
the costs for the transport of the defective thing only insofar as he is obliged to provide for
the transport, which depends on the place of cure.20 In consumer sales cases, the buyer can
claim advance payment for expenses like the costs of transporting the defective thing to the
seller according to § 475(6).
IL Cure by buyer
Sub. 3, effective as from 1 January 2018, implements parts of the CJEU case law as to the 12
expenses for removing the defective thing and for installing or affixing the repaired or newly
delivered thing. Installing means that something is integrated into another thing,21 whereas
affixing rather relates to fixing something externally to another thing, including the applica¬
tion of paint or varnish.22
1. Scope of application
Sub. 3 goes beyond the limits of the EU Consumer Sales Directive as it applies to all 13
contracts of sale. With these rules, the legislator intended to bring the rules for contracts of
purchase and for contracts to produce a work (especially § 635) in line to the effect that
craftsmen or building contractors can raise claims for reimbursement of their expenses even
if they have installed or affixed the defective item for a third person.23 The seller can then
take recourse from his supplier, according to § 445a( 1).
Sub. 3 applies to both types of cure, i.e. to remedying the defect or supplying a new 14
thing.24 It deviates from the general rules (especially §§ 281(1) 1st St., 323(1)) to the effect
16 CJEU Joined cases C-65/09 and C-87/09 Weber/Putz ECLI:EU:C:2011:396 (mn. 62); BGH 21.12.2011
- VIII ZR 70/0«, NJW 2012, 1073, 1075 (mn. 25 et seq.); BGH 17.10.2012 - VIII ZR 226/11, NJW 2013,
220, 221 (mn. 16 et seq.) - only for consumer sales, affirmed in BGH 2.4.2014 - VIH ZR 46/13, NJW
2014, 2183, 2184 (mn. 27 et seq.); see also the more restrictive view taken earlier, for example in BGH
15.7.2008 - VIII ZR 211/07, NJW 2008, 2837, 2839 et seq. which cannot be upheld with regard to the
later CJEU judicature and especially after the introduction of the new § 439(3).
17 BT-Drs. 18/8486 of I8.5.20I6, p. 39.
" BGH 30.4.2014 - VIH ZR 275/13, NJW 2014, 2351, 2352 (mn. 14 et seq.); BGH 24.10.2018 - VIH ZR
66/17, NJW 2019, 292, 299 (mn. 87).
19 BGH 24.10.2018 - VIII ZR 66/17, NJW 2019, 292, 299 (mn. 90 et seq.).
20 See * § 439 mn. 8.
21 See e.g. Hopfner/Fallmann, Die Reform des kaufrechtlichen Gewährleistungsrechts 2018, NJW 2017,
3745, 3745.
22 BT-Drs. 18/11437 of 8.3.2017, p. 40.
23 BT-Drs. 18/8486 of 18.5.2016, p. 39.
24 BT-Drs. 18/8486 of 18.5.2016, p. 39.
Schaub
765
§ 439 15-17 Division 8. Particular types of obligations
that it allows the buyer to remove the defective thing and to install or affix an item free of
defects without setting a time limit for cure first. Sub. 3 should be applied to other forms of
alteration of the thing sold, even though a sub-sentence to this effect was not included in the
final version of the provision, as the legislator thought Sub. 3 could (which may be doubted
with regard to the clear wording25) and should be interpreted to include such cases.26 At
least, an analogy1 should be drawn in order to comply with the aims of the EU Consumer
Sales Directive27 * - if not, a reference to the CJEU would be advisable in consumer sales cases
(a reference in any case is advocated in the literature,^ but with regard to the minimum
harmonisation according to Art. 8(2) EU Consumer Sales Directive a reference could only
make sense it* Sub. 3 were not applied in a consumer sales case).
2. Necessary expenses
15 The claim arising from Sub. 3 covers necessary expenses. The legislator intended to build
on previous case-law relating to § 637(1) and (2) to the effect that all expenses are covered
which a reasonable customer, thinking economically, with competent advice, might consider
suitable for remedying the defect.29 Still, the question which expenses are necessary might
give rise to some debate, e.g. if the buyer performs the actions necessary for cure himself and
would otherwise be able to charge for his work, e. g. if he is a craftsman,30 or if the expenses
are disproportionate.31 In the latter case, regard is to be had to the limit set in § 475(4) 2nd St.
for consumer sales cases to the effect that the seller still has to bear an adequate portion of
the expenses. Another point of discussion might be whether the buyer has installed the
defective item in accordance with its nature and purpose of use, Sub. 3 1st St. To determine
this by objective criteria only, as intended by the legislator,32 would not be in accordance with
§ 434 which focuses primarily on the use intended by the parties.33
3. Limitation
16 The buyer’s claim arising from Sub. 3 1st St. is limited by Sub. 3 2nd St., which partly refers to
§ 442. So, the buyer cannot demand cure if he had knowledge of the defect at the time of the
installation or affixing of the defective thing or was grossly negligent in this respect (except
when the seller fraudulently concealed the defect or gave a guarantee of the quality of the thing).
4. Mandatory nature
17 Sub. 3 cannot be derogated from in consumer sales cases (§ 476(1)). § 478(2) contains a
similar provision for the recourse of the entrepreneur. In consumer sales cases, the buyer can
also claim an advance payment from the seller for his costs of cure, § 475(6). In standard
25 See Faust, Miniatur: Nacherfüllung und Einbau - Happy End für Verbraucher und Bauhandwerker,
ZfPW 2017.250, 255.
26 BT-Drs. 18/8486 of 18.5.2016, p. 95.
7ee± ,Fa,USt’ Min,a,ur: Nacherfüllung und Einbau - Happy End für Verbraucher und Bauhand-
250’ 2551 rhOn’ AUS Und W‘edereinbaukosten lm Rahmen der Nacherfullung. luS
3745B3746OPfnCr/f:allnlann’ Rcf°rnl kaufrcch,lichen Gewährleistungsrechts 2018. N|W 2017.
” See BT DrS- 18/11437 of 8 3 2017- P- 40 wi,b further references.
7fPWaWH7M?T'?M N(achcrfljllun8 und Einbau - Happy End für Verbraucher und Bauhandwerker.
2017^11507H53 Wicdert"'baul«>sten im Rahmen der Nacherfullung. h*
KaufreÄ^^^ Die 8CSe,Zhchc Nc‘'^'“ng ™ I«"- und Ausbaukosten im
32 BT-Drs. 18/8486 of 18.5.2016, p. 39 et scq.
37» HöpfnerfFaHmann. Die Reform des kaufrechtlichen Gewährle.stungsrechts 2018. N)W 201
3745.
766
Schaub
Cure
18-20 § 439
business terms, agreements which deviate from the seller’s obligation to bear the expenses
necessary7 tor removing the defective thing and for the installation or affixing of the repaired
or newly delivered thing are not permitted according to § 309 No. 8(b)(cc) or, in B2B-
contracts, according to § 307(1) 1st St.34
III. Exceptions
According to the general rules, cure is excluded if one or both forms of cure are 18
impossible (§ 275(1)). Rectification of the defect is impossible if the defect, by its very
nature, cannot be remedied (e.g. the mispositioning of the ankle joint of a dachshund which
could be mitigated but not cured35). Supplementary performance is impossible if no
substitute equivalent to the item originally sold can be supplied, which will rarely happen in
cases ot the sale ot generic goods (only if the whole lot of items has vanished) but more often
it specific goods are sold (if no substitute equivalent to the item which was purchased can be
supplied). § 275(2) and (3) are applicable, too, but seem to be of little importance with
regard to the special rules in § 439(4), especially as the threshold in Sub. 4 is lower than in
§ 275(2).36 If both torms of cure are excluded, this opens up the path to other remedies of the
buyer without having to set a time limit for cure.37
More often, cure will not be impossible but may be possible only at disproportionate 19
expense. In these cases, the seller may refuse to provide the kind of cure chosen by the buyer
according to Sub. 4 1st St. (he can still do this in court38). The buyer is then restricted to the
alternative kind of cure, which might also be refused by the seller if it is only possible at
disproportionate expense, too, Sub. 4 3rd St.
The central problem is what is meant by disproportionate expense. Sub. 4 2nd St. gives 20
some guidance. Among the factors to be taken into account, the buyer’s interests feature
quite prominently (importance of the defect, without substantial detriment to the buyer). For
example, the buyer does not have to accept rectification if his trust in the functioning of the
thing sold has been impaired by a multitude of defects.39 The responsibility of the seller
(especially the degree of his liability) is another factor to be taken into account.40 Dispro¬
portionality can be determined either with regard to the other form of cure (relative
disproportionality, at the time when the seller has received the buyer’s demand for cure41)
or in comparison to the buyer’s interest in cure (absolute disproportionality); both are
provided for in Sub. 4. For both sorts of disproportionality, there are no fixed thresholds as to
when disproportionality begins.42 As to absolute disproportionality of cure, the application of
Sub. 4 1* St. via Sub. 4 3rd St., last part would not be in accordance with Art. 3(3) EU
Consumer Sales Directive which only refers to a comparison with the alternative remedy, i.e.
to relative disproportionality.43 * 45 Therefore, § 475(4) 1st St., effective as from 1 January 2018,
excludes the application of Sub. 4 1st St. in consumer sales cases.
M See also Hopfner/Fallmann, Die Reform des kaufrechtlichen Gewährleistungsrechts 2018, NJW 2017,
3745, 3749.
r’ BGH 22.6.2005 - VIII ZR 281/04, NJW 2005, 2852, 2853 et seq.
* BT-Drs. 14/6040 of 14.5.2001, p. 232.
r Jauermg BGB/Berger, § 439 BGB mn. 35; Palandt/Weidcnkaff, § 439 BGB mn. 21.
” BGH 16.10.2013 - VIII ZR 273/12, NJW 2014, 213, 214 (mn. 17); BGH 24.10.2018 - VIII ZR 66/17,
NJW 2019, 292, 296 (mn. 57).
39 BGH 23.1.2013 - VIII ZR 140/12, NJW 2013, 1523, 1524 (mn. 26) - ‘Friday afternoon car*.
w Huber, Der Nacherfullungsanspruch im neuen Kaufrecht, NJW 2002, 1004, 1007.
41 See BGH 24.10.2018 - VIII ZR 66/17, NJW 2019, 292, 297 (especially mn. 69), with references to
diverging opinions.
4z! For absolute disproportionality BGH 14.1.2009 - VIII ZR 71/08, NJW 2009, 1660, 1661 (mn. 15);
BGH 4.4.2014 - V ZR 275/12, NJW 2015, 468, 472 (mn. 41); for relative disproportionality BGH
24.10.2018 - VHI ZR 66/17. NJW 2019, 292, 296 (mn. 59 et seq.) - all with some guidance.
45 See CJEU Joined cases C-65/09 and C 87/09 Weber/Putz ECLI:EU:C:20l 1:396 (inn. 67 et seq.); BGH
21.12.2011 - VIII ZR 70/08, NJW 2012, 1073, 1077 (mn. 33).
Schaub
767
§ 440 1-2
Division 8. Particular types of obligations
IV. Legal consequences
21 The main consequence of cure is that the original contract is partly reversed (Sub. 5).
Return of the defective thing takes place according to §§ 346 to 348, which provide not just
for the return of the thing sold (and its substitutes, if it cannot be returned in full) but also
e.g. for compensation of emoluments taken or compensation for value (§ 346(1), (2) Is* St.
No. 1). However, in consumer sales cases these rules are modified by § 475(3) to the effect
that benefits are not to be surrendered or substituted by their value, giving effect to Art. 3(3)
EU Consumer Sales Directive (cure /ree of charge for the buyer44). The claims for return are
subject to the general rules on limitation (§§ 195, 199), not to § 438.45
§440
Special provisions on
revocation and damages
’Except in the cases set out in § 281(2) and
§ 323(2), it is also not necessary to specify a
period of time if the seller has refused to
carry out both kinds of cure under § 439(4)
or if the kind of cure that the buyer is entitled
to receive has failed or cannot reasonably be
expected of him. 2 A repair is deemed to have
failed after the second unsuccessful attempt,
unless in particular the nature of the thing or
of the defect or the other circumstances leads
to a different conclusion.
§440
Besondere Bestimmungen für
Rücktritt und Schadensersatz
’Außer in den Fällen des §281 Absatz 2
und des § 323 Absatz 2 bedarf es der Frist¬
setzung auch dann nicht, wenn der Verkäufer
beide Arten der Nacherfüllung gemäß §439
Absatz 4 verweigert oder wenn die dem Käu¬
fer zustehende Art der Nacherfüllung fehl¬
geschlagen oder ihm unzumutbar ist. 2Eine
Nachbesserung gilt nach dem erfolglosen
zweiten Versuch als fehlgeschlagen, wenn
sich nicht insbesondere aus der Art der Sache
oder des Mangels oder den sonstigen Um¬
ständen etwas anderes ergibt.
A. Function
I. Purpose
1 § 440 supplements the general rules on revocation (§§ 323 et seq.) and damages (§§ 281 et
seq.) with special rules for contracts of purchase relating to the requirement of setting the
seller a time limit for cure before invoking other remedies. In addition to the general rules
(§§ 281(2), 323(2)), it is also not necessary for the buyer to specify a period of time for cure if
one of the three scenarios set out in the I5' St. applies.
II. Scope of application
2 § 440 applies to all contracts of purchase. In consumer sales cases, deviations to the
disadvantage of the consumer are prohibited by § 476(1). If § 440 is modified in standard
business terms, regard is to be had to § 309 No. 8(b)(bb).
Ä** ECLhlM:Ä21' <-»•«>=»I» - VI ™ **
15 Jauernig BGB/Berger, § 439 BGB mn. 38.
768
Schaub
Special provisions on revocation and damages
3-7 § 440
B. Context
I. Historical
§ 440 BGB in its present version was inserted into the BGB as part of the modernisation of 3
the law ot obligations as from 1 January 2002. It has been adapted to the new version of
§ 439 (referring now to § 439(4)) as from 1 January 2018.
II. European
§ 440 is partly based on Art. 3(5) EU Consumer Sales Directive and therefore has to be 4
construed in accordance with that provision. However, § 440 goes beyond the provisions of
the Directive, which is perfectly admissible in consumer sales cases, as § 440 extends the
buyer's rights which is in accordance with the minimum harmonisation intended in Art. 8(2)
ot the Directive. § 440 is not affected by Art. 18(2) EU Consumer Rights Directive, which
only covers cases ot non-delivery, but not of delivery of a defective thing.
C. Explanation
I. Relationship to general rules on revocation and damages
§ 440 modifies the general rules on revocation and damages to the advantage of the buyer. 5
It dispenses with the obligation to set a time limit for cure before revoking the contract or
claiming damages - in addition to 281(2), 323(2) - for three situations (1st St.), with a
clarification for the second situation in the 2nd St. The provision has to be read in the context
of the general rules on remedies, which also apply to cure, such as the provisions on
impossibility (which apply if both sorts of cure are affected) or § 445a(2), according to which
it is not necessary to set a time limit if the seller has been obliged to take back a newly
manufactured thing sold by him because it is defective, or if the consumer has reduced the
purchase price.
IL Refusal to cure
It is not necessary to set a time period if the seller has refused to carry out both kinds of 6
cure under § 439(4) (§ 440 1st St. 1st Alt.). The rule does not just focus on the situation
envisaged by § 439(4); the seller is required to explicitly refuse both kinds of cure1 - denying
the defect is not enough.2
III. Unsuccessful cure
The second situation in which setting a time limit is not necessary is that the kind of cure 7
that the buyer is entitled to receive has failed (1st St. 2nd Alt.). Cure is deemed to have failed,
according to the 2nd St. (which is partly based on Art. 3(5) 2nd Alt. EU Consumer Sales
Directive), after the second unsuccessful attempt, unless the circumstances lead to a
different conclusion. The buyer has to prove that cure has failed,3 but can do this by
showing that the defect still remains if he has not interfered with the thing sold.4 The seller
can prove that cure is still possible, e.g. if the thing is particularly complex, the defect is
1 BT-Drs. 14/6040 of 14.5.2001. p. 234.
2 BGH 21.12.2005 - VIH ZR 49/05. NJW 2006, 1195. 1197 (mn. 25); BGH 20.1.2009 - X ZR 45/07,
NJW-RR 2009, 667, 668 (mn. 12).
3 BGH 11.2,2009 - VIII ZR 274/07, NJW 2009, 1341, 1342 (mn. 14 el seq.).
4 BGH 9.3.2011 - VIII ZR 266/09, NJW 2011, 1664 (mn. 11 Ct seq.).
Schaub
769
§ 441 Division 8. Particular types of obligations
very difficult to rectify or if previous attempts to cure have been subject to unusually
adverse circumstances.5 6
IV. Unreasonable expectation
8 Finally, setting a time limit is not necessary if the kind of cure that the buyer is entitled to
receive cannot reasonably be expected of him (lsl St. 3”' Alt.). The threshold for this
alternative is rather high, in order to preserve the seller’s right to a second tender5 The
buyer’s confidence in effective cure must be deeply shaken.7 As cases of fraudulent conceal-
ment of the defect by the seller will be covered by the general rules (§§ 281(2), 323(2))
already,8 this alternative will only apply in rather exceptional cases, such as the examples
mentioned in footnote No. 7.
§441
Reduction of price
(1) ‘Instead of revoking the agreement, the
buyer may, by declaration to the seller, reduce
the purchase price. 2The ground for exclusion
under § 323(5) sentence 2 does not apply.
(2) If more than one person comprises
either the buyer or seller, price reduction
may be declared only by all or to all of them.
(3) ’In the case of a price reduction, the
purchase price is to be reduced in the propor¬
tion in which the value of the thing free of
defects would, at the time when the contract
was entered into, have had to the actual value.
2To the extent necessary, the price reduction
is to be established by appraisal.
(4) ‘If the buyer has paid more than the
reduced purchase price, the excess amount is
to be reimbursed by the seller. 2§ 346( 1) and
§ 347(1) apply with the necessary modifica¬
tions.
§441
Minderung
(1) ’Statt zurückzutreten, kann der Käufer
den Kaufpreis durch Erklärung gegenüber dem
Verkäufer mindern. 2Der Ausschlussgrund des
§ 323 Abs. 5 Satz 2 findet keine Anwendung.
(2) Sind auf der Seite des Käufers oder auf
der Seite des Verkäufers mehrere beteiligt, so
kann die Minderung nur von allen oder gegen
alle erklärt werden.
(3) ’Bei der Minderung ist der Kaufpreis in
dem Verhältnis herabzusetzen, in welchem
zur Zeit des Vertragsschlusses der Wert der
Sache in mangelfreiem Zustand zu dem wirk¬
lichen Wert gestanden haben würde. 2Die
Minderung ist, soweit erforderlich, durch
Schätzung zu ermitteln.
(4) ’Hat der Käufer mehr als den gemin¬
derten Kaufpreis gezahlt, so ist der Mehr¬
betrag vom Verkäufer zu erstatten. 2§ 346
Abs. 1 und § 347 Abs. 1 finden entsprechende
Anwendung.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
I. Historical 3
5 BGH 15.11.2006 - VIII ZR 166/06, NJW 2007, 504, 505 (mn. 15).
6 See - $ 439 mn. 6; BGH 26.10.2016 - Vlll ZR 240/15, NJW 2017, 153 154 (mn ’2)
7 See e.g BGH 23.1.2013 - VIII ZR 140/12, NJW 2013, 1523, 1524 (mn 24 et seq.) - ‘Friday afternoon
car’; BGH 15.4.2015 - VIII ZR 80/14, NJW 2015, 1669, 1670 (mn. 22 et seq.) - car sold as roadworthy but
subject to advanced corrosion which could have been easily detected by the seller; BGH 13.7.2016 - Vlll
ZR 49/15, NJW 2016, 3654, 3655 (mn. 37 et seq.) - accumulation of gross installation errors in a fitted
kitchen; BGH 26J0.20I6 - VIII ZR 240/15, NJW 2017, 153, 155 (mn. 24) - car which was not suffic.ently
roadworthy; BGH 18.1.2017 - Vlll ZR 234/15, NJW 2017, 1666 - serious suspicion of insurance fraud
and theft in respect of the car sold.
• See e.g. BGH 8.12.2006 - V ZR 249/05. NJW 2007, 835, 836 (mn. 12 et seq )■ BGH 9 1 2008 - Vlll Z.R
210/06, NJW 2008, 1371, 1372 (mn. 19 et seq.). 1
770
Schaub
Reduction of price
1-6 §441
II. European 4
III. Comparative 5
C. Explanation 6
I. Preconditions 6
II. Declaration of reduction 7
III. Consequences 8
IV. Relationship to other remedies 11
A. Function
I. Purpose
§ 441 specifies the preconditions for and the consequences of reduction of the purchase 1
price, supplementing § 437 No. 2. Reduction of the purchase price is special remedy in
contracts ot sale and a Gestaltungsrecht}
IL Scope of application
§ 441 applies to all contracts of sale; in consumer sales contracts, it cannot be deviated 2
from or circumvented to the disadvantage of the consumer (§ 475(1)).
B. Context
I. Historical
The present version of § 441 was introduced in 2002 as part of the modernisation of the 3
law of obligations. The provision builds on the previous rules on reduction of the purchase
price (£§ 462, 472 et seq. - former version).
II. European
§ 441 implements - in conjunction with §§ 437 No. 2, 439 - Art. 3(5) EU Consumer Sales 4
Directive. However, it does not implement it in all respects.1 2 *
III. Comparative
Reduction of the purchase price is a common remedy in international sales law, see Art. 50 5
CISG, Art. 111.-3:601 DCFR (not only for contracts of purchase), Art. 120 CESL (draft),
Art. 15 EU Sale of Goods Directive, Art. 14(4), (5) EU Directive on the Supply of Digital
Content. The construction as a Gestaltungsrecht in German law may deviate from interna¬
tional rules, but rather in form (due to special German legal doctrine) than in substance.
C. Explanation
I. Preconditions
The purchase price may be reduced instead of revocation (or rather: rescission) of the 6
purchase agreement (Sub. 1). This means that the thing sold must be defective (§§ 434, 435)
when the risk passes (though a reduction of the purchase price can even be declared earlier, if
the thing sold is accepted as performance by the buyer5) and that the buyer has to meet the
general preconditions for the rescission of the contract (§§ 440, 323, especially with regard to
setting a time limit for cure first, if it is not dispensable). However, reduction of the purchase
1 See > § 437 mn. 7.
2 See + § 437 mn. 4.
5 See Lorenz/Riehm, Lehrbuch zum neuen Schuldrecht (C.H.Bcck 2002) mn. 567.
Schaub
771
§ 442 Division 8. Particular types of obligations
price is - in deviation from § 323(5) 2nd St. - possible even if the seller’s breach of duty is
trivial (Sub. 1 2nd St.).
IL Declaration of reduction
7 The buyer has to make a declaration to the seller in accordance with the rules on declarations
of intent (§§ 130 et seq.). He has to make clear that he wants to reduce the purchase price, but the
exact amount of reduction or other consequences of the remedy need not be specified.4 If there
are several buyers, each has to declare reduction of the purchase price, and if there are several
parties involved on the seller’s side, the price reduction must be declared to all of them (Sub. 2).
III. Consequences
8 As a consequence of the buyer’s declaration, the purchase price is reduced proportionally
to the value of the thing free of defects (at the time when the contract was entered into)
(Sub. 3 1st St.). Due to the character of reduction of the purchase price as a Gestaltungsrecht,
the reduction is initiated automatically by the buyer’s declaration. The price reduction has to
be determined with regard to the contract price, i.e. the relationship between the abstract
value which the thing purchased would have had without the defect and its actual value with
the defect has to be equated with the relationship between the purchase price and the reduced
price. So, the reduced price is the product of the purchase price and the actual value of the
thing with the defect, divided by the abstract value of the thing without the defect. The
reduced price can be established by appraisal according to § 287(2) ZPO (Sub. 3 2nd St.). If
there is no reduction in value of the thing purchased, the buyer may still claim damages, even
if he had already declared a reduction of the purchase price?
9 If the buyer has not paid the purchase price at the time of its reduction, he can retain the
reduced part. Otherwise, he can claim reimbursement of the excess amount from the seller
(Sub. 4 1st St.). As §§ 346(1), 347(1) apply to this claim (Sub. 4 2nd St.), the buyer can be
obliged to return emoluments taken or to pay compensation for their value.
10 As the reduction of the purchase price is a Gestaltungsrecht, which is not subject to
prescription, special rules apply with regard to a time limit for this remedy (§ 218, § 438(5)
and (4) 2nd St.). However, reimbursement of the purchase price according to Sub. 4 is a
separate claim arising from the reduction of the purchase price and therefore governed by the
rules on prescription (§ 195).
IV. Relationship to other remedies
11 Reduction of the purchase price is - in general - a secondary remedy in relation to cure,
though it may apply if one of the - rather numerous - exceptions (see especially §§ 440,
281(2), 323(2)) is in place. Price reduction and rescission cannot be claimed in respect of the
same defect simultaneously, as they would contradict each other (see also the wording of
§ 437 No. 2). Damages may be claimed alongside a reduction of the purchase price it they do
not cover the defect itself. So, damages in lieu of performance would not be possible, whereas
a compensation of consequential damage might be claimed, as this kind of loss is normally
not included in the reduction of the purchase price.
§442
Knowledge of the buyer
(1) ^he rights of the buyer due to a defect
are excluded if he has knowledge of the defect
at the time when the contract is entered into.
§442
Kenntnis des Käufers
(1) ^ic Rechte des Käufers wegen eines
Mangels sind ausgeschlossen, wenn er bei
Vertragsschluss den Mangel kennt. 2Ist dem
* BeckOGK BGB/Stöbcr, § 441 BGB mn. 3«; MüKo BGB/Wcslcrmann ö 441 BGB mn 5
5 BGH 5.11.2010 - V ZR 228/09, NJW 2011, 1217, 1219 (mn. 30it seq.).
772
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Knowledge of the buyer
1-4 § 442
2If the buyer has no knowledge of a defect
due to gross negligence» the buyer may assert
rights in relation to this defect only if the
seller fraudulently concealed the defect or
gave a guarantee of the quality of the thing.
(2) A right registered in the Land Register
must be removed by the seller even if the
buyer is aware of it.
Käufer ein Mangel infolge grober Fahrlässig¬
keit unbekannt geblieben, kann der Käufer
Rechte wegen dieses Mangels nur geltend ma¬
chen» wenn der Verkäufer den Mangel arg¬
listig verschwiegen oder eine Garantie für die
Beschaffenheit der Sache übernommen hat.
(2) Ein im Grundbuch eingetragenes Recht
hat der Verkäufer zu beseitigen, auch wenn es
der Käufer kennt.
Contents
mn.
A. Function 1
I. Purpose 1
IL Scope of application 2
B. Context 3
I. Historical 3
II. European 4
III. Comparative 5
B. Explanation 6
1. Buyer’s knowledge of the defect 6
II. Gross negligence 7
1. Definition 8
2. Cases in which the buyer’s rights are not excluded 9
III. Registered rights 10
IV. Time of knowledge 11
V. Burden of proof 12
A. Function
I. Purpose
According to Sub. 1, the buyer’s remedies (§§ 437 et seq.) are excluded if he had knowl- 1
edge of the defect at the time when the contract was entered into, or limited if the buyer had
no knowledge of the defect due to gross negligence. Sub. 2 makes an exception for the sale of
land with regard to rights registered in the Land Register. The provision limits the seller’s
liability in cases in which the buyer does not necessarily need protection.
II. Scope of application
§ 442 applies to all contracts of purchase, irrespective of the nature of the object of 2
purchase or the kind of defect (material or legal defects). It can be dispensed with, but not in
consumer sales cases (§ 475).
B. Context
I. Historical
§ 442 has been substantially modified in the course of the modernisation of the law of 3
obligations as from 1 January 2002. However, Sub. 1 builds on the previous version of § 460.
IL European
Sub. 1 implements Art. 2(3) EU Consumer Sales Directive and goes further in favour of 4
the consumer, preserving his rights if the seller has fraudulently concealed a defect or given a
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773
§ 442 5-9 Division 8. Particular types of obligations
guarantee of the quality of the thing (Sub. 1 2nd St.), which is possible as the Directive allows
deviations in favour of the consumer (Art. 8(2)).
III. Comparative
5 Rules similar to Sub. 1 are contained in some of the international rules on contracts of sale
(especially in Art. IV. A.-2307 DCFR), but not in all (e.g. not in the CISG or the CESL
(draft)). However, it has to be taken into account that in international business contracts the
buyer is usually obliged to examine the goods and to notify defects to the seller, to the effect
that the buyer’s remedies are limited if he did not comply with these requirements (see e.g.
Arts 39, 40 CISG, Art. 122(2):(6) CESL (draft), Arts IV.A.-4:302, IV.A.-4:304 DCFR).
B. Explanation
I. Buyer’s knowledge of the defect
6 The exclusion of the seller’s liability (§§ 437 et seq.) in Sub. 1 1st St. applies if the buyer had
positive knowledge of the defect at the time when the contract was concluded. This is relatively
easy to determine in respect of material defects (§ 434), but may be more difficult for legal
defects (§ 435). At least, the buyer must have knowledge of the facts constituting the defect (i.e.
a third party’s right) and be aware that they may affect his use of the thing sold.1 However, the
buyer does not have to be aware of the extent of the consequences of the defect in detail.2
II. Gross negligence
7 The buyer’s gross negligence in respect if the defect does not completely exclude his rights
but limits them to cases in which the seller has fraudulently concealed the defect (§ 444) or has
given a guarantee (§ 276(1) 1st St., not § 443) of the quality of the thing (Sub. 1 2nd St.).
1. Definition
8 Gross negligence on the part of the buyer means that he has seriously neglected the
regular standard of care.3 The main problem is whether - and how far - the buyer has to
check for defects in advance. There is no general duty in this respect. The buyer is only under
an obligation to make additional enquiries if the circumstances point to a defect or at least to
something worth enquiring4 or if the buyer has special expertise relating to the defect5.
2. Cases in which the buyer’s rights are not excluded
9 The seller has fraudulently concealed the defect if he has known of the defect or at least
has suspected it and if, at the same time, he has known or considered it possible that the
buyer may not know of the defect and would not have concluded the particular contract as it
stands, had he known about it.6 A guarantee given by the seller means that the seller has
assumed responsibility for certain characteristics of the thing sold, § 276(1) Is' St.7 It must be
' ozKuB?^Saenger' § 442 BGB mn' 2; BcckOGK BGß/Stöber, (j 442 BGB mn. 12 et seq.
2 BGH 17.5.1991 - V ZR 92/90, NJW 1991, 2700; BeckOK BGB/Faust. § 442 BGB mn. 16 with further
references.
3 See e.g. HK-BGB/Saenger, § 442 BGB mn. 5; BeckOGK BGB/Stöber § 442 BGB mn 22 with further
references.
4 See e.g_MuKo BGB/Wcstermann. § 442 BGB mn. 9; Staudinger BGB/Matuschc Beckmann. §442
BGB mn. 27 et seq. with further references
6 ?G ‘ WTT uGZ|,3L 343’ 354; HKB('’^aengcr, § 442 BGB mn. 5.
6 See ► § 444 mn. 11 for further details.
7 BT-Drs. 14/6040 of 14.5.2001, p. 236.
774
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Guarantee
§443
dear from the seller’s declarations or from his behaviour that he wants to take responsibility
tor these characteristics, irrespective of his fault.8
III. Registered rights
Sub. 2 states an exception to Sub. 1 for rights registered in the Land Register, including 10
priority notices (§ 893).9 The seller must remove such rights, even though the buyer knows of
them, as the notary has to inform him when the contract is concluded.
IV. Time of knowledge
The relevant point ot time for the knowledge of the buyer and the time at which he ought 11
to have had knowledge as in Sub. 1 2nd St. is the conclusion of the contract. If the contract is
subject to a condition precedent, it is normally concluded when the condition is satisfied
(§ 158(D).10 For the sale of land, the decisive point of time usually is the time of the notarial
recording, at least ot the buyer’s declaration.11 If the buyer gets to know - or ought to have
known - ot the defect at a later point of time, this is irrelevant as well as later acceptance of
the thing sold by the buyer,12 if this acceptance does not amount to a modification of the
contract in respect of the quality of the thing sold (§ 434(1) 1st St.). However, such
modifications can only be assumed under exceptional circumstances, and in consumer sales
cases, special regard is to be had to § 475(1). In general, it can be said that the relevant time is
when the buyer's declaration has become binding.13 The knowledge of other persons acting
on the buyer’s side can be imputed to the buyer if the preconditions of § 166 are met.
V. Burden of proof
The burden of proof for the buyer’s knowledge is, according to general rules, on the 12
seller,14 and the buyer has to prove that the seller has fraudulently concealed the defect or
given a guarantee.
§443
Guarantee
(1) Where the seller, the producer or some
other third party enters into obligation, in
addition to his statutory liability for defects,
by way of making a declaration or in relevant
advertising that was available prior to the pur¬
chase agreement being concluded or at the time
of its conclusion, such obligation being in par¬
ticular to reimburse the purchase price, to
exchange the thing, to repair it or to provide
services in this context should the thing not
exhibit the quality or not fulfil other require¬
ments than those concerning its freedom from
defects, in each case as described in the declara¬
tion or in the relevant advertisement (guaran¬
tee), the buyer shall be entitled, in the case of a
guarantee having been given, and notwith-
§443
Garantie
(1) Geht der Verkäufer, der Hersteller oder
ein sonstiger Dritter in einer Erklärung oder
einschlägigen Werbung, die vor oder bei Ab¬
schluss des Kaufvertrags verfügbar war, zu¬
sätzlich zu der gesetzlichen Mängelhaftung
insbesondere die Verpflichtung ein, den
Kaufpreis zu erstatten, die Sache auszutau¬
schen, nachzubessern oder in ihrem Zusam¬
menhang Dienstleistungen zu erbringen, falls
die Sache nicht diejenige Beschaffenheit auf¬
weist oder andere als die Mängelfreiheit be¬
treffende Anforderungen nicht erfüllt, die in
der Erklärung oder einschlägigen Werbung
beschrieben sind (Garantie), stehen dem Käu¬
fer im Garantiefall unbeschadet der gesetzli¬
chen Ansprüche die Rechte aus der Garantie
8 BGH 29.11.2006 - VHI ZR 92/06, NJW 2007, 1346, 1348 (mn. 20).
9 BI Drs. 14/6040, p. 237.
10 HK-BGB/Saenger, § 442 BGB mn. 3; Jauernig BGB/Berger. § 442 BGB mn. 4.
11 See BGH 27.5.2011 - V ZR 122/10, NJW 2011, 2953. 2954 (mn. 12 et seq.); BGH 15.6.2012 - V ZR
198/11, NJW 20)2, 2793. 2794 (mn. 16 et seq.).
12 See BT-Drs. 14/6040 of 14.5.2001, p. 205.
13 See BeckOK BGB/baust. § 442 BGB mn. 7 et seq.
m See also BGH 12.11.2010 - V ZR 181/09, NJW 2011, 1279, 1281 (mn. 15).
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775
Division 8. Particular types of obligations
§ 443 1-3
standing his statutory claims, to the rights
under the guarantee in relation to the person
who has given the guarantee (guarantor).
(2) To the extent that the guarantor gives a
guarantee as to the thing having a specified
quality for a specified period (guarantee of
durability), the presumption will be that a
material defect which appears during the
guarantee period triggers the rights under
the guarantee.
gegenüber demjenigen zu, der die Garantie
gegeben hat (Garantiegeber).
(2) Soweit der Garantiegeber eine Garantie
dafür übernommen hat, dass die Sache für
eine bestimmte Dauer eine bestimmte Be¬
schaffenheit behält (Haltbarkeitsgarantie),
wird vermutet, dass ein während ihrer Gel¬
tungsdauer auftretender Sachmangel die
Rechte aus der Garantie begründet.
Contents
mn.
A. Function 1
I. Purpose 1
IL Scope of application 2
B. Context 3
I. Historical 3
IL European 4
III. Comparative 5
C. Explanation 6
I. Guarantee 6
1. Forms 7
2. Preconditions 8
3. Contents 9
4. Rights of the buyer 10
II. Burden of proof 11
III. Limitation period 12
A. Function
I. Purpose
1 § 443 is the central provision on guarantees in the BGB, but it covers only certain aspects
of guarantees. It mainly provides a definition in Sub. 1 and refers to some of the legal
consequences of guarantees. Sub. 2 contains a special rule of proof for one form of
guarantees, namely for guarantees of durability.
II. Scope of application
2 § 443 applies to all contracts of sale; the legislator did not limit its application to the sale of
things. For consumer sales contracts, § 443 is supplemented by special rules in § 479, and it
cannot be derogated from in these cases, according to § 476(1). For other rules which refer to
guarantees (such as §§ 276(1) 1st St., 442(1) 2"*' St., 444), the definition in Sub. 1 provides a
starting point but regard is to be had to the special requirements for guarantees set up in
these other provisions.
B. Context
I. Historical
3
2002^1t hV>aSRntr°<^UC^<rin« BGB as part of the modernisation of the law of obligations in
k“L K,ecton “ 13 ,Une 2<"4 con1P'y »«h >1« BU Con»»""
1 BT-Drs. 14/7052 of 9.10.2001. p. 184.
776
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Guarantee
4-8 § 443
II. European
§ 443 implements Art. l(2)(e) and Art. 6(1) EU Consumer Sales Directive (but not the 4
Directive’s other provisions on guarantees: Art. 6(2), (3) and (5) are implemented in § 479).
§ 443 also implements the definition of commercial guarantee in Art. 2(14) EU Consumer
Rights Directive. Since scope and definitions of guarantee are not identical in both Directives,
the uniform implementation of both in only one rule may lead to distortions.
III. Comparative
In international rules, guarantees are usually associated with consumer contracts. The CISG, 5
the CESL (draft) and the EU Directive on the Supply of Digital Content do not contain rules
on guarantees, and Arts IV.A.-6:101 et seq. DCFR are limited to consumer goods as well as
Art. 17 EU Sale ot Goods Directive (as commercial guarantees only apply in consumer cases
pursuant to Art. 2(12) of the Directive).
C. Explanation
I. Guarantee
A guarantee is defined in Sub. 1. The main characteristic of a guarantee is that it is entered 6
into in addition to the seller’s statutory' liability' for defects. A guarantee can be given by the
seller, the producer or some other third party. However, the last situation is not envisaged by
the EU Consumer Rights Directive, which aims at a full harmonisation of the relevant rules
(Art. 4). The German legislator has taken the view that third party7 guarantees are outside the
scope of the Directive and therefore permissible,2 but there is no general consensus on that.3
The guarantee refers to situations in which the thing sold does not exhibit the quality it was
meant to have or does not fulfil other requirements than those concerning its freedom from
defects. Therefore, all sorts of characteristics of the thing sold can be covered by a guarantee,
it is not limited to freedom from defects.4 A guarantee can be given at the time of the
conclusion of the purchase agreement or at an earlier point of time.
1. Forms
Guarantees can relate to the characteristics of the thing sold (at the time of passing of 7
risk) or to its durability (meaning that the thing sold retains its characteristics for a specified
period of time). Both forms of guarantee are covered by § 443. A guarantee relating to the
characteristics of the thing sold has to be distinguished from an agreement on the quality of
the thing sold according to Sub. 1 1st St.5
2. Preconditions
A guarantee is made, according to Sub. 1, in a declaration or in advertising relating to the 8
contract of purchase. As the guarantee creates an obligation, the general rules on offer and
acceptance (§§ 145 et seq.) apply. A guarantee by the seller requires an explicit statement,
from which it becomes clear that the seller wants to enter into an obligation which goes
beyond his normal obligations arising from the contract of purchase.6 A declaration of a
2 BT Drs. 17/12637 of 6.3.2013, p. 6«.
3 See eg. HK-BGB/Saenger. § 443 BGB mn. 6.
4 See BT-Drs. 17/12637, p. 68, where the example is given that the seller guarantees that a development
plan will come into existence for the area in which the plot of land to be sold is located.
s BGH 29.11.2006 - VIII ZK 92/06. NJW 2007, 1346, 1348 (mn. 22 ct seq.).
6 See e g. BGH 22.11.2006 - VIII ZR 72/06, NJW 2007, 759, 761 (mn. 21) - though the question was
not decisive in this case.
Schaub
777
§ 444 Division 8. Particular types of obligations
guarantee given by the producer or some other third party will usually be conferred to the
buyer by the seller, and § 151 will usually apply to the buyer’s acceptance.7
3. Contents
9 The contents of the guarantee have to be determined by the terms of the guarantee. What
is not clear is whether associated8 advertising has to be taken into account in this respect,
too.9 According to the wording of Sub. 1» it would only have to be taken into account for the
formation of the guarantee. This is in accordance with Art. 2(14) EU Consumer Rights
Directive which links the relevant advertising only to the conformity of the goods with the
contract. However, according to Art. 6(1) EU Consumer Sales Directive, the contents of the
guarantee can also be derived from the associated advertising. According to Art. 3(2) EU
Consumer Rights Directive, the provisions of the EU Consumer Sales Directive will take
precedence, but with regard to the full harmonisation intended by the EU Consumer Rights
Directive (Art. 4) this will be limited to consumer sales cases. Therefore, at least in consumer
sales cases, associated advertising will have to be taken into account - beyond the wording of
Sub. 1 - for determining the contents of the guarantee.
4. Rights of the buyer
10 The buyer is entitled to the rights under the guarantee in relation to the guarantor if the thing
sold does not fulfil the requirements set out in the guarantee. Thus, the rights of the buyer
depend on the contents of the guarantee in each specific case. The examples mentioned in
Sub. 1 are partly identical with the buyer’s remedies in cases of defective goods. As a guarantee
always provides an additional benefit to the buyer, these examples will only be relevant if the
consequences apply in cases in which the general remedies will not apply, e.g. if the guarantee
relates to a period which goes beyond the normal limitation period provided for in § 438.
IL Burden of proof
11 According to the general rules, it is up to the buyer to prove that the preconditions of a
guarantee are met. However, for guarantees of durability, Sub. 2 shifts the burden of proof by
providing a presumption that a material defect which appears during the guarantee period
triggers the rights under the guarantee. This presumption can be rebutted by the seller if he
proves, for example, that the defect is due to improper treatment of the thing by the buyer.
III. Limitation period
12 The limitation period for the buyer’s claim arising from a guarantee should be determined
according to the general rules on limitation (§ 195). § 438 should not be applied to
guarantees given by the seller, as a claim based on a guarantee is independent from the
statutory rights in cases of defective goods, and it would not be in harmony with rights
arising from guarantees given by the producer or other third parties if different rules applied
to guarantees given by the seller.10
§444
Exclusion of liability
The seller may not invoke an agreement
that excludes or restricts the rights of the
buyer with regard to a defect insofar as the
§444
Haftungsausschluss
Auf eine Vereinbarung, durch welche die
Rechte des Käufers wegen eines Mangels aus¬
geschlossen oder beschränkt werden, kann
7 See BeckOK BGB/Faust, § 443 BGB mn. 19 with further references
7he term associated seems more appropriate than relevant in the translation.
See. in general. BeckOK BGB/Faust. § 443 BGB mn. 22 et seq
10 See e.g. HK-BGB/Saenger. § 443 BGB mn. 5.
778
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Exclusion of liability
1-4 § 444
seller fraudulently concealed the defect or
gave a guarantee of the quality of the thing.
sich der Verkäufer nicht berufen, soweit er
den Mangel arglistig verschwiegen oder eine
Garantie für die Beschaffenheit der Sache
übernommen hat.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
I. Historical 3
II. European 4
III. Comparative 5
B. Explanation 6
I. Exclusion of liability in general 6
II. Interpretation of exclusions and restrictions of liability 7
III. Restrictions on exclusions or limitations of liability 10
1. Fraudulent concealment 11
2. Guarantee 12
3. Legal consequences 13
IV. Burden of proof 14
A. Function
I. Purpose
§ 444 limits the seller’s possibilities to invoke an agreement that excludes or restricts his 1
liability for defects. The provision is based on the assumption that liability can be excluded or
restricted, but there are no explicit rules (here or elsewhere) as to how this is to be done exactly.
IL Scope of application
§ 444 applies to all contracts of purchase. It is one, but not the only limit of the seller’s 2
freedom of contract and interacts (or may overlap) with other limitations, such as § 476(1) -
which puts further limits on exclusions or restrictions of liability in consumer sales cases, the
rules on prohibited clauses in standard business terms (especially § 309 No. 5, 7, 8), or
sometimes also § 242.
B. Context
I. Historical
The present version of § 444 goes back to the modernisation of the law of obligations in 3
2002. It combines the rules which were previously contained in §§ 443, 476 and § 11 No. 11
AGBG, all in force until 31 December 2001. § 444 was slightly modified in 2004, when
‘insofar as’ was inserted instead of‘if.
IL European
§ 444 does not implement European law. In consumer sales cases, § 476(1) takes pre- 4
cedence (with an exception for claims for damages in § 476(3)), and § 444 may only apply
insofar as it does not lead to a result which is less favourable to the consumer. Therefore,
§ 444 will primarily apply to non-consumcr sales.
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779
§ 444 5-10
Division 8. Particular types of obligations
III. Comparative
5 Rules like § 444 are rather rare in international law; most rules - if at all - only restrict the
exclusion or limitation of liabUity in consumer cases (see e.g. Art. IV.A.-2:309, Art. IV.
A.-4:101 DCFR). This may be due to the fact that in commercial sales cases, the main focus
of attention is probably not on the buyer’s protection, and in consumer sales cases, there are
more far-reaching rules, rather resembling § 476(1) than § 444.
B. Explanation
I. Exclusion of liability in general
6 The buyer’s rights with regard to a defect may, in general, be excluded or restricted by
explicit or implicit agreement of the parties. An exclusion of liability may also be inferred
from general custom or trade practice (§ 346 HGB).1 Exclusions or restrictions of liability are
not subject to any particular requirements of form; however, if the contract of sale has to be
in a certain form (e.g. according to § 31 lb(l) 1st St. for the sale of a plot of land), the
exclusion or restriction clause must be in the same form.2
IL Interpretation of exclusions and restrictions of liability
7 The seller’s liability can be excluded or restricted in several ways.3 For example, it can be
excluded completely or just be limited to certain remedies, the limitation period (§ 438) may
be modified or the remedies may be made dependent on certain actions of the buyer, like an
examination of the goods and a complaint if the goods are defective.
8 Exclusions and restrictions of liability are interpreted, in principle, according to the
general rules (§133 and in particular § 157; for standard business terms, particular regard
is to be had to §§ 305c(2) and 307(1) 2nd St.). However, they are subject to a rather restricted
interpretation as they deviate from the statutory rules.4 If an exclusion or restriction of
liability is combined with an agreement on the quality of the goods sold (§ 434(1) 1st St.), the
exclusion or restriction or liability will normally be limited to defects which are outside the
range of the agreement on the quality of the goods.5 What is not clear yet is whether in such
cases the seller’s liability for characteristics of the goods which the buyer could expect from
public statements of the seller (§ 434(1) 3rd St.) can be excluded or restricted.6
9 There is extensive case law on the interpretation of certain common clauses in sales
contracts, especially for the sale of used items (in particular cars), for the sale of land, for the
sale of companies and for auction sales, which cannot be included here but can be found in
all major commentaries on the BGB.
III. Restrictions on exclusions or limitations of liability
10 § 444 restricts exclusions or limitations of liability if the seller fraudulently concealed the
defect (irrespective of whether this had an impact on the buyer’s decision to conclude the
contract or not7) or gave a guarantee of the quality of the thing.
1 OLG Koblenz 10.3.1988 - 6 U 1286/85, NJW-RR 1988 1306
3 BGHd22:4-2JH,6 - V ZR 23/,5‘ N’W 20‘7. '50. 151’ (mn. 17) with further references.
See e.g. BeckOK BGB/Faust, § 444 BGB mn. 15 with further references
1 BeckOK BGB/Faust, § 444 BGB mn. 11 with further references.
5 BGH 29.11.2006 - Vlll ZR 92/06, NJW 2007, 1346, 1349 (inn. 30 et seq.); BGH 19.12.2012 - Vlll ZR
117/12, NJW 2013, 1733, 1734 (mn. 15); BGH 22.4.20)6 - V ZR 23/15, NJW 2017 150, 151 (inn. Hl
with further references. ‘ ’
6 See BGH 22.4.2016 - V ZR 23/15, NJW 2017, 150, 151 (mn 14 el seq )
7 See e.g. BGH 17.7.2011 - V ZR 171/10, NJW 2011, 3640, 3641 (mn 13F BGH 14 9 ’018 - V ZR
17, VersR 2019, 99. 100 (mn. 7).
780
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Exclusion of liability
11-12 § 444
1. Fraudulent concealment
The seller has fraudulently concealed the defect if he has known of the defect or at least has 11
suspected it and if, at the same time, he has known or considered it possible that the buyer
may not know of the defect and would not have concluded the particular contract as it
stands, had he known about it.8 Fraud requires - at least conditional - intention9 and can
only be assumed on the basis of the particular facts of each case, not just by applying general
assumptions10. However, fraud does not require detailed knowledge of facts relating to the
possible detect.11 Concealment on the part of the seller can only take place if there was an
obligation ot the seller to disclose the defect.12 The main question is when the seller is obliged
to disclose detects, taking into account that in the normal course of contract negotiations
each party is entitled to safeguard his or her own interests. This means that the seller is only
under an obligation to disclose defects under particular circumstances, e.g. if he has superior
knowledge vis-ä-vis the buyer13 or if the seller knows that particular characteristics of the
thing sold are especially important for the buyer (e.g. for the intended use) and cannot be
detected at first sight by the buyer.14 § 444 is also applied (a minore ad maius) to fraudulent
actions to conceal the defect or fraudulent simulation of qualities which the thing does not
actually have.15 The seller is responsible for fraud by his agents (§ 166(1)) or people acting
tor him in the course of the contract negotiations (§ 278).16 If one of several sellers
fraudulently conceals a defect of the thing sold, § 444 1st Alt. applies to all sellers.17 In
respect of third parties (e.g. brokers), the seller is only responsible if he took advantage of
their behaviour.18
2. Guarantee
A guarantee of the quality of the thing is a guarantee as defined in § 443.19 By its very 12
nature, a guarantee cannot be derogated from, to the effect that liability arising from a
guarantee cannot be excluded.20 It is not clear if it can be restricted, e.g. limited to certain
remedies or to a certain amount of damage. That this may be possible is implicated by the
wording of § 444 (insofar as) and also because otherwise the reference to guarantees in § 444
would not make much sense. However, the correct question would rather relate to the range
*e.g. BGH 15.7.2011 - V ZR 171/10, NJW 2011, 3640, 3642 (mn. 19) with further references;
BGH 12.4.2013 - V ZR 266/11, NJW 2013. 2182, 2183 (mn. 12); BGH 15.6.2012 - V ZR 198/11, NJW
2012. 2793 (mn. 10); BGH 8.7.2016 - V ZR 35/15, NJW-RR 2017, 468, 470 (mn. 19); BGH 21.7.2017 - V
ZR 250/15, NJW 2018, 389, 390 (mn. 11).
9 BGH 19.3.1992 - III ZR 16/90. NJW 1992. 1953, 1954 with further references; BGH 30.11.2012 - V
ZR 25/12. NJW 2013. 1671, 1673 (mn. 27); BGH 19.2.2016 - V ZR 216/14, NJW 2016, 2315, 2316
(mn. 16 et seq.); BGH 21.7.2017 - V ZR 250/15, NJW 2018, 389, 390 (mn. 11).
10 See BVerfG 3.3.2015 - 1 BvR 3271/14. BeckRS 2015, 47767 (mn. 12).
11 BGH 21.7.2017 - V ZR 250/15, NJW 2018, 389, 390 (mn. 12) - knowledge about the former use of a
piece of land as an illegal rubbish dump is sufficient, and detailed knowledge of the materials dumped
there is not necessary.
12 See e g. BGH 15.6.2012 - V ZR 198/11, NJW 2012, 2793 (mn. 10) with further references.
H e g. Jauermg BGB/Berger, § 444 BGB mn. 11; BeckOGK BGB/Stöber, § 444 BGB mn. 50 with further
references; BGH 9.2.2018 - V ZR 274/16, NJW 2018, 1954, 1956 (mn. 25 et seq.).
14 e.g. BGH 15.6,2012 - V ZR 198/11. NJW 2012, 2793. 2794 (mn. 15); BGH 16.3.2012 - V ZR 18/11,
NJW RR 2012, 1078, 1079 (mn. 21); BGH 15.7.2011 - V ZR 171/10. NJW 2011, 3640 et seq. (mn. 7);
BGH 19.2.2016 - V ZR 216/14. NJW 2016. 2315 (mn. 11); BGH 14.9.2018 - V ZR 165/17, MOR 2018,
1433 (mn. 12).
15 HK BGB/Saenger, § 444 BGB mn. 5; Jauernig BGB/Berger, § 444 BGB mn. 12.
16 See BeckOGK BGB/Schaub, § 278 BGB mn. 23 with further references.
17 BGH 8.4.2016 - V ZR 150/15. WM 2016, 2232, 2234 (mn. 15 ct seq.).
18 Jauernig BGB/Berger, § 444 BOB mn. 10; HK-BGB/Saenger, § 444 BGB mn. 5.
19 See > § 443 mn. 6.
20 See e g. Jauernig BGB/Berger, § 444 BGB mn. 13; BeckOK BGB/Faust, § 444 BGB mn. 22.
Schaub
781
§ 445 1-2 Division 8. Particular types of obligations
of the guarantee in each particular case, and not to a restriction of liability arising from a
guarantee. Therefore, guarantees must be construed carefully, and if they do not cover all
sorts of remedies or damage, and if this is not contrary to other rules, especially those on
standard business terms (§§ 307 et seq.) or those for consumer sales contracts (§ 479), the
buyer’s rights from the guarantee are limited, and recourse to § 444 is then not really
necessary. § 444 may only be important if a guarantee and a restriction of liability contradict
each other. In those cases, the guarantee will take precedence, according to § 444.21
3. Legal consequences
13 If one of the restrictions on exclusions or limitations of liability applies, the seller may not
rely on the agreement in which his liability is excluded or restricted. This does not mean that
the agreement - or even the part which is not in accordance with § 444 - is invalid. It simply
cannot be invoked by the seller in this respect.
IV. Burden of proof
14 According to the general rules, the seller has to state and prove an agreement in which
liability is excluded or restricted. On the other hand, the buyer has to state and prove that the
seller has fraudulently concealed a defect22 or given a guarantee of the quality of the thing.
§445
Limitation of liability in the case
of public auctions
If a thing is sold in exercise of a security
right at a public auction in which it is de¬
scribed as a pledge, the buyer only has rights
in respect of a defect if the seller fraudulently
concealed the defect or gave a guarantee of
the quality of the thing.
§445
Haftungsbegrenzung bei
öffentlichen Versteigerungen
Wird eine Sache auf Grund eines Pfand¬
rechts in einer öffentlichen Versteigerung un¬
ter der Bezeichnung als Pfand verkauft, so
stehen dem Käufer Rechte wegen eines Man¬
gels nur zu, wenn der Verkäufer den Mangel
arglistig verschwiegen oder eine Garantie für
die Beschaffenheit der Sache übernommen
hat.
A. Function
I. Purpose
According to § 445, the seller s liability for defects is limited when a thing is sold as a
pledge in a public auction. In such cases, the seller cannot assume the same responsibility for
the quality of the thing sold as in other cases in which he sells something which was under
his control. On the other hand, the buyer is not so much in need of protection as he knows of
the special circumstances of the sale.
2
II. Scope of application
§ 445 only applies to the sale of things which may be subject to a pledge, i.e. only to sales
of movables. According to § 475(3) 2"d St., § 445 does not apply in consumer sales cases, but
h's provis'on must be read with regard to § 474(2) 2nd St., which excludes the sale of second-
and things at a publicly accessible auction from the application of the rules on consumer
sales, to the effect that § 445 still applies in those cases.
21 See also BeckOK BGB/Faust, § 444 BGB mn 23
22 See e.g. BGH 19.2.2016 - V ZR 216/14, NJW 2016, 2315. 2316 (mn. 21) with further references.
782
Schaub
Recourse of the seller
§ 445a
B. Context
§ 445 builds on the former 461 BGB. It is not based on European or other international 3
rules, but was part ot the modernisation of the law of obligations in 2002.
C. Explanation
§ 445 applies when a thing is sold in exercise of a security right (i.e. a sale according to 4
§ 1235(D) at a public auction (§ 383(3) 1st St.), and the thing sold is described as a pledge.
§ 445 does not apply to other torms in which a pledge may be sold (e.g. according to
§§ 1221, 1235(2), 1240(2), 1245, 1246)1 or to sales according to § 1235(1), in which the thing
sold is not described as a pledge, and it does not apply to other forms of public auctions, e.g.
in enforcement proceedings. If § 445 applies, the buyer can only rely on his rights in respect
ot a detect it the seller has fraudulently concealed the defect2 or has given a guarantee of the
quality of the thing.3
§ 445a
Recourse of the seller
(1) Where a newly manufactured thing is
sold, the seller may demand from the seller
who had sold the thing to him (supplier)
reimbursement of the expenses which the
seller had to bear in relation to the buyer
under § 439(2) and (3) and § 475(4) and (6),
if the defect asserted by the buyer already
existed upon the passing of the risk to the
seller.
(2) In order to enforce the rights of the seller
against his supplier set out in § 437, it is not
necessary for die seller, with regard to the
defect asserted by the buyer, to fix the period
of time which would otherwise be necessary in
order to enforce the rights if the seller has been
obliged to take back the newly manufactured
thing sold by him because it is defective, or if
the buyer has reduced the purchase price.
(3) Subsections (1) and (2) above apply
with the necessary modifications to claims of
the supplier and of the other buyers in the
supply chain against their sellers if the obli¬
gors are entrepreneurs.
(4) § 377 of the Commercial Code [Han¬
delsgesetzbuch! is unaffected.
§ 445a
Rückgriff des Verkäufers
(1) Der Verkäufer kann beim Verkauf einer
neu hergestellten Sache von dem Verkäufer,
der ihm die Sache verkauft hatte (Lieferant),
Ersatz der Aufwendungen verlangen, die er
im Verhältnis zum Käufer nach § 439
Absatz 2 und 3 sowie § 475 Absatz 4 und 6
zu tragen hatte, wenn der vom Käufer geltend
gemachte Mangel bereits beim Übergang der
Gefahr auf den Verkäufer vorhanden war.
(2) Für die in § 437 bezeichneten Rechte
des Verkäufers gegen seinen Lieferanten be¬
darf es wegen des vom Käufer geltend ge¬
machten Mangels der sonst erforderlichen
Fristsetzung nicht, wenn der Verkäufer die
verkaufte neu hergestellte Sache als Folge ih¬
rer Mangelhaftigkeit zurücknehmen musste
oder der Käufer den Kaufpreis gemindert hat.
(3) Die Absätze 1 und 2 finden auf die
Ansprüche des Lieferanten und der übrigen
Käufer in der Lieferkette gegen die jeweiligen
Verkäufer entsprechende Anwendung, wenn
die Schuldner Unternehmer sind.
(4) § 377 des Handelsgesetzbuchs bleibt
unberührt.
1 See e.g. HK BGB/Saenger, § 445 Bf iß mn. 2; Jauernig BGB/Bergcr, § 445 BGB mn. 2.
2 See > § 444 mn. 11.
3 See * § 443 mn. 6.
Schaub
783
§ 445a 1-5
Division 8. Particular types of obligations
A. Function
I. Purpose
1 § 445a1 supplements the rules on the buyer’s remedies in favour of the seller, who may have
recourse to his supplier if he has incurred expenses because of his liability for defects vis-ä-vis
the buyer. The provision is based on the principle that recourse is only possible between the
parties of the respective contract. Sub. 1 provides for a recourse claim by the seller against his
supplier if the seller had to bear expenses for cure in relation to the buyer under §§ 439(2), (3),
475(4), (6). Sub. 2 facilitates the seller’s claims against his supplier in respect of defects of the
goods sold by dispensing of the requirement to fix a period of cure first. Sub. 3 extends the
preceding subsections to claims of other persons in the supply chain, provided that the obligor
is an entrepreneur, and Sub. 4 makes it clear that § 377 HGB remains unaffected in these cases,
which limits the buyer’s recourse in commercial sales contracts.
II. Scope of application
2 § 445a applies to all contracts of sale, and it is supplemented by special rules on limitation
in § 445b. In commercial sales cases, regard is to be had especially to § 377 HGB (as pointed
out in Sub. 4), and in consumer sales cases, § 445a is supplemented by the new version of
§ 478 - which is particularly important, as § 478(2), (3) limit derogations from § 445a in
consumer sales cases.2 3
B. Context
I. Historical
3 § 445a has been in force from 1 January 2018. In large parts, it builds on the former § 478,
but extends the rules which were originally confined to consumer sales contracts to all
contracts of purchase. Sub. 1 derives from the former § 478(2), and Sub. 2 is modelled on the
former § 478(1). Sub. 3 follows the former § 478(5) and Sub. 4 is identical with the former
§ 478(6). The main reason for the extension of these rules to all types of sales was to provide
better protection for contractors who have bought defective construction materials which
they have installed in a building, and who could not rely on the former § 478?
II. European
4 For consumer sales contracts, § 445a implements Art. 4 EU Consumer Sales Directive. The
provision does not seem to build on rules in international sales law.
C. Explanation
I. Reimbursement of expenses for cure
5 The seller’s claim for reimbursement of his expenses for cure (§ 445a(D) has been
prominently placed at the beginning of the provision. The separate ciaim strengthens the
seller’s position as it goes much beyond a claim for damages against his supplier (which
would, in particular, require fault, §§ 437 No. 3, 440, 280 el seq., 276).
'Translation by Renate Schaub, building on the translation of the former 6 478
2 See - § 478 mn. 4-5.
3 BT-Drs. 18/8486 of 18.5.2016, p. 2.
784
Schaub
Recourse of the seller 6-9 § 445a
The preconditions tor this claim are: (i) the sale of a newly manufactured thing; the 6
provision does not apply to sales of used items (however, Art. 4 EU Consumer Sales Directive
does not contain such a limitation - to the effect that it must be doubted whether Sub. 1 is in
full accordance with EU law), (ii) the thing sold must have been defective at the time of
passing ot risk (see § 477 for the burden of proof in consumer sales cases - but only in those
cases), and (iii) the seller must have had to bear expenses in relation to the buyer under
439(2), (3), 475(4), (6). This means that the seller must have had to incur expenses for
cure according to the rules on defective goods. Sub. 1 does not cover cases in which the seller
has incurred expenses just out of goodwill, if he did not have to do so according to §§ 437 et
seq.,I * * 4 and it does not require the seller to demand from his supplier that the defect is
remedied or a thing free of defects is supplied.5 As Sub. 1 refers to the expenses which the
seller actually had to bear, a reduction of these expenses according to § 439(4) has to be taken
into account.6 Even if the expenses result from a special kind of use intended by the
consumer, which has not been part of the contract between the seller and his supplier,
§ 445a, taken literally, applies.7
II. Derogation from fixing a period of time for cure
Sub. 2 facilitates the seller's recourse against his supplier (which is, in general, determined by 7
437 et seq.) even more by derogating from one of the prerequisites of remedies in cases of
defective goods, namely the requirement of fixing a period of time for cure (see §§ 323(1),
281(1), 440, 441(1)). This makes recourse along the supply chain much quicker as the defective
thing can be returned to the first supplier without further attempts of cure (however, it is
sometimes doubted whether this rule is adequate in all cases of supply chains8).
Sub. 2 applies if the thing sold (which, again, has to be newly manufactured, going beyond 8
Art. 4 EU Consumer Sales Directive9) has been defective at the time of passing of risk (as to
the burden of proof, again, in consumer sales cases regard is to be had to § 477) and if the
seller has either been obliged to take back the thing sold by him because of the defect (e.g. if
cure has taken the form of supplementary performance (§ 439(1), (5)), if the buyer has
rescinded the contract (§ 323), or if taking back the thing was owed as damages (§§ 280(1),
(3), 281(1) 2nd and 3rd St., (5)), or if the buyer has reduced the purchase price (§ 441).
III. Application to other claims in the supply chain
Sub. 3 extends the preceding rules to other contracts of sale further up the supply chain. 9
This provision supplements Subs 1 and 2, as especially Sub. 1 would not apply literally to all
claims along the supply chain,10 and as it provides for application with the necessary
modifications. The chain of claims would ideally end with the claim against the person who
is primarily responsible for the defect;11 however, since it only refers to claims against
I See BT-Drs. 18/8486 of 18.5.2016, p. 4l.
’ See Kruse/Kevekordes, Neuregelung des Unternehmerregresses im Kaufrecht durch die Kaufrechtsre¬
form 2018 - Erläuterung, Kritik und mögliche Gestaltungen, DStR 2OI8, I6l8, 1619 with further
references.
6 See Nietsch/Osmanovic, Die kaufrechthche Sachmängelhaftung nach dem Gesetz zur Änderung des
Bauvertragsrechts, NJW 2018, 1, 4.
7 See Kruse/Kevekordes, Neuregelung des Untcrnehmerregresscs im Kaufrecht durch die Kaufrechtsre¬
form 2018 - Erläuterung, Kritik und mögliche Gestaltungen, DStR 2018, 1618, 1619 with further
references, also to diverging opinions.
« See e.g. Nietsch/Osmanovic, Die kaufrechthche Sachmängelhaftung nach dem Gesetz zur Änderung
des Bauvertragsrechts, NJW 2018, 1, 4 et seq.
9 * § 445a mn. 6.
10 See Picht, Gesetzgeberische Aus- und Einbauten in der kaufrechtlichen Nacherfiillung, JZ 2017, 807,
810.
II See Weidt, Der Rückgriff des Verkäufers im neuen Mängelliaftungsrecht, NJW 2018, 263, 265.
Schaub
785
§ 445b 1-2 Division 8. Particular types of obligations
entrepreneurs, the chain may be interrupted to the detriment of the seller who is not an
entrepreneur (and could even be a consumer), especially if the last contract in the supply
chain is a consumer sale, to which § 478(2) 1st St. applies.12
IV. Reference to § 377 HGB
10 Sub. 4 states that within the supply chain, the buyer’s obligation in commercial sales cases
to examine the goods and to make a complaint if they are defective (§ 377 HGB) still applies.
So, if the commercial buyer does not fulfil his obligations under § 377 HGB (which are not
always easy to be determined1'), he is deemed to have approved the goods sold according to
§ 377(2) HGB, to the effect that he cannot rely on their being defective under § 445a.
§ 445b
Limitation of recourse claims
(1) The claims for reimbursement of ex-
penses specified in § 445a( 1) are subject to a
two-year limitation period after delivery of
the thing.
(2) ’The claims specified in §§ 437 and
445a(l) of the seller against his supplier for
a defect in a newly manufactured thing be¬
come statute-barred at the earliest two
months after the date on which the seller
satisfies the claims of the buyer. 2This suspen¬
sion of expiry of limitation ends at the latest
five years after the time when the supplier has
delivered the thing to the seller.
(3) Subsections (1) and (2) apply to claims
of the supplier and the other buyers in the
supply chain against their sellers if the obli¬
gors are entrepreneurs.
§ 445b
Verjährung von
Rückgriffsansprüchen
(1) Die in § 445a Absatz 1 bestimmten
Aufwendungsersatzansprüche verjähren in
zwei Jahren ab Ablieferung der Sache.
(2) ’Die Verjährung der in den §§ 437 und
445a Absatz 1 bestimmten Ansprüche des
Verkäufers gegen seinen Lieferanten wegen
des Mangels einer verkauften neu hergestell¬
ten Sache tritt frühestens zwei Monate nach
dem Zeitpunkt ein, in dem der Verkäufer die
Ansprüche des Käufers erfüllt hat. 2Diese Ab¬
laufhemmung endet spätestens fünf Jahre
nach dem Zeitpunkt, in dem der Lieferant
die Sache dem Verkäufer abgeliefert hat.
(3) Die Absätze 1 und 2 finden auf die
Ansprüche des Lieferanten und der übrigen
Käufer in der Lieferkette gegen die jeweiligen
Verkäufer entsprechende Anwendung, wenn
die Schuldner Unternehmer sind.
A. Function
I. Purpose
§ 445b supplements § 445a as it provides for a special limitation period for the seller s
claims against his supplier to reimbursement of expenses arising from § 445a(l) (Sub. 1) and
suspends the expiry of limitation for other claims of the seller against his supplier in respect
of defective goods (Sub. 2).
2
II. Scope of application
K aPP,ieS t0 al‘ COn,ractS of salc- In «»nsunwr sales cases, regard is to be had to
§ 478(2). b
who n7nn»X'nS/ZWIfle,n\DCr neu'{cfaM>u' '-ieferantenbeRriff im Kaufrecht, NJW 2018, 1841, 1844 et seq.
who propose to confine the term suppher in § 445a to entrepreneurs
tavtX'X’MW,«!, ,le„, G„.„. w *>
786
Schaub
Passing of risk and of charges
§ 446
B. Context
§ 445b has been in force as from 1 January 2018. However, it has been modelled on the 3
former § 479: Sub. 1 is nearly similar to the former § 479(1), whereas Subs 2 and 3 build on
the former § 479(2) and (3), with a few modifications, the most important of which is the
extension ot the former rules for consumer sales contracts to all contracts of purchase. Since
§ 445b supplements § 445a, regard is to be had to Art. 4 EU Consumer Sales Directive.
C. Explanation
I. Limitation period
Sub. 1 provides for a two-year limitation period for the seller’s claim for reimbursement of 4
expenses against his supplier (§ 445a(l)), starting from the delivery of the thing to the seller.
This provision is necessary as § 438 does not cover these cases. The limitation period provided
for in Sub. 1 is in harmony with the general limitation period in § 438(1) No. 3. For real rights
or buildings, the limitation periods in § 438 are longer, but regard is to be had to § 445b(2)
which provides for a suspension of expiry of limitation which applies - inter alia - to the
seller’s claim to reimbursement of his expenses for cure.
IL Suspension period
Sub. 2 provides for a suspension of expiry of limitation for the seller’s claims against his 5
supplier arising from § 437 or from § 445a(l). The suspension period is two months from the
date on which the seller satisfies the claims of the buyer, but no later than five years after
delivery to the person who raises the recourse claim. The purpose of this rule is to preserve the
seller’s recourse claims - and other claims along the supply chain - from becoming statute-
barred before the last buyer has made claims because of the defect. However, taken literally,
Sub. 2 2nd St. (suspension of expiry of limitation) does not completely achieve this purpose as it
does not apply if the limitation period for one of the sellers has completely expired before the
last buyer’s claim. Therefore, there is a debate whether Sub. 2 has to be taken literally1 or to be
interpreted to the effect that it also includes cases in which the original limitation period for the
seller’s claim against his supplier has already expired when the thing is sold to the (last) buyer.2
III. Application to other claims in the supply chain
According to Sub. 3, the preceding subsections apply to all other claims further up the 6
supply chain, as long as the obligor is an entrepreneur.
§446
Passing of risk and of charges
’The risk of accidental destruction and
accidental deterioration passes to the buyer
upon delivery of the thing sold. 2From the
time of delivery the emoluments of the thing
accrue to the buyer and he bears the charges
on it. 3If the buyer is in default of acceptance
of delivery, this is equivalent to delivery.
§446
Gefahr- und Lastenübergang
’Mit der Übergabe der verkauften Sache geht
die Gefahr des zufälligen Untergangs und der
zufälligen Verschlechterung auf den Käufer
über. 2Von der Übergabe an gebühren dem
Käufer die Nutzungen und trägt er die Lasten
der Sache. 'Der Übergabe steht es gleich, wenn
der Käufer im Verzug der Annahme ist.
1 See e.g. BeckOK BGB/Faust, § 445b BGB mn. 6 with further references.
2 See e.g. BcckOGK BGB/Arnold, § 445b BGB mn. 31 et seq. with further references.
Schaub
787
§ 446 1-5
Division 8. Particular types of obligations
A. Function
I. Purpose and position within the BGB
1 § 446 is the general rule relating to the passing of the financial risk in contracts of
purchase. It has to be read in conjunction with other rules relating to risk in the general law
of obligations. The lsl St. forms an exception to § 326(1) Is' St., shifting the passing of the
financial risk to an earlier point of time, compared to the general rules. According to § 326(1)
Is' St., if the seller is not under an obligation to supply the thing sold because his duty of
performance is excluded under § 275, he would not be entitled to demand the purchase price.
However, if the risk has passed to the buyer upon delivery, he has to pay the purchase price
according to the 1st St., as the thing is in the buyer’s sphere of risk from that point of time
(casum sentit dominus). This is particularly important when the ownership has not passed to
the buyer at that time, as with the passing of ownership normally the purchase price would
be due anyway. According to the 3rd St., it is equivalent to delivery if the buyer is in default of
acceptance (§§ 293 et seq.), to the effect that the buyer also has to pay the purchase price if
the seller’s duty of performance is excluded under § 275. The 3rd St. states what would
already follow from § 326(2) lsl St. 2nd Alt. It goes beyond Art. 20 EU Consumer Rights
Directive, but as the Directive does not cover default of acceptance, the 3rd St. can be taken to
be in accordance with EU law - though a reference to the CJEU in an appropriate case would
provide more legal certainty.1 The 2nd St. states that delivery is also the decisive point for the
passing of the emoluments (§ 100) of and charges (§ 103) on the thing sold to the buyer.
2 § 446 also has to be read in conjunction with the special rule for cases of sales shipment
in § 447. Both rules determine when the financial risk passes, but do not address all legal
consequences of the passing of risk. They only deal with the question when the buyer has to
bear the financial risk related to the loss or destruction of the goods on the one hand and the
emoluments of the thing sold accrue to him on the other.
II. Scope of application
3 § 446 applies to all contracts of purchase (however, if a right is sold, only if it comprises
the right to possession of a thing pursuant to § 453(3)), if there are no special rules on the
passing of risk, such as § 447 for cases of sales shipment, § 2380 for the purchase of an
inheritance, § 56 ZVG for the foreclosure of a piece of land and § 379(2) for cases of
deposit. § 446 can be derogated from,2 even in consumer sales cases, as it is not mentioned
in §476(1).
B. Context
I. Historical
4 § 446 has been in the BGB since 1900, but was modified to some extent in 2002: The
former second subsection has been deleted and the 3rd St. has been added in the context of
the modernisation of the law of obligations. The I'1 and 2nd St. have remained unchanged
since the BGB first came into force.
II. European
5 k 7hk ^ Consumer Sales Directive does not contain any provisions on the passing of risk,
but the EU Consumer Rights Directive does in its Art. 20. As the adoption of the F.U
1 See also BeckOK BGB/Faust, § 446 BGB mn. It.
2 BGH 15.1.2014 - VIII ZR 70/13, NJW 2014, 1086.
788
Schaub
Passing of risk and of charges 6-8 § 446
Consumer Rights Directive has not resulted in any changes of §§ 446, 447 by the legislator, it
has to be taken into account in the interpretation of these provisions.
III. Comparative
The international rules on commercial sales relating to the passing of risk are much more 6
extensive than §§ 446, 447, see Arts 66 et seq. CISG, Art. IV.A.-5:101 DCFR and Arts 140 et
seq., 143 et seq. CESL (draft). They usually contain a rule as to the effect of passing of risk at
the beginning and they focus much more on the passing of risk in cases of carriage of goods
or goods sold in transit than §§ 446, 447, which start with the rest of cases. This may be due
to the fact that §§ 433 et seq. primarily aim at non-commercial contracts of sale as they are
supplemented for other cases (though not in relation to the passing of risk) by rules in the
HGB. The CESL (draft) contains different sets of rules for the passing of risk in consumer
sales contracts (Art. 142) and in contracts between traders (Arts 143 et seq.), which seems to
be a good model tor future regulation in this area (whereas the distinction between normal
sales and consumer sales in the BGB is not really clear3).
C. Explanation
I. Preconditions
§ 446 applies if there is a valid contract of purchase at the time of delivery. Deliver)' means 7
transfer of immediate possession (§ 854(1)) to the buyer in performance of the contract of
sale, irrespective of the effects on ownership.4 So, for example, in cases of retention of title,
transfer of immediate possession to the buyer is sufficient. However, delivery of a defective
thing is not sufficient - the rules on defective goods apply in those cases.5 Default of
acceptance by the buyer (§§ 293 et seq.) is equivalent to delivery7 (3rd St.) and the risk of
performance passes to the buyer according to § 300(2). Destruction covers cases in which the
thing sold has completely perished, but also all situations in which ownership cannot be
transferred to the buyer as intended, e.g. if the subject-matter of the contract of purchase has
been stolen.6 Deterioration means any decrease in quality, especially if the thing sold is
damaged." The destruction or deterioration is accidental if none of the parties to the contract
of purchase is responsible.
II. Legal consequences
As a consequence of the passing of risk, the buyer has to pay the purchase price, as an 8
exception to § 326(1) 1st St. He also does not have any claims in respect of defects (§§ 434 et
seq.) which are due to accidental deterioration after the passing of risk; he may only, in
appropriate cases, be entitled to return of reimbursements received by the seller (§ 285(1)).
After the risk has passed, the buyer can also enjoy the emoluments of the thing sold (§ 100)
and must bear the charges on the thing sold (§ 103) in relation to the seller.
3 See ► § 474 mn. 8.
4 BGH 25.3.1998 - VIII ZR 185/96, NJW 1998, 2360, 2363 with further references.
s See ► § 433 mn. 16.
6 Jauernig BGB/Berger, § 446 BGB mn. 7; HK BGB/Saengcr, § 446 BGB mn. 5.
7 Jauernig BGB/Berger, § 446 BGB mn. 7; HK BGB/Saenger, § 446 BGB mn. 5.
Schaub
789
§ 447 1-3
Division 8. Particular types of obligations
§447
Passing of risk in the case of sales
shipment
(1) If the seller, at the request of the buyer,
ships the thing sold to another place than the
place of performance, the risk passes to the
buyer as soon as the seller has handed the
thing over to the forwarder, carrier or other
person or body specified to carry out the
shipment.
(2) If the buyer has given a particular
instruction on the method of shipping the
thing and the seller, without a strong reason,
does not adhere to this instruction, the seller
is liable to the buyer for the damage arising
from this.
§447
Gefahrübergang beim
Versendungskauf
(1) Versendet der Verkäufer auf Verlangen
des Käufers die verkaufte Sache nach einem
anderen Ort als dem Erfüllungsort, so geht
die Gefahr auf den Käufer über, sobald der
Verkäufer die Sache dem Spediteur, dem
Frachtführer oder der sonst zur Ausführung
der Versendung bestimmten Person oder An¬
stalt ausgeliefert hat.
(2) Hat der Käufer eine besondere Anwei¬
sung über die Art der Versendung erteilt und
weicht der Verkäufer ohne dringenden Grund
von der Anweisung ab, so ist der Verkäufer
dem Käufer für den daraus entstehenden
Schaden verantwortlich.
A. Function
I. Purpose and underlying principles
1 § 447 is a special rule on the passing of the financial risk related to the loss or destruction
of the goods in contracts of purchase if the buyer requests the seller to ship the thing
purchased to a place other than the place of performance. Sub. 1 is an exception to § 326(1)
1st St. and a special rule in relation to § 446, taking precedence over the latter and shifting the
passing of the financial risk to an even earlier point of time. So, if the thing sold deteriorates
or vanishes during transport to the effect that the seller’s duty of performance is excluded
under § 275, the seller would, according to § 326(1) 1st St., not be entitled to demand the
purchase price. However, if the buyer has requested that the thing sold be shipped to another
place of performance, Sub. 1 shifts the financial risk to the buyer at the point of time when
the seller has handed over the thing to the person or body who is in charge of the transport,
to the effect that the seller can still demand the purchase price. Sub. 2 provides a special
ground for a claim for damages by the buyer, which takes precedence over § 280(1), if the
buyer has given a particular instruction as to the method of shipping and the seller has
deviated from this instruction without a strong reason. However, without Sub. 2, the buyer
would still have such a claim under § 280(1). So, the special significance of Sub. 2 rather lies
in providing that the buyer’s instructions for the method of shipping are legally relevant.1
II. Scope of application
2 § 447, which can be derogated from in the contract of purchase, applies to the purchase ot
things only. In consumer sales cases, the application of § 447 is practically excluded,
according to § 475(2) and (3) 2nd St.,2 to the effect that § 446 applies.
B. Context
3 § 447 has been in the BGB since 1900 and has remained unchanged, even after the
adoption of the EU Consumer Rights Directive. However, regard is to be had to Art. 20
1 See also BeckOK BGB/Faust, § 447 BGB inn. 3.
2 See ► § 475 mn. 5, 7.
790
Schaub
Passing of risk in the case of sales shipment 4-7 § 447
(especially 2nd St.) EU Consumer Rights Directive when interpreting § 447. For commercial
sales, the international rules on contracts of sale regulate the passing of risk in cases of sales
shipment (and other cases, like sale in transit) in much more detail than § 447 BGB, due to
the practical importance of these cases in commercial sales transactions. However, § 447
bears some similarities to Art. 67 CISG and Art. 145 CESL (draft), and - to a lesser extent -
to Art. IV.A.-5:202(3) DCFR.
C. Explanation
I. Preconditions
The preconditions tor the application of § 447 are a sales shipment, the handing over of 4
the thing to the person or body in charge of the transport, and an accidental damage to the
thing in transit.
1. Sales shipment
§ 447 applies if the seller ships the thing sold to another place than the place of 5
performance. According to § 269 (which applies if there is no special agreement of the
parties as to the place ot performance), the place of performance for the delivery of the thing
sold is the place ot residence or of the commercial branch of the seller. If the parties deviate
from this rule by an agreement to the effect that the thing sold is to be shipped to another
place, this amounts to a sales shipment. The thing must be shipped at the request of the
buyer, which basically means that a sales shipment only comes into existence by an
agreement of the parties. Such an agreement will usually be collateral to the main purchase
agreement, as is typical in commercial sales3 or in online trading.4 It has to be distinguished
from the - rather exceptional - cases in which the seller is (in deviation from § 269) obliged
to perform at the buyer’s place of residence. In consumer sales cases, § 447 normally does not
apply according to § 475(2) and (3) 2nd St.5 However, the fact that the seller ships the thing to
another place than the place of performance may even in consumer sales cases still be
important for the application of other rules, such as § 448. § 447 should also be applied if the
thing sold is shipped within one and the same town, as this situation involves exactly the
same risk as shipment from one town to another.6 The agreement as to the sales shipment
does not change the place of performance of the seller’s obligation, it only shifts the financial
risk to the buyer at an earlier point of time.7
2. Handing over to the person or body in charge of the transport
The thing must have been handed over by the seller to the person or body in charge of 6
the transport. Handing over means the factual act of delivery of the thing by the seller to
that person or body for the purpose of transport,8 not preparatory measures, such as
concluding the contract of transport or shipping the thing to the person in charge of the
transport.9
The person or body in charge of the transport can be the forwarder (see §§ 453 et seq. 7
HGB), carrier (see 407 et seq. HGB) or any other person or body (meaning a legal entity)
5 See BeckOK BGB/Faust, § 447 BGB mn. 5 with further references.
4 BGH 23.8.201« - HI ZR 192/17, NJW 2019, 47, 49 (mn. 20).
s See > 475 mn 5, 7.
6 See also BeckOK BGB/Faust, (j 447 BGB mn. 6 with further references, also in respect of diverging
opinions.
7 See ► § 447 mn. 1.
"BGH 5.12.1990 - VIII ZR 75/90, NJW 1991,915,916.
9 See eg. HK BGB/Saengcr, § 447 BGB mn. 4.
Schaub
791
§ 447 8-11 Division 8, Particular types of obligations
carrying out the shipment. There is a debate whether § 447 or § 446(1) applies if the seller
entrusts his own employees with the transport.10 In default of any BGH case law on this
question, it seems to be appropriate to apply § 447 in these cases which are quite similar in
structure to those clearly covered by § 447, to the effect that the seller who entrusts his own
employees with the transport is not at a disadvantage.
3. Accidental damage in transit
8 § 447 only applies in cases of accidental deterioration or destruction of the thing during
transport, i.e. when neither the seller nor the buyer is responsible (§§ 276 et seq.) for the
deterioration or destruction. The seller is not responsible for a person or body in charge of
the transport according to § 278 1st St. as he ships the thing at the request of the buyer. If the
seller entrusts his own employees with the transport,11 he is still not responsible for their fault
under § 278 1st St. as those cases should be treated similarly to those when he entrusts a third
person with the transport.12
9 Sometimes, it is held that § 447 only covers cases of typical damage in transit, such as
destruction in a traffic accident or when the goods are loaded or unloaded.13 However, as this
is construed extensively, the application of § 447 has only been denied in very special cases,
such as seizure during wartime.14 In those cases, however, the thing has a legal defect, to
which § 447 does not apply anyway.15
IL Legal consequences
10 If the preconditions of § 447 are met, the financial risk (but not necessarily the property)
passes to the buyer at the time when the thing is handed over to the person or body in
charge of the transport for the purpose of transport. This means that the buyer has to pay the
full purchase price even if the thing has been damaged or destroyed during transport. If
generic goods have been sold, ascertainment (§ 243(2)) will take place at the same time at
the passing of risk. On the other hand, the buyer will often have a claim against the seller to
return reimbursements (such as insurance payments) received, according to § 285(1). The
buyer may also have claims against the person in charge of the transport, if this person is
responsible for the damage or loss of the goods, according to § 421(1) 2nd St. HGB, or the
seller may be able to claim the buyer’s loss from the person in charge of the transport
(Drittschadensliquidation16).
11 If the seller has not adhered to instructions given by the buyer on the method of shipping
without a strong reason, the seller is liable for the damage arising from this (Sub. 2). This
provision attributes responsibility for the damage to the seller if he deviates from the buyer’s
instructions without a strong reason, i.e. if adhering to these instructions would be
completely unreasonable in the particular case.17 It is based on the assumption that the
buyer may give instructions on the method of shipping, which is in accordance with § 448(1)»
as the buyer also bears the costs of shipment.
H ?e BGBIFaUSt’ § 447 BGB 9 wilh father references lor both opinions.
See -> § 447 mn. 6. r
BeckOGK BGB/Schaub § 278 BGB mn. 65.6 with further references
See e.g. Erman BGB/Grunewald, tj 447 BGB mn. 12 with further references
RG 16.10.1926 - I 448/25, RGZ 114, 405, 406 et seq.
15 See e.g. BeckOK BGB/Faust, § 447 BGB mn. 21.
- H6M-6«ledn e3Xplanation Of this conccP‘ sec 'he German Law of Contract, p. 217 et seq. See also
17 See HK-BGB/Saenger, § 447 BGB mn. 8.
792
Schaub
Costs of delivery and comparable costs
1-3 § 448
§448
Costs of delivery and comparable
costs
(1) The seller bears the costs of delivery of
the thing» the buyer the costs of acceptance
and of shipping the thing to a place other
than the place of performance.
(2) The buyer of a plot of land bears the
costs of the notarial recording of the pur¬
chase agreement and of the declaration of
conveyance, the registration in the Land Reg¬
ister and the declarations necessary for regis¬
tration.
§448
Kosten der Übergabe und
vergleichbare Kosten
(1) Der Verkäufer trägt die Kosten der
Übergabe der Sache, der Käufer die Kosten
der Abnahme und der Versendung der Sache
nach einem anderen Ort als dem Erfüllungs¬
ort.
(2) Der Käufer eines Grundstücks trägt die
Kosten der Beurkundung des Kaufvertrags
und der Auflassung, der Eintragung ins
Grundbuch und der zu der Eintragung erfor¬
derlichen Erklärungen.
A. Function
§ 448 provides rules as to who has to bear costs related to the contract of purchase as 1
between buyer and seller (without effect on their relationship to third parties, such as
notaries or public authorities). Basically, the seller bears the costs of delivery, and the buyer
has to bear the costs of acceptance, including the costs of shipping in cases of sale by
shipment (Sub. 1). According to Sub. 2, the buyer also has to bear the main costs of
formalities relating to the transfer of land. § 448 can be derogated from (in default of a
reference in § 476(1) even in consumer sales contracts), and often is, especially in commer¬
cial sales. In principle, it applies to all contracts of sale (see especially § 452 for the purchase
of registered ships and § 453(1) for the purchase of rights) but has to be read in conjunction
wdth other, special rules on the bearing of costs, such as § 453(2) for the purchase of rights,
§ 439(2) for the costs of cure, or § 403 2nd St. for the costs of transferring a claim.
B. Context
§ 448 has been in the BGB as from 1900, but has been changed slightly, due to the 2
modernisation of the law of obligations in 2002. Sub. 1 has been expressed differently (but its
contents have basically remained), and the present Sub. 2 was added, whereas the former
§ 448(2) was shifted to § 453(2) and slightly modified in its wording. Provisions like § 448
are rarely to be found in international conventions; it can usually be concluded from the
detailed description of the parties’ obligations that the parties have to bear the costs related to
their respective obligations.
C. Explanation
I. Seller’s costs
The seller bears the costs of delivery (Sub. 1), which means basically all costs which accrue 3
until delivery (e.g. storage, packaging, transport to the place of performance), so that the
buyer has to do no more than accept delivery (depending on the kind of obligation in the
particular case). The costs to be borne by the seller may also include the costs of measuring
and weighing the goods (as expressly mentioned in the earlier version of the provision),
insofar as they accrue before delivery and are not part of the buyer’s obligations (such as
Schaub
793
§ 449 Division 8. Particular types of obligations
verifying the amount of things delivered). However, the seller cannot charge the buyer with
part of his general expenses for staff and materials.1
II. Buyer’s costs
4 The buyer bears the costs of acceptance (Sub. 1), e.g. the costs of accepting and inspecting
the goods. He also has to bear the costs of shipping the thing to another place than the place
of performance (which is related to the provision on the financial risk in cases of sale by
shipment in § 447) or taxes or levies accruing in this context.2 According to Sub. 2, the buyer
also has to bear special costs related to the purchase of a plot of land, such as the costs of
the notarial recording of the purchase agreement (§ 31 lb(l) 1st St.), of the declaration of
conveyance (§ 925), the registration in the Land Register (§ 873), and of other declarations
necessary for registration, e.g. a priority notice (§ 8833) or an approval by the family court
(§ 1821 No. 1). However, it is a precondition of Sub. 2 that the contract of sale is valid.4
§449
Retention of title
(1) If the seller of a movable thing has
retained title until payment of the purchase
price, then in case of doubt it is to be as¬
sumed that ownership is transferred subject
to the condition precedent that the purchase
price is paid in full (retention of title).
(2) Retention of title entitles the seller to
demand the return of the thing only if he has
revoked the agreement.
(3) An agreement on retention of title is
void to the extent that the passing of owner¬
ship is made subject to the satisfaction by the
buyer of third-party claims, including, with¬
out limitation, those of an enterprise asso¬
ciated with the seller.
§449
Eigentumsvorbehalt
(1) Hat sich der Verkäufer einer beweg¬
lichen Sache das Eigentum bis zur Zahlung
des Kaufpreises vorbehalten, so ist im Zweifel
anzunehmen, dass das Eigentum unter der
aufschiebenden Bedingung vollständiger Zah¬
lung des Kaufpreises übertragen wird (Eigen¬
tumsvorbehalt).
(2) Auf Grund des Eigentumsvorbehalts
kann der Verkäufer die Sache nur herausver¬
langen, wenn er vom Vertrag zurückgetreten
ist.
(3) Die Vereinbarung eines Eigentumsvor¬
behalts ist nichtig, soweit der Eigentums¬
übergang davon abhängig gemacht wird,
dass der Käufer Forderungen eines Dritten,
insbesondere eines mit dem Verkäufer ver¬
bundenen Unternehmens, erfüllt.
Contents
mn.
A. Function 1
B. Context 2
L Historical 2
II. European 3
C. Explanation 4
I. Retention of title 4
1. General significance 4
2. Agreement on retention of title 5
a) Agreement 5
b) Rule of interpretation 6
c) Form 7
d) Limit g
’ BGH 23.8.2018 - HI ZR 192/17, NJW 2019, 47, 50 (mn. 24).
2BGH 11.6.2010 - V ZR 85/09, NJW 2010, 2873, 2875 (mn.21) for the Property Transfer Tax
(Grunderwerbsteuer).
’ BeckOK BGB/Faust, § 448 BGB mn. 8 with further references
4 BGH 9.11.2012 - V ZR 182/11, NJW 2013, 928, 930 (mn. 15)’
794
Schaub
Retention of title
1-4 § 449
II. Legal consequences 9
1. Effects on ownership 10
2. Effects on the contract of sale 11
A. Function
§ 449 sets up partial rules for the retention of title in contracts of purchase. Sub. 1 provides a 1
rule ot interpretation for retention of title clauses» and Sub. 3 limits the seller’s possibility to
retain title with regard to claims of third parties. Sub. 2 limits the seller’s options to demand the
return ot the thing to cases when he has rescinded the contract. § 449 applies to the sale of
movables and animals (§ § 90» 90a) and also to contracts for the supply of movable things to be
produced or manufactured (§ 650 Ist St.). § 449 does not apply to the sale of an enterprise as a
whole, as title can only be retained with regard to specific items, e. g. movables which are part of
the enterprise. § 449 may be derogated from (with an exception for Sub. 3 which is mandatory),
even in consumer sales cases, as § 449 is not mentioned in § 476(1). However, Sub. 2 cannot be
derogated from in instalment payment transactions to which §§ 512, 508 5th St. apply.
B. Context
I. Historical
§ 449 builds on the former § 455, which has been in the BGB since 1900 but has been 2
modified and supplemented over the years. Sub. 1 is part of the former § 455 (1st Part), Sub. 2
substantially modifies the original § 455 (2nd Part), and Sub. 3 was introduced in 1998, back
then as § 455(2). The rules were shifted in place and slightly adapted in 2002, in the course of
the modernisation of the law of obligations.
II. European
Art. 9( 1) EU Late Payment Directive allows Member States to provide for a retention of 3
title by the seller (as defined in Art. 2(9) of the Directive) if a retention of title clause has been
expressly agreed between the buyer and the seller before the delivery of the goods. However,
as the Directive mainly aims at preserving retention of title clauses in international
situations,1 it does not seem to limit Member States in making more extensive provisions
for the preconditions and effects of a retention of title according to national law.2 The
German legislator has concluded that the Directive does not have any effect on the existing
rules on the retention of title and that a modification is not necessary.3 In cross-border cases,
regard is to be had to Art. 10 Regulation 2015/848/EU on Insolvency Proceedings.
C. Explanation
I. Retention of title
1. General significance
A retention of title is used to secure the seller’s claim for the purchase price if he delivers 4
the thing sold to the buyer before payment. The seller can retain title until payment of the
purchase price in order to retain property in the thing sold until full payment. This means
that the transfer of property (to be distinguished from the contract of sale as per the
1 Recital 31 EU Late Payment Directive.
2 See also BeckOK BGB/Eaust, § 449 BGB mn. 5.
3 BT-Drs. 14/6040 of 14.5.2001, p. 83.
Schaub 795
§ 449 5-9 Division 8, Particular types of obligations
Trennungsprinzip4) is subject to the condition precedent that the purchase price is paid in full
(§§ 929 1st St., 158(1)). The retention of title can take various forms, which are not
mentioned in the BGB but have been developed in legal practice and accepted by the courts.
It can in particular be extended in different ways.5
2. Agreement on retention of title
5 a) Agreement. A retention of title may be effected by express or implicit agreement. An
implicit agreement may be assumed, for example, if there is a trade practice to that effect
(§ 157 BGB, § 346 HGB). Whether there is always an implicit agreement as to a retention of
title if the thing sold is delivered before payment is much debated,6 but can be assumed at
least in some cases, e.g. if a car is sold and the seller retains the vehicle title until full payment
of the purchase price.7 In principle, a retention of title agreement can be made in standard
business terms, as it does not put the other party to the contract at an unreasonable
disadvantage (§ 307). However, such a standard term used by the seller will often create a
conflict with the buyer’s standard terms, which usually will exclude a retention of title, to the
effect that both clauses will not be agreed on and therefore will not become part of the
contract.8 A retention of title can even be agreed on after the contract of sale has been
concluded. A unilateral retention of title by the seller after the conclusion of the contract of
sale (but before delivery) does not have the full effects of an agreement on a retention of title
but it will usually prevent the passing of property according to § 929, as there will be no
agreement of the parties on the passing of property then.9
6 b) Rule of interpretation. For cases in which there is no clear agreement, Sub. 1 provides
a rule of interpretation to the effect that retention of title means that ownership is transferred
subject to the condition precedent that the purchase price is paid in full. The property passes
once the condition has been fulfilled, i.e. when the price has been paid completely (§§ 929
1st St., 158(1)).
7 c) Form. A retention of title agreement is usually valid, irrespective of its form in the
particular case. However, in consumer loan contracts, the agreement must be in writing,
§§ 506(1), 492(1) or §§ 506(3), 507(2) 1st St., 492(1).
8 d) Limit. Sub. 3 puts a limit on party autonomy with regard to the seller’s possibility to
retain title in respect of claims of third parties. Such an agreement is void to the extent that
the passing of ownership is made dependent on the fulfilment10 of third-party claims,
including claims of enterprises associated with the seller, by the buyer. Thus, a corporate
reservation of title is not possible and a term to this effect is void, with effects on the
contract of sale and the passing of property, but only insofar as the retention of title is
expanded beyond the seller’s own claims.11
II. Legal consequences
9 For the legal consequences of retention of title, a clear distinction has to be drawn between
its effects on the ownership of the thing sold and its effects on the contract of sale. This is,
4 See -» Introduction mn. 40 et seq.
5 See >(j929 mn. 15.
‘«CH °vmVJö ™ ’84/°51 N,W 20061 34881 3849 12> fences.
BGH 13.92006 - VIII ZR 184/05, NJW 2006, 3488. 3849 (mn. 12 et seq).
NJw79858' I8X ^391973 ' VHI ZR l06/72’ N,W 19731 21061 2107; BGH 20-3 1985 - VUI ZR 327/W’
Niwfwf i’iVJ988 ’ V,H ZR 340/861 N,W 19881 17741 l776; BGH 9.2.1994 - VUl ZR 176/92'
NJW 1994, 1154. 1155.
■“ The term fulfilment seems more appropriate than satisfaction in the translation
See BeckOK BGB/Faust, § 449 B( IB mn. 37 with further references.
796
Schaub
Excluded buyers in the case of certain sales 1 § 450
again, a consequence of the separation of contractual and property transactions in German
law (Trennungsprinzip).
1. Effects on ownership
It there is a valid retention of title, the seller retains ownership until the buyer has paid the 10
purchase price in full. However, the buyer has a right of expectancy to acquire ownership
(Anwartschaftsrecht) if he fulfils the condition, and he has a right of possession (§ 986(1)
1st St.) arising from the contract of sale, to the effect that the seller cannot demand the
return of the thing under § 985. Only if the seller has rescinded the contract (especially
according to § 323 or § 324; for instalment payment transactions, regard is to be had to
§§ 508, 498(1) 1st St.), he may claim return of the thing sold (under § 985 or § 346(1)
respectively) (Sub. 2). In these cases, the seller may even demand return of the thing if the
limitation period for payment of the purchase price has expired (§ 216(2) 2nd St.).
2. Effects on the contract of sale
One consequence of a valid retention of title is that the seller is not obliged to transfer 11
unconditional ownership to the buyer until the purchase price is paid in full. The seller is
only under an obligation to transfer ownership subject to the condition precedent of full
payment of the purchase price. However, the risk may pass to the buyer according to general
rules, especially under § 446(1), when the thing is delivered to the buyer. The seller may
revoke the contract according to the general rules (especially, but not only, according to
§ 323), e.g. if the buyer is in default (§ 286) with payment of the purchase price.
§450
Excluded buyers in the case of
certain sales
(1) When an object is sold by way of
execution of judgment, the person instructed
to carry out or manage the sale and the
assistants used by him, including the record¬
ing clerk, may not purchase the object to be
sold either for themselves in person or
through another person or as the agents of
another person.
(2) Subsection (1) above also applies to a
sale other than by execution of judgment, if
the order to sell the object has been given
under a statutory provision authorising the
principal to have the object sold for the ac¬
count of another person, including, without
limitation, sale of a pledge, sale authorised by
§§ 383 and 385, and sale from an insolvency
estate.
§450
Ausgeschlossene Käufer bei
bestimmten Verkäufen
(1) Bei einem Verkauf im Wege der
Zwangsvollstreckung dürfen der mit der Vor¬
nahme oder Leitung des Verkaufs Beauftragte
und die von ihm zugezogenen Gehilfen ein¬
schließlich des Protokollführers den zu ver¬
kaufenden Gegenstand weder für sich persön¬
lich oder durch einen anderen noch als
Vertreter eines anderen kaufen.
(2) Absatz 1 gilt auch bei einem Verkauf
außerhalb der Zwangsvollstreckung, wenn
der Auftrag zu dem Verkauf auf Grund einer
gesetzlichen Vorschrift erteilt worden ist, die
den Auftraggeber ermächtigt, den Gegen¬
stand für Rechnung eines anderen verkaufen
zu lassen, insbesondere in den Fällen des
Pfandverkaufs und des in den §§ 383 und
385 zugelassenen Verkaufs, sowie bei einem
Verkauf aus einer Insolvenzmasse.
A. Function
§ 450 ensures - in conjunction with § 451 - the impartiality in special cases of sales by 1
prohibiting the purchase by persons who are in charge of carrying out or managing the sale.
§ 450 builds on the former §§ 456, 457 which have been in the BGB since 1900 and have only
been slightly rephrased and moved to a different place in the BGB in 2002.
Schaub
797
§451 1
Division 8. Particular types of obligations
B. Explanation
I. Certain sales
2 S 450 applies to sales by way of compulsory enforcement1 (Sub. 1) and sales under a
statutory provision (Sub. 2), especially to a sale of a pledge, a sale in an auction (§§ 383,385)
or a sale from an insolvency estate. Sales by way of compulsory enforcement are, for
example, sales in a public auction (§§ 814 et seq. ZPO) or other forms of realisation in
foreclosure proceedings (§ 825 ZPO), such as freehand sales or compulsory auctions, the
realisation of security papers (§ 821 ZPO) or other forms of realisation of claims (§ 844
ZPO). Sub. 2 extends the prohibition to more cases, especially to sales in an auction (§§ 383,
385), sales of pledges (§§ 1228 et seq.; §§ 368, 371(2) HGB), sales in the course of winding up
or division of partnerships (§§ 731 et seq., 753, which apply in various cases), public auctions
of lost things (§ 979), bailout sales (§§ 379, 388(2), 389 HGB) or sales from an insolvency
estate (§§ 159 et seq. InsO).
IL Excluded buyers
3 Excluded buyers will be especially judges, judicial officers, and bailiffs, but also other
persons involved in carrying out or managing such sales.
§451
Purchase by excluded buyer
(1) The effectiveness of a purchase made in
violation of § 450 and of the transfer of the
object purchased is subject to the approval of
the person taking part in the sale as obligor,
owner or obligee. If the buyer requests a
person taking part to make a declaration of
ratification, § 177(2) applies with the neces¬
sary modifications.
(2) If, as a result of refusal of ratification, a
new sale is undertaken, the earlier buyer is
liable for the costs of the new sale and for an
amount by which the proceeds of sale are
reduced.
§451
Kauf durch ausgeschlossenen
Käufer
(1) Die Wirksamkeit eines dem §450 zu¬
wider erfolgten Kaufs und der Übertragung
des gekauften Gegenstandes hängt von der
Zustimmung der bei dem Verkauf als Schuld¬
ner, Eigentümer oder Gläubiger Beteiligten
ab. Fordert der Käufer einen Beteiligten zur
Erklärung über die Genehmigung auf, so fin¬
det § 177 Abs. 2 entsprechende Anwendung.
(2) Wird infolge der Verweigerung der Ge¬
nehmigung ein neuer Verkauf vorgenommen,
so hat der frühere Käufer für die Kosten des
neuen Verkaufs sowie für einen Mindererlös
aufzukommen.
A. Function
§ 451 builds on § 450 and states the consequences of a purchase by an excluded buyer. It
makes the effectiveness of the purchase and of the transfer of property dependent on the
approval of certain persons1 involved in the sale (Sub. 1) and provides for a claim ot the seller
against the former2 3 buyer if a new sale must take place and the seller suffers a loss (Sub. 2) •
1 Translation note: compulsory enforcement is a more appropriate translation of the term
Streckung than execution and is therefore favoured here. Such translation is also favoured in the English
translation of the ZPO available under www.gesetze-im-internet.de.
’ The plural (persons) would be the appropriate translation here.
2 Rather than the earlier buyer in the translation.
3 What is really meant is a loss of proceeds.
798
Schaub
Purchase of rights §453
§451 is the former § 458 (which had been in the BGB since 1900); it was shifted to a
different place and slightly rephrased in 2002.
B. Explanation
Sub. 1 refers to the consequences of a purchase by an excluded buyer (§ 450) on the 2
contract of purchase as well as on the transfer of property, building on the principle of
separation of both transactions (Trennungsprinzip*). Sub. 1 1st St. makes the effectiveness of
both transactions subject to the approval (§§ 182 et seq.) of all persons involved in the sale as
obligor, owner or obligee. Therefore, both transactions are not void but inoperative, as long
as the approval is still pending. The buyer may request the persons involved to make a
declaration; § 177(2) applies to this request (Sub. 1 2nd St.). If ratification is refused by one or
more of the persons involved, the contract of purchase and the transfer of property will both
be void. The buyer is liable - without fault4 5 - for any loss the seller may suffer if, as a result of
refusal of ratification, a new sale is undertaken (Sub. 2). In addition, the buyer may also be
liable according to § 823(2) in conjunction with § 450, or according to § 839 in conjunction
with Art. 34 GG. Those other grounds of claim will practically only be relevant if there is any
additional damage not already covered by Sub. 2.
§452
Purchase of a ship
The provisions in this subtitle on the sale
of plots of land apply with the necessary
modifications to the sale of registered ships
and ships under construction.
§452
Schiffskauf
Die Vorschriften dieses Untertitels über
den Kauf von Grundstücken finden auf den
Kauf von eingetragenen Schiffen und Schiffs¬
bauwerken entsprechende Anwendung.
§ 452, which was inserted into the BGB in 2002, in the course of the modernisation of 1
the law of obligations, partly builds on the former §§ 435(2), 449(2) BGB. It basically
provides for the application of the provisions on the sale of land to the sale of registered
ships and ships under construction. The provision is a consequence of the legislator’s
intention to make many general rules for all sorts of sales and only distinguish between
different objects of purchase as far as necessary. Normally, ships and ships under
construction would be movables. However, as the Ship Register (Schiffsregister) is quite
similar to the Land Register (Grundbuch), it makes much sense to apply the provisions on
the sale of land to the sale of ships and ships under construction. This is particularly
relevant for §§ 435 2nd St., 436, 438(1) No. lb, 442(2), 448(2). However, not all provisions
in the BGB relating to the sale of land apply to the sale of a ship or ship under construction,
e. g. § 311 b( 1) does not apply.
§453
Purchase of rights
(1) The provisions on the purchase of
things apply with the necessary modifications
to the purchase of rights and other objects.
(2) The seller bears the costs of creation
and transfer of the right.
§453
Rechtskauf
(1) Die Vorschriften über den Kauf von
Sachen finden auf den Kauf von Rechten
und sonstigen Gegenständen entsprechende
Anwendung.
(2) Der Verkäufer trägt die Kosten der
Begründung und Übertragung des Rechts.
4 See * Introduction mn. 40 et seq.
5 BeckOK BGB/Faust, § 451 BGB mn. 4 with further references.
Schaub
799
Division 8. Particular types of obligations
§ 453 1-4
(3) If a right comprising the right to pos¬
session of a thing is sold, the seller is obliged
to deliver the thing to the buyer free of
material and legal defects.
(3) Ist ein Recht verkauft, das zum Besitz
einer Sache berechtigt, so ist der Verkäufer
verpflichtet, dem Käufer die Sache frei von
Sach- und Rechtsmängeln zu Übergeben.
A. Function
As §§ 433 et seq. primarily aim at the purchase of things, it is stated in Sub. 1 that those
provisions apply with the necessary modifications to the purchase of rights and other objects.
Sub. 1 is supplemented by two special rules relating to the costs of creation and transfer of
the right in Sub. 2 and to rights comprising the right to possession of a thing in Sub. 3. § 453
can be derogated from by the parties, which is particularly important if a whole enterprise is
purchased.
B. Context
2 § 453 was newly inserted into the BGB in the course of the modernisation of the law of
obligations in 2002. Sub. 3 builds partly on the former § 433(1) 2nd St. (which had been in the
BGB since 1900), but with modifications due to the new concept of delivery free from
material and legal defects.1 The EU Consumer Sales Directive does not have any impact on
§ 453 as this Directive only applies to the sale of goods (Art. 1 (2)(b)). The CISG and CESL
(draft) equally apply to the sale of goods only, whereas the DCFR covers the sale of some
rights, too (Art. IV.A.-1:101 (2)(b), (c), (d)), but does not contain special provisions for the
sale of rights.
C. Explanation
I. Purchasable rights
3 § 453 applies to the purchase of transferable rights, such as claims, encumbrances,
leasehold rights (but see the special provisions in §§5(1), 6(1) ErbbauRG), expectancies,
exploitation rights, intellectual property rights (with an exception for the German copyright
which cannot be completely transferred, see § 29(1) UrhG), shares, security papers (if the
paper has also to be transferred, the contract contains elements of the sale of a thing and of a
nght). Future or conditional rights may be transferred as well as rights which are not
attributable to the seller (though in these cases, the rights will be defective). § 453 does not
apply to the transfer of possession, as possession is not a right, and to the transfer of
individual rights as a whole - it may only apply if certain, separate aspects of a personality
right are transferred.2 If property (which is usually related to a thing) is transferred, the
contract is a purchase of a thing (in the course of which the property is transferred, too,
§ 433(1) 1st St.), to the effect that there is no need for an application of § 453.
II. Obligations of the seller
4 If a right is sold, the main obligation of the seller is to procure the right without any
restrictions (§§ 453, 433(1)), i.e. the seller must do whatever is necessary to transfer the right
completely to the buyer. For example, he must assign the claim to be transferred to the buyer
(§ 398 - for the transfer of other rights in conjunction with § 413), regarding all necessary
1 See -► § 433 mn. 16.
SC?/1Ub’ SponSorL'"g u"d anderc VcrtraKc Förderung überindividueller Zwecke (Mohr Sieb**
2008), p. 341 et seq. with further references.
800
Schaub
Purchase of rights 5-10 § 453
requirements including formal requirements (e.g. § 1154(1), (2), §§ 1154(3), 873). It must be
noted that the contract of purchase and the transfer of the right are two separate transactions
(Trennungsprinzip*). Therefore, the right might be transferred, even via good faith acquisi¬
tion according § 892, irrespective of the validity of the contract of purchase.
1. Validity of the right
In absence of a special agreement, such as a guarantee (§ 276) with regard to the value of the 5
right transferred, the seller is responsible for the validity of the right (i.e. that the right exists),
but not tor its value (e.g. if the debtor of the claim which was purchased is insolvent).3 4
2. Defects
The seller is responsible for defects in the right according to the general rules. There may 6
be legal defects (§ 435), e.g. if the right does not exist, if it is vested in a person other than the
seller, it it is encumbered with third party rights or if it is subject to objections or defences of
third parties. However, there may also be other (material) defects (§ 434),5 for example if the
right has a content or scope which diverges from the agreement of the parties (§ 434(1)
Ist St.) or from its usual content or scope (§ 434(1) 2nd St. No. 2).
3. Costs
The seller has to bear the costs of creation and transfer of the right (Sub. 2), e.g. costs of 7
notarial recording, if required. § 448(2) applies via Sub. 1 to purchases of a plot of land and,
as a special rule, takes precedence over Sub. 2.6
4. Delivery free of material and legal defects
If a right comprising the right to possession of a thing is sold (e.g. a usufruct per §§ 1030 8
et seq., a right of residence per § 1093, a leasehold right per § 1 ErbbauRG, a permanent right
of residence per § 37 WEG, or a right arising from a time-share agreement per § 481), the
seller is obliged to deliver the thing to the buyer free of material and legal defects (Sub. 3).
III. Purchase of other objects
§ 453 also covers the purchase of other objects which are neither things nor rights, such as 9
electricity, distance heating, enterprises, offices of self-employed persons (e.g. a doctor’s or
lawyer’s office), know-how or software,7 sometimes perhaps even data (if they can be
completely and exclusively transferred, which will be rare). In such cases, the seller’s
obligations depend on the object of the contract of purchase in question.
§ 453 is particularly important for the purchase of an enterprise as a whole. An enterprise 10
comprises things, rights and other objects (e.g. know-how), which all have to be transferred
separately to the buyer, according to the principle of speciality.8 As such a contract is rather
complicated and has to be adapted to the circumstances of each particular case (with regard
to the legal and practical structure of the enterprise and the items to be transferred), the
parties very often make very detailed agreements, deviating in some respects from §§ 433 et
seq.9 In those contracts, the extent of the seller’s responsibility for the profitability of the
3 See > § 433 mn. 10.
4 See for example BGH 26.9.2018 - VIII ZR 187/17, NJW 2019, 145, 148 (mn. 32 et seq.) with further
references.
> Left open in BGH 26.9.2018 - VIII ZR 187/17. NJW 2019, 145, 149 (mn. 39 et seq.).
6 See BeckOK BGB/Faust, § 453 BGB mn. 15 with further references.
7 B I-Drs. 14/6040 of 14.5.2001, p. 242.
8 See * Introduction mn. 59.
9 See e g. HK BGB/Saenger, § 453 BGB mn. 3; MüKo BGB/Wcstennann, § 453 BGB inn. 37 et seq.
Schaub
801
§ 455 1 Division 8. Particular types of obligations
enterprise is often much debated.10 Many of these contracts will involve a complex mixture of
special guarantees and exclusions of liability to the effect that the general rules (§ 453(1) in
connection with §§ 433 et seq.) will not be applied without modifications. However, the
legislator has decided that in general §§ 433 et seq. (and not other rules, such as those on
culpa in contrahendo, as was often thought before the modernisation of the law of obligations
in 2002) cover those cases, too."
Subtitle 2
Special types of purchase
Chapter 1
Purchase on approval
Untertitel 2
Besondere Arten des Kaufs
Kapitel 1
Kauf auf Probe
§454
Coming into existence of the
purchase agreement
(1) !In a purchase on approval or on ex¬
amination, approval of the object purchased
is at the discretion of the buyer. 2In case of
doubt, the purchase agreement is entered into
subject to the condition precedent of ap¬
proval.
(2) The seller is obliged to permit the buyer
to examine the object.
§454
Zustandekommen des
Kaufvertrags
(1) !Bei einem Kauf auf Probe oder auf
Besichtigung steht die Billigung des gekauf¬
ten Gegenstandes im Belieben des Käufers.
2Der Kauf ist im Zweifel unter der aufschie¬
benden Bedingung der Billigung geschlossen.
(2) Der Verkäufer ist verpflichtet, dem
Käufer die Untersuchung des Gegenstandes
zu gestatten.
§455
Approval period
'An object purchased on approval or on
examination may be approved only within
the agreed period or, if no period has been
agreed, only before the end of a reasonable
period specified by the seller for the buyer. 2If
the thing was delivered to the buyer for the
purpose of approval or examination, his si¬
lence is deemed to be approval.
§455
Billigungsfrist
!Die Billigung eines auf Probe oder auf
Besichtigung gekauften Gegenstandes kann
nur innerhalb der vereinbarten Frist und in
Ermangelung einer solchen nur bis zum Ab¬
lauf einer dem Käufer von dem Verkäufer
bestimmten angemessenen Frist erklärt wer¬
den. 2War die Sache dem Käufer zum Zwecke
der Probe oder der Besichtigung übergeben,
so gilt sein Schweigen als Billigung.
A. Function
§§ 454 and § 455 regulate specific aspects of sale (purchase') on approval. Prior to the
2002 SMG, the seller was liable under § 494 (former version) if the quality of the object
supplied did not correspond to the sample or model (§ 463 former version). The 2002
reform repealed this specific type of liability in sales in favour of liability for damages
*’ See e.g. BGH 26.9.2018 - VIII ZR 187/17, NJW 2019, 145, 146 (mn 12 et sea )
11 BT-Drs. 14/6040 of 14.5.2001, p. 242. ’
1 Translation note: the translation on www.gesctze-ini-internet.de is correct insofar as Kauf corre¬
sponds to purchase, the expression sale on approval is widespread in practice and will therefore be used in
the following, * 1
802
Saengcr/Watson
Approval period 2-6 § 455
according to general principles under § 276(1) lsl St. if the seller had given a guarantee of
specific characteristics (see § 442). Furthermore, the agreed application of qualities of a
sample or model to the purchased object arises through § 434(1). The general rules
therefore suffice in order to appropriately cover the sale on approval, whereas §§ 454 and
455 take account ot the specific features of such types of purchase agreement. A specific
rule would create the (incorrect) impression that the seller’s liability is often greater when
an object is purchased on approval.
B. Explanation
I. Conditions
In a sale on approval or on examination according to §§ 454, 455, the sales agreement 2
(cf § 433) is subject to the condition precedent or condition subsequent (§ 158) that the
buyer will approve or reject the object through a particular declaration made to the seller.
This is a widespread practice in mail-order or in so-called test purchases.1 The approval of the
purchased object is therefore at the buyer’s discretion.
II. Examination
§ 454(2) ensures the buyer the possibility to examine the object in order to allow him to 3
make his decision on the approval thereof. § 455 1st St. gives the seller the possibility to set a
time period for approval should there be no agreed period. Silence can constitute approval
under § 455 2nd St. should the time period expire without an express declaration of rejection
or approval. However, payment of the sales price may serve as an indication for a condition
subsequent.
III. Contractual requirements
According to the leading opinion the parties must have concluded a sales contract under 4
the condition that the approval (condition precedent, § 158(1)) or the rejection (condition
subsequent, § 158(2)) remains at the buyer’s discretion. According to the rule in § 454(1)
2nd St., the approval is a condition precedent in the case of doubt.
IV. Approval or rejection
The buyer is to declare his approval or rejection to the seller within the contractually- 5
agreed period or the period set by the seller as according to § 455 1st St. In principle there are
no formal requirements and no reasons must be given. A sale on approval can however
create competition between approval and withdrawal periods (§ 355(2) 1st St.) when
combined with a consumer contract. The withdrawal right is a specific form of revocation
so that the approval is first necessary to form an effective contract which can then be
transformed into a relationship of obligation for restitution (Rückgewährschuldvcrhältnis).
Consequently, the time periods run consecutively.2 3
V. Consequences
In a sale subject to the condition precedent of approval the risk of accidental destruction 6
does not pass to the buyer on delivery of the thing (§ 446) but with the approval.4 The
2 OLG Köln 12.6.1995 - 19 U 295/94. NJW-RR 1996. 499.
3 BGH 17 3.2004 - VIH ZR 265/03. NJW RR 2004, 105«.
4 BGH 19.2.1975 - VIII ZR 175/73. NJW 1975, 776.
Saenger/Watson
803
§ 456 Division 8. Particular types of obligations
guarantee for material defects is subject to § 437; approval under § 454(1) does not
constitute a waiver of the guarantee. However, alongside the moment of conclusion of
contract, the moment of approval is also material for § 442. Accordingly, the seller is only
liable for those detects which, at the time of approval, were either not known to the buyer
or remained unknown as a result of gross negligence.5 The seller may claim for damages
for the buyer s culpable breach of the duties of safekeeping and return (§ 280(1) in
conjunction with § 241(2) or § 311(2)).6 The claims are subject to a six-month limitation
period (§§ 548, 606). The buyer may demand compensation for the seller’s delay to supply
conforming goods should the further requirements under §§ 280 et seq. be fulfilled. The
examination under § 454(2) may be subject to an independent claim and be executed
according to § 888 ZPO.
VI. Distinction
7 Sale on approval is to be distinguished from other particular types of sale. In any case it is
necessary to interpret the contract in order to determine what the parties have agreed. The
buyer under a sale on approval offers a non-binding promise to purchase more goods of the
particular type. In contrast to § 454, an unconditional sales contract is concluded with regard
to the sample object. However, this object (as a sample or model) may be of significance for
subsequent orders as its characteristics may represent the agreed qualities and therefore any
deviation will represent a material defect (§ 434(1)). The expression sale on approval is
sometimes used for a sale on trial; the parties’ actual intention is to be determined through
interpretation. A sale with the right of exchange is, in contrast to sale under § 454,
unconditional and the buyer is entitled, against return of the intact object, to demand
another object of comparable value from the seller’s stock within an agreed or reasonable
period. The demand for exchange only leads to a change in the object purchased. In contrast,
the sale on trial (Erprobungskauf) is a conditional sale. However, the approval is not at the
buyer’s discretion but rather subject to verifiable standards (e.g. suitability of the purchased
machines for particular tasks in the buyer’s business). The buyer must therefore approve the
goods where the results of the examination are objectively positive. The sale will be effective
according to § 455 if the object has been delivered to the buyer, yet no approval has been
given within a reasonable period.
Chapter 2
Repurchase
Kapitel 2
Wiederkauf
§ 456
Coming into existence of the
repurchase agreement
(1) ’If the seller has, in the purchase agree¬
ment, reserved the right of repurchase, the
repurchase agreement comes into existence
when the seller declares to the buyer that he is
exercising the right of repurchase. 2The de¬
claration is not subject to the formal require¬
ments laid down for the purchase agreement.
(2) In case of doubt, the price at which the
object was sold also applies to the repurchase.
§456
Zustandekommen des
Wiederkaufs
(1) ’Hat sich der Verkäufer in dem Kauf¬
vertrag das Recht des Wiederkaufs vorbehal¬
ten, so kommt der Wiederkauf mit der Erklä¬
rung des Verkäufers gegenüber dem Käufer,
dass er das Wiederkaufsrecht ausübe, zustan¬
de. 2I)ic Erklärung bedarf nicht der für den
Kaufvertrag bestimmten Form.
(2) Der Preis, zu welchem verkauft worden
ist, gilt im Zweifel auch für den Wiederkaut
5 BGH 17 3.2004 - Vlll ZR 265/03, NJW-RR 2004, 1058.
6 BGH 24.6.1992 - VIII ZR 203/91, NJW 1992, 2413,
804
Saengcr/Watson
Coming into existence of the repurchase agreement 1-5 § 456
A. Function
The parties may agree in the sales agreement (or thereafter) that the original seller is entitled 1
to buy back the object (right of repurchase) from the original buyer. In the event the right is
exercised through a corresponding declaration by the original seller, the original buyer is obliged
to retransfer ownership of the object against payment of the repurchase price. Whereas the
leading opinion provides that the exercise of the right of repurchase is a condition precedent for
the binding (by reason of the term on the right of repurchase) repurchase agreement, the
contrasting opinion holds that the right of repurchase is a unilateral act with the power to shape
(through creation, change or destruction) the legal relationship (Gestaltungsrecht). The exercise
of this right shall create the repurchase relationship between the prriies thereby allowing the
original seller to demand the retransfer of ownership from the original buyer. The right of
repurchase is transferable1 and as such it may also be subject to a security right or pledged.
B. Explanation
I. Requirements
The repurchase right requires a sales agreement (§ 433) and a repurchase agreement, 2
which can be made at the time of conclusion of the sales agreement or in the time thereafter.
The agreement must satisfy the formal requirements for a sales agreement (e.g. § 311b(l))
and can also subject the repurchase to conditions beyond the requirements for exercising the
right (e.g. the sale of the object to a third party via the original buyer2).
IL Exercise
In order to exercise the right of repurchase the original seller must make a corresponding 3
(unilateral) declaration to the original buyer within the contractually-agreed or statutory
(§ 462) period. The buyer must receive the declaration. According to Sub. 1 2nd St. the
declaration is not subject to the formal requirements applicable to the sales agreement.3
III. Consequence
The exercise of the right of repurchase renders effective the original buyer’s obligations as 4
reseller and the original seller’s obligations as repurchaser. In accordance with this role
reversal, the reseller is obliged to (re)transfer ownership to the repurchase; refusal to perform
founds a claim to damages.4 The repurchaser is obliged to pay the repurchase price - if no
agreement on price has been made, Sub. 2 provides that the price at which the object was sold
also applies to the repurchase. The price actually received is material; no interest is calculated.
The repurchaser is to inform the reseller of the latter’s readily apparent mistake in which the
object is offered to the repurchaser at a price clearly below its value.5 The original purchase
contract is revived should the repurchase relationship end (e.g. through revocation).6
IV. Buyer’s right of resale
The seller’s right of repurchase is to be distinguished from the buyer’s right of resale. The 5
latter entitles the buyer to oblige the seller to repurchase the object. Such an instrument is
1 BGH 30.11.1990 - V ZR 272/89, NJW RR 1991, 526.
2 BGH 22.9.1994 - IX ZR 251/93, NJW 1994, 3299.
1 BGH 11.12.1998 - V ZR 377-97, NJW 1999, 941 (disputed).
4 BGH 7.11.2001 - VIII ZR 213/00, NJW 2002, 506.
s BGH 15.9.2000 - V ZR 420/98, NJW 2001, 284.
6 BGH 14.1.2000 - V ZR 386/98, NJW 2000, 1332.
Saenger/Watson
805
§ 459 Division 8. Particular types of obligations
typically used in leasing contracts. 456 et seq. apply with the necessary modifications,
though § 457(2) does not apply.7 Whereas the (unilateral) exercise of right of resale gives rise
to the seller’s obligation to repurchase the object, other forms of contract simply give rise to
the seller’s obligation to conclude, upon the buyer’s demand, a contract on the repurchase of
the object (so-called Rückkaufverpflichtung - repurchase obligation); Sub. 1 does not apply in
such cases.8
§457
Liability of the reseller
(1) The reseller is obliged to return to the
repurchaser the purchased object with its
accessories.
(2) *If the reseller, before exercising the
right of repurchase, was at fault for the dete¬
rioration or destruction of the purchased
object or an impossibility of returning it that
resulted in another way, or if he materially
altered the purchased object, he is liable for
the damage resulting from this. 2If the object
deteriorated without the fault of the reseller
or if it is only trivially altered, the reseller
may not require the purchase price to be
reduced.
§457
Haftung des Wiederverkäufers
(1) Der Wiederverkäufer ist verpflichtet,
dem Wiederkäufer den gekauften Gegenstand
nebst Zubehör herauszugeben.
(2) ‘Hat der Wiederverkäufer vor der Aus¬
übung des Wiederkaufsrechts eine Ver¬
schlechterung, den Untergang oder eine aus
einem anderen Grund eingetretene Unmög¬
lichkeit der Herausgabe des gekauften Gegen¬
standes verschuldet oder den Gegenstand we¬
sentlich verändert, so ist er für den daraus
entstehenden Schaden verantwortlich. 2Ist der
Gegenstand ohne Verschulden des Wieder¬
verkäufers verschlechtert oder ist er nur un¬
wesentlich verändert, so kann der Wieder¬
käufer Minderung des Kaufpreises nicht
verlangen.
§458
Removal of third-party rights
'If the original purchaser disposed of the
purchased object before exercising the right
of repurchase, he is obliged to remove the
third-party rights created by this. 2A disposi¬
tion that is made by execution of judgment or
attachment or by the administrator in insol¬
vency proceedings is equivalent to a disposi¬
tion by the reseller.
§459
Reimbursement of outlays
’The reseller may demand reimbursement
for outlays that he made on the purchased
object before the resale to the extent that the
value of the object is enhanced by the ex¬
penses. 2He may remove an installation which
he has attached to the returnable thing.
§458
Beseitigung von Rechten Dritter
’Hat der Wiederverkäufer vor der Aus¬
übung des Wiederkaufsrechts über den ge¬
kauften Gegenstand verfügt, so ist er ver¬
pflichtet, die dadurch begründeten Rechte
Dritter zu beseitigen. 2Einer Verfügung des
Wiederverkäufers steht eine Verfügung
gleich, die im Wege der Zwangsvollstreckung
oder der Arrestvollziehung oder durch den
Insolvenzverwalter erfolgt.
§459
Ersatz von Verwendungen
’Der Wiederverkäufer kann für Verwen¬
dungen, die er auf den gekauften Gegenstand
vor dem Wiederkauf gemacht hat, insoweit
Ersatz verlangen, als der Wert des Gegenstan¬
des durch die Verwendungen erhöht ist. 2Bine
Einrichtung, mit der er die heranszugebende
Sache versehen hat, kann er wegnehmen.
7 BGH 17 12.1998 - VI1 ZR 243/97, NJW 1999. 942 (disputed)
8 BGH 11.12.1998 -VZR 377/97. NJW 1999.941.
806
Saenger/Watson
More than one person entitled to repurchase
§461
§ 460
Repurchase at estimated value
If the estimated value of the object pur-
chased at the time of repurchase is agreed as
the repurchase price, the reseller is not re¬
sponsible for the deterioration or destruction
ot the purchased object or an impossibility of
returning it that resulted in another way, and
the repurchaser is not obliged to reimburse
the outlays made.
§460
Wiederkauf zum Schätzungswert
Ist als Wiederkaufpreis der Schätzungswert
vereinbart, den der gekaufte Gegenstand zur
Zeil des Wiederkaufs hat, so ist der Wieder¬
verkäufer für eine Verschlechterung, den Un¬
tergang oder die aus einem anderen Grund
eingetretene Unmöglichkeit der Herausgabe
des Gegenstandes nicht verantwortlich, der
Wiederkäufer zum Ersatz von Verwendungen
nicht verpflichtet.
A. Function
457-460 serve as default rules concerning the liability of the reseller. The underlying 1
justification rests on the original buyer’s (the reseller) receipt of the object in its existing
condition and disposal of the object in the time between the conclusion of contract or
delivery and the exercise of the right of repurchase by the original seller (though § 833(2)
limits reservations securing claims to retransfer). However, the original buyer acts at his own
risk with regard to dispositions over the object.
B. Explanation
I. Liability
Fault-based liability applies in repurchase to the deterioration or impossibility of return, 2
whereas the original buyer is strictly liable for material alterations to the object. In each
instance the original buyer is liable for damages (§ 457(2) 2nd St.). Strict liability also applies
to impaired dispositions (§ 458). In contrast, the reseller1 does not have to accept a reduction
in the (re)purchase price (§ 457(2) 2nd St.).
II. Reseller’s rights
The reseller can demand reimbursement of outlays that have increased the value of the 3
object (§ 459 1st St.). The reseller also has a right of retention under § 273(2) due to these
outlays. Furthermore, according to § 459 2nd St. the reseller has a right to remove an
installation that he has attached to the purchased object.
§461
More than one person entitled to
repurchase
■if more than one person is jointly entitled
to the right to repurchase, the right may only
be exercised in its entirety. 2If it has expired
for one of the persons entitled or if one of
them does not exercise his right, then the
others are entitled to exercise the right of
repurchase in its entirety.
§461
Mehrere Wiederkaufsberechtigte
1 Steht das Wiederkaufsrecht mehreren ge¬
meinschaftlich zu, so kann cs nur im Ganzen
ausgeübt werden. 2Ist cs für einen der Berech¬
tigten erloschen oder übt einer von ihnen sein
Recht nicht aus, so sind die übrigen berech¬
tigt, das Wiederkaufsrecht im Ganzen aus¬
zuüben.
J Translation note: the translation of Wiederkdufer in § 457(2) 2nd St. as reseller Is clearly incorrect and
should instead be repurchaser.
Saenger/Watson
807
§ 462 1-3
Division 8. Particular types of obligations
A. Function
I. Purpose
1 The provision serves to regulate the exercise of the right to repurchase should more than
one person be entitled to exercise this right.
II. Scope of application
2 § 461 covers joint entitlements of all kinds and applies even if the majority of entitled
persons arises after the agreement on the right of repurchase has been concluded. According
to the prevailing opinion the provision does not apply to joint ownership (Gesamthandsge¬
meinschaften). Where a partnership under the BGB (Gesellschaft bürgerlichen Rechts, GbR;
§§ 705 et seq.) is concerned, the party entitled to the right to repurchase is only the GbR itself
(where it has capacity) and no longer the individual partners.* 1
§462
Cut-off period
’The right of repurchase may be exercised,
in the case of plots of land, only before the
end of thirty years from the date of the
agreement of the reservation, and in the case
of other objects, only before the end of three
years from that date. 2lf a period of time is
specified for exercise of the right, this period
replaces the statutory period.
§462
Ausschlussfrist
’Das Wiederkaufsrecht kann bei Grundstü¬
cken nur bis zum Ablauf von 30, bei anderen
Gegenständen nur bis zum Ablauf von drei
Jahren nach der Vereinbarung des Vorbehalts
ausgeübt werden. 2lst für die Ausübung eine
Frist bestimmt, so tritt diese an die Stelle der
gesetzlichen Frist.
A. Function
I. Purpose
1 § 462 serves to determine the two default statutory cut-off periods for the exercise of the
right of repurchase thereby ensuring legal certainty for the seller. The provision distinguishes
between plots of land and other objects by providing two separate periods (30 years for land,
3 years for other objects).
II. Scope of application
2 § 462 applies only to the right of repurchase; it does not apply to the claim for return
under § 457(1). The default nature of the provision is reflected in the 2nd St. The provision
thus does not apply if the parties have stipulated a cut-off period in the contract.
B. Explanation
3 In light of the principle of freedom of contract, the parties’ agreement may deviate from the
statutory cut off period. In contrast to the statutory starting point in § 462, the parties may e.
agree that the cut-off period begins with a future event such as the existence of a legal entity1
or that the first possibility to exercise the right will be some time after 30 or 3 years (however,
1 BGH 18.2.2002 - II ZR 331/00, NJW 2002, 1207.
1 OLG Schleswig 5.1.1998 - 2 W 108/97, NJW-RR 1999, 283.
808
Saenger/Watson
Ineffective agreements 1 § 465
in such instances the conditions of the right of repurchase may not unreasonably be to the
buyers disadvantage2). In principle, the parties may also subsequently change the cut-off
period. However, a final cut-off period must be stipulated vis-<i-vis a condition precedent.
Chapter 3
Preemption
Kapitel 3
Vorkauf
§463
Requirements for exercise
A person entitled to the right of preemp¬
tion in respect of an object may exercise the
right as soon as the person obliged by it has
entered into a purchase agreement relating to
the object with a third party.
§464
Exercise of the right of preemption
(1) ’Exercise of the right of preemption
occurs by declaration to the person obliged.
2The declaration is not subject to the formal
requirements laid down for the purchase
agreement.
(2) When the right of preemption is exer¬
cised, the purchase takes effect between the
person entitled and the person obliged, sub¬
ject to the terms that the person obliged
agreed with the third party.
§463
Voraussetzungen der Ausübung
Wer in Ansehung eines Gegenstandes zum
Vorkauf berechtigt ist, kann das Vorkaufs¬
recht ausüben, sobald der Verpflichtete mit
einem Dritten einen Kaufvertrag über den
Gegenstand geschlossen hat.
§464
Ausübung des Vorkaufsrechts
(1) ’Die Ausübung des Vorkaufsrechts er¬
folgt durch Erklärung gegenüber dem Ver¬
pflichteten. 2Die Erklärung bedarf nicht der
für den Kaufvertrag bestimmten Form.
(2) Mit der Ausübung des Vorkaufsrechts
kommt der Kauf zwischen dem Berechtigten
und dem Verpflichteten unter den Bestim¬
mungen zustande, welche der Verpflichtete
mit dem Dritten vereinbart hat.
§465
Ineffective agreements
An agreement made by the person obliged
with the third party which provides that the
purchase is subject to the non-exercise of the
right of preemption or which reserves for the
person obliged the right to revoke the agree¬
ment in the event that the right of preemp¬
tion is exercised is ineffective in relation to
the person entitled to preemption.
§465
Unwirksame Vereinbarungen
Eine Vereinbarung des Verpflichteten mit
dem Dritten, durch welche der Kauf von der
Nichtausübung des Vorkaufsrechts abhängig
gemacht oder dem Verpflichteten für den Fall
der Ausübung des Vorkaufsrechts der Rück¬
tritt vorbehalten wird, ist dem Vorkaufs¬
berechtigten gegenüber unwirksam.
A. Function
I. Purpose
§§ 463-473 serve to regulate the exercise right of preemption, i.e. a party’s entitlement to 1
‘first refusal’ of an object to be sold to a third party. § 463 serves to stipulate when the right
of preemption may be exercised. § 464 determines how the right of preemption is to be
exercised and the effects thereof. § 465 protects the entitled parly against agreements that
serve to prevent or circumvent the right of preemption.
2 BGH 29.10.2010 - V ZR 48/10, N|W 2011, 515.
Saenger/ Watson
809
§ 465 2-6
Division 8. Particular types of obligations
II. Scope of application
2 In principle, §§ 463 et seq. apply to both contractual and statutory rights of preemption.1 2
Statutory rights'of preemption include e.g. §§ 577, 2034.^8 463 et seq. also apply with the
necessary modifications to usufructuary leases and leases.
B. Explanation
I. Real right of preemption
3 The right of preemption under §§ 463 et seq. is to be distinguished from the real right of
preemption under §§ 1094 et seq. (dingliches Vorkaufsrecht, right in rem). These latter provi¬
sions do not apply to the right of preemption under §§ 463 et seq. (whereas §§ 463 et seq. serve
to supplement §§ 1094 et seq., see § 1098). Where land is concerned, preemption under §§ 463
et seq. can only be secured in rem through a reservation, whereas the real right of preemption
already directly contains an encumbrance effective against any party. A right of preemption
under §§ 463 et seq. is viewed as an agreement additional to the real right of preemption if it
shall exist from the moment the contract is concluded and irrespective of registration.3
II. Contracts similar to purchase
4 In principle, contracts similar to purchase are equated to a purchase contract.4 However,
generally the right of preemption cannot be exercised for other types of disposal (e.g.
donation, exchange), unless a purchase contract was not chosen in order to circumvent the
right of preemption.5
III. Agreement on preemption
5 A contractual right of preemption requires an agreement between the entitled party and the
obliged party on granting such a right. The agreement may contain further specifications (e.g.
price limits). The parties may also establish a right of preemption for a third party (§ 328).
1. Agreement with third party
6 The exercise of the contractual or statutory right of preemption is subject to the condition
precedent that the obliged party has concluded an effective sales agreement with a third party
for the object in question. The later avoidance of the sales agreement is irrelevant, even if the
right of preemption had not been exercised prior to avoidance.6 A conditional (precedent or
subsequent) sales agreement or sale with an agreement on revocation to the benefit of the third
party7 will also suffice. Despite the ex tunc effects of avoidance under § 142(1), the sales
agreement with the third party is generally considered as having been concluded (even with
avoidance by the third party) because the obliged party was already bound from the moment ot
conclusion.8 However, this does not apply if the third party avoids the contract before the
1 BGH 7.6.2000 - VIII ZR 268/99, NJW 2000, 2665.
2 OLG Hamm 14.9.2016 - 30 U 9/16, BeckRS 2016, 17931
3 BGH 22.11.2013 - V ZR 161/12, NJW 2014, 622.
4 BGH 11.10.1991 - V ZR 127/90, NJW 1992, 236; BGH 27.1.2012 - V ZR 272/10 NJW 2012, l-1^4
(disputed).
5 OLG Stuttgart 7.2.2001 - 20 U 52/97, BeckRS 2001, 30160267.
6 BGH 20.7.2010 - EnZR 23/09, NJW 2011, 212.
7 BGH 11.2.1977 - V ZR 40/75, NJW 1977, 762.
’ See however BGH 14.1.1987 - IV b ZR 65/85, NJW 1987, 893 for an initial failure in the basis ot
810
Sacnger/Watson
Ineffective agreements 7-9 § 465
entitled party has exercised his right of preemption.9 If the effectiveness of the sale agreement
depends on official authorisation the right may be exercised before such authorisation is
granted, however it will first take effect once authorisation is granted.10
2. Exercise
According to § 464(1) 1st St. the right of preemption is exercised by declaration to the 7
person obliged. Such declaration must be unconditional and received by the person obliged.
§ 464( 1) 2nd St. provides that the declaration is not subject to the formal requirements laid
down tor the sales agreement (e.g. recorded by a notary under § 31 lb(l)). In principle this
also applies to statutory rights or preemption,11 though the particular circumstances of the
individual case may warrant deviations from this rule.12 The right of preemption must be
exercised within the exercise period (§ 469(2)) insofar as the parties have not agreed
otherwise. The exercise period begins through the complete and correct communication of
the content of the contract between the obliged party and the third party (see § 469).13 The
period will start over if there is a change to the content of the contract. The right of
preemption will not be exercised effectively if the entitled party rejects (entirely or partially)
the performance of the obligations that arise for the third party through the purchase
agreement with the obliged party.14 The declaration is also ineffective where there is an
obligation not to exercise the right of preemption.15
IV. Effects
1. Effects of exercise
The exercise of the right of preemption results in the formation of a sales agreement 8
between the obliged party and the entitled party with the same content as the agreement
between the obliged party (as seller) and the third party (as purchaser of the object)
(§ 464(2)). The entitled party thus receives all rights and is subject to all obligations foreseen
for the third party in the contract. However, unusual agreements, which were adopted merely
due to a preemptive sale, are not effective vis-ä-vis the entitled party,16 in particular where
there is an imbalance in the performance obligations vis-ä-vis other parties.17
2. Contract with third party
The sales agreement with the third party remains even after the right of preemption has 9
been exercised and therefore the performance obligations can still remain. Each sale agree¬
ments is legally separate; the entitled party therefore does not simply substitute the third
party in his contract with the obliged party. The exercise of the right of preemption does not
afford the entitled party with rights against the third party. In contrast to the real right of
preemption under 1094 et seq. the contractual right of preemption under §§ 463 et seq.
only applies to the relationship between the entitled party and the obliged party. The entitled
9 OLG Hamm 21.12.2000 - 22 U 77/00. BeckRS 2000, 30152311.
10 BGH 4.6.1954 - V ZR 18/53. NJW 1954, 1442; BGH 15.5.1998 - V ZR 89/97.
11 BGH 7.6.2000 - VIII ZR 268/99, NJW 1998, 2352.
12 BT-Drs. 14/6857 of 31.8.2011, p. 62.
H BGH 23.6.2006 - V ZR 17/06, NJW RR 2006, 1449.
H BGH 25.11.1987 - VIJI ZR 283/86, NJW 1988, 703.
,s BGH 23.5.1962 - V ZR 123/60, NJW 1962, 1344.
16 BGH 9.11.1994 - VJIJ ZR 41/94. NJW 1995. 318.
17 BGH 13.6.1980 - V ZR 11/79. NJW 1980, 2304. sec BGH 14.12.1995 - III ZR 34/95. NJW 1996, 654,
BGH 14.12.1995 - III ZR 34/95, NJW 1996. 654 and BGH 14.12.1995 - III ZR 34/95, N|W 1996, 654 on
so-called ‘broker clauses’; unusually high commission lor brokers is not to be reimbursed and not to be
reduced to the usual amount (BGH 12.5.2016 - I ZR 5/15, NJW 2016, 3233).
Saenger/Watson
811
§ 468 Division 8. Particular types of obligations
party may only seek damages from the obliged party if the latter transfers ownership to the
third party and cannot perform his obligation to the entitled party (§ 275(1)).
V. Conditions and right of revocation
10 It is recommended to subject the contract with the third party to the condition that the right
of preemption has not been exercised or to reserve a right to revoke the contract in the event
of preemption. In so doing, the obliged party can avoid obligations arising to both the third
party and the entitled party, and claims for damages due to non-performance. § 465 provides
that such agreements are not effective in relation to the entitled party if they prevent or
circumvent the right of preemption. The entitled party bears the burden of proof.18
§466
Collateral performance
’If the third party has agreed in the contract
to render an act of collateral performance
which the person entitled to preemption is
unable to perform, the person entitled to pre¬
emption must pay the value of the collateral
performance instead of rendering it. 2If the
collateral performance cannot be assessed in
money, the exercise of the right of preemption
is excluded; the agreement to render collateral
performance is, however, not performed if the
contract with the third party would have been
entered into even without it.
§466
Nebenleistungen
’Hat sich der Dritte in dem Vertrag zu
einer Nebenleistung verpflichtet, die der Vor¬
kaufsberechtigte zu bewirken außerstande ist,
so hat der Vorkaufsberechtigte statt der Ne¬
benleistung ihren Wert zu entrichten. 2Lässt
sich die Nebenleistung nicht in Geld schätzen,
so ist die Ausübung des Vorkaufsrechts aus¬
geschlossen; die Vereinbarung der Nebenleis¬
tung kommt jedoch nicht in Betracht, wenn
der Vertrag mit dem Dritten auch ohne sie
geschlossen sein würde.
§467
Total price
’If the third party purchased the object
which is subject to the right of preemption
together with other objects at a total price,
then the person entitled to preemption must
pay a proportionate part of the total price.
2The person obliged may demand that the
preemption is extended to all things that
cannot be separated without disadvantage to
him.
§468
Deferral of the purchase price
(1) If the third party is granted deferral of
payment of the purchase price in the con¬
tract, the person entitled to preemption may
claim the deferral only if he gives security for
the amount deferred.
(2) ’If a plot of land is the subject matter of
the preemption, there is no need to provide
security to the extent that there has been an
agreement to create a mortgage on the plot of
land for the deferred purchase price, or a debt
§467
Gesamtpreis
’Hat der Dritte den Gegenstand, auf den
sich das Vorkaufsrecht bezieht, mit anderen
Gegenständen zu einem Gesamtpreis gekauft,
so hat der Vorkaufsberechtigte einen verhält¬
nismäßigen Teil des Gesamtpreises zu ent¬
richten. 2Der Verpflichtete kann verlangen,
dass der Vorkauf auf alle Sachen erstreckt
wird, die nicht ohne Nachteil für ihn getrennt
werden können.
§468
Stundung des Kaufpreises
(1) Ist dem Dritten in dem Vertrag der
Kaufpreis gestundet worden, so kann der
Vorkaufsberechtigte die Stundung nur in An¬
spruch nehmen, wenn er für den gestundeten
Betrag Sicherheit leistet.
(2) ’Ist ein Grundstück Gegenstand des
Vorkaufs, so bedarf es der Sicherheitsleistung
insoweit nicht, als für den gestundeten Kauf¬
preis die Bestellung einer Hypothek an dem
Grundstück vereinbart oder in Anrechnung
18 BGH 9.2.1990 - V ZR 274/88, NJW 1990, 1473.
812
Saenger/ Watson
Duty to notify, exercise period
§469
for which a mortgage on the land exists has
been assumed and credited towards the pur¬
chase price. * 2This applies with the necessary
modifications if a registered ship or ship
under construction is the object of the right
of preemption.
auf den Kaufpreis eine Schuld, für die eine
Hypothek an dem Grundstück besteht, über¬
nommen worden ist. Entsprechendes gilt,
wenn ein eingetragenes Schiff oder Schiffs¬
bauwerk Gegenstand des Vorkaufs ist.
A. Function
§§ 466-468 provide the details of the obligations owed by the entitled party, more 1
specifically to perform the same obligations as owed by the third party in his contract with
the obliged party.
B. Explanation
Should the contract agree an act of collateral performance, which the entitled party is 2
unable to perform, the entitled party is obliged to pay compensation for its value (§ 466
1st St.). If a monetary value cannot be placed on the collateral performance, the exercise of
the right of preemption is excluded. However, this depends on whether the contract with the
third party would not have been concluded without the collateral performance (§ 466 2nd St.).
According to § 467 1st St., the entitled party is to pay a proportionate part of the total price
where there is an agreement on a total price object subject to the right of preemption
together with other objects. These rules, as well as the extension of the right to preemption to
all things where separation would be a disadvantage to the obliged party (§ 467 2nd St.), also
apply to a right of preemption for a plot of land.1 The identity of the contract expressed in
§ 464(2) is therefore limited - the right of preemption and not the resulting purchase
agreement determines the objects the entitled party may acquire when exercising his right
of preemption.2 Where deferral of the purchase price is concerned, § 468 takes account of the
situation in which the entitled party may not be as creditworthy as the third party. § 468(1)
therefore provides that the entitled party may also claim deferral through giving security
provided that sufficient security has not already been given as according to § 468(2).
§469
Duty to notify, exercise period
(1) ’The person obliged must inform the
person entitled to preemption without undue
delay of the contents of the contract entered
into with the third party. 2Notice by the third
party replaces notice by the person obliged.
(2) ’The right of preemption for plots of
land may be exercised only before the end of
a period of two months after notice is re¬
ceived, and the right of preemption for other
objects only before the end of a period of one
week after notice is received. 2If a period of
time is specified for exercise of the right, this
period replaces the statutory period.
§469
Mitteilungspflicht Ausübungsfrist
(1) ’Der Verpflichtete hat dem Vorkaufs¬
berechtigten den Inhalt des mit dem Dritten
geschlossenen Vertrags unverzüglich mit¬
zuteilen. 2Die Mitteilung des Verpflichteten
wird durch die Mitteilung des Dritten ersetzt.
(2) ’Das Vorkaufsrecht kann bei Grundstü¬
cken nur bis zum Ablauf von zwei Monaten,
bei anderen Gegenständen nur bis zum Ab¬
lauf einer Woche nach dem Empfang der
Mitteilung ausgeübt werden. 2Ist für die Aus¬
übung eine Frist bestimmt, so tritt diese an
die Stelle der gesetzlichen Frist.
> BGH 27.4.2016 - VIII ZR 61/15, NJW-RR 2016, 910; BGH 23.6.2006 - V ZR 17/06, NJW-RR 2006,
49.
2 BGH 27.4.2016 - VIII ZR 61/15, NJW-RR 2016, 910.
Saenger/Watson
813
§471 1
Division 8. Particular types of obligations
A. Function
1 § 469 serves to regulate two matters. On the one hand, Sub. 1 subjects the obliged party to
inform the entitled party of the content of the contract with the third party. The performance
of such duty therefore allows the entitled party to make an informed decision whether to
exercise his right of preemption (§ 464). On the other hand, Sub. 2 provides default time
limits on the exercise of the right, thereby providing legal certainty for the obliged party.
B. Explanation
I. Duty to notify
2 Notification is a declaration of knowledge (Wissenserklärung), is not subject to formal
requirements. The obliged party must completely and correctly inform the entitled party
without undue delay of the contents of the contract. The entitled party may claim damages
for a failure to notify or for insufficient notification.* 1 Sub. 2 2nd St. provides that notice from
the third party replaces notice by the obliged party.
II. Exercise period
3 Sub. 2 lsl St. provides two different default exercise periods that depend on the object of
the contract: two months for land and one week for other objects. The default periods
commence on receipt of complete notice. Sub. 2 2nd St. expresses the default nature of the
provision by allowing the parties to vary the length of the exercise period. The exercise
periods under Sub. 2 have exclusionary effect: the right of preemption is extinguished if it is
not exercised within the contractual or statutory period.
§470
Sale to heir on intestacy
The right of preemption, in case of doubt,
does not apply to a sale that is made to an
heir on intestacy with a view to a future right
of succession.
§471
Sale in case of execution of
judgment or insolvency
The right of preemption is excluded if the
sale occurs by way of execution of judgment
or from an insolvency estate.
§470
Verkauf an gesetzlichen Erben
Das Vorkaufsrecht erstreckt sich im Zwei¬
fel nicht auf einen Verkauf, der mit Rücksicht
auf ein künftiges Erbrecht an einen gesetzli¬
chen Erben erfolgt.
§471
Verkauf bei Zwangsvollstreckung
oder Insolvenz
Das Vorkaufsrecht ist ausgeschlossen,
wenn der Verkauf im Wege der Zwangsvo
Streckung oder aus einer Insolvenzmasse er¬
folgt.
§§470 and 471 use two different legislative approaches to exclude the application of a
right of preemption in two specific circumstances. § 470 is an interpretative default rule (‘in
case of doubt’) applicable to a sale made to an heir on intestacy with a view to a future right
of succession. It suffices for the future right of succession to be one motive amongst many¬
In contrast, § 471 is an absolute exclusionary rule. It also applies to a lessee’s right ot
1 BGH 6.4.2016 - VIII ZR 143/15, NJW 2017, 156.
1 BGH 25.9.1986 - II ZR 272/85, NJW 1987, 890.
814
Saenger/Watson
No n - tra nsferabi I i ty 1§473
preemption under § 577. However, it does not apply to an enforced auction serving to
terminate co-ownership (§ 753; §§ 180 ZVG).
§472
More than one person with a
right of preemption
’If the right of preemption is held by more
than one person jointly, it may be exercised
only in its entirety. 1 2If it has expired with
regard to one of the entitled persons or if one
of them does not exercise his right, then the
others are entitled to exercise the right of
preemption in its entirety.
§472
Mehrere Vorkaufsberechtigte
’Steht das Vorkaufsrecht mehreren ge¬
meinschaftlich zu, so kann es nur im Ganzen
ausgeübt werden. 2Ist es für einen der Berech¬
tigten erloschen oder übt einer von ihnen sein
Recht nicht aus, so sind die übrigen berech¬
tigt, das Vorkaufsrecht im Ganzen aus¬
zuüben.
A. Function
The provision on the exercise of the right of preemption (§ 464) held by more than one 1
person (e.g. under § 2034(1)) corresponds to § 461 for the right of repurchase. However, a
real right of preemption may not be reserved for more entitled persons as joint and
severable creditors (in the context of § 428) - it would otherwise contradict the joint
entitlement in § 472 if each entitled party could exercise the right in its entirety for himself
alone without consideration of the entitlement held by the other parties.1
B. Explanation
The 2nd St. provides an exception to the general rule in the 1st St. It applies if the right has 2
expired or has not been exercised with regard to one of the entitled persons and is subject to
narrow interpretation.2 The ineffective exercise of the right does not constitute the non¬
exercise.3
§473
Non-transferability
’The right of preemption is not transferable
and does not pass to the heirs of the person
entitled to it unless otherwise provided. 2If the
right is limited to a specific period, then, in
case of doubt, it is inheritable.
§473
Unübertragbarkeit
*Das Vorkaufsrecht ist nicht übertragbar
und geht nicht auf die Erben des Berechtigten
über, sofern nicht ein anderes bestimmt ist.
2Ist das Recht auf eine bestimmte Zeit be¬
schränkt, so ist es im Zweifel vererblich.
A. Function
I. Purpose
§ 473 serves to protect the obliged party from the potentially negative effects of a change in 1
the entitled party. It contains a relative prohibition of disposal (§ 135; disputed) and is a
default rule (1st St.).
1 BGH 13.10.2016 - V ZB 98/15, NJW 2017. 1811.
2 OLG Frankfurt a.M. 29.6.1998 - 20 W 144/98, NJW-RR 1999, 17.
3 bgh 13.3.2009 - V ZR 157/08, NJW-RR 2009, 1172.
Saenger/Watson
815
§474
Division 8. Particular types of obligations
II. Scope of application
2 The provision only applies insofar as the right of preemption has not been exercised. The
2nd St. provides that a right of preemption passes to the heirs if it is limited to a specific
period and the parties have not agreed otherwise fin case of doubt). This presumption only
applies to the inheritance of the right, not the transfer. In contrast, § 473 does not prevent the
transfer of a right of preemption from a partnership to the remaining partners when such
transfer is executed outside the scope of the Land Register. Where the real right of
preemption is concerned, the non-transferability of the right (§ 1098(1)) is removed by
§ 1098(3) in conjunction with § 1059a(2) for a legal person or a partnership having legal
personality (such as the GbR and OHG), which applies with the necessary modifications to
the contractual right of preemption.1
Subtitle 3
Purchase of consumer goods
Untertitel 3
Verbrauchsgüterkauf
§474
Purchase of consumer goods
(1) 1 Sales of consumer goods are contracts
by which a consumer buys a movable thing
from a trader. 2A contract will likewise con¬
stitute a sale of consumer goods where its
subject matter comprises, in addition to the
sale of a movable thing, the provision of a
service by the trader.
(2) ’The following rules of this subtitle
have concomitant application for the sale of
consumer goods. 2This does not apply to
second-hand things that are sold at a publicly
accessible auction which the consumer may
attend in person.
§474
Verbrauchsgüterkauf
(1) ’Verbrauchsgüterkäufe sind Verträge,
durch die ein Verbraucher von einem Unter¬
nehmer eine bewegliche Sache kauft. 2Um
einen Verbrauchsgüterkauf handelt es sich
auch bei einem Vertrag, der neben dem Ver¬
kauf einer beweglichen Sache die Erbringung
einer Dienstleistung durch den Unternehmer
zum Gegenstand hat.
(2) ’Für den Verbrauchsgüterkauf gelten
ergänzend die folgenden Vorschriften dieses
Untertitels. 2Dies gilt nicht für gebrauchte
Sachen, die in einer öffentlich zugänglichen
Versteigerung verkauft werden, an der der
Verbraucher persönlich teilnehmen kann.
Contents
mn.
A. Function 1
B. Context 2
I. Historical 2
II. European 3
III. Comparative 4
C. Explanation 5
I. Definition of sale of consumer goods 5
1. Sale 6
2. Moveables 7
3. Consumer and trader/entrepreneur 8
4. Sale of second-hand things at a publicly’^cesZle’^cti^ 9
II. Provisions applicable to the sale of consumer goods 11
' OLG Hamm 28.3.2017 - 15 W 109/17, BeckRS 2017, 114737; MüKo BGB/Westermann, § 473 BGB
mn. 8.
816
Schaub
Purchase of consumer goods
1-6 § 474
A. Function
§ 474 provides a definition for the sale of consumer goods and thus defines the range of 1
application of §§ 474 et seq., which contain special rules for these contracts. For all contracts
of sale of consumer goods (or: consumer sales contracts), §§ 474 et seq. apply in addition to
the general rules (§§ 433 et seq.) and take precedence to the effect that the general rules are
modified in certain respects.
B. Context
I. Historical
§ 474 was inserted in the course of the modernisation of the law of obligations in 2002 in 2
order to implement parts of the EU Consumer Sales Directive. The provision was modified in
2014 in light of the EU Consumer Rights Directive. § 474 has since been modified again with
effect from 1 January 2018: the first two subsections have remained; the other subsections
have been moved to § 475.1
IL European
§ 474 implements parts of the EU Consumer Sales Directive (mainly Art. 1(2) (a)-(c)), 3
which sets up a minimum standard of harmonisation. However, it also implements the
definition of sales contract in Art. 2(5) EU Consumer Rights Directive, which aims at a full
harmonisation of national rules.
III. Comparative
Special rules for consumer contracts are not very common in international rules relating to 4
sales contracts as most of them aim at business sales contracts. However, the DCFR contains
a few special rules for consumer contracts for sale, which are defined in Art. IV.A.-1:204.
C. Explanation
I. Definition of sale of consumer goods
The sale of consumer goods, which is the key concept for the range of application of §§ 474 5
et seq., is defined in Sub. 1 1st St. as a sale of a movable thing by a consumer from a trader.
1. Sale
A sale is a sales contract (or: contract of purchase) as defined in § 433. It includes a sale of 6
second-hand things in a public auction (§ 383(3)), as long as the goods are not sold in a
publicly accessible auction which the buyer can attend in person (Sub. 2 2nd St.). Sub. 1 2nd St.
extends the range of application of §§ 474 et seq. to contracts which also include the provision
of a service by the trader. This implements Art. 2(5) EU Consumer Rights Directive
(... including any contract having as its object both goods and services) and is not confined to
contracts of sale with an ancillary provision of services.2 The provisions for sales contracts
apply completely to such so-called mixed contracts,3 which means that Sub. 2 2nd St. is a special
rule for such contracts which gives priority to the rules applying to contracts of sale.
1 See also § 475 mn. 2.
2 BT-Drs. 17/12637 of 6.3.2013, p. 69.
3 BeckOK BGB/Faust, § 474 BGB mn. 12 with further references.
Schaub
817
§ 474 7-10
Division 8. Particular types of obligations
2. Moveables
7 The scope of application of §§ 474 et seq. is limited to sales of movables (§§ 90, 90a),
thereby excluding the sale of land or the purchase of rights.4 However, following Art. 2(3) EU
Consumer Sales Directive, water, gas and electricity are included where they are put up for
sale in a limited volume or a set quantity.
3. Consumer and trader/entrepreneur
8 The buyer must be a consumer (§ 13 - which goes beyond Art. l(2)(a) EU Consumer Sales
Directive, as it includes transactions for purposes which predominantly are outside the
buyer’s trade, business or profession) and the seller a trader/entrepreneur (§ 14).5 Other
contracts of sale, e.g. contracts between two consumers or two enterprises, are not covered by
§§474 et seq. Deviations are prohibited pursuant to § 476(1).6 According to the general
rules, it is up to the buyer to state and prove that the contract is a sale of consumer goods, as
the application of §§ 474 et seq. will usually be advantageous to him. Therefore, the buyer has
to prove in particular that he acted as a consumer according to § 13.7 The BGH has once
applied § 344(1) HGB to traders to the effect that it is assumed that merchants act as
traders,8 but there is a debate in the legal literature whether this is appropriate or not9 and
the BGH has modified the effects of the former decision recently.10
4. Sale of second-hand things at a publicly accessible auction
9 According to Sub. 2 2nd St. (implementing Art. 1(3) EU Consumer Sales Directive), the
sale of second-hand things at a publicly accessible auction which the consumer may attend in
person is excluded from the range of application of §§ 474 et seq. This means auction sales
as defined in § 312g(2) No. 10 (implementing Art. 2(13) EU Consumer Rights Directive), not
all auction sales referred to in § 383(3). Online auctions are not covered since the consumer
cannot attend them in person.11 Second-hand things are items which have been used already
by the seller or a third person.12 Particular problems may arise if animals (§ 90a) are sold.
The legislator has referred to judgments which preceded the modernisation of the law of
obligations and held that, for example, young pets or living fish would be considered as
new,13 whereas a court has recently held that a two-year-old stallion could be considered as a
second-hand thing.14 However, distinctions may be difficult to draw in many cases.
10 The exclusion in Sub. 2 2nd St. goes too far, as § 475(1) and (2) are based on Arts 18(1) and
20 EU Consumer Rights Directive, which do not provide for any limitations for sales by
auction (thereby differing from Art. 6(3) or Art. 16(k) of the same Directive). Whether
conformity with EU law may be achieved by restricting Sub. 2 2nd St. to all other cases15 is
4 BeckOK BGB/Faust, § 474 BGB mn. 13 with further references.
5 While in the translation of § 474, the term trader is used, the translation of § 14 refers to an
entrepreneur (as well as the translation of the former § 475, now § 476, and of § 478). In the German text
both terms are identical (Unternehmer).
6 See -* § 476 mn. 3 et seq.
7 See BGH 11.7.2007 - VIII ZR 110/06, NJW 2007, 2619 2620 (mn 12)
8 BGH 13.7.2011 - VIII ZR 215/10, NJW 2011, 3435, 3436 (mn 19)
’ See BeckOK BGB/Faust, § 474 BGB mn. 26 with further references
10 BGH 18.10.2017 - VIII ZR 32/16, NJW 2018, 150, 153 (mn. 37). ’
11 See Recital 24 4,h St. EU Consumer Rights Directive
-BGH 15.11.2006 - VIII ZR 3/06, NJW 2007, 674, 676 (mn. 26 et seq.); however, this is
completely accepted m the legal literature, see e.g. BeckOK BGB/Faust 6 474 BGB mn 30 with turther
references. ’ 8
13 BT-Drs. 14/6040 of 14.5.2001, p. 245 with further references
14 OLG Schleswig 4.7.2018 - 12 U 87/17, ZVertriebsR 2018 387 388
15 See BeckOK BGB/Faust, § 474 BGB mn. 29.
et seq.
818
Schaub
Applicable provisions §475
doubtful, as this would go beyond the wording of the provision. However, in relevant cases, it
has to be borne in mind that the exclusion is contrary to EU law, as the EU Consumer Rights
Directive aims at a full harmonisation of the Member States’ law (Art. 4).
II. Provisions applicable to the sale of consumer goods
§§ 475 et seq. apply in addition to §§ 433 et seq., modifying §§ 433 et seq. in certain 11
respects in favour of the consumer.
§475
Applicable provisions
(1) ’Where no period of time has been
determined for the respective performance to
be rendered pursuant to § 433 and none can be
inferred from the circumstances given, the ob¬
ligee may only demand the rendering of such
performance, in derogation from §271(1),
without undue delay. 2In this case, the trader
must deliver the thing at the latest thirty days
after the contract has been concluded. 3The
parties to the contract may effect the respective
performance immediately.
(2) §447(1) applies subject to the proviso
that the risk of accidental destruction and
accidental deterioration shall devolve to the
buyer only if the buyer has instructed the
forwarder, carrier or other person or body
tasked with carrying out the shipment and
the trader has not named this person or body
to the buyer previously.
(3) § 439(5) applies subject to the proviso
that benefits are not to be surrendered or
substituted by their value. §§ 445 and 447(2)
do not apply.
(4) ’If one type of cure is excluded in
accordance with § 275(1) or if the trader can
refuse this according to § 275(2) or (3) or
§ 439(4) sentence 1, he may not refuse the
other type of cure due to disproportionate
costs in accordance with § 439(4) sentence 1.
2If the other type of cure is disproportionate
due to the amount of expenses according to
§ 439(2) or (3) sentence 1, the trader may
limit the reimbursement of expenses to an
appropriate amount. 3When calculating this
amount, particular account is to be taken of
the value of the thing if it were free of defects,
and to the significance of the defect.
§475
Anwendbare Vorschriften
(1) ’Ist eine Zeit für die nach §433 zu
erbringenden Leistungen weder bestimmt
noch aus den Umständen zu entnehmen, so
kann der Gläubiger diese Leistungen abwei¬
chend von § 271 Absatz 1 nur unverzüglich
verlangen. 2Der Unternehmer muss die Sache
in diesem Fall spätestens 30 Tage nach Ver¬
tragsschluss übergeben. 3Die Vertragsparteien
können die Leistungen sofort bewirken.
(2) § 447 Absatz 1 gilt mit der Maßgabe,
dass die Gefahr des zufälligen Untergangs
und der zufälligen Verschlechterung nur
dann auf den Käufer übergeht, wenn der
Käufer den Spediteur, den Frachtführer oder
die sonst zur Ausführung der Versendung
bestimmte Person oder Anstalt mit der Aus¬
führung beauftragt hat und der Unternehmer
dem Käufer diese Person oder Anstalt nicht
zuvor benannt hat.
(3) § 439 Absatz 5 ist mit der Maßgabe
anzuwenden, dass Nutzungen nicht heraus¬
zugeben oder durch ihren Wert zu ersetzen
sind. Die §§ 445 und 447 Absatz 2 sind nicht
anzuwenden.
(4) ’Ist die eine Art der Nacherfüllung nach
§ 275 Absatz 1 ausgeschlossen oder kann der
Unternehmer diese nach § 275 Absatz 2 oder
3 oder § 439 Absatz 4 Satz 1 verweigern, kann
er die andere Art der Nacherfüllung nicht
wegen Unverhältnismäßigkeit der Kosten
nach § 439 Absatz 4 Satz 1 verweigern. 2Ist
die andere Art der Nacherfüllung wegen der
Höhe der Aufwendungen nach § 439 Absatz 2
oder Absatz 3 Satz 1 unverhältnismäßig, kann
der Unternehmer den Aufwendungsersatz auf
einen angemessenen Betrag beschränken. 3Bei
der Bemessung dieses Betrages sind insbeson¬
dere der Wert der Sache in mangelfreiem
Zustand und die Bedeutung des Mangels zu
berücksichtigen.
Schaub
819
Division S. Particular types of obligations
§ 475 1-3
(5) § 440 sentence 1 shall also be applied in
cases in which the seller restricts cure accord¬
ing to subsection (4) sentence 2.
(6) The consumer can claim advance pay¬
ment from the trader for expenses which he
incurs in the course of cure according to
§ 439(2) and (3), and which have to be borne
by the trader.
(5) § 440 Satz 1 ist auch in den Fällen
anzuwenden, in denen der Verkäufer <jje
Nacherfüllung gemäß Absatz 4 Satz 2 be¬
schränkt.
(6) Der Verbraucher kann von dem Unter¬
nehmer für Aufwendungen, die ihm im Rah-
men der Nacherfüllung gemäß § 439 Absatz 2
und 3 entstehen und die vom Unternehmer
zu tragen sind, Vorschuss verlangen.
Contents
mn.
A. Function 1
B. Context 2
I. Historical 2
IL European 3
C. Explanation 4
I. Time of performance 4
II. Passing of risk 5
III. Exclusion of the application of §§ 445, 447(2) 6
IV. Cure 8
1. Modification of other rules on cure 8
2. Disproportionate costs 9
3. Other remedies 11
4. Advance payment of expenses for cure 12
A. Function
1 § 475 in its present version embraces a number of special rules for consumer sales. Sub. 1
sets up special rules for the time of performance, Sub. 2 modifies the general rules on the
passing of risk. Sub. 3 modifies the application of § 439(5) in consumer sales cases and
excludes the application of §§ 445, 447(2), i.e. of the rules on the limitation of liability for
things sold in public auctions and on the passing of risk if the buyer has given particular
instructions as to the shipment of the thing. Subs 4 to 6 set up special rules for cure in
consumer sales cases. § 475 applies to consumer sales (as defined in § 474) only.
B. Context
I. Historical
2 § 475 in its present version is new as from 1 January 2018. Subs 1 to 3 are taken from the
former § 474(3) to (5), only with slight modifications. Subs 4 to 6 are completely new but
have their basis in the BGH’s decisions on consumer sales.1
II. European
3 ! 4?uimcP!f™entS different Provisions of the EU Consumer Sales Directive (Subs 3 to 6)
and of the EU Consumer Rights Directive (Subs 1 and 2).
1 Translation of Subs 4 to 6 by Renate Schaub.
820
Schaub
Applicable provisions
4-7 § 475
C. Explanation
I. Time of performance
Sub. 1 modifies the general rules on the time of performance and implements Art. 18 EU 4
Consumer Rights Directive (therefore, the exclusion in § 474(2) 2nd St. for the sale of second¬
hand things at a publicly accessible auction which the consumer may attend in person is not
appropriate2). However, it only applies if the parties have not agreed on the time of
performance. So, if there is no such agreement (explicit or to be inferred from the contract),
Sub. 1 lstSt. derogates from the general rule in § 271(1), which requires immediate perfor¬
mance. This means, as in § 121(1) 1st St., without undue delay; however, the period may be
shorter, compared to § 121(1) 1st St., as the obligor needs less time for deliberation for
performance than if he has to decide whether to rescind the contract or not.3 For the sake of
clarity, Sub. 1 2nd St. provides a maximum time limit of 30 days for the seller’s performance;
this period begins with the conclusion of the contract. However, according to the wording (at
the latest) and following Recital 52 EU Consumer Rights Directive, the seller can, under
Sub. 1 1st St., be under an obligation to deliver at an earlier point of time. According to Sub. 1
3rd St., the parties may still effect performance immediately.
II. Passing of risk
Sub. 2 limits the application of § 447(1) in consumer sales cases to one particular case 5
constellation, implementing Art. 20 2nd St. EU Consumer Rights Directive (however, like
Sub. 1, the application of Sub. 2 should not be excluded for the sale of second-hand things at
a publicly accessible auction which the consumer may attend in person).4 5 This means that, in
general, § 447(1) is not applicable (and instead, § 446 1st St. applies).3 However, it should
apply, according to Sub. 2, in cases of sales shipment if the buyer has assigned the shipment
to the person or body carrying out the shipment, without the trader having named that
person previously to the buyer. In these cases, the passing of risk to the buyer as soon as the
thing has been handed over to the carrier does not put the buyer at an undue disadvantage,
as he has commissioned the shipment.6 However, in these situations, § 447(1) would not
apply anyway, as it covers only cases in which the seller ships the thing at the request of the
buyer to a place different from the place of performance. Therefore, the present version of
Sub. 2 does not lead anywhere, and does not even implement Art. 20 2nd St. EU Consumer
Rights Directive exactly.7
III. Exclusion of the application of §§ 445> 447(2)
According to Sub. 3 2nd St., § 445 does not apply in consumer sales cases. This means that 6
the seller’s liability for defects is not limited in consumer sales cases when a thing is sold as a
pledge in a public auction (as defined in § 383(3) 1st St.). However, since § 474(2) 2nd St.
excludes the application of §§ 475 et seq. for the sale of second-hand things at a publicly
accessible auction which the consumer may attend in person, in such auctions, § 445 may
apply again, which is in conformity with Art. 1(3) EU Consumer Sales Directive.
Sub. 3 2nd St. also excludes claims for damages by the buyer if, in a case of a sale by 7
shipment, the seller does not adhere to instructions by the buyer with regard to the shipping
2 See § 474 mn. 10.
3 BT-Drs. 17/12637 of 6.3.2013, p. 70.
4 See -* § 474 mn. 10.
5 See also Art. 20 l5t St. EU Consumer Rights Directive.
6 See BT-Drs. 17/12637 of 6.3.2013, p. 70 and Recital 55 EU Consumer Rights Directive.
7 See BeckOK BGB/Faust, § 474 BGB mn. 29 et seq.
Schaub
821
§ 475 8-10 Division 8. Particular types of obligations
of the thing (§ 447(2)). However, it is not clear why this rule which is in favour of the buyer
is excluded especially in consumer sales cases. The rule in its present version was introduced
in 2013 in order to implement the EU Consumer Rights Directive. Before, the application of
§ 447 as a whole had been excluded in consumer sales cases. In the course of the reform, the
legislator introduced § 474(4) (which is identical with the new Sub. 2) which permitted the
application of § 447(1) in certain cases (which, however, is doubtful in itself).8 As there is no
explanation in the legislator’s materials why the change leading to the present version was
made,9 it may only be guessed that perhaps the legislator wanted to preserve the rest of the
exclusion of the application of § 447 without having regard to the fact that § 447(2) may only
be favourable to the buyer. However, since § 447(2) only applies to the cases of § 447(1), and
the cases preserved in Sub. 2 do not fall within the scope of § 447(1),10 the exclusion of the
application of § 447(2) does not seem to do any harm to the consumer - it appears to be
rather useless.
IV. Cure
1. Modification of other rules on cure
8 The rule on which Sub. 3 1st St. is based (the former § 474(5) 1st St.) was inserted into the
BGB in 2008 in order to comply with the CJEU’s interpretation of Art. 3(3) 1st St. and (4) EU
Consumer Sales Directive.11 The CJEU has held that free of charge means ‘that the seller
cannot make any financial claim in connection with the performance of its obligation to
bring into conformity the goods to which the contract relates’, to the effect that Art. 3 of the
Directive precludes national legislation (such as § 439(5)) under which the seller may require
compensation from the buyer for the use of defective goods until they were replaced by new
goods.12 Therefore, the application of § 439(5) (in conjunction with § 346, especially Sub. 2
1st St. No. 1) must be excluded in consumer sales cases, which Sub. 3 1st St. does now.
Therefore, a reduction of the scope of application of § 439(5) in consumer sales cases, as
done previously by the BGH in order to comply with the requirements set up by the CJEU,13
is no longer necessary. However, Sub. 3 Pl St. does not apply if § 346 is directly applicable to
the reversal of a consumer sales contract, as Art. 3(3) and (4) EU Consumer Sales Directive
only refer to cure.14
2. Disproportionate costs
9 Subs 4 and 5 modify the rules on cure in § 439 for consumer sales cases in order to comply
with the requirements set up by the EU Consumer Sales Directive.15 However, they do not
provide a direct basis for the buyer’s claim for partial reimbursement of his expenses. For this
purpose, Sub. 4 has to be applied in connection with § 439(3) or (2);16 § 439(2) and (3) each
provide a ground of claim for the buyer, whereas Sub. 4 provides for a defence for the seller.
10 According to Sub. 4 1st St., the trader cannot refuse cure by relying on absolute
disproportionality.17 So, if both types of cure are only possible at disproportionate
8 See -> § 475 mn. 5.
9 BT-Drs. 17/12637 of 6.3.2013, p. 70.
,ü See ► § 475 mn. 5.
11 CJEU C-404/06 Quelle ECLI:EU:C:2008:231.
12 CJEU C-404/06 Quelle ECLl:EU:C:2008:231 (mn. 34).
13 BGH 26.11.2008 - Vlll ZR 200/05, NJW 2009, 427, 428 (mn 19 et sea )
19 See BGH 16.9.2009 - Vlll ZR 243/08, NJW 2010, 148, 149 (mn. 15).
cr!^rt' 3(3)’ as ln,erPre,ed by ,he CIEU Joined cases C-65/09 and C-87/09 Weber/Putz ECU:
EU:C:2011:396 (mn. 63 et seq.).
** See Picht, Gesetzgeberische Aus- und Einbauten in der kaufrechtlichen Nacherfullung, JZ 2017.807,
811 et seq. °
17 See -► § 439 mn. 20.
822
Schaub
Applicable provisions 11-12 § 475
expense, the trader cannot rely on the disproportionality defence under § 439(4) 1st St. or
retuse cure according to § 275(2) or (3). The trader can only refer to absolute dispropor¬
tionality if the disproportionality is caused by the expenses for removing the defective thing
and for installing or affixing the repaired or newly delivered thing.18 In these cases, the
trader may, according to Sub. 4 2nd St., limit the reimbursement of expenses (not cure as
such)19 to an appropriate amount. Sub. 4 3rd St. gives some guidance how to calculate this
amount building partly on Weber/Putz20 but does not really determine what is appro¬
priates1 The legislator has pointed out that the nature of the defect has to be taken into
account, especially whether it impairs the use of the thing sold or rather its outward
appearance.22 It has been argued, convincingly, that disproportionality in Sub. 4 should be
interpreted in accordance with absolute disproportionality in § 439(4),23 as the criteria are
quite similar for both and if disproportionality in Sub. 4 could be assumed even in cases
below the limits for absolute disproportionality, the consumer buyer might be deterred
from asserting his claims.24
3. Other remedies
Sub. 5 supplements the preceding rules by providing that if the seller restricts cure 11
according to § 474(4) 2nd St., the buyer may rescind the contract without having to set a
time limit for cure first. This also follows from Art. 3 EU Consumer Sales Directive as
interpreted by the CJEU in Weber/Putz25 However, the provision does not cover other
problems relating to the relationship between cure and rescission of the contract, e.g. who
has to bear the expenses for removing the defective thing.26 The reference to § 440 1st St. also
covers the buyers claims for damages in respect of the defect, i.e. the buyer can claim
damages without setting a time limit for cure, too.
4. Advance payment of expenses for cure
According to Sub. 6, the buyer can claim advance payment from the trader for expenses 12
which he has incurred in the course of cure, and which have to be borne by the trader. This
builds on the BGH’s previous decisions.27 This claim will be particularly important if the
buyer has to take the defective thing back to the seller for cure,28 according to the rules as to
the place of cure.29
18 See BT-Drs. 18/8486 of 18.5.2016, p. 44, following CJEU Joined cases C-65/09 and C-87/09 Weber/
Putz ECLI:EU:C:2011:396 (mn. 74); for a more extensive interpretation covering other cases of absolute
disproportionality also Picht, Gesetzgeberische Aus- und Einbauten in der kaufrechtlichen Nacherfüllung,
JZ 2017, 807, 811.
19 Ring, Die neue kaufrechtliche Mängelhaftung ab dem 1. Januar 2018 infolge der Reform des
Bauvertragsrechts, NJ 2018, 8, 11.
20 CJEU Joined cases C-65/09 and C-87/09 Weber/Putz ECLI:EU:C:2011:396 (mn. 76).
21 Left open also in BGH 21.12.2011 - VIII ZR 70/08, NJW 2012, 1073, 1079 (mn. 54).
22 BT-Drs. 18/8486 of 18.5.2016, p. 44 et seq.; see also BGH 21.12.2011 - VIII ZR 70/08, NJW 2012,
1073, 1079 (mn. 54).
23 See -► § 439 mn. 20.
24 Huber, Das neue Kaufrecht, NZBau 2018, 72, 75.
25 CJEU Joined cases C-65/09 and C-87/09 Weber/Putz ECLI:EU:C:2011:396 (mn. 77).
26 See Höpfner/Fallmann, Die Reform des kaufrechtlichen Gewährleistungsrechts 2018, NJW 2017,
3745, 3750.
27 See in particular BGH 13.4.2011 - VIII ZR 220/10, NJW 2011, 2278, 2281 (mn. 37); BGH 21.12.2011
- VIII ZR 70/08, NJW 2012, 1073, 1079 (mn. 49 et seq.); moreover BGH 19.7.2017 - VIII ZR 278/16,
NJW 2017, 2758, 2761 (mn. 29 et seq.).
28 See e.g. BGH 19.7.2017 - VIII ZR 278/16, NJW 2017, 2758, 2761 (mn. 33 et seq.).
29 See > § 439 mn. 8.
Schaub
823
§ 476 1-3
Division 8. Particular types of obligations
§476
Deviating agreements
(1) ‘If an agreement is entered into before
a defect is notified to the entrepreneur and
deviates, to the disadvantage of the consumer,
from §§ 433 to 435, 437, 439 to 443 and from
the provisions of this subtitle, the entrepre¬
neur may not invoke it. 2The provisions re¬
ferred to in sentence 1 apply even if circum¬
vented by other constructions.
(2) The limitation of the claims cited in
§ 437 may not be alleviated by an agreement
reached before a defect is notified to an en¬
trepreneur if the agreement means that there
is a limitation period of less than two years
from the statutory beginning of limitation or,
in the case of second-hand things, of less than
one year.
(3) Notwithstanding §§ 307 to 309,
subsections (1) and (2) above do not apply to
the exclusion or restriction of the claim to
damages.
§476
Abweichende Vereinbarungen
(1) ‘Auf eine vor Mitteilung eines Mangels
an den Unternehmer getroffene Vereinbarung,
die zum Nachteil des Verbrauchers von den
§§ 433 bis 435, 437, 439 bis 443 sowie von den
Vorschriften dieses Untertitels abweicht, kann
der Unternehmer sich nicht berufen. 2Die in
Satz 1 bezeichneten Vorschriften finden auch
Anwendung, wenn sie durch anderweitige Ge¬
staltungen umgangen werden.
(2) Die Verjährung der in § 437 bezeichne¬
ten Ansprüche kann vor Mitteilung eines
Mangels an den Unternehmer nicht durch
Rechtsgeschäft erleichtert werden, wenn die
Vereinbarung zu einer Verjährungsfrist ab
dem gesetzlichen Verjährungsbeginn von we¬
niger als zwei Jahren, bei gebrauchten Sachen
von weniger als einem Jahr führt.
(3) Die Absätze 1 und 2 gelten unbeschadet
der §§ 307 bis 309 nicht für den Ausschluss
oder die Beschränkung des Anspruchs auf
Schadensersatz.
A. Function
1 § 476 ensures the protection of the consumer by providing that, in consumer sales cases,
before the notification of a defect to the trader, parties cannot deviate from many important
rules in §§ 433 et seq. relating to defective goods (Sub. 1 1st St.). This is underlined by a
prohibition of circumvention in Sub. 1 2nd St. The modification of limitation rules is possible
within the limits of Sub. 2, and exclusions or restrictions of the claim to damages are
permissible, according to Sub. 3. § 476 applies to consumer sales only.
B. Context
2 § 476 in is present version is the former § 475, which had been introduced as part of the
modernisation of the law of obligations in 2002. § 476 implements large parts of Art. 7 EU
Consumer Sales Directive; it must be read in conjunction with Art. 46b(3) No. 3 EGBGB,
which implements Art. 7(2) EU Consumer Sales Directive by reinforcing the prohibition of
circumvention for cases with an international element.
C. Explanation
I. Prohibition of deviation and circumvention
3 The prohibition of deviation from and circumvention of §§ 433 to 435, 437, 439 to 443,
474 to 479 in Sub. 1 covers all sorts of agreements, regardless of their form to the effect that
individual agreements are covered as well as agreements in standard business terms. Sub. 1
refers to all agreements which put the consumer at a disadvantage, e.g. by declaring that the
consumer is a trader,1 by limiting the trader’s liability for defects or by setting up additional
' BGH 19.7.2017 - VIII ZR 278/16, NJW 2017, 2758, 2759 (mn. 17).
824
Schaub
Deviating agreements 4-9 § 476
prerequisites for remedies (except with regard to damages, see Sub. 3, and within certain
limits for the reduction of the limitation period in other cases, see Sub. 2). The agreement
must be made before a defect is notified to the trader. After that point of time, the consumer
may enter into agreements limiting the seller’s liability, e.g. in a settlement agreement (if this
is permitted under Art. 25 EU Consumer Rights Directive, which is not completely clear).2
1. Effect
When Sub. 1 applies, the purchase agreement is still valid. § 139 does not apply but the 4
seller cannot rely on the restriction of his liability for defects.3
2. Special problems
One important problem with regard to Sub. 1 is how to distinguish deviating agreements 5
from (permissible) agreements as to the quality of the goods according to § 434(1) 1st St. It
has, inter alia, been proposed to focus on the contents of the agreement from the point of
view of the buyer, to the effect that a description of the goods is permissible whereas all other
exclusions of liability come within Sub. I.4
The prohibition of circumvention in Sub. 1 2nd St. is particularly important when agree- 6
ments are made by persons acting for an entrepreneur or a consumer, in order to form a
contract which falls outside the scope of §§ 474 et seq., e.g. if an entrepreneur acts as an
agent for a consumer seller. In general, such agency agreements are permissible and do not
come within Sub. 1 2nd St. Such contracts may be a deviation of §§ 474 et seq. only in special
cases, e. g. if in reality the entrepreneur is the person who actually bears the risks and profits
of the contract.5
It may be noted that Sub. 1 makes the new provision (as from 1st January 2018) in § 309 7
No. 8(b)(cc) largely superfluous, as it prohibits even individual agreements which restrict the
buyer’s right to claim reimbursement of his expenses for removing the defective thing and
for installing or affixing the repaired or newly delivered thing, to the effect that there is only
room for an application of §§ 307 et seq. if the seller is also a consumer.6
IL Possible limitations of liability
Restrictions of the rules on prescription are not completely prohibited, but limited by 8
Sub. 2 which builds on Art. 5(1) and Art. 7(1) 2nd and 3rd St. EU Consumer Sales Directive.
The limitation periods in § 438 may be reduced, but only to a minimum of two years as from
delivery of the thing, for newly manufactured things, and one year for second-hand things
(which is not in accord with Art. 5(1) and Art. 7(1) 2nd part of the EU Consumer Sales
Directive7). Via § 438(4) and (5), these principles also apply to revocation of the contract and
reduction of the purchase price. However, the limitation period in § 438(3) cannot be
modified, according to § 444 and § 202(1).
Damages are not covered by the EU Consumer Sales Directive, so the national legislator 9
was free to permit restrictions of the rules on claims for damages. This was done in Sub. 3 to
the effect that parties may exclude or restrict those rules - within the limits set in §§ 307 et
seq., especially § 309 No. 7 - or reduce the prescription period even beyond the limits set in
Sub. 2.
2 See BeckOK BGB/Faust, § 476 BGB mn. 23 et seq.
3 See BT-Drs. 14/7052 of 9.10.2001, p. 199.
4 See BeckOK BGB/Faust, § 476 BGB mn. 15 et seq.
5 Considered but denied in BGH 26.1.2005 - VIII ZR 175/04, NJW 2005, 1039, 1040; BGH 22.11 2006
- VIII ZR 72/06, NJW 2007, 67, 69 (mn. 15 et seq.).
6 See Lorenz, Grundwissen - Zivilrecht: Neuregelungen im Gewährlcistungsrecht zum 1.1.2018, JuS
2018, 10, 12.
7 See CJEU C-133/16 Ferenschild ECLI:EU:C:2017:541 (mn. 49).
Schaub
825
§ 477 1-4
Division 8. Particular types of obligations
§477
Shifting the burden of proof
If, within six months after the date of the
passing of the risk, a material defect mani¬
fests itself, it is presumed that the thing was
already defective when risk passed, unless this
presumption is incompatible with the nature
of the thing or of the defect.
§477
Beweislastumkehr
Zeigt sich innerhalb von sechs Monaten
seit Gefahrübergang ein Sachmangel, so wird
vermutet, dass die Sache bereits bei Gefahr¬
übergang mangelhaft war, es sei denn, diese
Vermutung ist mit der Art der Sache oder des
Mangels unvereinbar.
A. Function
1 § 477 is a special provision relating to the burden of proof in consumer sales cases.
Deviating from the normal rule, according to which the buyer has to prove that the thing was
defective at the time of passing of risk, the burden of proof (in relation to the existence of the
defect when the risk passed) is shifted to the seller if a material defect in the thing sold
manifests itself within six months, and if this presumption is not incompatible with the
nature of the thing or the defect. The seller can rebut the presumption by proving that the
defect occurred after the passing of risk. § 477 only applies to contracts of sale of consumer
goods (§ 474); in supply chains, regard is to be had to § 478(1).
B. Context
2 The former § 476 has become § 477 as from 1 January 2018. The provision itself has been
in the BGB since the modernisation of the law of obligations in 2002. It serves to implement
Art. 5(3) EU Consumer Sales Directive.
C. Explanation
I. Preconditions
3 § 477 applies to consumer sales contracts when the thing sold (including second-hand
goods,1 and animals2) has a material (not a legal) defect (§ 434) which manifests itself within
six months after the passing of risk (§ 446).
II. Presumption
4 The consumer must prove that the thing is defective and that the defect appeared within
six months after the risk has passed.3 Then, it is presumed that the thing was already
defective when the risk passed,4 which facilitates the buyer’s claims because of defects. The
presumption is construed to cover a large range of cases. The CJEU has held in relation to
Art. 5(3) EU Consumer Sales Directive that the consumer is not required to prove the cause
of the defect or to establish that its origin is attributable to the seller.5 So, if the buyer proves
a defect within the six-month-limit, it is presumed that the thing was defective when the risk
1 See e.g. BGH 2.6.2004 - VIII ZR 329/03, NJW 2004, 2299, 2300* BGH 14 9 2005 - VIII ZR 363/04,
NJW 2005, 3490, 3492.
2 BGH 29.3.2006 - VIII ZR 173/05, NJW 2006, 2250, 2252; BGH 18.7 2007 - Vlll ZR 259/06, NJW
2007, 2621, 2622 (mn. 9).
3 See also CJEU C-497/13 Faber ECLI:EU:C:2015:357 (mns 70 71)
4 See also CJEU C-497/13 Faber ECLI:EU:C:2015:357 (mn. 72).
5 CJEU C-497/13 Faber ECLI:EU:C:2015:357 (mn. 70).
826
Schaub
Shifting the burden of proof 5-9 § 477
passed, irrespective of the question whether the defect is attributable to the seller or might
have been caused by external factors.6 It is also presumed that the defect proven by the buyer
has already been present, at least to some extent, at the time of passing of risk.7
1. Extended application
The presumption is, in this extensive interpretation, also applied to claims for damages8 5
although this would not be necessary in order to implement the EU Consumer Sales Directive
correctly. However, it makes sense to adopt a uniform interpretation, even though it makes it
rather difficult for the trader to escape claims for damages, as a second presumption applies in
respect of his responsibility for the damage (§ 280(1) 2nd St.).
2. Cure
In cases of cure, the six-month period for the presumption starts to run again as from the 6
passing of risk in cases of supplementary performance or as from the passing of risk if a
defective part of the thing is substituted; in other cases of rectification, the period will only
recommence in respect of the part of the thing which was affected by the rectification.9 10 11
3. Rebuttal
The seller can rebut the presumption if he proves that the defect actually occurred after the 7
risk has passed or if he proves that the presumption is incompatible with the nature of the
thing or of the defect.
a) Proof. The first possibility requires proof by the seller to the requisite legal standard™ 8
that the defect occurred after the risk has passed, which means, according to German law,
that the judge must be completely convinced, § 286 ZPO.11 So, in any case of doubt, § 477
still applies in favour of the buyer.
b) Incompatibility. The seller can also prove that the presumption is incompatible with 9
the nature of the thing or of the defect. This exception to the general rule in § 477 is
interpreted rather restrictively. So, it does not apply in all cases in which there is no general
assumption that the defect has existed at the time of passing of risk already,12 e.g. when
second-hand goods or animals have been sold. The presumption may be incompatible with
the nature of the thing for example if the goods sold will usually, by their nature, perish
within less than six months, and the defect occurs after the period in which the goods would
normally perish. Incompatibility with the nature of the defect can be found for example if the
defect would have been evident for a buyer without special knowledge - such as an apparent
scratch at a new car13 - or if the defect is a typical consequence of the normal use of the
thing.
6 See BGH 12.10.2016 - VIII ZR 103/15, NJW 2017, 1093, 1097 (mn. 39 et seq.) with further references
to previous case-law in which the court had adopted a much more restrictive interpretation of the former
§ 476, which is not upheld any longer.
7 BGH 12.10.2016 - VIII ZR 103/15, NJW 2017, 1093, 1098 (mn. 46 et seq.), again with further
references to previous, more restrictive case-law which will not be applied any longer.
8 BGH 12.10.2016 VIII ZR 103/15, NJW 2017, 1093, 1099 (mn. 53).
9 See BeckOK BGB/Faust, § 477 BGB, No. 21 with further references.
10 CJEU C-497/13 Faber ECLI:EU:C:2015:357 (mn. 74).
11 See BGH 12.10.2016 VIII ZR 103/15, NJW 2017, 1093, 1099 (mn. 60 et seq).
12 See BGH 14.9.2005 - VIII ZR 363/04, NJW 2005, 3490, 3492 ct seq.; BGH 21.12.2005 - VIII ZR 49/
05, NJW 2006, 1195, 1196 (mn. 15); BGH 11.7.2007 - VIII ZR 110/06, NJW 2007, 2619, 2620 (mn. 10);
BGH 18.7.2007 - VIII ZR 259/06, NJW 2007, 2621, 2623 (mn. 17).
13 BGH 14.9.2005 - VIII ZR 363/04, NJW 2005, 3490, 3492; BGH 21.12.2005 - VIII ZR 49/05, NJW
2006, 1195, 1196 (mn. 16).
Schaub
827
§ 478 1-2
Division 8. Particular types of obligations
§478
Special provisions for the recourse
of the entrepreneur
(1) If the last contract in the supply chain
is a sale of consumer goods (§ 474), § 477
applies in the cases of § 445a subsections (1)
and (2) with the proviso that the period of
time begins when the risk passes to the con¬
sumer.
(2) ’The supplier may not rely on an agree¬
ment made before the defect was notified to
the supplier which, to the disadvantage of the
entrepreneur, deviates from subsection (1) or
from §§ 433 to 435, 437, 439 to 443, 445a
subsections (1) and (2) or from § 445b, if the
obligee with the right of recourse is not given
another form of compensation of equal value.
Sentence 1, notwithstanding § 307, does not
apply to an exclusion or restriction of the
claim to damages. 3The provisions referred
to in sentence 1 apply even if circumvented
by other constructions.
(3) Subsections (1) and (2) above apply
with the necessary modifications to claims of
the supplier and of the other buyers in the
supply chain against their sellers if the obli¬
gors are entrepreneurs.
§478
Sonderbestimmungen für den
Rückgriff des Unternehmers
(1) Ist der letzte Vertrag in der Lieferkette
ein Verbrauchsgüterkauf (§ 474), findet § 477
in den Fällen des § 445a Absatz 1 und 2 mit
der Maßgabe Anwendung, dass die Frist mit
dem Übergang der Gefahr auf den Verbrau¬
cher beginnt.
(2) ’Auf eine vor Mitteilung eines Mangels
an den Lieferanten getroffene Vereinbarung,
die zum Nachteil des Unternehmers von
Absatz 1 sowie von den §§ 433 bis 435, 437,
439 bis 443, 445a Absatz 1 und 2 sowie von
§445b abweicht, kann sich der Lieferant
nicht berufen, wenn dem Rückgriffsgläubiger
kein gleichwertiger Ausgleich eingeräumt
wird. 2Satz 1 gilt unbeschadet des § 307 nicht
für den Ausschluss oder die Beschränkung
des Anspruchs auf Schadensersatz. 3Die in
Satz 1 bezeichneten Vorschriften finden auch
Anwendung, wenn sie durch anderweitige
Gestaltungen umgangen werden.
(3) Die Absätze 1 und 2 finden auf die
Ansprüche des Lieferanten und der übrigen
Käufer in der Lieferkette gegen die jeweiligen
Verkäufer entsprechende Anwendung, wenn
die Schuldner Unternehmer sind.
A. Function
1 § 478 extends many of the rules for consumer sales to contracts further up the supply
chain, i.e. the presumption of defectiveness in §477 (Sub. 1) and the prohibition of
deviations from or circumvention of central provisions on defective goods (Sub. 2). § 478
applies to contracts between entrepreneurs along a supply chain (see Sub. 3 for extensions
beyond the contract between the last seller and his supplier) if the last contract in the chain is
a consumer sales contract. It is not especially clear why the present version of § 478 has
remained among the rules for consumer sales contracts and not been placed in the vicinity of
the other rules on the recourse of the seller (§§ 445a et seq.).
B. Context
2 A modified version of § 478 entered into force on 1 January 2018. Sub. 1 builds partly on
the former § 478(3),' whereas Sub. 2 is the former § 478(4) - with slight modifications - and
Sub. 3 is the former § 478(5) - also with slight modifications. The previous version of § 478
was inserted into the BGB as part of the modernisation of the law of obligations in 2002.
§ 478 builds on other rules which implement the EU Consumer Sales Directive, but the
provision itself does not implement EU law. Therefore, it does not have to be interpreted in
accordance with the EU Consumer Sales Directive. However, as it builds in large parts on
other provisions implementing that Directive, and as the German legislator has intended to
1 Translation of Sub. 1 by Renate Schaub.
828
Schaub
Special provisions for the recourse of the entrepreneur 3-5 § 478
extend the rules for consumer sales to contracts further up the supply chain in order to
protect the supplier from having to bear all the consequences of consumer protection if he
himself is not responsible for the defect,2 a uniform interpretation in conformity with the
rules relating to consumer sales seems to be adequate.
C. Explanation
I. Presumption of defectiveness
Sub. 1 extends the presumption of defectiveness set up in § 477 to a recourse claim of the 3
seller against his supplier (§§ 445a, 445b) if the last contract in the supply chain is a sale of
consumer goods (§ 474). Standing alone, this extension would not always be favourable to
the seller as detects often do not become apparent before use. Therefore, according to Sub. 1,
the six-month period starts no earlier than when the risk passes to the consumer. The
extensive interpretation of the presumption set up in § 4773 does not necessarily have to
apply in cases of Sub. 1, as the cases in which Sub. 1 applies are not consumer sales (§ 474),
therefore the CJEU’s case law is not binding in this respect. However, in order to avoid a split
interpretation of § 477 - which might lead to contradictions when the presumption is applied
to the consumer’s claim but not to further claims up the supply chain - a uniform
interpretation of the provision should be adopted. But even then, it must be noted that a
successful claim by a consumer will not necessarily lead to successful claims in respect of the
same defect further up the supply chain, as there may be different agreements relating to the
quality of the goods.
IL Right of recourse
Sub. 2 provides for protection of the seller as against his supplier - to some extent in 4
parallel to § 476(1) for consumers.4 The rules in Sub. 2 are adjusted to claims further up the
supply chain. So, it is prohibited to deviate from or circumvent central provisions of sales law
relating to defects (including the rules on limitation in § 445b) in individual agreements or in
standard business terms in agreements made before the defect was notified to the supplier,
but with the proviso that deviations or circumventions are permitted if the obligee with the
right of recourse is given another form of compensation of equal value. This proviso leaves
room for agreements such as generalised billing systems.5 The equality in value is to be
determined ex ante.6 As in § 476(3), there is an exception for claims for damages - within the
limits set up in § 307. § 478(2) limits party autonomy considerably, which might lead parties
to opt out of the application of German sales law in business sales with an international
element.
III. Application to other claims in the supply chain
Sub. 3 extends the rules set up in the preceding subsections to contracts further up the 5
supply chain, as long as the obligors are entrepreneurs.
2 BT-Drs. 14/6040 of 14.5.2001, p. 247.
3 See § 477 mn. 4-5.
4 See § 476 mn. 3 et seq.
5 BT-Drs. 14/6040 of 14.5.2001, p. 249.
6 See Nietsch/Osmanovic, Die kaufrechtliche Sachmängelhaftung nach dem Gesetz zur Änderung des
Bauvertragsrechts, NJW 2015, 1, 5 with further references.
Schaub
829
§479 1
Division 8. Particular types of obligations
§479
Special provisions for guarantees
(1) A declaration of guarantee (§ 443) must
be expressed simply and comprehensibly. It
must contain
1. a reference to the statutory rights of the
consumer and a statement that they are not
restricted by the guarantee, and
2. the contents of the guarantee and all
essential information required for asserting
rights under the guarantee, including, with¬
out limitation, the duration and the area of
territorial application of the guarantee pro¬
tection as well as the name and address of the
guarantor.
(2) The consumer may demand that the
declaration of guarantee is given to him in
text form.
(3) The effectiveness of the duty under the
guarantee is not affected by the fact that one
of the above requirements is not satisfied.
§479
Sonderbestimmungen für
Garantien
(1) Eine Garantieerklärung (§443) muss
einfach und verständlich abgefasst sein. Sie
muss enthalten:
1. den Hinweis auf die gesetzlichen Rechte
des Verbrauchers sowie darauf, dass sie durch
die Garantie nicht eingeschränkt werden, und
2. den Inhalt der Garantie und alle wesent¬
lichen Angaben, die für die Geltendmachung
der Garantie erforderlich sind, insbesondere
die Dauer und den räumlichen Geltungs¬
bereich des Garantieschutzes sowie Namen
und Anschrift des Garantiegebers.
(2) Der Verbraucher kann verlangen, dass
ihm die Garantieerklärung in Textform mit¬
geteilt wird.
(3) Die Wirksamkeit der Garantieverpflich¬
tung wird nicht dadurch berührt, dass eine
der vorstehenden Anforderungen nicht erfüllt
wird.
Contents
mn.
A. Function 1
B. Context 2
I. Historical 2
II. European 3
C. Explanation 4
L Guarantee 4
1. Language 5
2. Contents 7
3. No comparison with statutory rights 8
4. Formal requirements 9
II. Breach 10
1. General rules 11
2. Consumer protection rules 12
3. Unfair competition 13
A. Function
§ 479 supplements § 443 by setting up special requirements for guarantees in consumer
sales contracts. These requirements relate to the contents (Sub. 1) and the form (Sub. 2) of
the declaration of guarantee. The German legislator made these rules with a view to
misleading guarantee statements which do not go beyond the statutory rights of the buyer,1
and also intended to reduce cases in which the consumer, due to incorrect information,
abstained from asserting his statutory claims.2 The provision applies to consumer sales
contracts (§ 474); deviations are prohibited in § 476(1) 1st St.
1 BT-Drs. 14/6040 of 14.5.2001, p. 81.
2 BT-Drs. 14/6040 of 14.5.2001, p. 246.
830
Schaub
Special provisions for guarantees
2-6 § 479
B. Context
I. Historical
§ 479 in its present form was introduced in the BGB in the course of the modernisation of 2
the law of obligations in 2002, then as § 477. As from 1 January 2018, the former § 477 has
become § 479, without any modifications of its content.
II. European
§ 479 implements Art. 6(2), (3) and (5) EU Consumer Sales Directive. Art. 6(1) is 3
implemented in § 443 and Art. 6(4) was not implemented in German law, as it is not
mandatory. The provisions on consumer guarantees have some similarities with Art. IV.
A.-6:103(1) (a), (c) and (d), (2), (3) DCFR, but the provisions on consumer guarantees in the
DCFR are much more extensive than those in the EU Consumer Sales Directive and in § 479.
Art. 17(2), (3) and (4) ot the Sale of Goods Directive is rather similar in content to Art. 6 of
the EU Consumer Sales Directive and thus to § 479, too.
C. Explanation
I. Guarantee
§ 479 applies to all guarantees, as defined in § 443? As § 443 does not only cover 4
guarantees made by the seller but also those made by the producer or by third parties,
§ 479 should apply to these as well, as long as they are guarantees made by a trader (§ 14) to
a consumer buyer.3 4 5 § 479 does not apply to simple advertising which relates to a guarantee,
as advertising is not a declaration of guarantee, as required by § 479?
1. Language
The guarantee must be expressed simply and comprehensibly (Sub. 1 1st St.). This still 5
remains to be clarified by the courts, but the requirement does not seem to have created too
many problems so far. It relates rather to the manner of expression of the guarantee
(meaning, for example, that it should be expressed in comprehensible language), not to its
contents (see Sub. 1 2nd St.).
The German legislator did not implement Art. 6(4) EU Consumer Sales Directive, which 6
allows to require that the guarantee is drafted in one or more particular languages from
among the official languages of the Community. This was based on the assumption that it is
sufficient to require that the declaration of guarantee must be expressed comprehensibly,
which would normally be the case if it is in German, but it might also be true if it is in
another language which is still comprehensible for the consumer, e.g. if a part of a simple
guarantee for a computer is in English.6 This explanation of the legislator provides flexibility,
but not much clarity, so it would have been desirable that the German legislator had
implemented Art. 6(4) EU Consumer Sales Directive. For the time being, the notion of
clarity should be interpreted in favour of the consumer to the effect that guarantees in
3 See § 443 mn. 6-7.
4 See e.g. BeckOK BGB/Faust, § 479 BGB mn. 4 with further references.
5 BGH 14.4.2011 - I ZR 133/09, NJW 2011, 2653, 2655 (mn. 25 et seq.); BGH 5.12.2012 - I ZR 146/11,
GRUR 2013, 851, 852 (mn. 11).
6 BT-Drs. 14/6040 of 14.5.2001, p. 245 et seq.
Schaub
831
§479 7-11
Division 8. Particular types of obligations
languages other than German will, in sales contracts which are governed by German law,
normally not be sufficiently comprehensible under Sub. 1 1st St.7
2. Contents
7 Sub. 1 2nd St. specifies some of the contents of the guarantee. The guarantee must contain a
reference to the consumer’s statutory rights and a statement that they are not restricted by
the guarantee (No. 1). It must be clear to the buyer that the guarantee supplements his
statutory rights. However, the seller need not inform the buyer about the contents of his
statutory rights.8 The declaration of guarantee must also explain the contents of the
guarantee and all essential information required for asserting rights under the guarantee,
e.g. the duration and territorial application of the protection or the name and address of the
guarantor (No. 2). This basically means that the consumer must be able, from simply reading
the guarantee, to see in which cases it applies, what its consequences are, and how exactly he
can invoke those consequences.
3. No comparison with statutory rights
8 Especially with regard to the legislator’s intention to avoid misleading guarantees,9 it is
remarkable that § 479 - as Art. 6 EU Consumer Sales Directive - does not require the seller
to compare the buyer’s rights deriving from the guarantee with his statutory rights (as, for
example, Art. IV.A.-6:103 DCFR does), which would have provided more legal certainty for
the consumer.
4. Formal requirements
9 The consumer’s rights are enhanced by Sub. 2, which states that the consumer may
demand that the declaration of guarantee is given to him in text form (§ 126b), even though
the guarantee itself is valid without complying with any requirements as to its form. Sub. 2
further facilitates the consumer’s claims arising from a guarantee, as the text form makes
proof of the exact contents of the guarantee much easier.
IL Breach
10 If the requirements of Subs 1 and 2 are not met the guarantee is still valid, as follows from
Sub. 3 and from the purpose of § 479 to enhance consumer protection. The consequences
have to be derived from general rules in the BGB and from other provisions aiming at
consumer protection.
1. General rules
11 Ambiguities in standard business terms may be resolved in favour of the consumer,
according to § 305c(2). In addition, the buyer may have a claim for damages under
§§ 280(1), 311(2), 241(2) if he suffers any damage because the declaration of guarantee is
not clear enough - even to the extent that the damages may cover a rescission of the
contract of sale10 - which will, however, be restricted to exceptional cases. As the case may
stand, the buyer may also avoid the contract according to § 123(1) 1st Alt. because of
malicious deceit.
references50 ’a“'™8 BGB/Ber8Cr> § 479 BGB m"' * B^kOK BGB/Faust, § 479 BGB mn. 7 with further
9 OT ^8’ BeckOK BGB/Faust, § 479 BGB mn. 9 with further references
’ BT-Drs. 14/6040 of 14.5.2001, p. 81. references.
10 See BT-Drs. 14/6040 of 14.5.2001, p. 247.
832
Schaub
Exchange
1-2 § 480
2. Consumer protection rules
If the seller does not comply with Subs 1 or 2, he may also face an action for omission 12
under § 2(1), (2) No. 1(c) UKlaG (Unterlassungsklagengesetz - Injunctions Act). However, if
the declaration of guarantee is made in standard business terms, which are not ineffective
under §§ 306 et seq., neither § 2 UKlaG nor § 1 UKlaG applies. The gap ensuing from that
may be filled by drawing an analogy to § 2 UKlaG, as a declaration of guarantee in standard
business terms which is not in conformity with Subs 1 or 2 should not be treated more
favourably than one in an individual contract."
3. Unfair competition
§ 479 can also be interpreted as a rule concerning market conduct and thus come under 13
§ 3a UWG.12 Therefore, the seller may also face claims under §§ 8, 9 UWG. He may also face
such claims if the declaration of guarantee is misleading according to § 5 or § 5a UWG.
Subtitle 4
Exchange
Untertitel 4
Tausch
§480
Exchange
The provisions relating to sale apply with
the necessary modifications to exchange.
§480
Tausch
Auf den Tausch finden die Vorschriften
über den Kauf entsprechende Anwendung.
Explanation
L Exchange
The parties to an exchange contract are obliged to each render performance of things, 1
rights or other assets under a reciprocal contract (§ 320). In contrast to a sales contract (and
also to so-called double purchases* 1, and part-exchange2) neither of the parties is obliged to
make a monetary payment. Particular forms of exchange are formed by the inclusion of one
or more third parties (Ringtausch), or with a central procurement structure (Tauschring;
Barter-System3).
IL Requirement
An exchange contract requires an agreement to the reciprocal exchange of performances 2
(§ 320). The agreement may provide for a monetary payment to offset the difference in value
between the performance (part-exchange), subject however to the requirement that the
monetary payment does not constitute the principal performance.
11 For a direct application of § 2 UKlaG Soergel BGB/Wertenbruch, § 477 BGB, No. 84; however, the
dominant opinion in the legal literature rather draws an analogy to § 1 UKlaG, see e.g. BeckOGK BGB/
Augenhofer, § 479 BGB mn. 36 with further references.
12 BGH 14.4.2011 - I ZR 133/09, NJW 2011, 2653, 2655 (mn. 22 et seq.).
1 BGH 27.10.1967 - V ZR 157/64, NJW 1968, 104.
2 BGH 30.11.1983 - VIII ZR 190/82, NJW 1984, 429.
3 BGH 5.11.1998 - III ZR 95-97, NJW 1999, 635.
Saenger/Watson
833
§481 1
Division 8. Particular types of obligations
III. Legal consequence
3 § 480 stipulates the application of the provisions relating to sale (§8 433 et seq.); however,
the provisions concerning the sales price (in particular §§ 445, 447, 449-451) do not apply.
Each party to the exchange contract is subject to the obligations in § 433(1) of performance
and to grant rights, and the acceptance obligation in § 433(2). The party is liable for legal
and material defects in accordance with §§ 480, 437, 280 et. seq., 323 et seq. The right of
revocation (§§ 480, 437 No. 2 in conjunction with § 440 and §§ 323, 326(5)) leads to the
reversal of the exchange. Monetary compensation is to be paid the event of a reduction in
price (§ 437 No. 2 in conjunction with § 441).
Title 2
Time-share agreements, contracts
relating to long-term holiday
products, brokerage contracts and
exchange system contracts
Titel 2
Teilzeit-Wohnrechteverträge,
Verträge über langfristige
Urlaubsprodukte,
Vermittlungsverträge und
T auschsystemverträge
§481
Time-share agreements
(1) ’A time-share agreement is a contract
by which an entrepreneur procures or pro¬
mises to procure for a consumer the right, in
return for the payment of a total price, to use
a building several times for a period that is
specified or to be specified, for the purposes
of overnight stays, for the duration of more
than one year. 2A11 extension possibilities
provided for in the contract are to be taken
into account when calculating the term of the
contract.
(2) ‘The right may be a real right or an¬
other right, and may also in particular, with¬
out limitation, be granted through member¬
ship of an association or a share in a
company or partnership. 2The right may also
consist in opting to use one of a group of
residential buildings.
(3) A part of a residential building is
equivalent to a residential building, as is a
moveable thing or a part thereof intended as
overnight accommodation.
§481
Teilzeit-Wohnrechtevertrag
(1) ‘Ein Teilzeit-Wohnrechtevertrag ist ein
Vertrag, durch den ein Unternehmer einem
Verbraucher gegen Zahlung eines Gesamt¬
preises das Recht verschafft oder zu verschaf¬
fen verspricht, für die Dauer von mehr als
einem Jahr ein Wohngebäude mehrfach für
einen bestimmten oder zu bestimmenden
Zeitraum zu Übernachtungszwecken zu nut¬
zen. 2Bei der Berechnung der Vertragsdauer
sind sämtliche im Vertrag vorgesehenen Ver¬
längerungsmöglichkeiten zu berücksichtigen.
(2) ‘Das Recht kann ein dingliches oder
anderes Recht sein und insbesondere auch
durch eine Mitgliedschaft in einem Verein
oder einen Anteil an einer Gesellschaft einge¬
räumt werden. 2Das Recht kann auch darin
bestehen, aus einem Bestand von Wohn¬
gebäuden ein Wohngebäude zur Nutzung zu
wählen.
(3) Einem Wohngebäude steht ein Teil ei¬
nes Wohngebäudes gleich, ebenso eine beweg¬
liche, als Übernachtungsunterkunft gedachte
Sache oder ein Teil derselben.
A. Function
§§ 481-487 implement the EU Timeshare Directive. In addition to the provisions in
§§ 481-487, elements from the EU Timeshare Directive were implemented in the EGBGB
(see especially Art. 242 EGBGB on information duties). The Unterlassungsklage>Wse,z
834
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Time-share agreements 2-5 § 481
(UKlaG; Injunctions Act) also applies to agreements covered in Title 2. §§ 481-487 apply to
the four, fully harmonised contract types time-share agreements, contracts relating to long¬
term holiday products, exchange system contracts, and resale agreements as well as to the
entrepreneur s pre-contractual and contractual information duties, the consumer’s right of
withdrawal, and formal requirements.
B. Context
I. German
The 1994 EU Timeshare Directive1 was implemented into German law via the Teilzeit- 2
wohnrechtegesetz (TzWrG; Timeshare Act). This legislation applied from 1 January 1997 to
31 December 2001 and was repealed by the SMG, which incorporated the provisions on
timeshare agreements into the BGB (§§ 481-486) from 1 January 2002. The present version
of §§ 481-487 have been in force since 23 February 2011 and take into account the changes
imposed by the 2008 EU Timeshare Directive.
IL European
Timeshare agreements and other long-term holiday products are cross-border in nature if 3
the marketing and/or conclusion of the contract take place in a country other than the
consumer’s country of residence (e.g. during a holiday) and concern property or clubs
located in the other country. The 1994 and 2008 EU Timeshare Directives therefore aimed to
harmonise the national legislative provisions on such contracts, with the 2008 EU Timeshare
Directive favouring a full harmonisation, thereby reducing the scope for the national
legislator to introduce or maintain rules (also those increasing the level of consumer
protection), unless such areas have either not been expressly covered by the Directive or
deviations are permitted.
C. Explanation
I. Definition
§ 481 serves to implement Art. 2(1 )(a) and (2) EU Timeshare Directive by incorporating 4
the definition of a time-share agreement. Pursuant to Sub. 1 1st St., time-share agreements are
contracts between a consumer (§ 13) and an entrepreneur (§ 14) for the duration of more
than one year, whereby the consumer is, against payment, entitled to use one or more
buildings several times over a period of time for the purposes of overnight stays. The specific
use for relaxation purposes is not necessary - merely the right of use for the purpose of an
overnight stay will suffice.
IL Use
The use must not necessarily take place regularly; the minimum duration of the contract 5
of more than one year is sufficient. Calculation of the minimum duration requires
consideration of all extension possibilities (Sub. 1 2nd St.), thereby avoiding circumvention
of the provision through successive contracts or by other methods that aim to split the
contract.2
1 Directive 94/47/EC.
2 BT-Drs. 17/2764 of 18.8.2010, p. 15.
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835
§ 481a 1-2
Division 8. Particular types of obligations
III. Contract types
6 Sub. 2 stipulates that time-share agreements will fall within the scope of §§ 481-487
irrespective of the nature of their legal form. It is therefore irrelevant whether the right is
afforded via an obligation, is a real right, is granted via membership, or takes another form.
Common types of contract are real rights of use in the form of joint-ownership or permanent
residential rights, permitting use via lease agreements, or memberships and trust models in
which a trustee holds residency rights or the property on trust.3
IV. Building
7 Sub. 3 provides that the overnight stay need not be in an immovable building (e.g.
residential building), but may also be in a part of a building or in movable accommodation,
such as a cruise ship or a mobile home.4 Such types of accommodation are considered
equivalent to a residential building. According to Sub. 2 2nd St. a time-share agreement will
be concluded if the consumer can select from a group of residential buildings e.g. holiday
apartments.
§ 481a
Contract relating to a long-term
holiday product
!A contract relating to a long-term holiday
product is a contract for the duration of more
than one year by means of which an entre¬
preneur procures or promises to procure for
a consumer the right, in return for the pay¬
ment of a total price, to receive price reduc¬
tions or other benefits with regard to accom¬
modation. 2§ 481(1) sentence 2 applies with
the necessary modifications.
§ 481a
Vertrag über ein langfristiges
Urlaubsprodukt
!Ein Vertrag über ein langfristiges Urlaubs¬
produkt ist ein Vertrag für die Dauer von
mehr als einem Jahr, durch den ein Unter¬
nehmer einem Verbraucher gegen Zahlung
eines Gesamtpreises das Recht verschafft
oder zu verschaffen verspricht, Preisnachlässe
oder sonstige Vergünstigungen in Bezug auf
eine Unterkunft zu erwerben. 2§ 481 Absatz 1
Satz 2 gilt entsprechend.
A. Function
1 § 481a serves to define a long-term holiday product - a new form of contract introduced
by the EU Timeshare Directive. It corresponds to the definition and requirements under
Art. 2(1 )(b), (2) EU Timeshare Directive.
B. Explanation
I. Definition
2 Contracts relating to a long-term holiday product, whereby the consumer is entitled,
agamst payment, to receive price reductions with regard to accommodation (irrespective of
whether these are linked to travel or other services) include e.g. membership in holiday clubs
with discount offers,1 which offer time-limited price reductions for accommodation is different
. ?alandt BGB/Weidenkaff, § 481 BGB mn. 1 with further references
4 BT-Drs. 17/2764 of 18.8.2010, p. 16. reierences.
1 BT-Drs. 17/2764 of 18.8.2010, p. 16.
836
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Brokerage contract, exchange system contract 1-2 § 481b
holiday resorts. The main purpose must be the reduction in the price of accommodation. The
provision generally does not apply to loyalty schemes for hotel customers and travellers.
IL Minimum duration
The minimum duration of the contract comprises more than one year. All extension 3
possibilities provided in the contract are to be taken into account when calculating the
minimum duration, as is clarified by the cross-reference in the 2nd St. to § 481(1) 2nd St.
§ 481b
Brokerage contract,
exchange system contract
(1) A brokerage contract is a contract by
which an entrepreneur has himself promised
a fee for providing evidence of the opportu¬
nity to enter into a contract or for negotiat¬
ing a contract by which the rights of the
consumer from a time-share agreement or a
contract relating to a long-term holiday pro¬
duct are to be acquired or sold.
(2) An exchange system contract is a con¬
tract by which an entrepreneur has himself
promised a fee from a consumer for evidence
of the opportunity to enter into a contract or
for brokering a contract by which individual
rights of the consumer from a time-share
agreement or a contract relating to a long¬
term holiday product are to be exchanged or
acquired or sold by other means.
§ 481b
V ermittlungsvertrag,
T auschsystem vertrag
(1) Ein Vermittlungsvertrag ist ein Vertrag,
durch den sich ein Unternehmer von einem
Verbraucher ein Entgelt versprechen lässt für
den Nachweis der Gelegenheit zum Abschluss
eines Vertrags oder für die Vermittlung eines
Vertrags, durch den die Rechte des Verbrau¬
chers aus einem Teilzeit-Wohnrechtevertrag
oder einem Vertrag über ein langfristiges
Urlaubsprodukt erworben oder veräußert
werden sollen.
(2) Ein Tauschsystemvertrag ist ein Ver¬
trag, durch den sich ein Unternehmer von
einem Verbraucher ein Entgelt versprechen
lässt für den Nachweis der Gelegenheit zum
Abschluss eines Vertrags oder für die Ver¬
mittlung eines Vertrags, durch den einzelne
Rechte des Verbrauchers aus einem Teilzeit-
Wohnrechtevertrag oder einem Vertrag über
ein langfristiges Urlaubsprodukt getauscht
oder auf andere Weise erworben oder ver¬
äußert werden sollen.
A. Function
§ 481b serves to define a brokerage contract (Sub. 1) and an exchange system contract 1
(Sub. 2). The EU Timeshare Directive introduced each of these contract types. The defini¬
tions correspond to Art. 2(1 )(c), (d) EU Timeshare Directive, however with a deviation in
classification: the Directive refers to a brokerage contract (Vermittlungsvertrag) as a resale
contract (Wiederkaufsvertrag) and to an exchange system contract (Tauschsystemvertrag) as
an exchange contract.
B. Explanation
I. Brokerage contract
A brokerage contract under Sub. 1 is a sub-category of brokerage contracts regulated by 2
§§ 652 et seq. Accordingly, the German legislator intentionally avoided the use of the EU
term resale contract.' A brokerage contract will be concluded if an entrepreneur, against
1 BT-Drs. 17/2764 of 18.8.2010, p. 16.
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837
§482 1 Division 8. Particular types of obligations
payment, assists the consumer in acquiring or selling rights under a time-share agreement or
contract for a long-term holiday product. It is not necessary for the buyer or seller to be an
entrepreneur; brokerage for and to a consumer is covered.
IL Exchange system contract
3 The German legislator favoured the term exchange system contract in order to avoid
confusion with an exchange contract pursuant to § 480 BGB.2 Exchange system contracts are
contracts in which a consumer, against payment, enters into an exchange system which
affords him access to overnight accommodation or other services in exchange for affording
third parties temporary access to his rights from his own time-share agreement.
§ 482 .
Preliminary contract information,
advertising and prohibition of sale
as an investment
(1) ’The entrepreneur must provide to the
consumer in good time prior to the submis¬
sion of his contract declaration on the con¬
clusion of a time-share agreement, of a con¬
tract relating to a long-term holiday product,
of a brokerage contract or of an exchange
system contract preliminary contract infor¬
mation under Article 242 § 1 of the of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche]
in text form. 2These must be clear and com¬
prehensible.
(2) ’Any advertising for such contracts
must state that preliminary contract informa¬
tion is available and where this can be re¬
quested. 2When inviting to advertising or
sales events, the entrepreneur must clearly
indicate the commercial nature of the event.
3The consumer must be provided at such
events with the preliminary contract informa¬
tion at any time.
(3) A time-share agreement or a right from
a contract relating to a long-term holiday
product may not be advertised or sold as an
investment.
§482
V orvertragliche
Informationspflichten, Werbung
und Verbot des Verkaufs als
Geldanlage
(1) ’Der Unternehmer hat dem Verbrau¬
cher rechtzeitig vor Abgabe von dessen Ver¬
tragserklärung zum Abschlusseines Teilzeit-
Wohnrechtevertrags, eines Vertrags über ein
langfristiges Urlaubsprodukt, eines Vermitt-
lungsvertrags oder eines Tauschsystemvertra¬
ges vorvertragliche Informationen nach
Artikel 242 § 1 des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche in Textform zur
Verfügung zu stellen. 2Diese müssen klar
und verständlich sein.
(2) ’In jeder Werbung für solche Verträge
ist anzugeben, dass vorvertragliche Informa¬
tionen erhältlich sind und wo diese angefor¬
dert werden können. 2Der Unternehmer hat
bei der Einladung zu Werbe- oder Verkaufs¬
veranstaltungen deutlich auf den gewerb¬
lichen Charakter der Veranstaltung hinzuwei¬
sen. 3Dem Verbraucher sind auf solchen
Veranstaltungen die vorvertraglichen Infor¬
mationen jederzeit zugänglich zu machen.
(3) Ein Teilzeit-Wohn recht oder ein Recht
aus einem Vertrag über ein langfristiges Ur¬
laubsprodukt darf nicht als Geldanlage be¬
worben oder verkauft werden.
A. Function
Together with other provisions, § 482 implements Arts 3 and 4 EU Timeshare Directive
on pre-contractual information duties.* 1 It replaces the entrepreneur’s duty to provide a
2 BT-Drs. 17/2764 of 18.8.2010, p. 16.
1 Translation note: the translation of vorvertragliche biformationspflichten as preliminary contract
information is misleading and inconsistent with other translations of this expression in the BGB
(§ 356a(2)). The following therefore uses the expression pre-contractual information duties.
838
Risse
brochure (§ 482 BGB, former version). The annexes to the EU Timeshare Directive contain
fully harmonised standard information forms. These standard forms were not implemented
into the BGB or EGBGB; Art. 242 § 1 merely refers to the annexes to the EU Timeshare
Directive.
B. Explanation
I. Pre-contractual information duties
The entrepreneur’s pre-contractual information duties apply to all four contract types 2
regulated by §§ 481-48lb. It is no longer necessary for the entrepreneur to distribute an
associated brochure. The pre-contractual information must be made available to the con¬
sumer via the standard information forms provided in the annexes to the EU Timeshare
Directive. This means that the entrepreneur not only has to produce the forms and keep
them available but also has to have access to the information. Text form refers to the
requirements in § 126. The consumer must have sufficient time prior to making his
contractual declaration in order to acquaint himself with and comprehend the content of
the information to the necessary degree of thoroughness. The information must therefore be
clear and comprehensible (Sub. 1 2nd St.).
IL Advertising
In accordance with the consumer’s right to information, Sub. 2 1st St. requires advertising 3
to state that preliminary contract information is available and where this can be requested.
Breaches of this duty may result in liability under competition law.
Pursuant to Sub. 2 2nd St., when inviting the consumer to advertising or sales events, the 4
entrepreneur must clearly indicate the commercial nature of the event, thereby preventing
enticement of the consumer to conclude a contract during an entertainment or recreational
event. The entrepreneur must make the information available at such events in order for the
consumer to become acquainted with it, should he so wish.2 Breaches of this duty may result
in liability under competition law.3
IIL Investment
Sub. 3 serves to avoid the consumer’s expectation of profit which may arise when 5
promoting a time-share as an investment.
§ 482a
Notification regarding revocation
’The entrepreneur must inform the consu¬
mer in text form prior to conclusion of the
contract of the right of revocation, including
of the revocation period, as well as of the
prohibition of advance payments under
§ 486. 2Receipt of the appropriate provisions
of the contract must be confirmed by the
consumer in writing. 3The details are regu¬
lated in Article 242 § 2 of the Introductory
Act to the Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzbuche].
§ 482a
Widerrufsbelehrung
’Der Unternehmer muss den Verbraucher
vor Vertragsschluss in Textform auf das Wi¬
derrufsrecht einschließlich der Widerrufsfrist
sowie auf das Anzahlungsverbot nach § 486
hinweisen. 2Der Erhalt der entsprechenden
Vertragsbestimmungen ist vom Verbraucher
schriftlich zu bestätigen. 3Die Einzelheiten
sind in Artikel 242 § 2 des Einführungsgeset¬
zes zum Bürgerlichen Gesetzbuchc geregelt.
2 Palandt BGB/Weidenkaff, § 482 BGB mn. 3.
3 BT-Drs. 17/2764 of 18.8.2010, p. 17.
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839
§483
Division 8. Particular types of obligations
A. Function
1 § 482a transposes the specific requirement in Art. 5(4) 4 EU Timeshare Directive on the
pre-contractual information duty concerning the right of withdawal and the prohibition on
advance payments. The translation of Widerruf as revocation reflects an inconsistency in the
translation (see e.g. §§ 356a, 485); the term withdrawal will therefore be used in the
following.
B. Explanation
I. Information
2 The entrepreneur must inform the consumer in text form (§ 126) prior to the conclusion
of the contract on the right of withdrawal (§ 485), the withdrawal period (§ 355(2)), and
the prohibition of advance payments during the withdrawal period (§ 486). For this
purpose the entrepreneur is to use the standard information form according to the model
in Annex V EU Timeshare Directive (Art. 242 § 2 EGBGB.) If the entrepreneur does not
inform the consumer or fails to inform the consumer in accordance with the requirements,
the 14-day withdrawal period does not commence until he has received the information
(§ 356a(2) et seq.); accordingly the consumer may still not make advance payments.
II. Written confirmation
3 According to Sub. 2 2nd St., the consumer must confirm in writing the receipt of the
appropriate provisions of the contract. Such provision ensures notification of the consumer
whilst at the same time serving an evidentiary function which allows the entrepreneur to
prove his compliance with this information duty. A section for written confirmation is
provided on each of the standard information forms in the annexes to the EU Timeshare
Directive (for withdrawal, see Annex V; Art. 242 § 2 EGBGB).
§483
Language of the contract and of
the preliminary contract
information
(1) ’The time-share agreement, the con¬
tract relating to a long-term holiday product,
the brokerage contract or the exchange sys¬
tem contract is to be drafted in the official
language, or, where there is more than one
official language, in the official language,
selected by the consumer, of the Member
State of the European Union or of the state
which is a contracting party to the Agreement
on the European Economic Area in which the
consumer has his residence. 2If the consumer
is a national of another Member State, then
instead of the language of the state in which
he has his residence he may alternatively
choose the official language or one of the
official languages of the state of which he is
a national. Sentences 1 and 2 also apply to
§483
Sprache des Vertrags und der
vorvertraglichen Informationen
(1) ’Der Teilzeit-Wohnrechtevertrag, der
Vertrag über ein langfristiges Urlaubspro¬
dukt, der Vermittlungsvertrag oder der
Tauschsystemvertrag ist in der Amtssprache
oder, wenn es dort mehrere Amtssprachen
gibt, in der vom Verbraucher gewählten
Amtssprache des Mitgliedstaats der Europä¬
ischen Union oder des Vertragsstaats des Ab¬
kommens über den Europäischen Wirt¬
schaftsraum abzufassen, in dem der
Verbraucher seinen Wohnsitz hat. 2Ist der
Verbraucher Angehöriger eines anderen Mit¬
gliedstaats, so kann er statt der Sprache seines
Wohnsitzstaats auch die oder eine der Amts¬
sprachen des Staats, dem er angehört, wählen.
3Die Sätze 1 und 2 gelten auch für die vorver-
840
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Language of the contract and of contract information
1-4 § 483
the preliminary contract information and to
the notification regarding revocation.
(2) If the agreement must be notarially
recorded by a German notary, §§ 5 and 16 of
the Notarial Recording Act [Beurkundungs¬
gesetz] apply with the proviso that the con¬
sumer must be provided with a certified
translation of the agreement in the language
chosen by him under subsection (1).
(3) Contracts that do not comply with
subsections (1) sentences 1 and 2, or (2)
above are void.
traglichen Informationen und für die Wider¬
rufsbelehrung.
(2) Ist der Vertrag von einem deutschen
Notar zu beurkunden, so gelten die §§ 5 und
16 des Beurkundungsgesetzes mit der Ma߬
gabe, dass dem Verbraucher eine beglaubigte
Übersetzung des Vertrags in der von ihm
nach Absatz 1 gewählten Sprache auszuhän¬
digen ist.
(3) Verträge, die Absatz 1 Satz 1 und 2
oder Absatz 2 nicht entsprechen, sind nichtig.
A. Function
§ 483 implements Arts 4(3), 5(1) EU Timeshare Directive with regard to the language of 1
the contract and pre-contractual information1, and the choice of language.
B. Explanation
I. Choice of language
The EU Timeshare Directive affords the consumer with the choice whether the pre- 2
contractual information and the contract are to be provided in the language of the
consumer’s state of residence or the state of which he is a national. Sub. 1 provides that, in
principle, the language of the contract is the official language of the EU or EEA Member State
in which the consumer is resident. If the EU or EEA Member State has more than one official
language (e.g. Belgium) or if the consumer is a national of another EU Member State, the
consumer may choose from the official languages or from one of the official languages of the
state of which he is a national (Sub. 1 2nd St.). Such rule ensures that the consumer will
actually understand the contract, the pre-contractual information, and the information on
the right of withdrawal.2 However, the consumer is not entitled to documents in more than
one language.3
IL Extended withdrawal period
The withdrawal period will be extended by 12 months to a period of 12 months and 3
14 days if, prior to the conclusion of the contract, the consumer is not informed of the right
of withdrawal in the applicable or chosen language (§ 356a(3)).
III. Notarial recording
Sub. 2 takes account of the provisions of the Beurkundungsgesetz (BeurkG; Notarisation 4
Act) concerning contracts on joint-ownership of immovables. Breach of the statutory written
requirements will render the contract void ipso iure pursuant to § 125.
1 Translation note: the translation of vorvertragliche Informationspflichten as preliminary contract
information is misleading and inconsistent with other translations of this expression in the BGB
(§ 356a(2)). The following therefore uses the expression pre-contractual information duties,
2 BT-Drs. 17/2764 of 18.8.2010, p. 18.
3 Palandt BGB/Weidenkaff, § 483 BGB mn. 2.
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841
§484
Division 8. Particular types of obligations
IV. Breach
5 Contracts will be void if they do not comply with the requirements in Sub. 1 Is' and 2nd St.
or Sub. 2. Although the EU Timeshare Directive does not specify such consequences,
avoidance of the contract pursuant to Sub. 3 is in conformity with the Dii ective as it is an
effective, proportionate and dissuasive penalty as stipulated by Art. 15(2) EU Timeshare
Directive.
§484
Form and content of the contract
(1) The time-share agreement, the contract
relating to a long-term holiday product, the
brokerage contract or the exchange system
contract must be in writing, except to the
extent that other provisions contain more
stringent formal requirements.
(2) ‘The preliminary contract information
provided to the consumer under § 482(1)
becomes content of the contract insofar as
it is not altered in agreement or unilaterally
by the entrepreneur. 2The entrepreneur may
only unilaterally alter the preliminary con¬
tract information in order to adjust it to
changes caused by force majeure. 3The
amendments under sentence 1 must be pro¬
vided to the consumer in text form prior to
conclusion of the contract. 4They only be¬
come effective if they are included in the
contract documents, indicating that they de¬
viate from the preliminary contract informa¬
tion provided under § 482(1). 5The contract
documents are to include the following:
1. the preliminary contract information
under §482(1), notwithstanding its validity
under sentence 1,
2. the names of both parties and addresses
where documents may be served on them, as
well as
3. the date and place of the deposit of the
contract declarations contained therein.
(3) ‘The entrepreneur must provide the
consumer with the contract document or a
copy of the contract. 2In case of a time-share
agreement, if the language of the agreement
and the official language of the Member State
of the European Union or of the Contracting
Party to the Agreement on the European
Economic Area in which the residential
building is situated are different, he must
enclose a certified translation of the contract
in an official language of the state in which
the residential building is situated. JThe duty
§484
Form und Inhalt des Vertrags
(1) Der Teilzeit-Wohnrechtevertrag, der
Vertrag über ein langfristiges Urlaubspro¬
dukt, der Vermittlungsvertrag oder der
Tauschsystemvertrag bedarf der schriftlichen
Form, soweit nicht in anderen Vorschriften
eine strengere Form vorgeschrieben ist.
(2) ‘Die dem Verbraucher nach § 482
Absatz 1 zur Verfügung gestellten vorvertrag¬
lichen Informationen werden Inhalt des Ver¬
trags, soweit sie nicht einvernehmlich oder
einseitig durch den Unternehmer geändert
wurden. 2Der Unternehmer darf die vorver¬
traglichen Informationen nur einseitig än¬
dern, um sie an Veränderungen anzupassen,
die durch höhere Gewalt verursacht wurden.
3Die Änderungen nach Satz 1 müssen dem
Verbraucher vor Abschluss des Vertrags in
Textform mitgeteilt werden. 4Sie werden nur
wirksam, wenn sie in die Vertragsdokumente
mit dem Hinweis aufgenommen werden, dass
sie von den nach § 482 Absatz 1 zur Ver¬
fügung gestellten vorvertraglichen Informa¬
tionen abweichen. 5In die Vertragsdokumente
sind aufzunehmen:
1. die vorvertraglichen Informationen nach
§ 482 Absatz 1 unbeschadet ihrer Geltung
nach Satz 1,
2. die Namen und ladungsfähigen An¬
schriften beider Parteien sowie
3. Datum und Ort der Abgabe der darin
enthaltenen Vertragserklärungen.
(3) lDer Unternehmer hat dem Verbrau¬
cher die Vertragsurkunde oder eine Abschri
des Vertrags zu überlassen. 2Bei einem Tei
zeit-Wohnrechtevertrag hat er, wenn die Ver
tragssprache und die Amtssprache des Md
gliedstaats der Europäischen Union oder es
Vertragsstaats des Abkommens über den u
ropäischen Wirtschaftsraum, in dem sich as
Wohngebäude befindet, verschieden sin »
eine beglaubigte Übersetzung des Vertrags in
einer Amtssprache des Staats beiziifii£cn’•
dem sich das Wohngebäude befindet.
842
Risse
Right of withdrawal
§485
to enclose a certified translation does not
apply if the time-share agreement relates to a
group of residential buildings which are situ¬
ated in different states.
Pflicht zur Beifügung einer beglaubigten
Übersetzung entfällt, wenn sich der Teilzeit-
Wohnrechtevertrag auf einen Bestand von
Wohngebäuden bezieht, die sich in verschie¬
denen Staaten befinden.
A. Function
§ 484 implements Art. 5(1)—(5) EU Timeshare Directive and regulates the details of the 1
form and content of the contract.
B. Explanation
I. Text form
According to Sub. 1, the contract must be in writing (§ 126), except to the extent that other 2
provisions contain more stringent formal requirements (e.g. § 483(2)). The contract must
therefore be signed by the parties (§ 126(2)) or, for electronic form, the qualified electronic
signature must be provided (§ 126a(l)). Breaches of formal requirements will render the
contract void pursuant to § 125 1st St.
IL Pre-contractual information
Sub. 2 stipulates that the pre-contractual information1 becomes part of the contract and is 3
binding upon the entrepreneur. Alterations to the pre-contractual information are possible via
agreement or unilaterally in the event of force majeure; such amendments are to be commu¬
nicated to the consumer in text form (§ 126b). In addition to the mandatory documents
(Nos 1-3), the contract must also indicate the deviations from the pre-contractual information.
III. Contract document
The entrepreneur must provide (either in person or via a form of distance communication) 4
the consumer with the contract document or a copy of the contract (Sub. 3 1st St.). Where
time-share contracts are concerned, if the language of the contract differs from an official
language of the state in which the residential building is situated, the entrepreneur must
provide a certified translation of the contract in an official language of the state in question
(Sub. 3 2nd St.). This rule serves to make the consumer more aware of his rights at the place the
property in question is located;2 however it does not apply if the time-share agreement relates
to a group of residential buildings which are situated in different states (Sub. 3 3rd St.).
§485
Right of withdrawal
In the case of a timeshare contract, a con¬
tract relating to a long-term holiday product,
a brokerage contract, or an exchange system
contract, the consumer has a right of with¬
drawal under § 355.
§485
Widerrufsrecht
Dem Verbraucher steht bei einem Teilzeit-
Wohnrechtevertrag, einem Vertrag über ein
langfristiges Urlaubsprodukt, einem Vermitt¬
lungsvertrag oder einem Tauschsystemvertrag
ein Widerrufsrecht nach § 355 zu.
1 Translation note: the translation of vorvertragliche Informationspflichten as preliminary contract
information is misleading and inconsistent with other translations of this expression in the BGB
(§ 356a(2)). The following therefore uses the expression pre-contractual information duties.
‘ > BT-Drs. 17/2764 of 18.8.2010, p. 19.
Risse
843
§ 486 1-3
Division 8. Particular types of obligations
1 §485 serves to implement Art. 6(1) EU Timeshare Directive. The provision is not
conclusive, but is merely a cross-reference to the general provisions on withdrawal rights
in consumer contracts contained in the general law of obligations (§ 355). Accordingly, the
general provisions on the effects of withdrawal (§ 355(1) Is St.), the exercise (§ 355(1)
2nd-4lh St.), and the length (§ 355(2)) will apply. In light of the structure, the specific
provisions on the right of withdrawal for time-share contracts, long-term holiday products,
brokerage contracts, and exchange system contracts, are to be found alongside other rules
concerning the right of withdrawal in consumer contracts. §§ 356a and 357b therefore
contain the specific provisions on aspects of the right of withdrawal (e.g. start, § 356a(l)),
and the legal consequences therefore (e.g. no costs for the consumer, § 357b(l)).
§485a
(repealed)
§ 485a
(aufgehoben)
§486
Prohibition of down payment
(1) The entrepreneur may not demand or
accept payments by the consumer prior to the
expiry of the revocation period.
(2) No payments of the consumer in con¬
nection with a brokerage contract may be
demanded or accepted until the entrepreneur
has complied with his obligations from the
brokerage contract or this contractual rela¬
tionship has been terminated.
§486
Anzahlungsverbot
(1) Der Unternehmer darf Zahlungen des
Verbrauchers vor Ablauf der Widerrufsfrist
nicht fordern oder annehmen.
(2) Es dürfen keine Zahlungen des Ver¬
brauchers im Zusammenhang mit einem Ver¬
mittlungsvertrag gefordert oder angenom¬
men werden, bis der Unternehmer seine
Pflichten aus dem Vermittlungsvertrag erfüllt
hat oder diese Vertragsbeziehung beendet ist.
A. Function
1 § 486 serves to implement the rules on down payments in Art. 9(1) and (2) EU Timeshare
Directive.
B. Explanation
I. Payment
2 The term payment is not limited to cash payments, but comprises every form of
consideration by the consumer in which the consumer loses the disposition over the
amount paid or to be paid, including performance to third parties, advance payments,
provision of guarantees, reservation of money on accounts, explicit acknowledgement of
debt.' The rule strengthens the consumer’s right of withdrawal, especially in the cross-
border context, as the consumer will not have to make claims for reimbursement of any
money that has been paid.* 2
II. Demand or accept
3 Pursuant to Sub. 1, demand refers to each act by the entrepreneur whereby he aims to
cause the consumer to make a payment; accept refers to each act targeting the receipt of a
payment. The entrepreneur may not even accept payments that the consumer has made
without being requested to do so by the entrepreneur.3
J See Art. 9 EU Timeshare Directive.
2 BT-Drs. 17/2764 of 18.8.2010, p. 21.
3 Palandt BGB/Weidenkaff, § 486 BGB mn. 2.
844
Risse
Special provisions for long-term holiday contracts
1-2 § 486a
III. Withdrawal period
The entrepreneur may not demand or accept payment during the withdrawal period.4 This 4
restriction was initially provided in the 1994 EU Timeshare Directive and has been extended
to brokerage contracts (Sub. 2). The prohibition applies in the event of an extended
withdrawal period (§ 356a(2), (3)) resulting from the entrepreneur’s failure to perform his
pre-contractual information concerning the right of withdrawal (§ 482a).5
§ 486a
Special provisions for contracts
relating to long-term holiday
products
(1) 1V\rith a contract relating to a long-term
holiday product, the form designated in
Article 242 § 1(2) of the Introductory Act to
the Civil Code [Einführungsgesetz zum Bür¬
gerlichen Gesetzbuche] contains an instalment
plan. 2The entrepreneur may not derogate
from the payment methods designated therein.
3He may only demand or accept the annual
instalment from the consumer due according
to the form if he has previously requested the
consumer in text form to pay this instalment.
4The payment request must be received by the
consumer at least two weeks prior to the due
date of the annual instalment.
(2) From the time which is provided for
under subsection (1) for the payment of the
second instalment, the consumer can termi¬
nate the contract within two weeks of receipt
of the payment request at the due date under
subsection (1).
§ 486a
Besondere Vorschriften fur
Verträge über langfristige
Urlaubsprodukte
(1) !Bei einem Vertrag über ein langfristiges
Urlaubsprodukt enthält das in Artikel 242 § 1
Absatz 2 des Einführungsgesetzes zum Bürger¬
lichen Gesetzbuche bezeichnete Formblatt ei¬
nen Ratenzahlungsplan. 2Der Unternehmer
darf von den dort genannten Zahlungsmodali¬
täten nicht abweichen. 3Er darf den laut Form¬
blatt fälligen jährlichen Teilbetrag vom Ver¬
braucher nur fordern oder annehmen, wenn er
den Verbraucher zuvor in Textform zur Zah¬
lung dieses Teilbetrags aufgefordert hat. 4Die
Zahlungsaufforderung muss dem Verbraucher
mindestens zwei Wochen vor Fälligkeit des
jährlichen Teilbetrags zugehen.
(2) Ab dem Zeitpunkt, der nach Absatz 1
für die Zahlung des zweiten Teilbetrags vor¬
gesehen ist, kann der Verbraucher den Ver¬
trag innerhalb von zwei Wochen ab Zugang
der Zahlungsaufforderung zum Fälligkeitster¬
min gemäß Absatz 1 kündigen.
A. Function
§ 486a transposes the special provisions for contracts relating to long-term holiday 1
products under Art. 10(1) and (2) EU Timeshare Directive.
B. Explanation
I. Long-term holiday products
A long-term holiday product is, for example, membership of a holiday club whereby the 2
consumer receives the possibility to book accommodation at a discounted rate. Payments
under such contracts may only be made in annual instalments, each of which shall be of
equal value. The staggered payment schedule according to Annex II, Part I EU Timeshare
Directive (Art. 242 § 1(2) EGBGB) is mandatory. The annual rate under Sub. 1 is only due
upon timely notification that payment is due.
4 Translation note: the translation of Widerruf as revocation reflects an inconsistency in the translation
(see e.g. §§ 356a, 485); the term withdrawal will therefore be used in the following.
5 Art. 9(1) EU Timeshare Directive refers to Art. 6 of the Directive, which regulates the length of the
withdrawal period.
Risse
845
§488
Division 8. Particular types of obligations
II. Right to terminate
3 Sub. 2 affords the consumer with a special right to terminate (Sonderkündigungsrecht). The
consumer may terminate the contract without penalty after receipt of the request to pay the
second instalment. This right to terminate exists without prejudice to other termination/
revocation rights, in particular termination for a compelling reason (§ 314).1
§487
Deviating agreements
1 There may be no deviation from the pro¬
visions of this title to the disadvantage of the
consumer. 2Unless otherwise provided, the
provisions of this title apply even if they are
circumvented by other constructions.
§487 .
Abweichende Vereinbarungen
'Von den Vorschriften dieses Titels darf
nicht zum Nachteil des Verbrauchers abge¬
wichen werden. 2Die Vorschriften dieses Ti¬
tels finden, soweit nicht ein anderes bestimmt
ist, auch Anwendung, wenn sie durch ander¬
weitige Gestaltungen umgangen werden.
1 § 487 has been adapted in light of § 312k.1 Whereas the rule in the 1st St. reflects Art. 12(1)
EU Timeshare Directive, the 2nd St. was introduced on 13 June 2014 as part of the
implementation of the EU Consumer Rights Directive into the BGB. Although the EU
Consumer Rights Directive primarily concerns the full harmonisation of pre-contractual
information duties and rights of withdrawal in contracts for goods and related services, all
newly developed holiday products which are capable of circumventing the provisions in
§§ 481-486 fall within the scope of the EU Consumer Rights Directive. Deviations from
§§ 481-486 are only permissible if they are to the consumer’s advantage. Circumvention is
assessed objectively; intention by the entrepreneur is not necessary.2
Title 3
Loan contract;
financing assistance and
contracts for delivery by
instalments between an
entrepreneur and a consumer
Titel 3
Darlehensvertrag;
Finanzierungshilfen und
Ratenlieferungsverträge zwischen
einem Unternehmer und einem
Verbraucher
Subtitle 1
Loan contract
Untertitel 1
Darlehensvertrag
Chapter 1
Kapitel 1
General provisions
Allgemeine Vorschriften
§488
Typical contractual duties in a
loan contract
(1) 'The loan contract obliges the lender to
make available to the borrower a sum of
money in the agreed amount. 2The borrower
1 BT-Drs. 17/2764 of 18.8.2010, p. 21.
1 Palandt BGB/Weidenkaff, § 487 BGB mn. 1.
2 Palandt BGB/Wcidenkaff, § 487 BGB mn. 1.
§488
Vertragstypische Pflichten beim
Darlehensvertrag
(I) 'Durch den Darichensvertrag wird der
Darlehensgeber verpflichtet, dem Darlehens
nchmer einen Geldbetrag in der vereinbarten
846
Krämer
Typical contractual duties in a loan contract
1 §488
is obliged to pay interest owed and, at the due
date, to repay the loan made available.
(2) The agreed interest, unless otherwise
provided, is to be paid at the end of each
year and, if the loan is to be repaid before
the end of one year, upon repayment.
(3) !If a time is not specified for repayment
of the loan, its due date is subject to the
lender or the borrower giving notice of ter¬
mination. 2The notice period is three months.
3If interest is not owed, the borrower is also
entitled to repay without giving notice of
termination.
Höhe zur Verfügung zu stellen. 2Der Darle¬
hensnehmer ist verpflichtet, einen geschul¬
deten Zins zu zahlen und bei Fälligkeit das
zur Verfügung gestellte Darlehen zurück¬
zuzahlen.
(2) Die vereinbarten Zinsen sind, soweit
nicht ein anderes bestimmt ist, nach dem Ab¬
lauf je eines Jahres und, wenn das Darlehen
vor dem Ablauf eines Jahres zurückzuzahlen
ist, bei der Rückzahlung zu entrichten.
(3) ’Ist für die Rückzahlung des Darlehens
eine Zeit nicht bestimmt, so hängt die Fällig¬
keit davon ab, dass der Darlehensgeber oder
der Darlehensnehmer kündigt. 2Die Kündi¬
gungsfrist beträgt drei Monate. 3Sind Zinsen
nicht geschuldet, so ist der Darlehensnehmer
auch ohne Kündigung zur Rückzahlung be¬
rechtigt.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
I. Historical 3
II. Private international law 4
C. Explanation 6
I. Conclusion 6
II. Duties of the lender 8
1. Made available 9
2. Claim for disbursement 11
III. Duties of the borrower 12
1. Replayment 13
a) Modalities 14
b) Performance 15
2. Interest 16
a) Amount 17
b) Claim 18
IV. Acceptance 19
V. Avoidance 20
VI. Termination 21
1. Notice period 22
2. Legal consequences 23
A. Function
I. Purpose
§ 488 is the basic provision of the German law on money loans and stipulates the 1
contractual duties of the parties. The nature of the money loan agreement is to grant buying
power over a certain period with help of the provided sum of money. With the duty of the
lender to pay interest owed (Sub. 1 2nd St.), the legislator considers the loan against payment
as the normal case.
Krämer
847
§ 488 2-7
Division 8. Particular types of obligations
II. Scope of application
2 As a provision within the special law of obligations on single types of contracts, § 488 only
applies to a money loan agreement and does not govern contracts for the loan of a thing.
These contracts are addressed by § 607 et seq. The following provisions (§§491-513) deal
with consumer protection in loan agreements (§§ 491-505d), in financing assistance
(§§ 506-508), in instalment supply contracts (§ 510) and in loan agreements without charge
(§§ 514, 515). A contract between a consumer (§ 13) and an entrepreneur (§ 14) is the
prerequisite for consumer protection. § 488, however, applies to any loan contract, regardless
of the legal status of the parties.
B. Context
I. Historical
3 Under Roman law, money loan agreements and contracts for the loan of a thing were
covered by the so-called mutuum and treated identically.1 Besides the consensus of the
parties, the delivery and the transfer of ownership of the respective things was constitutive for
the contract to be concluded (Realvertrag). Nowadays, any loan contract is undisputedly
concluded only through the agreement of the parties (Konsensualvertrag).2
IL Private international law
4 The Rome I Regulation applies in cross-border transactions. According to Art. 3(1) Rome
I, the parties are free to choose the law applicable to the contract, subject to Arts 3(4), 6 and 9
Rome I. The validity of the choice of law clause is governed by the chosen law, the choice
itself is not subject to any control. In absence of a choice of law clause, Art. 4(1 )(b) Rome I
determines the law of the habitual residence of the lender to be applicable.
5 In a cross-border consumer credit agreement Art. 6 Rome I takes precedence over Art. 4
Rome I. In principle Art. 6(2) Rome I also allows the parties to freely choose the applicable
law. This choice, however, may not deprive the consumer from the protection provided by
provisions that cannot be derogated from by agreement under the law that would have been
applicable on the basis of Art. 6(1) Rome I. In the absence of a choice of law clause, Art. 6(1)
Rome I determines the applicable law on the basis of an objective connection, i.e. the
habitual residence of the consumer.
C. Explanation
I. Conclusion
6 The loan agreement is concluded through an informal consent of the parties according to
the general provisions of §§ 145 et seq. Parties usually determine the amount of money made
available to the lender, the period of the loan agreement, the interest and the interest rate, the
terms of payout and repayment and possible securities.
7 If the parties agree on excessively high interest rates the agreement contravenes public
policy and thus is void (§ 138). A clear disproportion in terms of § 138 is given, if the interest
rate agreed upon exceeds the market interest rate by more than 100 percent (relut've
1 Birks, The Roman Law of Obligations (OUP 2014), p. 131 et seq.
2 Detailed historical development of the German loan law: Liibtow, Die Entwicklung des Darlehensbc-
griffs (Dunker & Humblot 1965); Huschke, Die Lehre des römischen Rechts (Schippers 1965).
848
Krämer
Typical contractual duties in a loan contract 8-13 § 488
Sittenwidrigkeit) or, if it exceeds the market interest rate by more than 12 percentage points
(absolute Sittenwidrigkeit)}
II. Duties of the lender
The lender has to make available to the borrower the sum of money in the agreed amount. 8
Thus, object of the loan agreement is the transfer of the sum for use.
1. Made available
The loan is made available to the borrower when the agreed sum is irrevocably segregated 9
from the assets of the lender and has been transferred to the assets of the borrower in the
agreed form.3 4 Thus, the lender can hand over money, provide the sum with cashless
transactions (e.g. money transfer, credit entry) or through a guaranteed overdraft facility.
§§ 270 et seq. apply to questions about allocation of risks, place and time of performance.5
After disbursement, the duty to pay out the sum transforms into the duty to leave the sum
with the borrower.
It can also be sufficient to pay out the sum to a third party.6 In these cases the borrower 10
receives the relief of the liability to the third party (e.g. often in case of financed land
acquisitions). If the third party is assigned to the lender as its extended arm and therefore
does not act in the interest of the borrower, the loan is not effectively made available in the
sense of § 488(1).7
2. Claim for disbursement
The borrower’s claim for disbursement can - as it is an independent claim - be transferred 11
(§§ 398 et seq.), albeit the parties often agree on excluding the assignment of the claim
(§ 399). In principle, the lender can also set off against this claim (§§ 387 et seq.). Due to the
particular interest of the borrower to receive the loan uncut, an interpretation of the contract
according to its rationale and purpose (§ 157) generally shows an implied agreement on a
prohibition of set-off. The lender will be able to set off against the borrower’s claim only by
explicitly providing the right to set off in an individually-agreed period.8
III. Duties of the borrower
The borrower has to pay interest owed and repay the loan to the lender when it falls due 12
(Sub. 1 2nd St.).
1. Replayment
For a claim for repayment (Sub. 1 2nd St.), the loan contract has to be valid, the sum has to 13
be disbursed and repayment has to be due. The claim is due either with the end of the agreed
period or due to an effective termination (Sub. 3 1st St.).9 An interest-free loan can be repaid
at any time (Sub. 3 3rd St.), but if interest is owed the loan can - deviating from the general
rule of § 271(1) - only be repaid on the due date, as long as the parties do not agree
otherwise or the prerequisites for a termination for cause § 490(2) are met.10 In the latter case
the borrower must pay compensation for early repayment of the loan.
3 BGH 29.11.2011 -XI ZR 220/10, NJW-RR 2012,416.
4 BGH 25.4.2006 - XI ZR 193/04, NJW 2006, 1788, 1791 (mn. 31).
5 Staudinger BGB/Freitag, § 488 BGB mn. 155.
6 Staudinger BGB/Freitag, § 488 BGB mn. 156 et seq.
7 MüKo BGB/Berger, § 488 BGB mn. 34; BGH 21.3.2006 - XI ZR 204/03 mn. 14 et seq., ZIP 2006, 846.
8 BGH 24.2.1978 - V ZR 182/75, NJW 1978, 883.
9 staudinger BGB/Freitag, § 488 BGB mn. 165 et seq.
10 For details of the dispute see Staudinger BGB/Freitag, § 488 BGB mn. 168 et seq.
Krämer
849
§ 488 14-20 Division 8. Particular types of obligations
14 a) Modalities. Just as the duty to make the loan available, the duty to repay the loan is a
money debt, which means that the modalities of repayment arise out of §§ 270 et seq. and the
principle of unlimited liability for money debts (Grundsatz der unbeschränkten Vermögens¬
haftung) applies.
15 b) Performance. Mirroring the duty to make the loan available, the duty to repay the loan
is fulfilled when the sum irrevocably became part of the assets of the lender. Normally,
especially in consumer credit agreements, the parties agree on repayment in even instal¬
ments, where every instalment consists of an interest and a repayment component. Hence,
the risk of depreciation of money lies in general with the lender.
2. Interest
16 Even though the legislator deems the non-gratuitous loan agreement to be the rule (Sub. 1
2nd St.), the borrower’s duty to pay consideration is not presumed by law. Every non-
gratuitous loan agreement requires at least an implied agreement on the interest owed.
Interest is normally defined as the consideration for the use of the transferred capital which is
assessed for the agreed period and which is independent from profit or turnover.11 Usually,
this definition also encompasses an agreed disagio (damnum).'2
17 a) Amount. The amount of interest owed depends on the agreement of the parties, which
has to comply with the above mentioned limits set out in § 138. The duty to pay interest
arises with disbursement of the sum and ends with the claim for repayment becoming due,
subject to party autonomy.13 Unless agreed otherwise, the interest becomes either due upon
repayment of the sum if the term of the loan agreement is less than one year or otherwise at
the end of each year (Sub. 2).
18 b) Claim. As an independent claim the claim for interest can be transferred or be attached
and the standard limitation period of three years according to §§ 195, 199 applies.
IV. Acceptance
19 It is disputed if, furthermore, the borrower has a duty to accept the provided sum. The
prevailing view of scholars and case law assumes such a duty for non-gratuitous loan
agreements if the parties agreed on a singular disbursement.14 The underlying purpose for
such duty is the interest of the lender, who can claim damages (§§ 280(1), (3), 281) for non-
acceptance.15
V. Avoidance
20 In case of avoidance of the contract, the legal ground (causa) lapses and the rescission of
the contract is governed by unjustified enrichment law. In most cases - if each party
performed its contractual duty at least partly - both parties will have claims under 812
et seq. At first, the lender can claim the net loan amount. Even if the requirements ot § 817
2nd St. are met, this does not hinder the claim since the net loan amount was never supposed
to stay permanently in the assets of the borrower. In terms of § 812(1) 1st St., performance is
to provide the use of the capital during the agreed period.16 § 817 2nd St. prevents such claim
Palandt BGB/Grünebcrg, § 488 BGB mn. 2; BGH 9.11.1978 - III ZR 21/77 NIW 1979, 806.
BGH 29.5.1990 - XI ZR 231/89, NJW 1990, 2250
” ST! 488 BGB mn' 22; Pala"dtBGB/Grüneberg. § 488 BGB mn. 14.
BeckOK BGB/Rohe, § 488 BGB mn. 24 and 91; Palandt BGB/Weidenkal'f, 8 488 BGB m11-161
contrast Staudinger BGB/Freitag, § 488 BGB mn. 218 cl seq
15 BGH 7.11.2000 - XI ZR 27/00, NJW 2001, 509.
16 BGH 17.1.1995 - XI ZR 225/93, NJW 1995, 1152, 1153; Palandt BGB/Sprau, § 817 BGB inn. 21-
850
Krämer
Right of the borrower to give notice of termination § 489
only regarding the compensation for use of the capital (§ 818(2)) and the repayment of the
capital before the end of the agreed period.
VI. Termination17
Each party» the borrower and the lender, can terminate the loan agreement (Sub. 3 1st St.) 21
without further prerequisites at any time within period of three months (Sub. 3 2nd St.) if a
period for the loan agreement is not agreed upon. The notice of termination is provided with
an informal, unilateral declaration of intent requiring acknowledgement. As a constitutive
declaration of intent (rechtsgestaltende Willenserklärung), it does not permit a condition (in
terms ot § 158). A termination with the option of entering into a new loan agreement with
altered conditions (Änderungskündigung) is permitted.18
1. Notice period
The notice period commences with the receipt of the declaration of termination and is 22
calculated according to §§ 187(1), 188(2).
2. Legal consequences
With an effective termination the loan contract transforms into an obligation of restitution 23
(Rückgewährsschuldverhältnis) of the contract. The lender’s claim for repayment becomes
due and the borrower loses the claim for using the sum, but is released vice versa from the
duty to pay interest.
§489
Right of the borrower to give
notice of termination
(1) The borrower may terminate a loan
contract with a pegged lending rate, in whole
or in part
1. if the pegging of the lending rate ends
prior to the time determined for repayment
and no new agreement is reached on the
lending rate, observing a notice period of
one month to end at the earliest at the end
of the day on which the pegging of the lend¬
ing rate ends; if an adjustment of the lending
rate is agreed at certain intervals of up to one
year, the borrower may only give notice to
end at the end of the day on which the
pegging of the lending rate ends;
2. in any case at the end of ten years after
complete receipt, observing a notice period of
six months; if, after the loan is received, a
new agreement is reached on the repayment
period or the lending rate, the date of this
agreement replaces the date of receipt.
§489
Ordentliches Kündigungsrecht des
Darlehensnehmers
(1) Der Darlehensnehmer kann einen Dar¬
lehensvertrag mit gebundenem Sollzinssatz
ganz oder teilweise kündigen,
1. wenn die Sollzinsbindung vor der für die
Rückzahlung bestimmten Zeit endet und keine
neue Vereinbarung über den Sollzinssatz ge¬
troffen ist, unter Einhaltung einer Kündi¬
gungsfrist von einem Monat frühestens für
den Ablauf des Tages, an dem die Sollzins¬
bindung endet; ist eine Anpassung des Soll¬
zinssatzes in bestimmten Zeiträumen bis zu
einem Jahr vereinbart, so kann der Darlehens¬
nehmer jeweils nur für den Ablauf des Tages,
an dem die Sollzinsbindung endet, kündigen;
2. in jedem Fall nach Ablauf von zehn Jah¬
ren nach dem vollständigen Empfang unter
Einhaltung einer Kündigungsfrist von sechs
Monaten; wird nach dem Empfang des Darle¬
hens eine neue Vereinbarung über die Zeit der
Rückzahlung oder den Sollzinssatz getroffen,
so tritt der Zeitpunkt dieser Vereinbarung an
die Stelle des Zeitpunkts des Empfangs.
17 For limitations of the right of termination see MüKo BCiB/Bergcr, § 488 BGB mn. 236 et seq.;
Staudinger BGB/Mülbert, § 488 BGB mn. 312 et seq.
18 MuKo BGB/Berger, § 488 BGB mn. 231.
Krämer
851
Division 8. Particular types of obligations
§489 1
(2) The borrower may terminate a loan
contract with a variable rate of interest at
any time, giving three months’ notice of ter¬
mination.
(3) Termination by the borrower is deemed
not to have been given if the borrower does
not repay the sum owed within two weeks
after the notice of termination takes effect.
(4) ’The right of termination of the bor¬
rower under subsections (1) and (2) above
may not be excluded or made more difficult
by contract. 2This does not apply to loans to
the Federal Government, to a special fund of
the Federal Government, a Land, a munici¬
pality, an association of municipalities, the
European Communities or foreign regional
or local authorities.
(5) ’The lending rate is the pegged or
changeable periodic percentage that is ap¬
plied per year to the loan that has been taken
up. 2The lending rate is pegged if a lending
rate or several lending rates are agreed for the
entire term of the contract which are ex¬
pressed as a fixed percentage. 3If no lending
rate is agreed for the entire term of the con¬
tract, the lending rate is deemed to be pegged
only for those periods for which it is deter¬
mined by a fixed percentage.
(2) Der Darlehensnehmer kann einen Dar¬
lehensvertrag mit veränderlichem Zinssatz je¬
derzeit unter Einhaltung einer Kündigungs¬
frist von drei Monaten kündigen.
(3) Eine Kündigung des Darlehensnehmers
gilt als nicht erfolgt, wenn er den geschulde¬
ten Betrag nicht binnen zwei Wochen nach
Wirksamwerden der Kündigung zurückzahlt.
(4) ’Das Kündigungsrecht des Darlehens¬
nehmers nach den Absätzen 1 und 2 kann
nicht durch Vertrag ausgeschlossen oder er¬
schwert werden. 2Dies gilt nicht bei Darlehen
an den Bund, ein Sondervermögen des Bun¬
des, ein Land, eine Gemeinde, einen Gemein¬
deverband, die Europäischen Gemeinschaften
oder ausländische Gebietskörperschaften.
(5) ’Sollzinssatz ist der gebundene oder
veränderliche periodische Prozentsatz, der
pro Jahr auf das in Anspruch genommene
Darlehen angewendet wird. 2Der Sollzinssatz
ist gebunden, wenn für die gesamte Vertrags¬
laufzeit ein Sollzinssatz oder mehrere Soll¬
zinssätze vereinbart sind, die als feststehende
Prozentzahl ausgedrückt werden. 3Ist für die
gesamte Vertragslaufzeit keine Sollzinsbin¬
dung vereinbart, gilt der Sollzinssatz nur für
diejenigen Zeiträume als gebunden, für die er
durch eine feste Prozentzahl bestimmt ist.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. General requirements 4
II. Pegged lending rate 5
1. Application 6
2. Termination 7
III. Variable rate 9
IV. Ineffective termination 10
V. Deviating agreements H
A. Function
I. Purpose
§ 489 extends the right to terminate the loan contract (§ 488(3)) in favour of the borrower.
It does not exclude a right to terminate the contract arising out of other provisions. By
stipulating these extended rights as mandatory (Sub. 4), the borrower has leverage at hand
to adapt the agreed interest rate to a possibly lower market rate of interest. In extension of
§ 488(3), the borrower can even terminate the contract if the parties agreed on a fixed period
for the contract.
852
Krämer
Right of the borrower to give notice of termination
2-8 § 489
IL Scope of application
Sub. 1 Nos 1 and 2, and Sub. 2 contain three different rights of termination. Sub. 1 only 2
applies to loan contracts with a pegged lending rate, whereas Sub. 2 only applies to contracts
with a changeable lending rate.
B. Context
In a cross-border transaction subject to the Rome I Regulation, it is disputed whether 3
§ 489 - despite its mandatory character - can be excluded by agreement of the parties or if its
application is mandatory via Art. 9 Rome I.1
C. Explanation
I. General requirements
The loan contract has to be valid and an obligation to pay interest has to be agreed upon in 4
order for Subs 1 and 2 to apply.
IL Pegged lending rate
Sub. 1 only applies if the lending rate is pegged. The term lending rate was introduced by 5
the implementation of the EU Consumer Credit Directive and is legally defined in Sub. 5
1st St. as pegged or changeable periodic percentage that is applied per year to the loan that
has been taken up.
1. Application
Pursuant to Sub. 5 2nd St., a lending rate is pegged if a lending rate or several lending rates 6
are agreed upon for the entire period of the contract, which are expressed as a fixed
percentage. If the parties agree on a lending rate only for a part of the contractual period,
the lending rate is only pegged for the respective period in which the rate is expressed as a
fixed percentage (3rd St.).
2. Termination
If the pegging of the lending rate ends before repayment is due and the parties did not 7
agree upon a new interest rate, according to No. 1 the borrower can terminate the loan
contract. The second part of No. 1 pertains to the special case2 that the parties agreed on an
adjustment of the lending rate in certain - not necessarily equally long, but typically short¬
term - periods up to one year. This provision covers in particular so-called roll-over credit
agreements, where the interest rate is adapted to a certain reference interest rate (§ 675g(3)
2nd St.) within certain periods.3 In both cases the notice period amounts to one month.
Under No. 2 any loan contract can be terminated at the end of 10 years after disburse- 8
ment, irrespective of the agreed period, interest rate or pegged lending rate. The notice
period amounts to six months, so that the earliest time for the termination is at the end of 10
years and six months.4 In case of a prolongation agreement, the relevant point in time for
1 Staudinger BGB/Mülberg § 489 BGB mn. 76 el seq.
2 MüKo BGB/Berger, § 489 BGB mn. 9.
3 BT-Drs. 10/4741 of 29.1.1986, p. 22.
4 BeckOK BGB/Rohe, § 489 BGB mn. 22.
Krämer
853
§ 490 Division 8. Particular types of obligations
calculating the 10-year period is not the original disbursement of the sum, but the conclusion
of the prolongation agreement.
III. Variable rate
9 Sub. 2 pertains to loan contracts where the lending rate, irrespective of the reason, can
change at any time5 without a new agreement (e.g. pegging to the basic rate of interest
(§ 247) or unilateral determination according to § 3156). In these cases, the borrower can
terminate the contract with a notice period of three months. The right to terminate arises
with conclusion of the contract, leading to a minimum duration of the contract of three
months.
IV. Ineffective termination
10 Under Sub. 3, termination is deemed not to have been given if the borrower does not
repay the sum within two weeks after the notice of termination takes effect (receipt).
The purpose of this legal fiction is to prevent the abuse of the right of termination to
obtain default interest, if such interest is less than the contractually-owed lending rate.7
Sub. 3 applies to all loan contracts and is not limited to contracts terminated pursuant to
Sub. 1 or 2.
V. Deviating agreements
11 Sub. 4 1st St. stipulates the borrower’s rights of termination (Subs 1 and 2) as mandatory
law. Deviating agreements are a violation of a statutory prohibition (§ 134) and void. Sub. 4
encompasses the exclusion of the right as well as mere restrictions such as the stipulation of a
compensation of the early repayment of the loan, a contractual penalty or an extension of the
notice period.8 The Ioan contract, however, stays effective to protect the contractual interest
of the borrower.9 The 2nd St. states an exception if the borrower is one of the mentioned
corporations under public law.
§490
Right to terminate for cause
(1) If there is or threatens to be a substan¬
tial deterioration in the financial circum¬
stances of the borrower or in the value of a
security given for the loan as a result of which
the repayment of the loan is jeopardised even
if the security is realised, the lender may give
notice of termination of the loan agreement
with immediate effect; in case of doubt, ex¬
traordinary notice of termination is available
before the loan is paid out, under all circum¬
stances, but, after the loan has been paid out,
only as a general rule.
§490
Außerordentliches
Kündigungsrecht
(1) Wenn in den Vermögensverhältnissen
des Darlehensnehmers oder in der Werthal-
tigkeit einer für das Darlehen gestellten Si¬
cherheit eine wesentliche Verschlechterung
eintritt oder einzutreten droht, durch die die
Rückzahlung des Darlehens, auch unter Ver¬
wertung der Sicherheit, gefährdet wird, kann
der Darlehensgeber den Darlehensvertrag vor
Auszahlung des Darlehens im Zweifel stets,
nach Auszahlung nur in der Regel fristlos
kündigen.
5 BT-Drs. 10/4741 of 29.1.1986, p. 23.
6 For further examples see Staudinger BGB/Mülbert § 489, BGB mn. 54 et seo
7 Palandt BGB/Weidenkaff, § 489 BGB mn. 12.
’ Begr. BT-Drs. 10/4741 of 29.1.1986, p. 23. For further restrictions in this context see: Staudinger BGB/
Mülbert, § 489 BOB mn. 69 et seq.
9 MüKo BGB/Berger, § 489 BGB mn. 19.
854
Krämer
Right to terminate for cause
1-2 § 490
(2) lrThe borrower may give early notice of
termination of a loan contract where the
lending rate is pegged and the loan is secured
by a security right in land or a maritime lien,
complying with the notice periods in § 488(3)
sentence 2, if his justified interests require
this and six months have expired since the
complete receipt of the loan. 2There is such
an interest in particular, without limitation,
if the borrower has the need to otherwise
realise the thing pledged to secure the loan.
3The borrower must compensate the lender
for the damage incurred by the lender as a
result of this early termination (compensa¬
tion for early repayment of the loan).
(3) The provisions of §§ 313 and 314 are
unaffected.
(2) lDer Darlehensnehmer kann einen Dar¬
lehensvertrag, bei dem der Sollzinssatz ge¬
bunden und das Darlehen durch ein Grund¬
oder Schiffspfandrecht gesichert ist, unter
Einhaltung der Fristen des § 488 Abs. 3 Satz 2
vorzeitig kündigen, wenn seine berechtigten
Interessen dies gebieten und seit dem voll¬
ständigen Empfang des Darlehens sechs Mo¬
nate abgelaufen sind. 2Ein solches Interesse
liegt insbesondere vor, wenn der Darlehens¬
nehmer ein Bedürfnis nach einer anderwei¬
tigen Verwertung der zur Sicherung des
Darlehens beliehenen Sache hat. 3Der Darle¬
hensnehmer hat dem Darlehensgeber denje¬
nigen Schaden zu ersetzen, der diesem aus
der vorzeitigen Kündigung entsteht (Vorfäl¬
ligkeitsentschädigung).
(3) Die Vorschriften der §§ 313 und 314
bleiben unberührt.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Explanation 3
I. Lender’s termination right 3
1. Substantial deterioration 4
a) Time 5
b) Scope 6
2. Effect 7
II. Borrower’s right of termination 8
1. Otherwise realise 10
2. Validity 11
3. Effect 12
III. Adaption and termination for compelling reason 13
A. Function
I. Purpose
§ 490 serves to grant the parties the right to terminate the contract at short notice to 1
protect their financial interests and grant compensation for possible damage upon the
manifestation of risks typical to a loan contract. The loan contract must be valid, whereas
the disbursement of the loan is not required (Sub. 1).
IL Scope of application
§ 490 in general applies to any loan contract, except for Sub. 2 which is only applicable to 2
loan contracts with a pegged lending rate and if the claim for repayment (§ 488(1) 2nd St.) is
secured by a security right in land or a maritime lien.
Krämer
855
§ 490 3-9
Division 8. Particular types of obligations
B. Explanation
L Lender’s termination right
3 The right of termination for cause (außerordentliche Kündigung or Kündigung aus
wichtigem Grund) of the lender (Sub. 1) requires a valid loan contract and a risk for
repayment of the sum caused by a substantial deterioration in the financial circumstances
of the borrower or in the value of a security given. A risk for non- or only partial
performance of repayment for the point in time when the claim for repayment becomes
due must exist at the time of termination. A possible security given must not, hypothetically
realised, suffice to fulfil the claim of the lender.
1. Substantial deterioration
4 The substantial deterioration is determined objectively and must be causal for the risk. It
must occur after the conclusion of the contract, but not necessarily after disbursement of the
sum. According to the BGH, the lender is precluded from the right of termination if the
lender has known of the underlying circumstances of the termination already at the time of
the conclusion of the contract.1
5 a) Time. With the wording threatens to be, the legislator emphasises, that the lender does
not have to wait for the actual occurrence of the substantial deterioration, but rather can
terminate the contract at the time the deterioration and the resulting risk for the repayment
of the sum becomes clearly apparent (sich sichtbar abzeichnet).2
6 b) Scope. The deterioration refers to all assets underlying compulsory enforcement3 and
to the value of the security given (e.g. deterioration in the assets of a provided surety).
2. Effect
7 If all requirements are met, termination is available; in case of doubt under all circum¬
stances before the loan is paid out and after disbursement only as a general rule. It is
necessary to comprehensively evaluate the respective situation in order to determine whether
the general rule applies.4
II. Borrower’s right of termination
8 The right of termination for cause of the borrower (Sub. 2) also requires a valid loan
contract and a pegged lending rate (Sub. 5). Moreover, the claim for repayment has to be
secured by a security right in land or a maritime lien and requires a justified interest
(berechtigtes Interesse) of the borrower for the termination. Possible security rights in land
are the mortgage (§§ 1113 et seq.), the land charge (§§ 1191 et seq.) and the annuity land
charge (§§ 1199 et seq.). The borrower does not need to own the property.
9 The criteria for the justified interest derive from the decisions of the BGH. The legislator
included these criteria in law to create legal certainty and legal clarity.5
1 BGH 7.5.2002 - XI ZR 236/01, NJW 2002, 3167.
2 BT-Drs. 14/6040 of 26.11.2001, p. 254.
3 Palandt BGB/Weidenkaff, § 490 BGB mn. 13.
4 BT-Drs. 14/6040 of 26.11.2001, p. 254.
5 BT-Drs. 14/6040 of 26.11.2001, p. 254.
856
Krämer
Consumer credit agreement
§491
1. Otherwise realise
According to the BGH, the key criterion for determining this justified interest is the 10
economic freedom of action of the borrower in relation to the security object given. There¬
fore, the 2nd St. states the need for an alternative use (otherwise realise) of the security as an
example.6 The interest in alternative use can consist of any disposition, e.g. unencumbered
transfer or use as security for another loan contract.7 The need for alternative use can only be
given as long as the intended use is only possible with termination of the contract. The
question of justification does not depend on the motives for the use and, therefore, also
private motives matter, such as divorce, illness, move or the use of a favourable opportunity
to sell the object.8 The economic freedom of action is not affected if the borrower only
intends to achieve more beneficial terms for the loan.9
2. Validity
Valid termination requires receipt of the sum in full at least six months prior to the 11
termination. The notice of termination has to be valid and - in contrast to Sub. 1 - the notice
period of three months (§ 488(3) 2nd St.) applies.
3. Effect
As a result of a valid termination pursuant to Sub. 2 1st St., the borrower has to pay 12
compensation for early repayment of the loan (3rd St.). The term compensation for early
repayment of the loan is legally defined in the 3rd St. as the damage incurred by the lender as
a result of early termination of the contract. The legal nature of this claim is disputed.10 The
purpose of this regulation is to prevent the borrower from achieving benefits or incurring
detriments from early termination.11 The legislator left the exact calculation of this claim to
the courts.12
III. Adaption and termination for compelling reason
The reference in Sub. 3 recalling that §§ 313, 314 are not affected by this provision only 13
has clarifying function.13
Chapter 2
Special provisions for consumer
credit agreements
Kapitel 2
Besondere Vorschriften für
V erbraucherdarlehensverträge
§491
Consumer credit agreement
(1) ’The provisions of this chapter apply to
consumer credit agreements, unless otherwise
provided. 2Consumer credit agreements are
§491
V erbraucherdarlehensvertrag
(1) ‘Die Vorschriften dieses Kapitels gelten
für Verbraucherdarlehensverträge, soweit
nichts anderes bestimmt ist. 2Verbraucher-
6 For other justified interests see Staudinger BGB/Mülbert, § 490 BGB mn. 72 et seq.
7 Staudinger BGB/Mülbert, § 490 BGB mn. 66.
8 BT-Drs. 14/6040 of 26.11.2001, p. 254 et seq.
9 Palandt BGB/Weidenkaff, § 490 BGB mn. 6; MüKo BGB/Berger, § 490 BGB mn. 26.
10 See Staudinger BGB/Muibert § 490 BGB mn. 83 et seq. for the differing legal opinions,
n BGH 1.7.1997 - XI ZR 267/96, NJW 1997, 2875.
12 For methods of calculation: Staudinger BGB/Mülbert, § 490 BGB mn. 89 et seq.
13 BT-Drs. 14/6040 of 26.11.2001, p. 255.
Krämer
857
Division 8. Particular types of obligations
§491
general consumer credit agreements and real
estate consumer credit agreements.
(2) ‘General consumer credit agreements
are nongratuitous loan contracts between an
entrepreneur as lender and a consumer as
borrower. Agreements
1. in which the net loan amount
(Article 247 § 3(2) of the Introductory Act to
the Civil Code [Einführungsgesetz zum Bür¬
gerlichen Gesetzbuch]) is less than 200 euro,
2. where the liability of the borrower is
restricted to a thing surrendered to the lender
as a pledge,
3. where the borrower must repay the loan
within three months and only low costs are
agreed,
4. which employers conclude with their
employees as an additional benefit to the
employment contract at a lower effective an¬
nual interest rate than the going market rate
(§ 6 of the Ordinance on Price Information
[Preisangabenverordnung]) and which are
not offered to other persons,
5. which are only concluded with a limited
group of individuals on the basis of legal
provisions in the public interest if conditions
are agreed in the contract for the borrower
which are more favourable to the borrower
than the going market rates and a maximum
of the going lending rate on the market is
agreed.
6. which are a real estate consumer credit
agreement or an equity release credit agree¬
ment under subsection (3).
are not general consumer credit agreements.
(3) ‘Real estate consumer credit agree¬
ments are nongratuitous loan contracts be¬
tween an entrepreneur as lender and a con¬
sumer as borrower, which
1. are secured by an encumbrance or a
charge on land or
2. are for the acquisition or retention of
property rights in land, in existing buildings
or buildings to be constructed or for the
acquisition or retention of rights equivalent
to those in land.
2Contracts under subsection (2) sentence 2
No. 4 are not real estate consumer credit
agreements. 3Only §491a(4) applies to real
estate consumer credit agreements under
subsection (2) sentence 2 No. 5. 4Equity re¬
lease credit agreements in which the lender
darlehensverträge sind Allgemein-Verbrau-
cherdarlchensverträge und Immobiliar-Ver-
braucherdarlehensverträge.
(2) ‘Allgemein-Verbraucherdarlehensver¬
träge sind entgeltliche Darlehensverträge
zwischen einem Unternehmer als Darlehens¬
geber und einem Verbraucher als Darlehens¬
nehmer. 1 2Keine Allgemein-Verbraucherdar¬
lehensverträge sind Verträge,
1. bei denen der Nettodarlehensbetrag
(Artikel 247 § 3 Abs. 2 des Einführungsgeset¬
zes zum Bürgerlichen Gesetzbuche) weniger
als 200 Euro beträgt,
2. bei denen sich die Haftung des Darle¬
hensnehmers auf eine dem Darlehensgeber
zum Pfand übergebene Sache beschränkt,
3. bei denen der Darlehensnehmer das Dar¬
lehen binnen drei Monaten zurückzuzahlen
hat und nur geringe Kosten vereinbart sind,
4. die von Arbeitgebern mit ihren Arbeit¬
nehmern als Nebenleistung zum Arbeitsver¬
trag zu einem niedrigeren als dem markt¬
üblichen effektiven Jahreszins (§ 6 der
Preisangabenverordnung) abgeschlossen wer¬
den und anderen Personen nicht angeboten
werden,
5. die nur mit einem begrenzten Personen¬
kreis auf Grund von Rechtsvorschriften in
öffentlichem Interesse abgeschlossen werden,
wenn im Vertrag für den Darlehensnehmer
günstigere als marktübliche Bedingungen
und höchstens der marktübliche Sollzinssatz
vereinbart sind,
6. bei denen es sich um Immobiliar-Ver-
braucherdariehensvertrage oder Immobilien-
verzehrkreditverträge gemäß Absatz 3 handelt.
(3) 1 Immobiliar-V erbraucherdarlehensver-
träge sind entgeltliche Darlehensverträge zwi¬
schen einem Unternehmer als Darlehensgeber
und einem Verbraucher als Darlehensneh¬
mer, die
1. durch ein Grundpfandrecht oder eine
Reallast besichert sind oder
2. für den Erwerb oder die Erhaltung des
Eigentumsrechts an Grundstücken, an beste¬
henden oder zu errichtenden Gebäuden oder
für den Erwerb oder die Erhaltung von
grundstücksgleichen Rechten bestimmt sind.
2Keine Immobiliar-Verbraucherdarlehens-
verträge sind Verträge gemäß Absatz 2 Satz 2
Nummer 4. Auf Immobiliar-Verbraucher¬
darlehensverträge gemäß Absatz 2 Satz1
Nummer 5 ist nur §491a Absatz 4 anwend¬
bar. ‘Keine Immobiliar-Verbraucherdarle¬
hensverträge sind Immobilienverzehrkredit¬
verträge, bei denen der Kreditgeber
858
Krämer
Consumer credit agreement
1. contributes a lump sum, periodic pay¬
ments or other forms of credit disbursement
in return for a sum deriving from the future
sale of a residential immovable property or a
right relating to residential immovable prop¬
erty and
2. demands repayment only after the death
of the consumer, unless the consumer
breaches his contractual obligations which
allows the lender to terminate the contract
are not real estate consumer credit agree¬
ments.
(4) § 358 subsections (2) and (4), as well as
§§ 491a to 495 and 505a to 505e, do not
apply to loan contracts incorporated in a
court record drawn up in compliance with
the provisions of the Code of Civil Procedure
[Zivilprozessordnung] or determined by a
court order on the establishment and the
content of a settlement concluded between
the parties if the record or order on the
lending rate contains the lending rate, the
costs of the loan invoiced when the contract
was entered into, and the conditions under
which the lending rate or the costs may be
adjusted.
§491
1. pauschale oder regelmäßige Zahlungen
leistet oder andere Formen der Kreditauszah¬
lung vornimmt und im Gegenzug nur einen
Betrag aus dem künftigen Erlös des Verkaufs
einer Wohnimmobilie erhält oder ein Recht
an einer Wohnimmobilie erwirbt und
2. erst nach dem Tod des Verbrauchers
eine Rückzahlung fordert, außer der Verbrau¬
cher verstößt gegen die Vertragsbestimmun¬
gen, was dem Kreditgeber erlaubt, den Ver¬
trag zu kündigen.
(4) § 358 Abs. 2 und 4 sowie die §§ 491a bis
495 und 505a bis 505e sind nicht auf Darle¬
hensverträge anzuwenden, die in ein nach den
Vorschriften der Zivilprozessordnung errich¬
tetes gerichtliches Protokoll aufgenommen
oder durch einen gerichtlichen Beschluss
über das Zustandekommen und den Inhalt
eines zwischen den Parteien geschlossenen
Vergleichs festgestellt sind, wenn in das Pro¬
tokoll oder den Beschluss der Sollzinssatz, die
bei Abschluss des Vertrags in Rechnung ge¬
stellten Kosten des Darlehens sowie die Vo¬
raussetzungen aufgenommen worden sind,
unter denen der Sollzinssatz oder die Kosten
angepasst werden können.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
1. Multiple borrowers 3
2. Legal classification of the parties 4
B. Context 5
C. Explanation 6
I. Defintions 6
1. General consumer credit agreement 7
a) Threshold 8
b) Pledge 9
c) Costs 10
d) Employment relationship 11
e) Public interest 12
f) Real estate consumer credit agreement 13
2. Relating to real estate 14
a) Encumbrances 15
b) Real estate 16
3. Employment relationship 17
4. Reverse mortgages 18
II. Recorded credit agreements 19
Krämer
859
§ 491 1-4
Division 8. Particular types of obligations
A. Function
I. Purpose
1 The loan contract poses the risks of indebtedness to the consumer. Being bound - often
over several years — to a contract involving minor instalments may blur the awareness of the
total sum due. Unforeseen changes in the financial circumstances during the contract period
(such as unemployment due to illness) that lead to an overindebtedness of the consumer are
not taken into account. §§ 491 et seq. reduce these risks.
IL Scope of application
2 According to Sub. 1 1st St., the provisions of this chapter (i.e. §§ 491-505e) only apply to
loan contracts with a consumer as borrower (§ 13) and an entrepreneur (§ 14) as lender.
§ 491 introduces the term consumer credit agreement (Verbraucherdarlehensvertrag) as a
collective term that includes general consumer credit agreements (Allgemein-Verbraucherdar-
lehensverträge) and consumer credit agreements relating to real estate (bnmobiliar-Verbrau-
cherdarlehensvertrage). The consumer credit agreement without charge, however, is not
covered by § 491, but regulated in § 514. § 491 is of mandatory nature (§ 512).
1. Multiple borrowers
3 In case of a contract between more than one borrower and a lender, the application of the
§§ 491 et seq. must be evaluated separately for each party to the contract.1
2. Legal classification of the parties
4 Changes in these requirements after conclusion of the contract - the consumer becomes
an entrepreneur or the entrepreneur a consumer - do not affect the classification as a
consumer credit agreement.2 This also applies to legal successions if the new lender is not
an entrepreneur / the new borrower is not a consumer. However, in case of an assumption
of debt3 - if the transferee is a consumer and the original borrower was an entrepreneur -
and in case of an assumption of contract4, §§ 491 et seq. have to be applied analogously to
the assumption-contract (Übernahmevertrag) if it is a trilateral contract between trans¬
feree, obligee, and obligor.5 An existing right of withdrawal of the previous borrower
passes over to a new consumer-borrower with a new notice period.6 The collateral
assumption of debt (Schuldbeitritt) of a consumer is deemed to be equivalent to the
conclusion of a consumer credit agreement.7 §§ 491 et seq. are not applied analogously to
the suretyship (§§ 765 et seq.). On the one hand, these provisions provide a specific
protection concept for the surety and, on the other hand, the obligation of the surety only
constitutes an accessory liability.8
' faland, BGB/Ycidenkaff’ § 491 BGB mn- 5; müKo BGB/Schürnbrand, § 491 BGB mn. 14.
MüKo BGB/Schürnbrand, § 491 BGB mn. 27.
3 MüKo BGB/Schürnbrand, § 491 BGB mn. 28.
4 BGH 26.5.1999 - VIII ZR 141/98, NJW 1999* 2664.
5 MüKo BGB/Schürnbrand, § 491 BGB mn. 31.
6 Palandt BGB/Weidenkaff, § 491 BGB mn. 9.
7 BGH 8.11.2005 - XI ZR 34/05, NJW 2006, 431; BGH 12.11.2015 - 1 ZR 168/14 DNotZ 2016, 609;
BGH 25.10.2011 - XI ZR 331/10, NJW-RR 2012, 166.
8 BGH 21.4.1998 - IX ZR 258/97, DStR 1998, 944, 945.
860
Krämer
Consumer credit agreement
5-12 § 491
B. Context
The consumer credit agreement was originally regulated in § 1 VerbrKrG (Verbraucher- 5
kreditgesetz - Act concerning consumer credit). In the course of the modernisation of the law
of obligations in 2002, the VerbrKrG was implemented into the BGB without major changes.
The VerbrKrG itself transposes the 1986 Consumer Credit Directive.9 After replacement
through the new EU Consumer Credit Directive of 2008, § 491 was reformulated in course of
the respective implementing legislation without deviation from its content. The latest changes
trace back to the EU Mortgage Credit Directive and its implementing legislation by
introducing the term consumer credit agreements as well as the distinction between general
consumer credit agreements and consumer credit agreements relating to real estate.
C. Explanation
L Defintions
Sub. 1 2nd St. legally defines the consumer credit agreement as general consumer credit 6
agreements and consumer credit agreements relating to real estate.
1. General consumer credit agreement
Sub. 2 1st St. defines the general consumer credit agreement as a non-gratuitous loan 7
contract (§ 488(1)) between an entrepreneur (§ 14) and a consumer (§ 13). According to
the legal fiction in Sub. 2 2nd St., the following contracts are not considered as consumer
credit agreements. However, the classification as consumer contract (§311(3)) remains
unaffected:
a) Threshold. No. 1 applies if the net loan amount (Art. 247 § 3(2) EGBGB) is less than 8
200 euro. The purpose of this exception is to ease the conditions for concluding consumer
credit agreements, which - due to the low sum - typically involve no major risk. If the parties
split a contract, which from an economic perspective is regarded as a single credit agreement,
into several individual contracts with a net loan amount below 200 euro each, this is a
circumvention transaction and § 512 2nd St. applies.
b) Pledge. No. 2 applies if the parties create a valid pledge (§§ 1204 et seq.) and restrict the 9
liability of the borrower to the item surrendered as pledge.
c) Costs. No. 3: To secure a high level of consumer protection, the term costs has to be 10
understood broadly. It also covers costs that only arise under certain circumstances, such as
an above average default interest.10
d) Employment relationship. No. 4: The employment relationship must exist at the time 11
of conclusion of the contract. A possible subsequent ending does not lead to the application
of §§ 492 et seq.
e) Public interest. No. 5 encompasses all loans based on provisions of public interest. The 12
scope of application covers not only contracts concluded directly with the supporting agency
but also conducted loan contracts (durchgeleitete Darlehensverträge) with the borrower’s
bank.11
’Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations
and administrative provisions of the Member States concerning consumer credit.
10 BT-Drs. 16/11643 of 21.1.2009, p. 77.
11 BeckOK BGB/Möller, § 491 BGB mn. 86.
Krämer
861
§ 491 13-19 Division 8. Particular types of obligations
13 f) Real estate consumer credit agreement. No. 6 clarifies that real estate consumer credit
agreements or equity release credit agreements as defined under Sub. 3 are not general
consumer credit agreements.
2. Relating to real estate
14 Sub. 3 defines the consumer credit agreement relating to real estate as non-gratuitous
credit agreements between an entrepreneur (§ 14) and a consumer (§ 13), which either are
secured by a security right in terms of No. 1 or concluded for the purpose to acquire or retain
property rights in land (No. 2). If the contract fulfills these requirements, it is not treated as a
general consumer credit agreement (Sub. 2 No. 6).
15 a) Encumbrances. Possible encumbrances in land (No. 1) include the mortgage (§§ 1113
et seq.), the land charge (§§ 1191 et seq.) and the annuity land charge (§§ 1199 et seq.) and,
besides these encumbrances, the charge of land (§ 1105). These rights require a connection
between the security and the credit agreement in the security agreement (Sicherungsabrede))2
16 b) Real estate. Under No. 2, the consumer credit agreement relates to real estate if the
purpose of the credit is to acquire or retain property rights in land, an equivalent right
(grundstücksgleiches Recht) or property rights in a building (existing or to be constructed).
Retention is to be interpreted restrictively. It only covers measures to prevent losing the
property right and not as such to preserve the substance of the object.12 13 Equivalent rights are
all limited rights in rem in the plot of land, which are subject to the provisions for the plot of
land, such as the heritable building right (Erbbaurecht)* the individual ownership of a
building14 (selbstständiges Gebäudeeigentum) or the ownership of an apartment15 (Wohnungs¬
eigentum).
3. Employment relationship
17 Contracts in terms of Sub. 2 2nd St. No. 4 are not consumer credit agreements relating to
real estate (Sub. 3 2nd St.). According to Sub. 3 3rd St., only the pre-contractual information
obligation of § 491a(4) applies to consumer credit agreements relating to real estate which
fulfil the requirements of Sub. 2 2nd St. No. 5.
4. Reverse mortgages
18 Reverse mortgages (Immobilienverzehrkredite) are entirely excluded from consumer credit
law under the prerequisites of Sub. 3 4th St. and Sub. 2 2nd St. No. 6.16 The exception under
Sub. 3 4th St. applies if the lender only receives a certain amount of the prospective sale
proceeds of the immovable property or receives a property right as consideration (No. 1), and
if the lender can claim repayment after the death of the borrower at the earliest, unless the
lender is entitled to terminate the contract on grounds of breach of contractual duties of the
borrower (No. 2).
II. Recorded credit agreements
19 Sub. 4 is based on Art. 3(2)(e) EU Mortgage Credit Directive and stipulates a partial
exception for credit agreements which are recorded by a court under §§ 160 et seq. ZPO or
established in a court settlement of the parties pursuant to § 278(6) ZPO. The record of an
12 Palandt BGB/Weidenkaff, § 491 BGB mn. 19.
’’ BT-Drs. 18/5922 of 7.9.2015, p. 77; Recital 15 EU Mortgage Credit Directive
H BT-Drs. 18/5922 of 7.9.2015, p. 77.
15 MüKo BGB/Schürnbrand, § 491 BGB mn. 79.
16 Art. 3(2)(a) EU Mortgage Credit Directive.
862
Krämer
Preliminary contract information obligations § 491a
arbitral tribunal competent to take the decision is sufficient.17 The record and the order must
contain the lending rate, the cost for concluding the contract and the prerequisites for
adapting the lending rate or the costs.
§ 491a
Preliminary contract information
obligations with consumer credit
agreements
(1) The lender is obliged to inform the
borrower in accordance with Article 247 of
the Introductory Act to the Civil Code [Ein-
fuhrungsgesetz zum Bürgerlichen Gesetz¬
buche].
(2) ’The borrower may require from the
lender a draft of the consumer credit agree¬
ment. 2This does not apply insofar as the
lender is not willing to conclude the contract.
3If the lender in a real estate consumer credit
contract submits to the borrower an offer or
a binding proposal for certain terms of the
contract, he must offer to hand over or trans¬
mit a draft of the contract to the borrower; if
there is not right of withdrawal under § 495,
the lender is obliged to hand over or transmit
a draft of the contract to the borrower.
(3) ’The lender is obliged to give the bor¬
rower adequate explanations prior to the con¬
clusion of a consumer credit agreement in
order to place the borrower in a position
enabling him to assess whether the agreement
are adapted to the purpose he is pursuing and
his financial situation. 2Where appropriate,
the pre-contractual information under
subsection (1), the essential characteristics of
the contracts offers by the lender as well as
the typical contractual effects on the bor¬
rower, including the consequences of default
of payment, are to be explained. 3If financial
products or serves are offered in a bundle
with a real estate consumer credit agreement,
it must be explained to the borrower whether
they can be terminated separately and what
are the consequences of the termination.
(4) ’In a real estate consumer credit agree¬
ment corresponding to §491(2) sentence 2
No. 5, the lender is obliged to inform the
§ 491a
Vorvertragliche
Informationspflichten bei
V erbraucherdarlehensverträgen
(1) Der Darlehensgeber ist verpflichtet, den
Darlehensnehmer nach Maßgabe des Arti¬
kels 247 des Einführungsgesetzes zum Bür¬
gerlichen Gesetzbuche zu informieren.
(2) ’Der Darlehensnehmer kann vom Dar¬
lehensgeber einen Entwurf des Verbraucher¬
darlehensvertrags verlangen. 2Dies gilt nicht,
solange der Darlehensgeber zum Vertrags¬
abschluss nicht bereit ist. 3Unterbreitet der
Darlehensgeber bei einem Immobiliar-Ver¬
braucherdarlehensvertrag dem Darlehensneh¬
mer ein Angebot oder einen bindenden Vor¬
schlag für bestimmte Vertragsbestimmungen,
so muss er dem Darlehensnehmer anbieten,
einen Vertragsentwurf auszuhändigen oder
zu übermitteln; besteht kein Widerrufsrecht
nach § 495, ist der Darlehensgeber dazu ver¬
pflichtet, dem Darlehensnehmer einen Ver¬
tragsentwurf auszuhändigen oder zu übermit¬
teln.
(3) ’Der Darlehensgeber ist verpflichtet,
dem Darlehensnehmer vor Abschluss eines
Verbraucherdarlehensvertrags angemessene
Erläuterungen zu geben, damit der Darle¬
hensnehmer in die Lage versetzt wird, zu
beurteilen, ob der Vertrag dem von ihm ver¬
folgten Zweck und seinen Vermögensverhält¬
nissen gerecht wird. 2Hierzu sind gegebenen¬
falls die vorvertraglichen Informationen
gemäß Absatz 1, die Hauptmerkmale der
vom Darlehensgeber angebotenen Verträge
sowie ihre vertragstypischen Auswirkungen
auf den Darlehensnehmer, einschließlich der
Folgen bei Zahlungsverzug, zu erläutern.
3Werden mit einem Immobiliar-Verbraucher¬
darlehensvertrag Finanzprodukte oder -dienst-
leistungen im Paket angeboten, so muss dem
Darlehensnehmer erläutert werden, ob sie ge¬
sondert gekündigt werden können und wel¬
che Folgen die Kündigung hat.
(4) ’Bei einem Immobiliar-Verbraucher¬
darlehensvertrag entsprechend § 491 Absatz 2
Satz 2 Nummer 5 ist der Darlehensgeber ver-
17 MüKo BGB/Schürnbrand, §491 BGB mn. 85; BeckOK BGB/Möller, §491 BGB mn. 90; other
opinion: Staudinger BGB/Kessal-Wulf, § 491 BGB mn. 89.
Krämer
863
§ 491a 1-4
Division 8. Particular types of obligations
borrower on a durable medium of the char¬
acteristics in accordance with divisions 3, 4
and 13 of the model form named in
Article 247 § 1 subsection (2) sentence 2 of
the Introductory Act to the Civil Code (Ein-
fuhrungsgesetz zum Bürgerlichen Gesetz¬
buche] in good time before the submission
of his contractual declaration. 1 2Article 247
§ 1 subsection (2) sentence 6 of the Introduc¬
tory Act to the Civil Code applies.
pflichtet, den Darlehensnehmer rechtzeitig
vor Abgabe von dessen Vertragser Waning
auf einem dauerhaften Datenträger über die
Merkmale gemäß den Abschnitten 3, 4 und
13 des in Artikel 247 § 1 Absatz 2 Satz 2 des
Einführungsgesetzes zum Bürgerlichen Ge¬
setzbuche genannten Musters zu informieren.
2Artikel 247 § 1 Absatz 2 Satz 6 des Einfüh¬
rungsgesetzes zum Bürgerlichen Gesetzbuche
findet Anwendung.
A. Function
1 § 491a implements Arts 5 and 6 EU Consumer Credit Directive and Arts 14 and 16 EU
Mortgage Credit Directive. It states comprehensive pre-contractual information obligations
for the lender. The substance of these obligations is laid down in the EGBGB. Even though
the contract is technically not yet concluded, the provision uses the terms borrower and
lender to use uniform terminology and to show that the parties must have had a certain kind
of contractual contact.1 § 491a applies not only to the entrepreneur as lender but also to a
credit intermediary (§ 655a(2) 2nd St.). § 491a is of mandatory nature (§ 512).
B. Explanation
I. Pre-contractual obligation
2 Sub. 1 requires an obligation in terms of § 311(2).2 Other pre-contractual information
obligations arising, for example out of § 312d, exist independently. Art. 247 EGBGB contains
regulations for the relevant point in time to provide the information (§§ 1, 2, 5), for the form
(§§ 1, 2, 5) and the content of the information (§§ 1, 3, 4, 8) for consumer credit agreements
relating to real estate and general consumer credit agreements respectively.
IL Draft contract
3 Sub. 2 grants the borrower an individual claim for a draft of the contract. This claim exists
independently from the information obligation of the lender in Sub. 1 and even if the
borrower already received a sample in terms of schedule 4 of the EGBGB (Art. 247 § 2(2)
EGBGB). Under Art. 247 § 2(3) EGBGB the lender is not obliged to use the sample and so
the claim becomes relevant. The claim does not exist if the lender is not yet ready to enter
into the contract, e.g. because of a still outstanding assessment of the cred it worthiness of the
borrower (§§ 505a et seq.).
III. Adequate explanations
4 The duty to provide adequate explanations obliges the lender to make the contract and the
conditions of the contract understandable to the borrower.3 The extent of the explanation
depends on the complexity of the transaction. The standard of explanation is assessed by
reference to the average borrower, but can be increased in case of certain evidence such as
specific queries or where there are unusual contract terms. This duty does not aim at the
provision of advice on the ideal contract for the borrower. However, it aims to give the
borrower the possibility to assess if the contract is useful to him in light of his financial
1 BT-Drs. 16/11643 of 20.1.2009, p. 78.
2 BT-Drs. 16/11643 of 20.1.2009, p. 78.
3 BT-Drs. 16/11643 of 20.1.2009, p. 78.
864
Krämer
Written form, contents of the contract §492
circumstances and the purpose of the contract.4 The explanation has to be given prior to the
conclusion of the contract and is not subject to specific formal requirements.
Sub. 3 2nd St. shows an example to substantiate the obligation of explanation. The 3rd St. 5
contains an additional obligation of explanation about possibilities to terminate the contract
and the consequences of such termination if further financial products or services are
connected to a consumer credit agreement relating to immovable property.5
IV. Real estate
Sub. 4 determines the scope of the duty to inform for consumer credit agreements relating 6
to real estate that fall under § 491(2) No. 5. Only Sub. 4 applies (§ 491(3) 3rd St.) to such
contracts.
A breach of this duty does not hinder the formation of the contract. However, the 7
borrower may be entitled to claim damages according to §§ 311(2), 280(1).
§492
Written form, contents of the
contract
(1) ’Consumer credit agreements are to be
entered into in writing unless a more strin¬
gent form is provided for. 2The requirement
of written form is satisfied if the offer and
acceptance by the parties to the contract are
declared in writing in separate documents.
3The statement of the lender need not be
signed if it is made with the help of automatic
equipment.
(2) The contract must contain the informa¬
tion for the consumer credit agreement pre¬
scribed under Article 247 §§ 6 to 13 of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche].
(3) ‘After the contract has been entered
into, the lender must provide to the borrower
a copy of the contract. 2If a time has been
determined for the repayment of the loan, the
borrower may demand from the lender at any
time a repayment plan under Article 247 § 14
of the Introductory Act to the Civil Code
[Einführungsgesetz zum Bürgerlichen Gesetz¬
buche].
(4) ‘Subsections (1) and (2) also apply to a
power of attorney granted by a borrower to
enable the attorney to enter into a consumer
credit agreement. Sentence 1 does not apply
to a power of attorney for legal proceedings
and a power of attorney notarially recorded.
(5) Declarations on the part of the lender
to be submitted to the borrower after the
contract has been entered into must be made
on a durable medium.
§492
Schriftform, Vertragsinhalt
(1) ‘Verbraucherdarlehensverträge sind» so¬
weit nicht eine strengere Form vorgeschrieben
ist, schriftlich abzuschließen. 2Der Schriftform
ist genügt, wenn Antrag und Annahme durch
die Vertragsparteien jeweils getrennt schrift¬
lich erklärt werden. 3Die Erklärung des Darle¬
hensgebers bedarf keiner Unterzeichnung,
wenn sie mit Hilfe einer automatischen Ein¬
richtung erstellt wird.
(2) Der Vertrag muss die für den Verbrau¬
cherdarlehensvertrag vorgeschriebenen Anga¬
ben nach Artikel 247 §§ 6 bis 13 des Einfüh¬
rungsgesetzes zum Bürgerlichen Gesetzbuche
enthalten.
(3) ‘Nach Vertragsschluss stellt der Darle¬
hensgeber dem Darlehensnehmer eine Ab¬
schrift des Vertrags zur Verfügung. 2Ist ein
Zeitpunkt für die Rückzahlung des Darlehens
bestimmt» kann der Darlehensnehmer vom
Darlehensgeber jederzeit einen Tilgungsplan
nach Artikel 247 § 14 des Einführungsgeset¬
zes zum Bürgerlichen Gesetzbuche verlangen.
(4) ‘Die Absätze 1 und 2 gelten auch für
die Vollmacht» die ein Darlehensnehmer zum
Abschluss eines Verbraucherdarlehensver¬
trags erteilt. 2Satz 1 gilt nicht für die Prozess¬
vollmacht und eine Vollmacht, die notariell
beurkundet ist.
(5) Erklärungen des Darlehensgebers» die
dem Darlehensnehmer gegenüber nach Ver¬
tragsabschluss abzugeben sind, müssen auf
einem dauerhaften Datenträger erfolgen.
4 BT-Drs. 16/11643 of 20.1.2009, p. 78.
5 For the requirements of such connection see
► § 492b.
Krämer
865
Division 8. Particular types of obligations
§492 1
(6) !If the contract does not contain the
information under subsection (2), or not all
of it, it may be provided subsequently on a
durable medium after the contract has been
effectively entered into, or in cases under
§494(2) sentence 1, after the contract has
become valid. 2If the lack of information
under subsection (2) has led to amendments
in the contractual conditions under § 494(2)
sentence 2 to subsection (6), the information
may only be subsequently provided by the
borrower receiving the copy of the contract
necessary under § 494(7). 3In the other cases,
at the latest at the time of subsequently pro¬
viding the information, the borrower must
receive one of the documents designated in
§ 356b(l). 4When subsequently providing the
information under subsection (2), the bor¬
rower must be informed on a durable med¬
ium that the withdrawal period of one month
commences after receipt of the subsequently-
provided information.
(7) The agreement of a variable pegged
lending rate, which follows an index or refer¬
ence rate, is only effective if the index or
reference rate is objective, clearly determined
and available and verifiable for the lender
and borrower.
(6) ’Enthält der Vertrag die Angaben nach
Absatz 2 nicht oder nicht vollständig, können
sie nach wirksamem Vertragsschluss oder in
den Fällen des § 494 Absatz 2 Satz 1 nach Gül¬
tigwerden des Vertrags auf einem dauerhaften
Datenträger nachgeholt werden. 2Hat das Feh¬
len von Angaben nach Absatz 2 zu Änderun¬
gen der Vertragsbedingungen gemäß §494
Absatz 2 Satz 2 bis Absatz 6 geführt, kann die
Nachholung der Angaben nur dadurch erfol¬
gen, dass der Darlehensnehmer die nach § 494
Absatz 7 erforderliche Abschrift des Vertrags
erhält. 3In den sonstigen Fällen muss der Dar¬
lehensnehmer spätestens im Zeitpunkt der
Nachholung der Angaben eine der in § 356b
Absatz 1 genannten Unterlagen erhalten. 4Mit
der Nachholung der Angaben nach Absatz 2 ist
der Darlehensnehmer auf einem dauerhaften
Datenträger darauf hinzuweisen, dass die Wi¬
derrufsfrist von einem Monat nach Erhalt der
nachgeholten Angaben beginnt.
(7) Die Vereinbarung eines veränderlichen
Sollzinssatzes, der sich nach einem Index
oder Referenzzinssatz richtet, ist nur wirk¬
sam, wenn der Index oder Referenzzinssatz
objektiv, eindeutig bestimmt und für Darle¬
hensgeber und Darlehensnehmer verfügbar
und überprüfbar ist.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Explanation 3
I. Written form 3
II. Information 5
III. Claim for copy 6
IV. Claim for repayment plan 7
V. Form of authority 8
VI. Post-contractual declarations 10
VII. Subsequent provision of information 11
1. Right of withdrawal 12
2. Requirements 14
VIII. Agreement on a changeable lending rate 15
A. Function
I. Purpose
Under § 492, consumer credit agreements have to be concluded in a certain form and with
a certain (formal) content. Sub. 4 extends these requirements also to an authority (§ 166(2))-
Sub. 3 contains the duty of the lender to provide a copy of the contract after its conclusion.
The formal requirements shall explain the contract, provide evidence and warn the
866
Krämer
Written form, contents of the contract 2-7 § 492
borrower.1 With the help of detailed and mandatory information according to Sub. 2, the
consumer shall have the possibility to be aware of the collective financial burden and
concealed presentations shall be avoided to establish transparency for the consumer. At the
same time it should enable or facilitate a comparison with other offers for credit agreements.
The duty to provide a copy of the contract shall facilitate the decision of the borrower
whether to withdraw from the contract (§ 495).2
IL Scope of application
The legal consequences of breaches of duties under this provision are regulated in § 494. 2
§ 492 is of mandatory nature (§ 512).
B. Explanation
I. Written form
Consumer credit agreements must be entered into in writing (§ 126), unless a more 3
stringent form is provided for, e.g. as a part of a contract on a plot of land (§ 311 b( 1)). The
written form can be replaced by electronic form (§ 126b), § 126(3), a fax, however, does not
suffice.3 § 507(1) 2nd St contains an exception.
The credit agreement does not necessarily have to be laid down in one single document.4 4
Sub. 1 2nd and 3rd St. ease the written form compared to § 126(1). Offer and acceptance can
be declared in writing. Machine generated statements (i.e. automatically generated state¬
ments) of the lender do not require a signature. The parties may waive the receipt of
acceptance (§ 151).
II. Information
All information mentioned in Art. 247 §§6-13 EGBGB has to be included in the contract. 5
They can be contained in the standard business terms if they are given clearly and
comprehensibly. The borrower may claim damages under § 280(1) for missing or incorrect
information, even if the information is given later.5
III. Claim for copy
Sub. 3 1st St. obliges the lender to provide a copy of the contract after conclusion of the 6
contract. Copy means any document - without regard to its way of production - that
reproduces the content of the contract without the need of special formalities such as
signature.6 This copy can also be provided in electronic form and the lender is not allowed
to charge any costs for the copy.7
IV. Claim for repayment plan
Sub. 3 2nd St. provides the borrower with a claim for a repayment plan (Art. 247 § 14 7
EGBGB), if a time for repayment has been determined. This should help the borrower to
inform himself at any time about his financial burden and the status of repayment. The claim
can be demanded at any time and it does not cease to exist as long as the contractual
relationship continues (Art. 247 § 14(3) EGBGB). The copy can also be demanded several times.
1 Palandt BGB/Weidenkaff, § 492 BGB mn. 1; BeckOK BGB/Möller, § 492 BGB mn. 1.
2 BeckOK BGB/Möller, § 492 BGB mn. 1.
3 BGH 30.7.1997 - VIII ZR 244/96, NJW 1997, 3169, 3170.
4 CJEU C-42/15 Home Credit Slovakia ECLI:EU:C:2016:842.
5 BT-Drs. 17/1394 of 19.4.2010, p. 15; MüKo BGB/Schürnbrand, § 494 BGB mn. 8,
6 BT-Drs. 16/11643 of 21.1.2009, p. 80.
7 MüKo BGB/Schürnbrand, § 492 BGB mn. 39.
Krämer
867
§ 492 8-13
Division 8. Particular types of obligations
V. Form of authority
8 Sub. 4 deviates from the principle of freedom of form of authority (§ 167(2)). This should
secure the consumer protection standards of the consumer credit law for a represented
borrower. In case of a lack of form or lack of mandatory information, the authority given is
void (§ 494(1)), unless it is cured under § 494(2) lsl St. Therefore, the agent is liable pursuant
to § 179, whereas the liability will often be excluded according to § 179(3) 1st St. It is debated
whether a later ratification (§§ 184, 182), which renders the contract effective (§ 177(1)),
must comply with the form and content laid down in Subs 1 and 2.8
9 Sub. 4 2nd St. states exceptions for the power of attorney for proceedings (§§ 80-88 ZPO)
and the notarially recorded authority.
VI. Post-contractual declarations
10 Declarations of the lender towards the borrower after conclusion of the contract must be
provided on a durable medium (§ 126b 2nd St.). All legally-relevant notifications of the lender
towards the borrower are, in this context, declarations.9
VII. Subsequent provision of information
11 Sub. 6 enables the lender to subsequently provide the mandatory information in terms of
Sub. 2. At first, the contract must be valid. The contract is valid if only the information
pursuant to Art. 247 §§ 7 or 8 EGBGB is missing or was submitted incorrectly.10 In contrast,
a lack of information under Art. 247 §§ 6 or 9-13 EGBGB renders the contract void
(§ 494(1))- In this case the contract must be cured (§ 494(2) 1st St.) beforehand.
1. Right of withdrawal
12 The purpose of the right to subsequent provision of information is to give the lender a way
to preclude the consumer’s - in principle perpetual11 - right of withdrawal (§ 495(1))- The
notice period for the right of withdrawal for general consumer credit agreements com¬
mences with the subsequent provision (Sub. 6, § 356b(2) 1st St.) of the lacking mandatory
information in terms of Sub. 2. The same applies for contracts under § 356b(2), but with an
absolute period of 12 months and 14 days after the contract has been entered into (§ 356b(2)
4th St.).
13 In conjunction with providing the information subsequently, the lender must inform the
borrower on a durable medium (§ 126b 2nd St.) that the withdrawal period of one month
commences after receipt of the subsequently-provided information (4th St.). That information
is not a prerequisite for the notice period to commence. It is a collateral duty (Nebenpflicht)
of the lender and in case of breach the borrower may be entitled to damages under § 280(1)-
Moreover, the lender is prohibited to invoke expiry of the period (§ 242).12
8 For freedom of form: Palandt BGB/Weidenkaff, § 492 BGB mn. 6; BGH 25.2.1994 - V ZR 63/93,
NJW 1994, 1344, 1345. Contra: MüKo BGB/Schürnbrand, § 492 BGB mn. 50; BeckOK BGB/Möller»
§ 492 BGB mn. 38; Bülow/Arzt Verbraucherkreditrecht/Arzt, § 492 BGB mn 63
MüKo BGB/Schürnbrand, § 492 BGB mn. 56; Bülow/Arzt Verbraucherkreditrecht/Arzt, § 492 BGB
mn. 154.
10 For the latter: MüKo BGB/Schürnbrand, § 492 BGB mn. 61
" For other limitations see BGH 12.7.2016 - XI ZR 501/15, NJW 2016, 3518- - comments on § 495
mn. 10. ‘ ’
12 BT-Drs. 17/1394 of 19.4.2010, p. 18.
868
Krämer
Permitted tying practices
§ 492b
2. Requirements
In the course of subsequent provision the lender must submit the missing information to 14
the borrower or correct the incorrect information. That information must refer to the
content of the contract entered into and - as the case may be - to the amended contract in
accordance with § 494(2) 2nd St. to (6). If the lack of information has led to such amend¬
ments, the information may only be subsequently provided by a copy of the contract under
§ 494(7). In other cases the information can be subsequently provided on a durable medium
(Sub. 5, § 126b 2nd St.), if the borrower receives the documents designated under § 356b( 1) at
the latest at the same time (Sub. 6 3rd St.).
VIII. Agreement on a changeable lending rate
Sub. 7 applies to all consumer credit agreements and its regulatory content is self-evident. 15
The index or reference interest rate must be objectively unilaterally certain for both parties,
otherwise there would not be an agreement on the essentialia negotii. Moreover, according to
the definition of the reference interest rate in § 675g(3) 2nd St., the rate must originate from a
publicly available source.
§ 492a
Tying practice in real estate
consumer credit agreements
(1) ’Without prejudice to § 492b, the len¬
der may not make the conclusion of a real
estate consumer credit agreement dependent
upon the purchase of other financial products
or financial services by the borrower or a
third party (tying practice). 2If the lender is
prepared to conclude the real estate consumer
credit agreement without the purchase of
other financial products or financial services
by the consumer, there will not be a tying
practice even if the conditions for the real
estate consumer credit agreement differ from
those under which such an agreement is of¬
fered in combination with further financial
products or financial services.
(2) Insofar as a tying practice is not per¬
mitted, the transactions tied to the real estate
consumer credit agreement are void; this does
not affect the effectiveness of the real estate
consumer credit agreement.
§ 492a
Kopplungsgeschäfte bei
Immobiliar-
Verbraucherdarlehensverträgen
(1) ’Der Darlehensgeber darf den Ab¬
schluss eines Immobiliar-Verbraucherdarle-
henvertrags unbeschadet des § 492b nicht
davon abhängig machen, dass der Darlehens¬
nehmer oder ein Dritter weitere Finanzpro-
dukte oder -dienstleistungen erwirbt (Kopp¬
lungsgeschäft). 2Ist der Darlehensgeber
zum Abschluss des Immobiliar-Verbraucher-
darlehensvertrags bereit, ohne dass der
Verbraucher weitere Finanzprodukte oder
-dienstleistungen erwirbt, liegt ein Kopp¬
lungsgeschäft auch dann nicht vor, wenn die
Bedingungen für den Immobiliar-Verbrau¬
cherdarlehensvertrag von denen abweichen,
zu denen er zusammen mit den weiteren
Finanzprodukten oder -dienstleistungen an¬
geboten wird.
(2) Soweit ein Kopplungsgeschäft unzuläs¬
sig ist, sind die mit dem Immobiliar-Verbrau-
cherdarlehensvertrag gekoppelten Geschäfte
nichtig; die Wirksamkeit des Immobiliar-
Verb räucherdarlehensvertrags bleibt davon
unberührt.
§ 492b
Permitted tying practices
(1) A tying practice is permitted if the
lender makes the conclusion of the real estate
consumer credit dependent upon the bor-
§ 492b
Zulässige Kopplungsgeschäfte
(1) Ein Kopplungsgeschäft ist zulässig,
wenn der Darlehensgeber den Abschluss eines
Immobiliar-Verbraucherdarlehensvertrags
Krämer
869
Division 8. Particular types of obligations
§ 492b 1
rower, a family member of the consumer, or
both together
1. opening a payment or savings account,
where the only purpose of such is to accumu¬
late capital to
a) repay or service the real estate consumer
credit,
b) to make available the resources which
are necessary for securing the credit, or
c) as additional security for the lender in
the event of default;
2. purchase or keep an investment product
or a private pension product that
a) primarily serves as an income in retire¬
ment and
b) serves as additional security for the
lender in the event of default or which serves
to pool capital in order to repay or service or
to make available the necessary resources to
secure the real estate consumer credit;
3. concluding a further credit agreement in
which the capital repayable is based on a
contractually set percentage of the value of
the property at the time of the capital repay¬
ment or repayments (shared equity credit
agreement).
(2) A tying practice is permitted if the
lender makes the conclusion of the real estate
contract dependent upon the borrower con¬
cluding a corresponding insurance policy in
relation to the real estate consumer credit
agreement and if the borrower is permitted
to conclude this policy with a supplier differ¬
ent to the supplier preferred by the lender.
(3) A tying practice is permitted if the
supervising authority responsible for the len¬
der has approved the further financial pro¬
ducts or financial services as well as tying
them to the real estate consumer credit agree¬
ment pursuant to § 18a(8a) of the Banking
Act [Kreditwesengesetz].
davon abhängig macht, dass der Darlehens¬
nehmer, ein Familienangehöriger des Darle¬
hensnehmers oder beide zusammen
1. ein Zahlungs- oder ein Sparkonto eröff¬
nen, dessen einziger Zweck die Ansammlung
von Kapital ist, um
a) das Immobiliar-Verbraucherdarlehen
zurückzuzahlen oder zu bedienen,
b) die erforderlichen Mittel für die Gewäh¬
rung des Darlehens bereitzustellen oder
c) als zusätzliche Sicherheit für den Darle¬
hensgeber für den Fall eines ZahlungsausfaUs
zu dienen;
2. ein Anlageprodukt oder ein privates
Rentenprodukt erwerben oder behalten, das
a) in erster Linie als Ruhestandseinkom¬
men dient und
b) bei Zahlungsausfall als zusätzliche Si¬
cherheit für den Darlehensgeber dient oder
das der Ansammlung von Kapital dient, um
damit das Immobiliar-Verbraucherdarlehen
zurückzuzahlen oder zu bedienen oder um
damit die erforderlichen Mittel für die Ge¬
währung des Darlehens bereitzustellen;
3. einen weiteren Darlehensvertrag ab¬
schließen, bei dem das zurückzuzahlende Ka¬
pital auf einem vertraglich festgelegten Pro¬
zentsatz des Werts der Immobilie beruht, die
diese zum Zeitpunkt der Rückzahlung oder
Rückzahlungen des Kapitals (Darlehensver¬
trag mit Wertbeteiligung) hat.
(2) Ein Kopplungsgeschäft ist zulässig,
wenn der Darlehensgeber den Abschluss eines
Immobiliar-Verbraucherdarlehensvertrags
davon abhängig macht, dass der Darlehens¬
nehmer im Zusammenhang mit dem Immo-
biliar-Verbraucherdarlehensvertrag eine ein¬
schlägige Versicherung abschließt und dem
Darlehensnehmer gestattet ist, diese Versiche¬
rung auch bei einem anderen als bei dem vom
Darlehensgeber bevorzugten Anbieter abzu¬
schließen.
(3) Ein Kopplungsgeschäft ist zulässig»
wenn die für den Darlehensgeber zuständige
Aufsichtsbehörde die weiteren Finanzpro¬
dukte oder -dienstleistungen sowie deren
Kopplung mit dem Immobiliar-Verbraucher-
darlehensvertrag nach § 18a Absatz 8a des
Kreditwesengesetzes genehmigt hat.
A. Function
I. Purpose
These provisions aim to prevent the consumer from disadvantageous decisions by prohibit¬
ing certain tying practices (Kopplungsgeschäfte). At the same time, such advantageous transac¬
tions shall be permitted. § 492b contains an exhaustive list of permitted tying practices.
870
Krämer
Permitted tying practices
2-6 § 492b
II. Scope of application
§§ 492a, 492b only apply to consumer credit agreements relating to real estate. The lender 2
in general consumer credit agreements only must inform about compulsory additional
contractual performances in terms of Art. 247 § 8(1) EGBGB in conjunction with the pre-
contractual information. §§ 492a, 492b are of mandatory nature (§ 512).
B. Context
Both provisions have been introduced in the course implementing the EU Mortgage Credit 3
Directive (Art. 12(1)) and entered into force on 21 March 2016. Art. 229 §38 EGBGB
contains a transitional provision.
C. Explanation
I. Tying practice
§ 492a(l) 1st St. contains a legal definition of a tying practice. The crucial element for a 4
hing practice is the dependency of the consumer credit agreement relating to real estate on
the acquisition of further financial products or services. Financial products are investment
opportunities for money investment.1 Furthermore, financial services encompass, but are not
limited to, bank transactions in terms of § 1( 1(a)) KWG and also cover insurance services.
This definition is intentionally broad in order to embrace as far as possible all ancillary
services typically offered by lenders.2 According to Recital 25 EU Mortgage Credit Directive,
no tying practice is at hand, if the financial products or services cannot be offered separately,
because they form a fully integrated part of the credit itself.
II. Bundling
The financing of the immovable property may not be achieved without the additional 5
services. The separate conclusion must be excluded through the respective legal configura¬
tion. The additional service may either be part of the credit agreement or can be concluded
in a separate contract - even with a third party.3 Bundling practices (Bündelungs¬
geschäfte4), however, are allowed. Bundling practice means the offering or the selling of a
credit agreement in a package with other distinct financial products or services where the
credit agreement is also made available to the consumer separately but not necessarily on
the same terms or conditions as when offered bundled with the ancillary services (§ 491a(l)
2nd St.).5
III. Consequences of violation
The agreement is void to the extent of the violation (§ 491a(2)). The credit agreement 6
remains valid, but the borrower may be entitled to damages under §§ 280(1), 241(2),
311(2).
1 BT-Drs. 18/5922 of 7.9.2015, p. 82.
2 BT-Drs. 18/5922 of 7.9.2015, p. 82.
3 BT-Drs. 18/5922 of 7.9.2015, p. 82.
4 Art. 4(27) EU Mortage Directive.
5 For exceptions: MüKo BGB/Schürnbrand, § 492a BGB mn. 5.
Krämer
871
§493
Division 8. Particular types of obligations
§493
Information during the
contractual relationship
(1) ’If the lending rate in a consumer credit
agreement is pegged, and if the pegging of
the lending rate ends prior to the time deter¬
mined for repayment, the lender shall inform
the borrower at the latest three months prior
to the end of the pegging of the lending rate
whether he is willing to reach a new agree¬
ment as regards the lending rate. 2If the
lender declares his willingness thereto, notifi¬
cation must contain the lending rate offered
by the lender at the time of notification.
(2) ’The lender must notify the borrower at
the latest three months prior to termination
of a consumer credit agreement whether he is
willing to continue the loan relationship. 2If
the lender declares that he is willing to con¬
tinue, notification must contain the obliga¬
tory information from § 491a( 1) applicable at
the time of notification.
(3) ’The adjustment of the lending rate of a
consumer credit agreement with a changeable
lending rate is not effective until the lender
has informed the borrower of the details
revealed from Article 247 § 15 of the Intro¬
ductory Act to the Civil Code [Einführungs¬
gesetz zum Bürgerlichen Gesetzbuche], de¬
rogating agreements on effectiveness are
permissible in the framework of Article 247
§ 15(2) and (3) of the Introductory Act to the
Civil Code [Einführungsgesetz zum Bürgerli¬
chen Gesetzbuche].
(4) ’In a contract for real estate consumer
credit in a foreign currency according to
§ 503(1) sentence 1, also in conjunction with
sentence 3, the lender has to inform the
borrower without undue delay if the value of
the amount outstanding or the value of the
regular instalments of the national currency
of the borrower rises by more than 20 percent
compared to the value which would have been
given on the basis of the exchange rate at the
time of the conclusion of the contract. 2The
information
1. is to be provided on a durable medium,
2. is to contain the information on the
change in the amount outstanding in the
national currency of the borrower,
3. is to contain the reference to the possi¬
bility to convert the currency on the basis of
§503 and the applicable conditions and, if
§493
Informationen während des
Vertragsverhältnisses
(1) ’Ist in einem Verbraucherdarlehensver¬
trag der Sollzinssatz gebunden und endet die
Sollzinsbindung vor der für die Rückzahlung
bestimmten Zeit, unterrichtet der Darlehens¬
geber den Darlehensnehmer spätestens drei
Monate vor Ende der Sollzinsbindung darü¬
ber, ob er zu einer neuen Sollzinsbindungs¬
abrede bereit ist. 2Erklärt sich der Darlehens¬
geber hierzu bereit, muss die Unterrichtung
den zum Zeitpunkt der Unterrichtung vom
Darlehensgeber angebotenen Sollzinssatz ent¬
halten.
(2) ’Der Darlehensgeber unterrichtet den
Darlehensnehmer spätestens drei Monate vor
Beendigung eines Verbraucherdarlehensver¬
trags darüber, ob er zur Fortführung des
Darlehensverhältnisses bereit ist. 2Erklärt
sich der Darlehensgeber zur Fortführung be¬
reit, muss die Unterrichtung die zum Zeit¬
punkt der Unterrichtung gültigen Pflicht¬
angaben gemäß § 491a Abs. 1 enthalten.
(3) ’Die Anpassung des Sollzinssatzes eines
Verbraucherdarlehensvertrags mit veränderli¬
chem Sollzinssatz wird erst wirksam, nach¬
dem der Darlehensgeber den Darlehensneh¬
mer über die Einzelheiten unterrichtet hat,
die sich aus Artikel 247 § 15 des Einführungs¬
gesetzes zum Bürgerlichen Gesetzbuche erge¬
ben. 2Abweichende Vereinbarungen über die
Wirksamkeit sind im Rahmen des Artikels
247 § 15 Absatz 2 und 3 des Einführungs¬
gesetzes zum Bürgerlichen Gesetzbuche zuiäs-
^g-
(4) ’Bei einem Vertrag über ein Immobili¬
ar-Verbraucherdarlehen in Fremdwährung
gemäß § 503 Absatz 1 Satz 1, auch in Verbin¬
dung mit Satz 3, hat der Darlehensgeber den
Darlehensnehmer unverzüglich zu informie¬
ren, wenn der Wert des noch zu zahlenden
Restbetrags oder der Wert der regelmäßigen
Raten in der Landeswährung des Darlehens¬
nehmers um mehr als 20 Prozent gegenüber
dem Wert steigt, der bei Zugrundelegung des
Wechselkurses bei Vertragsabschluss gegeben
wäre. 2Die Information
1. ist auf einem dauerhaften Datenträger
zu übermitteln,
2. hat die Angabe über die Veränderung
des Restbetrags in der Landeswährung des
Darlehensnehmers zu enthalten,
3. hat den Hinweis auf die Möglich1“'1
einer Währungsumstellung aufgrund e
§ 503 und die hierfür geltenden Bedingung^
872
Krämer
Information during the contractual relationship
applicable, the explanation of father possibi¬
lities to limit the exchange rate risk and
4. is to be provided at regular intervals for
so long until the difference is again below
20 percent.
-'Sentences 1 and 2 apply with the necessary
modifications if a real easte consumer credit
agreement is concluded in the currency of a
Member State of the European Union in
which the borrower has his residence at the
time of conclusion of contract and the bor¬
rower at the time of the relevant assessment
of the creditworthiness predominantely re¬
ceives his income or assets from which the
loan is to be repaid.
(5) ’If the borrower under a real estate
consumer credit contract informs the lender
that he intends to make early repayment of
the credit, the lender is obliged to provide the
borrower without undue delay on a durable
medium with the information necessary to
consider that option. 2This information must
in particular contain the following details:
1. Information on the admissibility of early
repayment,
2. in the event of admissibility, the amount
of the amount to be repaid and
3. where applicable, the amount of com¬
pensation for early repayment.
3To the extent that the information is
based on assumptions, these must be dis¬
closed as such to the borrower; they must
also be reasonable and objectively justifiable.
(6) If claims were assigned from the loan
contract, the obligations from subsections (1)
to (5) also affect the new lender unless the
previous creditor has agreed with the new
creditor that only the previous lender is iden¬
tified in the relationship with the borrower.
§493
und gegebenenfalls die Erläuterung weiterer
Möglichkeiten zur Begrenzung des Wechsel¬
kursrisikos zu enthalten und
4. ist so lange in regelmäßigen Abständen
zu erteilen, bis die Differenz von 20 Prozent
wieder unterschritten wird.
3Die Sätze 1 und 2 sind entsprechend an¬
zuwenden, wenn ein Immobiliar-Verbrau-
cherdarlehcnsvertrag in der Währung des
Mitgliedstaats der Europäischen Union, in
dem der Darlehensnehmer bei Vertrags¬
schluss seinen Wohnsitz hat, geschlossen
wurde und der Darlehensnehmer zum Zeit¬
punkt der maßgeblichen Kreditwürdigkeits¬
prüfung in einer anderen Währung über¬
wiegend sein Einkommen bezieht oder
Vermögenswerte hält, aus denen das Darle¬
hen zurückgezahlt werden soll.
(5) ’Wenn der Darlehensnehmer eines Im-
mobiliar-Verbraucherdarlehensvertrags dem
Darlehensgeber mittcilt, dass er eine vorzei¬
tige Rückzahlung des Darlehens beabsichtigt,
ist der Darlehensgeber verpflichtet, ihm un¬
verzüglich die für die Prüfung dieser Mög¬
lichkeit erforderlichen Informationen auf ei¬
nem dauerhaften Datenträger zu übermitteln.
2Diese Informationen müssen insbesondere
folgende Angaben enthalten:
1. Auskunft über die Zulässigkeit der vor¬
zeitigen Rückzahlung,
2. im Fall der Zulässigkeit die Höhe des
zurückzuzahlenden Betrags und
3. gegebenenfalls die Höhe einer Vorfällig¬
keitsentschädigung.
3Soweit sich die Informationen auf Annah¬
men stützen, müssen diese nachvollziehbar
und sachlich gerechtfertigt sein und als solche
dem Darlehensnehmer gegenüber offengelegt
werden.
(6) Wurden Forderungen aus dem Darle¬
hensvertrag abgetreten, treffen die Pflichten
aus den Absätzen 1 bis 5 auch den neuen
Gläubiger, wenn nicht der bisherige Darle¬
hensgeber mit dem neuen Gläubiger verein¬
bart hat, dass im Verhältnis zum Darlehens¬
nehmer weiterhin allein der bisherige
Darlehensgeber auftritt.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. End of contract or pegged lending rate 4
II. Changeable lending rate 7
Krämer
873
§ 493 1-7
Division 8. Particular types of obligations
III. Foreign currency consumer credit agreements relating to real estate 9
1. Content of information 10
2. Requirements of information 11
IV. Early repayment
V. Assignment 14
A. Function
I. Purpose
1 The borrower shall be informed adequately during the period of the contract. Impending
changes in the contractual relationship must be indicated in good time in order to allow for
an appropriate response.
IL Scope of application
2 Subs 1-3 apply to both kinds of consumer credit agreements and Subs 4 and 5 apply only
to consumer credit agreements relating to real estate. § 493 is of mandatory nature (§ 512).
B. Context
3 § 493 was introduced through the Risikobegrezungsgesetz (Risk-limitation Act) and
amended in the transformation act to the EU Consumer Credit Directive. The legislation
implementing the EU Mortgage Credit Directive added Subs 4 and 5.
C. Explanation
I. End of contract or pegged lending rate
4 Sub. 1 1st St. concerns the case that an agreed lending rate ends before the end of the
credit agreement. It only applies to consumer credit agreements with a pegged lending rate
(§ 489(5)). Under these circumstances the lender has to inform the borrower if he is willing
to agree on a new lending rate. If so, the information pursuant to Sub. 1 2nd St. must contain
the offered lending rate at the time of the information.
5 Sub. 2 1st St. concerns the case that the loan contract ends. In accordance with the ratio
legis, the information duty only exists if a prolongation is necessary and the sum will
presumably not be repaid in full at the end of the contract.1 In such case the lender must
inform the borrower if he is willing to continue the credit relationship. If so, the information
must contain the mandatory information according to § 49la( 1) (Sub. 2 2nd St.).
6 In case the lender fails to provide such information, the borrower may be entitled to
damages under § 280( 1).
II. Changeable lending rate
7 Under Sub. 3 the lender must inform the borrower about the details laid down in Art. 247
§ 15(1) EGBGB. The parties must have agreed on a consumer credit agreement with a
changeable lending rate (§ 489(5)) and must have allowed for unilateral adjustment of this
rate. When adjusting the contract the lender must comply with §§ 315(2), 494(4) 2nd St. and
492(5). Deviating agreements about the adjustment of the interest rate such as determination
of a different point in time are valid within the limitations laid down in Art 247 $ 15(2) and
(3) EGBGB.
1 MüKo BGB/Schürnbrand, § 493 BGB mn. 4.
874
Krämer
Information during the contractual relationship 8-14 § 493
A breach of this duty leads to the application of the original lending rate without further 8
sanctions.
III. Foreign currency consumer credit agreements relating to real estate
It the parties to such contract have agreed on a foreign currency, the lender bears the risk 9
ot changes in the exchange rate. The term foreign currency is specifically described in § 503.2
Sub. 4 3rd St. extends the scope ot application to contracts that were concluded originally in
the currency ot a EU Member State, if the borrower derives his relevant income at the time of
assessment ot creditworthiness (Kreditwürdigkeitsprüfung) predominantly in a different
currency or if he holds assets in a different currency out of which the loan shall be repaid.
1. Content of information
The lender must inform the borrower, if the value of the residual amount or of the regular 10
interest rates exceeds the value it had under the exchange rate prevailing at the time of
conclusion of the contract by 20 percent. The information must contain the details of
Nos 1-3. Especially information in accordance with No. 3 on the right of conversion of the
currency under § 503 has warning character and therefore is of special importance.3
2. Requirements of information
Information must be provided immediately (§121(1) 1st St.) and on a durable medium 11
(§ 126b 2nd St.). According to No. 4, the information must be given in regular intervals until
the differentiation falls below 20 percent. Usually quarterly information is sufficient as a
regular interval. At least monthly information is deemed sufficient under § 675d(l), Art. 248
§ 8 and § 10 EGBGB.4
IV. Early repayment
If the borrower of a consumer credit agreement relating to real estate informs the lender 12
about his intent to repay the sum early (§ 500(2)), the lender must provide all information
necessary for evaluation of exercising this right. This information must be given immediately
(§ 121(1) 1st St.) on a durable medium (§ 126b 2nd St.). The 2nd St. stipulates the minimum
content of this information. According to the 2nd St. Nos 1 and 2, the lender must inform at
least about whether early repayment is possible and if so, about the amount of the sum to be
repaid. In case of a compensation for early repayment (§ 502), its amount must also be
submitted (No. 3). If the information is based on certain assumptions, these assumptions
must be provided in accordance with the 3rd St. The term assumptions encompasses methods
for calculation that can be used by the borrower to calculate the individual items of the
residual amount.5
In case of violation the borrower may be entitled to damages under § 280(1). 13
V. Assignment
Sub. 6 extends the information duties under Subs 1-5 to the assignee, unless in case of an 14
undisclosed assignment.
2 See * § 503 mn. 4.
3 BT-Drs. 18/5922 of 7.9.2015, p. 85.
4 BT-Drs. 18/5922 of 7.9.2015, p. 85.
5 BT-Drs. 18/5922 of 7.9.2015, p. 86.
Krämer
875
§494
Division 8. Particular types of obligations
§494
Legal consequences of defects
of form
(1) The consumer credit agreement and the
power of attorney given by the consumer to
enter into such a contract are void if written
form is not complied with at all or if any
of the items of information specified in
Article 247 §§ 6 and 10 to 13 of the Introduc¬
tory Act to the Civil Code for the consumer
credit agreement is lacking.
(2) irrespective of a defect under
subsection (1), the consumer credit agree¬
ment is valid to the extent that the borrower
receives the loan or draws on it. 2However,
the lending rate on which the consumer
credit agreement is based is reduced to the
statutory rate of interest if there is no infor¬
mation on the lending rate, on the effective
annual rate of interest or on the total
amount.
(3) If the effective rate of interest is stated
at a rate that is too low, the lending rate on
which the consumer credit agreement is
based is reduced by the percentage by which
the effective rate of interest is too low.
(4) ‘Costs not stated are not owed by the
borrower. 2If the contract does not state un¬
der what preconditions costs or interest can
be adjusted, the possibility to adjust these to
the disadvantage of the borrower ceases to
apply.
(5) If instalments have been agreed, their
amount is to be re-calculated by the lender,
taking account of the reduced interest or
costs.
(6) ‘If the contract does not contain infor¬
mation on the term or on the right of termi¬
nation, the borrower is entitled to terminate
at any time. 2If information on securities is
missing, securities cannot be demanded; this
does not apply to general consumer credit
agreements if the net loan amount is more
than 75,000 euros. ’If information on the
right of conversion in a real estate consumer
credit agreement is missing, the right of con¬
version may be exercised at any time.
(7) The lender must provide to the bor¬
rower a copy of the contract in which the
contractual amendments are considered as
revealed by subsections (2) to (6).
§494
Rechtsfolgen von Formmängeln
(1) Der Verbraucherdarlehensvertrag und
die auf Abschluss eines solchen Vertrags vom
Verbraucher erteilte Vollmacht sind nichtig,
wenn die Schriftform insgesamt nicht einge¬
halten ist oder wenn eine der in Artikel 247
§§ 6 und 10 bis 13 des Einführungsgesetzes
zum Bürgerlichen Gesetzbuche für den Ver¬
braucherdarlehensvertrag vorgeschriebenen
Angaben fehlt.
(2) ‘Ungeachtet eines Mangels nach
Absatz 1 wird der Verbraucherdarlehensver¬
trag gültig, soweit der Darlehensnehmer das
Darlehen empfängt oder in Anspruch nimmt.
2Jedoch ermäßigt sich der dem Verbraucher¬
darlehensvertrag zugrunde gelegte Sollzins¬
satz auf den gesetzlichen Zinssatz, wenn die
Angabe des Sollzinssatzes, des effektiven Jah¬
reszinses oder des Gesamtbetrags fehlt.
(3) Ist der effektive Jahreszins zu niedrig
angegeben, so vermindert sich der dem Ver¬
braucherdarlehensvertrag zugrunde gelegte
Sollzinssatz um den Prozentsatz, um den der
effektive Jahreszins zu niedrig angegeben ist.
(4) ‘Nicht angegebene Kosten werden vom
Darlehensnehmer nicht geschuldet. 2Ist im
Vertrag nicht angegeben, unter welchen Vo¬
raussetzungen Kosten oder Zinsen angepasst
werden können, so entfällt die Möglichkeit,
diese zum Nachteil des Darlehensnehmers
anzupassen.
(5) Wurden Teilzahlungen vereinbart, ist
deren Höhe vom Darlehensgeber unter Be¬
rücksichtigung der verminderten Zinsen oder
Kosten neu zu berechnen.
(6) ‘Fehlen im Vertrag Angaben zur Lauf¬
zeit oder zum Kündigungsrecht, ist der Dar¬
lehensnehmer jederzeit zur Kündigung be¬
rechtigt. 2Fehlen Angaben zu Sicherheiten, so
können Sicherheiten nicht gefordert werden;
dies gilt nicht bei Allgemein-Verbraucherdar-
lehensverträgcn» wenn der Nettodarlehens¬
betrag 75 000 Euro übersteigt. ’Fehlen Anga¬
ben zum Umwandlungsrecht bei Immobilia*-
Verbraucherdarlehen in Fremdwährung» s0
kann das Umwandlungsrecht jederzeit aus
geübt werden.
(7) Der Darlehensgeber stellt dem Dare-
hensnehmer eine Abschrift des Vertrags zur
Verfügung, in der die Vertragsänderungen
berücksichtigt sind, die sich aus den Absa -
zen 2 bis 6 ergeben.
876
Krämer
Legal consequences of defects of form
1-4 § 494
Contents
mn.
A. Function 1
B. Context 2
C. Explanation 3
I. Voidance 3
II. Cure 4
III. Defects 6
IV. Sanctions 9
1. Interest rate 10
2. Costs 11
3. Recalculation 12
4. Termination 13
5. Currency conversion 14
6. Copy of contract 15
V. Withdrawal 16
A. Function
§ 494 modifies § 125 as lex specialis in the interest of the consumer. At least after receiving 1
the capital, the consumer usually has made arrangements for its use. Therefore, the strict
voidance of § 125 would not be in his interest as he must repay the sum under §§ 812 et seq.
immediately. Likewise, voidance would not be in the interest of the lender who calculates
with the interest rates. § 494 contains its sanctions for breach in order to ensure the
adherence to the written form and the mandatory information. These apply to any consumer
credit agreement.
B. Context
§ 494 is based on the preceding provision in § 6 VerbrKrG. This provision was imple- 2
mented into the BGB without major modification in the course of the 2002 modernisation of
the law of obligations. It was amended with the legislation implementing the EU Consumer
Credit Directive and the EU Mortgage Credit Directive.
C. Explanation
I. Voidance
Under Sub. 1 the contract and the authority are in general void if the parties do not adhere 3
to the written form (§ 492(1) 1st St.) or if the contract and the authority lack the mandatory
information under § 492(2), Art. 247 §§ 6 and 10-13 EGBGB.
II. Cure
Cure is possible if the borrower receives the loan or draws on it (Sub. 2 1st St.). The loan 4
is received when the agreed sum is irrevocably segregated from the assets of the lender and
has been transferred to the assets of the borrower in the agreed form. Drawing on the loan
means the demand of making the sum available, which is complied with by the lender, or
any other disposition. The contract can only be cured insofar as the sum has been
disbursed, which means that it can also be cured partly. The credit agreement becomes
valid ex tunc with the agreed content or with the content arising out of the sanctions in
Sub. 2 2nd St. to Sub. 6.
Krämer
877
§ 494 5-12 Division 8. Particular types of obligations
5 Sub. 2 cannot be applied analogously to the collateral assumption of debt (Schuldbeitritt)
because the disbursement is a requirement for cure.1 A possible void authority cannot be
cured under Sub. 2, but in such case §§ 177 et seq. apply with the option to ratify the contract
(§ 184(1)).
III. Defects
6 The legal consequences for a defect must be examined separately for each defect.2 Oral
contracts do not contain any mandatory information under § 492(2), so that all sanctions
from Sub. 2 2nd St. to Sub. 6 apply.
7 Incorrect information becomes part of the contract and does not lead to voidance; it can
constitute a right to avoid the contract (§§ 119, 123) or may entitle the borrower to damages
under §§ 280(1), 241(2), 311(2).
8 Not all defects leading to voidance trigger sanctions in case of curing.3 4 While the other
sanctions apply irrespectively of a cure also to valid contracts,"* the sanctions of Sub. 2 2nd St
require a cure of the contract in order to apply.
IV. Sanctions
9 Without containing the lending rate, the effective rate of interest (§6(1) PAngV) or the
total amount, Sub. 2 2"d St. reduces ipso iure the lending rate to the statutory rate of interest
(§ 246). If the agreed lending rate in the void contract lies below the statutory rate of interest
it cannot be reduced. An amendment ‘upwards’ does not comply with the ratio legis. The
agreed lending rate will apply despite the lack of information.5 The borrower may be entitled
to repayment of overpaid interest under § 812.
1. Interest rate
10 According to Sub. 3, the incorrect understated effective rate of interest (§ 6(1) PAngV)
dwindles in proportion, though not below the statutory interest rate (§ 246).6
2. Costs
11 Costs (Art. 247 § 6(1) Is' St. No. 1, § 3(1) No. 10 EGBGB) not stated are not owed by the
borrower. Sub. 4 only applies in the relationship between borrower and lender. It is disputed
if the borrower can claim removal (Freistellung) from a claim of a third party that is
encompassed by the scope of costs.7 Without the stated preconditions for unilateral adjust¬
ment (Art. 247 § 6(1) 1st St. No. 1, § 3(4) EGBGB), costs and interest rate cannot be adjusted
to the disadvantage of the borrower.
3. Recalculation
12 If instalments are owed and interest or costs have been reduced, the borrower can claim
re-calculation under Sub. 5. This claim arises with cure and exists for the whole contractual
period.
1 BGH 12.11.1996 - XI ZR 202/95, NJW 1997, 654.
2 MüKo BGB/Schürnbrand, § 494 BGB mn. 26; Palandt BGB/Wcidenkaff, § 494 BGB mn. 5.
3 For a list of examples see MüKo BGB/Schürnbrand, § 494 BGB mn 27
4 BT-Drs. 16/11643 of 21.1.2009, p. SI.
5 MuKo BGB/Schürnbrand, § 494 BGB mn. 29; Staudinger BGB/Kessal-Wulf. 6 494 BGB mn. 28.
6 MuKo BGB/Schürnbrand, § 494 BGB mn. 33.
7 Pro; MuKo BGB/Schürnbrand, § 494 BGB mn. 36 in regard to the insurance for the residual debt
(Restschutdversicherung); BeckOK BGB/Möller, § 494 BGB mn. 16. Contra: BGH 25.4.2006 - XI ZR
04, NJW 2006, 1957, 1960; BGH 18.1.2005 - XI ZR 17/04, NJW 2005 985 987- PahndtBGB/WeideiikaR-
§ 494 BGB mn. 7. ., , .
878
Kramer
Right of withdrawal; reflection period
§495
4. Termination
Sub. 6 grants the borrower a right to terminate the contract at any time if the contract does 13
not contain information on the term (Art. 247 §6(1) 1st St. No. 1 and (2) 1st St. in
conjunction with § 3(1) No. 6 EGBGB) or on the right of termination (Art. 247 § 6(1) 1st St.
No. 5 EGBGB). Securities cannot be demanded if the corresponding information is missing.
The 2nd St. states an exception for general consumer credit agreements with a net loan
amount (Art. 247 § 3(2) EGBGB) below 75,000 euro. Art. 247 EGBGB only states a duty to
inform about securities for general consumer credit agreements. However, such duty also
arises for consumer credit agreements relating to real estate out of the general rule of
completeness (Vollständigkcitsgebot) (§ 126).8
5. Currency conversion
The borrower in a consumer credit agreement relating to real estate can claim conversion 14
ot the currency at any time even without exceeding the 20 percent limit if information about
such right was not provided.9
6. Copy of contract
Under Sub. 7 the borrower can claim a copy10 of the contract containing the respective 15
modifications.
V. Withdrawal
The right to withdraw from the contract pursuant to §§ 495(1), 355 exists before and after 16
the cure of the contract.11 In case of cure the notice period for general consumer credit
agreements commences with the receipt of the copy under Sub. 7, § 356b(3).
§495
Right of withdrawal;
reflection period
(1) In the case of a consumer credit agree¬
ment, the borrower has a right of withdrawal
under § 355.
(2) There is no right of withdrawal in the
case of credit agreements
1. replacing or supplementing by means of
repayment agreements a loan agreement
which the lender is entitled to terminate be¬
cause of payment default on the part of the
borrower, if thereby court proceedings are
avoided and if the total amount (Article 247
§ 3 of the Introductory Act to the Civil Code
[Einführungsgesetz zum Bürgerlichen Gesetz¬
buche]) is smaller than the residual debt of
the original contract,
§495
Widerrufsrecht; Bedenkzeit
(1) Dem Darlehensnehmer steht bei einem
Verbraucherdarlehensvertrag ein Widerrufs¬
recht nach § 355 zu.
(2) Ein Widerrufsrecht besteht nicht bei
Darlehensverträgen,
1. die einen Darlehensvertrag, zu dessen
Kündigung der Darlehensgeber wegen Zah¬
lungsverzugs des Darlehensnehmers berech¬
tigt ist, durch Rückzahlungsvereinbarungcn
ergänzen oder ersetzen, wenn dadurch ein
gerichtliches Verfahren vermieden wird und
wenn der Gesamtbetrag (Artikel 247 § 3 des
Einführungsgesetzes zum Bürgerlichen Ge¬
setzbuche) geringer ist als die Restschuld des
ursprünglichen Vertrags,
8 MüKo BGB/Schürnbrand, § 492 BGB mn. 18.
9 BeckOK BGB/Möller, § 494 BGB mn. 22.
10 See -♦ § 492 mn. 7.
11 Palandt BGB/Weidenkaff, § 494 BGB mn. 15; BeckOK BGB/Möller, § 494 BGB mn. 13.
Krämer
879
Division 8. Particular types of obligations
§ 495 1-4
2. which are to be notarially recorded if the
notary confirms that the rights of the bor¬
rower are granted from §§ 491a and 492, or
3. which correspond to § 504(2) or to
§ 505.
(3) ’In cases of subsection (2) in real estate
consumer credit agreements the borrower
must be granted a reflection period of at least
seven days prior to the conclusion of con¬
tract. 1 2The lender is bound by his offer for
the duration of the period. The reflection
period begins when the borrower is provided
with the offer.
2. die notariell zu beurkunden sind, wenn
der Notar bestätigt, dass die Rechte des Dar¬
lehensnehmers aus den §§491a und 492 ge¬
wahrt sind, oder
3. die § 504 Abs. 2 oder § 505 entsprechen.
(3) ’Bei Immobiliar-Verbraucherdarlehens¬
verträgen ist dem Darlehensnehmer in den
Fällen des Absatzes 2 vor Vertragsschluss
eine Bedenkzeit von zumindest sieben Tagen
einzuräumen. 2Während des Laufs der Frist
ist der Darlehensgeber an sein Angebot ge¬
bunden. Die Bedenkzeit beginnt mit der Aus¬
händigung des Vertragsangebots an den Dar¬
lehensnehmer.
A. Function
I. Purpose
1 With the help of the provided copy (§ 492(3) 1st St.), § 495 gives the consumer the
possibility to reconsider his decision to enter into the credit agreement and - as the case
may be - to withdraw from the contract.1 An effective withdrawal transforms the obligation
into a restitution obligation and the received performance must be returned.
IL Scope of application
2 Other rights for withdrawal generally remain unaffected. However, according to § 312g(3),
the right for withdrawal in terms of § 312g( 1) is excluded if § 495 applies. An effective
withdrawal also takes effect on a contract linked (§ 358(3)) or related (§ 360(1)) to the credit
agreement. § 495 applies to all consumer credit agreements and is of mandatory nature
(§512).
B. Context
3 § 495 is based on the preceding provision in § 7 VerbrKrG and was implemented into the
BGB in the course of the modernisation of the law of obligations in 2002. The implementation
of the EU Consumer Credit Directive resulted in the complete restructure of the provision. The
transposition of the EU Mortgage Credit Directive into German added a new instrument for
consumer protection, namely the time for reflection (Bedenkzeit) in Sub. 3.
C. Explanation
I. Right of withdrawal
4 Sub. 1 grants the borrower the right to withdraw from the contract under § 355(1).
Voidance of the contract does not preclude the possibility of withdrawing from the
contract.2
1 BT-Drs. 11/5462 of 25.10.1989, p. 21.
2 As for voidance and voidability: Kipp, in: Festschrift v. Marlitz (Liebmann 1911), p. 211 et seq-
distance contracts: BGH 25.11.2009 - VIII ZR 318/08, NJW 2010, 610; Palandt BGB/Grüneberg, § -’55
BGB mn. 2.
880
Krämer
Right of withdrawal; reflection period
5-10 § 495
1. New right
Changes to the credit agreements let the right of withdrawal arise anew if the parties 5
agreed on new capital that may be used by the borrower, as it might be in case of a
prolongation or a real follow-up financing (echte Anschlussfinanzierung)} In contrast, if
after a certain point in time set out in the contract, the parties conclude a new agreement
without changing the term itself (unechte Anschlussfinanzierung), no new use of capital is
agreed on.
2. Contractual
Besides this mandatory legal right of withdrawal, such right can also be agreed on by 6
contract. In case a notification regarding withdrawal (Widerrufsbelehrung) is given without a
right of withdrawal existing by statute, contract interpretation pursuant to §§ 133, 157 will
determine if the lender impliedly offered a contractual right of withdrawal.3 4
3. Assumption of contract
In the course of an assumption of contract the consumer transferee is entitled to an own, 7
genuine right to withdraw the declaration of assumption.5 6 § 495 applies analogously to the
acceding consumer to a collateral assumption of debt (Schuldbeitritt)}
4. Pre-contractual information
The lender must inform of the right of withdrawal before the conclusion of contract 8
(Art. 247 §3(1) No. 13 EGBGB). Furthermore, the mandatory information according to
§ 492(2) contained in the contract must inform the consumer about this right (Art. 247
§6(1) No. 1, (2) 1st and 2nd St., § 12(1) 2nd St. and (2) No. 2(b) EGBGB). Beyond this, no
further separate notification regarding withdrawal is necessary (anymore).
5. Further requirements; consequences
The remaining requirements and legal consequences of the withdrawal derive from §§ 355 9
and 357a. Financial services in terms of § 357a are legally defined in § 312(5) 1st St. and
encompass i.a. consumer credit agreements.7
IL Notice period
Unless otherwise provided, the notice period is 14 days (§ 355(2) 1st St.), commencing with 10
the conclusion of the contract. Due to § 356b the notice period does not commence before
the lender has provided the borrower with a contract document intended for the latter, with
the written application of the borrower or with a copy of the contract document or of his
application. If the contract document provided under § 356b(l) does not include the
mandatory information (§ 492(2)), the notice period only commences with the subsequent
provision of the details laid down in § 356b(2). The notice period for consumer credit
agreements relating to immovable property expires at the latest 12 months and 14 days after
conclusion of the contract or after the point in time set out in § 356b( 1), whereas the later
3 BeckOK BGB/Möller, § 495 BGB mn. 8.
4 Rather reserved: BGH 6.12.2011 - XI ZR 401/10, NJW 2012, 1066. Less restrictive: MüKo BGB/
Schurnbrand, § 495 BGB mn. 6.
5 At least in case of a trilateral contract, Emmerich, JuS 2000, 89, 90; BGH 10.5.1995 - VIII ZR 264/94,
NJW 1995, 2290 et seq.; BeckOK BGB/Möller, § 495 BGB mn. 9.
6 BeckOK BGB/Möller, § 495 BGB mn. 9; MüKo BGB/Schürnbrand, § 495 BGB mn. 7.
7 BT-Drs. 15/2946 of 22.4.2004, p. 19.
Krämer
881
§ 496 Division 8. Particular types of obligations
point in time matters. An absolute period does not exist for general consumer credit
agreements, but it can be forfeited under general rules.8
III. Exceptions
There is no right of withdrawal for contracts embraced by Sub. 2. Sub. 2 covers special
types of debt rescheduling (No. 1), consumer credit agreements subject to notarial form
(§ 128) (No. 2) and overdraft in terms of §§ 504(2) 1st St. and 505(4) (No. 3).
IV. Time for reflection
Seven days for reflection must be granted to the borrower in the case of consumer credit
agreements relating to real estate that fall under the scope of Sub. 2. The time for reflection
commences with the receipt of the contractual offer (Sub. 3 3 St.). It is a period for
acceptance in terms of § 148. Pursuant to the 2nd St., the lender is bound to his offer until
the reflection period expires.
§496
Waiver of objections, prohibition
of bills of exchange and cheques
(1) An agreement by which the borrower
waives his right under § 404 to make against
an assignee of the obligation objections to
which he is entitled against the lender, or his
right under § 406 to set off against an as¬
signee of the obligation to a claim he has
against the lender, is ineffective.
(2) ’If a claim of the lender from a loan
contract is assigned to a third party, or if the
identity of the lender is changed, the bor¬
rower must be notified of this without delay,
as well as of the contact data of the new
creditor in accordance with Article 246b
§1(1) Nos 1, 3, and 4 of the Introductory
Act to the Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzbuche]. Notifica¬
tion shall be dispensable with assignments if
the previous lender has agreed with the new
creditor that only the previous lender is iden¬
tified in the relationship with the borrower.
3If the preconditions of sentence 2 continue,
notification must be subsequently carried
out.
(3) ’The borrower may not be obliged to
incur a bill of exchange commitment for the
claims of the lender under the consumer
credit agreement. 2The lender may not accept
a cheque from the borrower to secure his
claims under the consumer credit agreement.
^The borrower may require the lender at any
§496
Einwendungsverzicht, Wechsel-
und Scheckverbot
(1) Eine Vereinbarung, durch die der Dar¬
lehensnehmer auf das Recht verzichtet, Ein¬
wendungen, die ihm gegenüber dem Darle¬
hensgeber zustehen, gemäß § 404 einem
Abtretungsgläubiger entgegenzusetzen oder
eine ihm gegen den Darlehensgeber zuste¬
hende Forderung gemäß § 406 auch dem Ab¬
tretungsgläubiger gegenüber aufzurechnen,
ist unwirksam.
(2) ’Wird eine Forderung des Darlehens¬
gebers aus einem Verbraucherdarlehensver¬
trag an einen Dritten abgetreten oder findet
in der Person des Darlehensgebers ein Wech¬
sel statt, ist der Darlehensnehmer unverzüg¬
lich darüber sowie über die Kontaktdaten des
neuen Gläubigers nach Artikel 246b § 1
Absatz 1 Nummer 1, 3 und 4 des Einfiih¬
rungsgesetzes zum Bürgerlichen Gesetzbuche
zu unterrichten. 2Die Unterrichtung ist bei
Abtretungen entbehrlich, wenn der bisherige
Darlehensgeber mit dem neuen Gläubiger
vereinbart hat, dass im Verhältnis zum Dar¬
lehensnehmer weiterhin allein der bisherige
Darlehensgeber auftritt. 'Fallen die Voraus¬
setzungen des Satzes 2 fort» ist die Unter¬
richtung unverzüglich nachzuholen.
(3) ’Der Darlehensnehmer darf nicht
verpflichtet werden, für die Ansprüche des
Darlehensgebers aus dem Verbraucherdark-
hensvertrag eine Wechselverbindlichkeit
einzugehen. 2Der Darlehensgeber darf vom
Darlehensnehmer zur Sicherung seiner An
Sprüche aus dem Verbaucherdarlehensvertrag
8 For forfeiture: BGH 12.7.2016 - XI ZR 564/15, NJW 2016, 3512, 3515 et seq.
882
Krämer
Waiver of objections, prohibition of bills of exchange and cheques 1-6 § 496
time to return a bill of exchange or cheque
that has been issued in violation of sentence 1
or 2 above. ‘The lender is liable for all da¬
mage incurred by the borrower as a result of
the issue of such a bill of exchange or cheque.
einen Scheck nicht entgegennehmen. 3Dcr
Darlehensnehmer kann vom Darlehensgeber
jederzeit die Herausgabe eines Wechsels oder
Schecks, der entgegen Satz 1 oder 2 begeben
worden ist, verlangen. 4Der Darlehensgeber
haftet für jeden Schaden, der dem Darlehens¬
nehmer aus einer solchen Wechsel- oder
Scheckbegebung entsteht.
A. Function
§ 496 protects the borrower in case of a subrogation of the creditor. It applies to all 1
consumer credit agreements and is of mandatory nature (§ 512).
B. Context
§ 496 is based on the preceding § 10 VerbrKrG and was implemented into the BGB in the 2
course of the modernisation of the law of obligations in 2002. It was modified more recently
in transposing the EU Mortgage Credit Directive into German law.
C. Explanation
I. Waiver of objections
Sub. 1 declares §§ 404 and 406 as mandatory. Deviating agreements with the lender or the 3
assignee are rendered void. Sub. 1 is applied analogously to the collateral assumption of debt
(Schuldbeitritt) and the suretyship.1 With regard to the suretyship, the analogous application
only refers to the recourse claim of the surety arising out of the internal relationship (e.g.
§ 670). For the recourse claim out of the cessio legis (§ 774 1st St.), §§ 404 and 406 are directly
applicable (§ 412).
IL Duty to inform
In case of assignment of a claim from the credit agreement or a change in the identity of 4
the lender, the lender must inform the borrower about the contact details of the new creditor
(Sub. 2). Regarding the assignment, this duty only arises for the open assignment (offene
Abtretung). In case of an undisclosed assignment the duty arises only with disclosure (2nd and
3rd St.).
This information must be provided on a durable medium (§§ 492(5), 126b 2nd St.) and 5
contain the details laid down in Art. 246b § 1(1) Nos 1, 3 and 4 EGBGB on. Violation may
entitle the borrower to damages under § 280(1).
III. Prohibition of bills of exchange and cheques
Under Sub. 3 the borrower may not be obliged to incur a bill of exchange commitment for 6
the claims of the lender. The lender may not accept any cheques given as security (2nd St.),
however, the obligation to repay the loan or to pay interest can still be fulfilled with cheques.2 3
§ 134 applies to the (security) agreement (1st and 2nd St.). The obligations in the cheque or
the exchange commitment, however, remain valid.3
1 MüKo BGB/Schürnbrand, § 496 BGB mn. 11; BeckOK BGB/Möller, § 496 BGB mn. 2; Bülow/Arzt
Verbraucherkreditrecht/Bulow, § 496 BGB mn. 8.
2 Palandt BGB/Weidenkaff, § 496 BGB mn. 4.
3 For consequences regarding the credit agreement see MüKo BGB/Schürnbrand, § 496 BGB mn. 20.
Krämer
883
§ 497 Division 8. Particular types of obligations
7 Where the Is* or 2nd St. has been violated, the borrower may require the lender to return a
bill of exchange or a cheque (3rd St.). The borrower may also be entitled to damages under
the 4th St. For example, such damage can arise if the borrower cannot raise objections under
Art. 17 WechselG or Art. 22 ScheckG against the third party.
§497
Default of the borrower
(1) ‘To the extent that the borrower is in
default in making payments owed on the
basis of the consumer credit agreement he
must pay interest under § 288(1) on the
amount owed. 2In an individual case, the
lender may prove that the damage was greater
or the borrower may prove that the damage
was less.
(2) ‘Interest incurred after default has oc¬
curred must be booked to a separate account
and may not be paid into a current account
together with the amount owed or other
claims of the lender. 2In regard to such inter¬
est, § 289 sentence 2 applies, with the proviso
that the lender may only demand damages up
to the amount of the statutory rate of interest
(§ 246).
(3) ‘Payments by the borrower which are
insufficient to repay the entire debt due are
credited, notwithstanding §367(1), first, to¬
wards costs of litigation, then towards the
remainder of the amount owed
(subsection (1)) and finally towards interest
(subsection (2)). 2The lender may not reject
instalments, limitation of the claims for
repayment of the loan and interest is sus¬
pended from the date when default begins
under subsection (1) until they are deter¬
mined in a manner described in § 197(1)
Nos 3 to 5, but not for more than ten years
from the date when they come into existence.
4§ 197(2) does not apply to claims for inter¬
est. 5Sentences 1 to 4 do not apply to the
extent that payments are made in response
to judicially enforceable instruments whose
main claim is for interest.
(4) ‘In deviation from subsection 1, the
rate of default interest per year in real estate
consumer credit agreements is 2.5 percentage
points above the basic rate of interest.
Subsections (2) and (3), sentence 1, 2, 4 and
5 do not apply to real estate consumer credit
agreements.
§497
Verzug des Darlehensnehmers
(1) ‘Soweit der Darlehensnehmer mit Zah¬
lungen, die er auf Grund des Verbraucherdar¬
lehensvertrags schuldet, in Verzug kommt,
hat er den geschuldeten Betrag nach §288
Abs. 1 zu verzinsen. 2Im Einzelfall kann der
Darlehensgeber einen höheren oder der Dar¬
lehensnehmer einen niedrigeren Schaden
nachweisen.
(2) ‘Die nach Eintritt des Verzugs anfallen¬
den Zinsen sind auf einem gesonderten
Konto zu verbuchen und dürfen nicht in ein
Kontokorrent mit dem geschuldeten Betrag
oder anderen Forderungen des Darlehens¬
gebers eingestellt werden. 2Hinsichtlich dieser
Zinsen gilt § 289 Satz 2 mit der Maßgabe,
dass der Darlehensgeber Schadensersatz nur
bis zur Höhe des gesetzlichen Zinssatzes
(§ 246) verlangen kann.
(3) ‘Zahlungen des Darlehensnehmers, die
zur Tilgung der gesamten fälligen Schuld
nicht ausreichen, werden abweichend von
§ 367 Abs. 1 zunächst auf die Kosten der
Rechtsverfolgung, dann auf den übrigen ge¬
schuldeten Betrag (Absatz 1) und zuletzt auf
die Zinsen (Absatz 2) angerechnet. 2Der Dar¬
lehensgeber darf Teilzahlungen nicht zurück¬
weisen. 3Die Verjährung der Ansprüche auf
Darlehensrückzahlung und Zinsen ist vom
Eintritt des Verzugs nach Absatz 1 an bis zu
ihrer Feststellung in einer in § 197 Abs. 1
Nr. 3 bis 5 bezeichneten Art gehemmt, jedoch
nicht länger als zehn Jahre von ihrer Entste¬
hung an. 4Auf die Ansprüche auf Zinsen
findet § 197 Abs. 2 keine Anwendung. 5Die
Sätze 1 bis 4 finden keine Anwendung, soweit
Zahlungen auf Vollstreckungstitel geleistet
werden, deren Hauptforderung auf Zinsen
lautet.
(4) ‘Bei Iminobiliar-Verbraucherdarlehens¬
verträgen beträgt der Verzugszinssatz ab¬
weichend von Absatz 1 für das Jahr 2,5 Pro*
zentpunktc über dem Basiszinssatz. ’I*1*
Absätze 2 und 3 Satz 1, 2, 4 und 5 sind auf
Immobiliar-Vcrbraucherdarlehensvcrträge
nicht anzuwenden.
884
Kreimer
Default of the borrower
1-5 § 497
A. Function
I. Purpose
§§ 497 and 498 aim to find an adequate balance between the interests of a borrower in 1
default and the lender. The balance especially shall avoid permanent indebtedness in
consumer households, which is caused by enduring involuntary credit relationships (Zwangs¬
kreditverhältnisse). Further, it shall establish legal security about allowed default interest rates
for consumer credit agreements.1
II. Scope of application
§ 497 applies to all consumer credit agreements and is of mandatory nature (§ 512). 2
Moreover, it is applied analogously to void or invalid credit agreements.2
B. Context
The provisions equate largely to the preceding § 11 VerbrKrG. After inclusion into the 3
BGB in the course of modernisation on the law of obligations in 2002 § 497 was amended in
transposing the EU Mortgage Credit Directive with special regulations for financing real
estate in Sub. 4.
C. Explanation
I. Default interest
The borrower must be in default (§ 286) with payments owed on the basis of the consumer 4
credit agreement. Under § 286 the warning notice will generally be dispensable because a
period of time according to the calendar has been specified. The term payments covers, for
example, instalments for interest or repayment, claims for damages or costs.3
1. Calculation
The damage caused by default is calculated abstractly and amounts, according to § 288(1), to 5
5 percentage points above the basic rate of interest (§ 247). In case of consumer credit
agreements relating to immovable property, the default interest rate only amounts to 2.5 percen¬
tage points above the basic rate of interest (Sub. 4). Sub. 1 regulates exhaustively the damages to
pay.4 Besides the claimed damages, the lender cannot claim further payment of the contractually
owed interest.5 Thus, the lender cannot claim compensation for early repayment with regard to
lost interest if the lender terminates the credit agreement on the grounds of default. The abstract
calculation is applied analogously to the default of a surety.6 The lender may prove that the
damage was greater and the borrower may prove that the damage was less (‘concrete calcula¬
tion’). A judicial valuation (§ 287 ZPO) is not possible in this context.7
1 BT-Drs. 11/5462 of 25.10.1989, p. 25.
2 Vgl. MüKo BGB/Schürnbrand, § 497 BGB mn. 6; BeckOK BGB/Möller, § 497 BGB mn. 1; Palandt
BGB/Weidenkaff, § 497 BGB mn. 1.
3 For details: MüKo BGB/Schürnbrand, § 497 BGB mn. 10 et seq.
4 MüKo BGB/Schürnbrand, 497 BGB mn. 18. Disputed: BeckOK BGB/Moller, § 497 BGB mn. 5.
5 BT-Drs. 11/5462 of 25.10.1989, p. 26; BGH 22.11.2016 - XI ZR 187/14, NJW-RR 2017, 424, 426; BGH
19.1.2016 - XI ZR 103/15, NJW 2016, 1379, 1381.
6 BGH 28.10.1999 - IX ZR 364/97, NJW 2000, 658, 661.
7 Palandt BGB/Weidenkaff, § 497 BGB mn. 5; MüKo BGB/Schürnbrand, § 497 BGB mn. 14.
Krämer
885
§498
Division 8. Particular types of obligations
2. Damages
6 The lender must keep at least one other account for the default interest. The term interest
in Sub. 2 is to be interpreted extensively and encompasses the abstract and the concrete
damages under Sub. I.8 The 2nd St. in conjunction with § 289 2nd St. allows the lender to
claim damages for default with the default interest rates to the extent of the statutory rate of
interest (§ 246).
II. Consideration of instalments
7 Sub. 3 constitutes an exception to § 266 and stipulates a redemption order that deviates
from § 367. The lender is obliged to accept instalment payments from the borrower. To
create a noticeable debt decreasing effect, such instalments are credited lastly to the owed
interest under Sub. 2. Due to a possible long delay regarding the redemption of the lenders
claims under this redemption order, the 3rd and 4,h St. suspend the limitation of these claims
to the maximum of 10 years after they come into existence. The 5th St. clarifies that,
regarding isolated enforceable interest, a formal treatment prevails over the substantive law.
§ 367 therefore applies in such case.
§498
Calling in entire loan in the case of
loans repayable in instalments
(1) ’With regard to a loan that is to be
repaid in instalments, the lender may only
give notice of termination on account of the
default in payment of the borrower if
1. the borrower
a) is in default in the payment of at least
two consecutive instalments in whole or in
part,
b) is in default by at least ten percent of the
nominal amount of the loan in the case of an
agreement up to three years or by at least five
percent of the nominal amount of the loan in
the case of an agreement of more than three
years
2. the lender has without result given the
borrower a period of two weeks for payment
of the amount in arrears and has declared
that in the case of failure to pay within the
period, the lender will demand the entire
residual debt.
2At the latest when the lender specifies a
period of time, the lender is to offer to the
borrower to discuss the possibility of an ar¬
rangement by mutual consent.
(2) In deviation from subsection (1) sen¬
tence 1 No. 1 letter (b), the borrower in a real
estate consumer credit agreement must be in
default by at least 2.5 percent of the nominal
amount of the loan.
§498
Gesamtfalligstellung bei
Teil zahl u ngsdarlehen
(1) ’Der Darlehensgeber kann den Ver¬
braucherdarlehensvertrag bei einem Darle¬
hen, das in Teilzahlungen zu tilgen ist, wegen
Zahlungsverzugs des Darlehensnehmers nur
dann kündigen, wenn
1. der Darlehensnehmer
a) mit mindestens zwei aufeinander folgen¬
den Teilzahlungen ganz oder teilweise in Ver¬
zug ist,
b) bei einer Vertragslaufzeit bis zu drei
Jahren mit mindestens 10 Prozent oder bei
einer Vertragslaufzeit von mehr als drei Jah¬
ren mit mindestens 5 Prozent des Nenn¬
betrags des Darlehens in Verzug ist und
2. der Darlehensgeber dem Darlehensneh¬
mer erfolglos eine zweiwöchige Frist zur Zah¬
lung des rückständigen Betrags mit der Er¬
klärung gesetzt hat, dass er bei Nichtzahlung
innerhalb der Frist die gesamte Restschuld
verlange.
2Der Darlehensgeber soll dem Darlehens¬
nehmer spätestens mit der Fristsetzung ein
Gespräch über die Möglichkeiten einer ein¬
verständlichen Regelung anbieten.
(2) Bei einem Immobiliar-Verbraucherdar-
lehcnsvertrag muss der Darlehensnehmer ab¬
weichend von Absatz 1 Satz 1 Nummer
Buchstabe b mit mindestens 2,5 Prozent des
Nennbetrags des Darlehens in Verzug sein.
" MüKo BGB/Schürnbrand, § 497 BGB mn. 21; Bülow/Arzt Verbraucherkreditrecht/Bülow. § 497 BGB
mn. 45, disputed.
886
Krämer
Calling in entire loan in the case of loans repayable in instalments 1-7 § 498
A. Function
I. Purpose
§ 498 states the criteria for the termination of loans repayable in instalments on the 1
grounds of the borrower’s default. With the termination of the agreement, the residual claim
will be due at once and, furthermore, the borrower is faced with default interest. Therefore,
§ 498 sets out special requirements for the termination taking into account the interest of the
lender to anticipate the borrower’s insolvency.
II. Scope of application
§ 498 applies to all consumer credit agreements and is of mandatory nature (§ 512). 2
B. Context
§ 498 adopts § 12 VerbrKrG with identical content. After shifting § 498 to § 503, it was 3
returned to § 498 in transposing the EU Mortgage Credit Directive.
C. Explanation
I. Requirements
All criteria stated in Sub. 1 must be fulfilled cumulatively. First, No. 1 requires a qualified 4
default of the borrower. The borrower must be in default (§ 286) with at least two
consecutive instalments in whole or in part and at least with the respective percentage of
the net loan amount (Art. 247 § 3(2) 2nd St. EGBGB) laid down in No. 1(a). It amounts to
10 percent for contracts with a term less than three years, 5 percent for terms of more than
three years, and for any consumer credit agreement relating to immovable property
2.5 percent without regard to the term (Sub. 2). The borrower can, pursuant to § 366,
determine the redemption of his instalments in the way that the borrower only redeems
every second rate owed. However, this determination constitutes an abuse of right under
§ 242.1
Second, the lender must have given a period of two weeks for repayment without result 5
and - in the same notice - must have declared the whole amount in arrears and that the
residual amount becomes due at once without performance in time. Such notice can be
dispensed, if the borrower seriously and definite refuses performance.2
IL Termination
The notice of termination must be given on a durable medium (§ 126b 2nd St.), § 492(5). 6
The right of termination under § 498 can be forfeited under § 242 if the lender does not
execute the termination within reasonable time even though the prerequisites are fulfilled.3
The offer to discuss the possibility of an arrangement by mutual consent in Sub. 1 2nd St. 7
is not mandatory for the termination to be effective. However, an omitted offer can entitle
the borrower to damages under § 280( 1 ).4
1 BeckOK BGB/Möller, § 498 BGB mn. 4.
2 BGH 5J 2.2006 - XI ZR 341/05, NJW RR 2007, 1202 et seq.
3 OLG Nürnberg 27.04.2009, 14, U 1037/08, BeckRS 12472.
4 Bülow/Arzt Verbraucherkreditrecht/Bülow, § 498 BGB mn. 36.
Krämer
887
§500
Division 8. Particular types of obligations
§499
Right of the lender to terminate;
right to refuse performance
(1) In a consumer credit agreement, an
agreement on a right of termination by the
lender is ineffective if a specific contract term
was agreed or the termination period is less
than two months.
(2) ’The lender is entitled with such an
agreement to refuse to disburse a loan, for
an objective reason, where no time is deter¬
mined for repayment. 2If the lender intends
to exercise this right, he must notify the
borrower of this promptly and inform him
of the reasons, where possible prior to, but at
the latest promptly after the exercise of the
right, information with regard to the rea¬
sons is not provided insofar as public security
or order would be placed at risk thereby.
(3) ’The lender may not terminate, or end
by other means, or demand a change to a
consumer credit agreement by the mere fact
that the information given by the borrower
prior to the conclusion of the contract was
incomplete or because the assessment of the
creditworthiness of the borrower was not
conducted correctly. Sentence 1 does not
apply to the extent that the defect in the
assessment of the creditworthiness is based
on the fact that the borrower knowingly with¬
held or falsified information relevant to the
lender for the assessment of creditworthiness.
§500
Termination right of the
borrower; early repayment
(1) ’The borrower may terminate a consu¬
mer credit agreement where no time for re¬
payment has been determined completely or
in part without adhering to a notice period.
2An agreement on a notice period of more
than one month is ineffective.
(2) ’The borrower may meet his obliga¬
tions from a consumer credit agreement at
any time early completely or in part. 2In
§499
Kündigungsrecht des
Darlehensgebers;
Leistungsverweigerung
(1) In einem Allgemein-Verbraucherdarle¬
hensvertrag ist eine Vereinbarung über ein
Kündigungsrecht des Darlehensgebers un¬
wirksam, wenn eine bestimmte Vertragslauf¬
zeit vereinbart wurde oder die Kündigungs¬
frist zwei Monate unterschreitet.
(2) ’Der Darlehensgeber ist bei entspre¬
chender Vereinbarung berechtigt, die Aus¬
zahlung eines Allgemein-Verbraucherdarle¬
hens, bei dem eine Zeit für die Rückzahlung
nicht bestimmt ist, aus einem sachlichen
Grund zu verweigern, beabsichtigt der Dar¬
lehensgeber dieses Recht auszuüben, hat er
dies dem Darlehensnehmer unverzüglich mit¬
zuteilen und ihn über die Gründe möglichst
vor, spätestens jedoch unverzüglich nach der
Rechtsausübung zu unterrichten. 3Die Unter¬
richtung über die Gründe unterbleibt, soweit
hierdurch die öffentliche Sicherheit oder Ord¬
nung gefährdet würde.
(3) ’Der Darlehensgeber kann einen Ver¬
braucherdarlehensvertrag nicht allein deshalb
kündigen, auf andere Weise beenden oder
seine Änderung verlangen, weil die vom Dar¬
lehensnehmer vor Vertragsschluss gemachten
Angaben unvollständig waren oder weil die
Kreditwürdigkeitsprüfung des Darlehensneh¬
mers nicht ordnungsgemäß durchgefiihrt
wurde. 2Satz 1 findet keine Anwendung, so¬
weit der Mangel der Kreditwürdigkeitsprü¬
fung darauf beruht, dass der Darlehens¬
nehmer dem Darlehensgeber für die
Kreditwürdigkeitsprüfung relevante Informa¬
tionen wissentlich vorenthalten oder diese
gefälscht hat.
§500
Kündigungsrecht des
Darlehensnehmers; vorzeitige
Rückzahlung
(1) ’Der Darlehensnehmer kann einen All-
gemein-Verbraucherdarlehensvcrtrag, bei dem
eine Zeit für die Rückzahlung nicht bestimmt
ist, ganz oder teilweise kündigen, ohne eine
Frist einzuhalten. 2Eine Vereinbarung über
eine Kündigungsfrist von mehr als einem Mo
nat ist unwirksam.
(2) ’Der Darlehensnehmer kann seine Ver
bindlichkeiteii aus einem Verbraucherdarie¬
liensvertrag jederzeit ganz oder teilweise vor
888
Krämer
Compensation for early repayment of a loan
§502
deviation from sentence 1, the borrower in a
real estate consumer credit contract, for
which a fixed rate of interest was agreed,
may only meet his obligations during the
period of fixed interest early completely or
in part if there is a legitimate interest for the
borrower to do so.
zeitig erfüllen. 2Abweichend von Satz 1 kann
der Darlehensnehmer eines Immobiliar-Ver-
braucherdarlehensvertrags, für den ein ge¬
bundener Sollzinssatz vereinbart wurde, seine
Verbindlichkeiten im Zeitraum der Sollzins¬
bindung nur dann ganz oder teilweise vorzei¬
tig erfüllen, wenn hierfür ein berechtigtes
Interesse des Darlehensnehmers besteht.
§501
Cost reduction
Insofar as the borrower meets his obliga-
tions early, or the residual debt becomes due
prior to the agreed period by notice being
given, the overall costs (§ 6(3) of the Ordi¬
nance on Price Information [Preisangaben¬
verordnung)) are reduced by the interest and
other charges dependent on the duration of
the loan which, if graduated calculation is
used, apply to the period after the due date
or performance.
§501
Kostenermäßigung
Soweit der Darlehensnehmer seine Ver¬
bindlichkeiten vorzeitig erfüllt oder die Rest¬
schuld vor der vereinbarten Zeit durch Kün¬
digung fällig wird, vermindern sich die
Gesamtkosten (§ 6 Abs. 3 der Preisangaben¬
verordnung) um die Zinsen und sonstigen
laufzeitabhängigen Kosten, die bei gestaffel¬
ter Berechnung auf die Zeit nach der Fällig¬
keit oder Erfüllung entfallen.
§502
Compensation for early repayment
of a Ioan
(1) ’The lender may in the case of early
repayment require suitable compensation for
early termination for the damage directly
related to early repayment if the borrower at
the time of repayment owes interest at a
pegged lending rate. Sentence 1 applies to
general consumer credit agreements only if
the fixed rate of interest was agreed on con¬
clusion of contract.
(2) The right to compensation for early
repayment of the loan is ruled out if
1. the repayment is effected from funds
from an insurance policy concluded on the
basis of a corresponding obligation in the
loan contract in order to ensure repayment,
or
2. the information contained in the con¬
tract on the term of the contract, the right of
termination of the borrower or the calcula¬
tion of the compensation for early repayment
of the loan is inadequate.
(3) The compensation for early repayment
of the loan under a general consumer credit
agreement may not exceed the following
amounts in each case:
1. 1 percent of the amount repaid early or,
if the period between the early and the agreed
§502
VorfäHigkeitsentschädigung
(1) ’Der Darlehensgeber kann im Fall der
vorzeitigen Rückzahlung eine angemessene
Vorfälligkeitsentschädigung für den unmit¬
telbar mit der vorzeitigen Rückzahlung zu¬
sammenhängenden Schaden verlangen, wenn
der Darlehensnehmer zum Zeitpunkt der
Rückzahlung Zinsen zu einem gebundenen
Sollzinssatz schuldet. 2Bei Allgemein-Ver¬
braucherdarlehensverträgen gilt Satz 1 nur,
wenn der gebundene Sollzinssatz bei Ver¬
tragsabschluss vereinbart wurde.
(2) Der Anspruch auf Vorfälligkeitsent¬
schädigung ist ausgeschlossen, wenn
1. die Rückzahlung aus den Mitteln einer
Versicherung bewirkt wird, die auf Grund
einer entsprechenden Verpflichtung im Dar¬
lehensvertrag abgeschlossen wurde, um die
Rückzahlung zu sichern, oder
2. im Vertrag die Angaben über die Lauf¬
zeit des Vertrags, das Kündigungsrecht des
Darlehensnehmers oder die Berechnung der
Vorfälligkeitsentschädigung unzureichend
sind.
(3) Bei Allgemein-Vcrbraucherdarleheiis-
verträgen darf die Vorfälligkeitsentschädi¬
gung folgende Beträge jeweils nicht über¬
schreiten:
1. 1 Prozent des vorzeitig zurückgezahlten
Betrags oder, wenn der Zeitraum zwischen
Krämer
889
Division 8. Particular types of obligations
§ 502 1-4
repayment is not more than one year,
0.5 percent of the amount repaid early,
2. the amount of the interest which the
borrower would have paid in the period be¬
tween early and agreed repayment.
der vorzeitigen und der vereinbarten Rück¬
zahlung ein Jahr nicht überschreitet, 0,5 Pro¬
zent des vorzeitig zurückgezahlten Betrags,
2. den Betrag der Sollzinsen, den der Dar¬
lehensnehmer in dem Zeitraum zwischen der
vorzeitigen und der vereinbarten Rückzah¬
lung entrichtet hätte.
Contents
mn.
A. Function 1
I. Purpose 1
II. Scope of application 2
B. Context 3
C. Explanation 4
I. Termination agreement 4
II. Refusal of payment 5
III. Creditworthiness 6
IV. Notice period 7
V. Early performance 8
VI. Overpayments 9
VII. Compensation 11
A. Function
I. Purpose
1 §§ 499-502 provide other possibilities to terminate a consumer credit agreement and
stipulate the legal consequences of such termination. § 499 grants a right of termination for
the lender and the right to refuse performance. § 500 sets out such termination right for the
borrower and the right to repay the loan early. § 501 states the legal consequences of a
termination for the parties and the early repayment of the loan. Pursuant to § 502 the lender
may be entitled to compensation for early repayment.
IL Scope of application
2 Most of the provisions apply to all consumer credit agreements and are of mandatory
nature (§ 512).
B. Context
3 These provisions were implemented in transposing the EU Consumer Credit Directive and
amended in the course of transposing the EU Mortgage Credit Directive.
C. Explanation
I. Termination agreement
4 § 499(1) and (2) only apply to general consumer credit agreements. If a specific term I«”-
the loan contract is agreed on the parties cannot effectively agree on a contractual right ot
termination (§ 499(1)). Without such a specific term such agreement is also void if the
parties agree on a notice period (i.e. three months according to § 488(3) 2nd St.) of less th»11
two months. Notice must be given on a durable medium (§§ 492(5), 126b 2,,d St.).
890
Krämer
Compensation for early repayment of a loan
5-10 § 502
II. Refusal of payment
§ 499(2) entitles the lender to refuse payment before the loan is disbursed if no time for 5
repayment is determined in the contract. This right requires an objective reason. Such reason
can be a deterioration of the borrower’s financial circumstances after conclusion of the
contract.1 Under the 2nd St. the notice of execution and the information about the reasons
must be given immediately (§ 121(1) 1st St.) in the form as required by §§ 492(5), 126b
2nd St. Public security and order in the 3rd St. encompass the inviolability of the law and
especially prevention, inquiry and prosecution of crimes.2
III. Creditworthiness
The lender is bound to a contract concluded in violation of the mandatory assessment of 6
the creditworthiness, §§ 505a et seq. (Kreditwürdigkeitsprüfung). Even after conclusion of the
contract, the lender is responsible for the assessment of the creditworthiness and thus may
neither terminate nor end the contract on another way nor demand modifications of the
contract (§ 499(3)). The 2nd St. states an exception insofar as the borrower intentionally
withheld or manipulated relevant information for the assessment of the creditworthiness. In
such case, termination for cause (§ 314) or avoidance (§ 123) will usually be possible.
IV. Notice period
According to § 500(1), the borrower can - in deviation from § 488(3) 2nd St. - terminate 7
the contract partly or entirely at any time without adhering to a certain notice period if no
time for repayment has been determined. The parties can agree on a notice period up to one
month (2nd St.) in the form laid down in § 492(1). § 489(3) must be considered with regard
to the termination by the borrower. Such termination can be declared impliedly if the
borrower makes payment exceeding his respective payment obligation.3
V. Early performance
According to § 500(2) 1st St., the borrower may - without termination - meet his 8
obligations from a consumer credit agreement at any time early, completely or in part. The
lender must inform about this right in the contract (Art. 247 §6(1) 1st St. No. 1, §3(1)
No. 14 EGBGB in connection with § 492(2)). Early performance of a consumer credit
agreement relating to real estate with a pegged lending rate (§ 489(5)) additionally requires
a justified interest of the borrower (3rd St.). The same principles as in § 490(2) 1st St. apply for
determining the justified interest.4
VI. Overpayments
§ 501 is not a basis for a claim; it states a general rule on how to consider overpaid interest 9
or costs in course of the restitution of the loan contract in the context of the respective claims
for damages or unjustified enrichment.5 It applies to all kinds of early repayment (§ 500(2))
and termination (§§ 489, 490, 498-500(1)).
The overall costs (§ 6(3) PAngV) are reduced by the contractually owed interest that 10
would have been due from this point in time. This is especially relevant if interest has been
1 BT- Drs. 16/11643 of 21J .2009, p. 85.
2 BT-Drs. 16/11643 of 21.1.2009, p. 85.
3 BeckOK BGB/Mollcr, § 500 BGB mn. 6.
4 BT-Drs. 18/5922 of 7.9.2015, p. 90.
5 BT-Drs. 16/11643 of 21.1.2009, p. 86.
Krämer
891
§503 Division 8. Particular types of obligations
paid beforehand, because no further claims for interest arise after the end of the contract.
Other charges can reduce the overall costs it their amount depends on the term.6
VII. Compensation
11 § 502 compensates the lender for the justified expectation for interest. § 500(1) grants a
claim for compensation for early repayment (§ 491(2) 3rd St.). For this purpose the loan must
have been repaid early in terms of § 500(2) and the lending rate must have been pegged at
this time. In general, the pegged lending rate must have been agreed on at the time of
entering into the contract (2nd St.). This claim covers all substantial causal damage (§§ 249 et
seq.) including lost profit (§ 252).7
12 The compensation for early repayment on a general consumer credit agreement may not
exceed 1 percent of the amount repaid early or 0.5 percent if the residual term is less than
one year. Furthermore, it may not exceed the amount of interest that would have been owed
without early repayment.
13 Such compensation is excluded under the requirements of § 502(2). According to No. 2,
the claim is excluded in case of a violation of the duty to inform8 the borrower about the
method of calculating the compensation. This applies not only to incorrect or missing
information but also to correct information regarding the content, that, however, cannot be
comprehended by an average consumer.9
§503
Conversion in real estate
consumer credit in foreign
currency
(1) *111 a real estate consumer credit agree¬
ment that is not concluded in the currency of
a Member State of the European Union in
which the borrower is resident at the time of
conclusion of contract (national currency of
the borrower) (real estate consumer credit
agreement in foreign currency) the borrower
may demand the conversion of the loan into
the national currency of the borrower. 2The
right to conversion arises if due to changes in
the exchange rate the value of the amount
outstanding or the value of the regular instal¬
ments of the national currency of the bor¬
rower rises by more than 20 percent com¬
pared to the value which would have been
given on the basis of the exchange rate at the
time of the conclusion of the contract. 3In
deviation from sentence 1, the credit agree¬
ment may provide that the national currency
of the borrower is exclusively or supplemen¬
tary the currency in which he, at the time of
the relevant assessment of his creditworthi-
§503
Umwandlung bei Immobiliar-
Verbraucherdarlehen in
Fremdwährung
(1) !Bei einem nicht auf die Währung des
Mitgliedstaats der Europäischen Union, in
dem der Darlehensnehmer bei Vertrags¬
schluss seinen Wohnsitz hat (Landeswährung
des Darlehensnehmers), geschlossenen Immo¬
biliar-V erbraucherdarlehensvertrag (Immobi-
liar-Verbraucherdariehensvertrag in Fremd¬
währung) kann der Darlehensnehmer die
Umwandlung des Darlehens in die Landes¬
währung des Darlehensnehmers verlangen.
2Das Recht auf Umwandlung besteht dann,
wenn der Wert des ausstehenden Restbetrags
oder der Wert der regelmäßigen Raten in der
Landeswährung des Darlehensnehmers auf
Grund der Änderung des Wechselkurses um
mehr als 20 Prozent über dem Wert liegt, der
bei Zugrundelegung des Wechselkurses bei
Vertragsabschluss gegeben wäre. 'Im Darle¬
hensvertrag kann abweichend von Satz 1 ver¬
einbart werden, dass die Landeswährung des
Darlehensnehmers ausschließlich oder ergän¬
zend die Währung ist, in der er zum Zeit-
6 BT-Drs. 16/11643 of 21.1.2009, p. 86.
7 BT-Drs. 16/11643 of 21.1.2009, p. 87.
8 Art. 247 §6(1) 1M St. No. 1, 2nd St. in connection with § 3(1) No 6 EGBGB for the term of the
contract; Art. 247 § 6(1) Is' St. No. 5 EGBGB for the right of termination; Art. 247 § 7(1) No. 3, (2) No. 1
EGBGB for the method of calculation of the compensation for early repayment.
9 MüKo BGB/Schurnbrand, § 502 BGB mn. 14.
892
Krämer
Conversion in real estate consumer credit in foreign currency 1-5 § 503
ness, predominately receives his income or
holds assets from which the credit is to be
repaid.
(2) !The loan is to be converted at the
exchange rate which corresponds to the mar¬
ket exchange rate applicable on the day of
application for conversion. Sentence 1 only
applies if the credit agreement does not pro¬
vide otherwise.
punkt der maßgeblichen Kreditwürdigkeits¬
prüfung überwiegend sein Einkommen be¬
zieht oder Vermögenswerte hält, aus denen
das Darlehen zurückgezahlt werden soll.
(2) lDie Umstellung des Darlehens hat zu
dem Wechselkurs zu erfolgen, der dem am Tag
des Antrags auf Umstellung geltenden Markt¬
wechselkurs entspricht. 2Satz 1 gilt nur, wenn
im Darlehensvertrag nicht etwas anderes ver¬
einbart wurde.
A. Function
I. Purpose
§ 503 protects the borrower from currency risks. In individual cases the borrower of a 1
contract in a foreign currency is entitled to convert the owed currency into another currency.
IL Scope of application
This provision only applies to consumer credit agreements relating to real estate. In an 2
international context it only applies via Art. 6(2) Rome I or if the parties chose German law.
It is not an overriding mandatory provision in terms of Ait. 9 Rome I1, however, it is of
mandatory' nature under German law (§ 512).
B. Context
§ 503 transposes Art. 23(1 )-(3) EU Mortgage Credit Directive into German law. 3
C. Explanation
I. Foreign currency
The loan currency has to be a foreign currency. According to Sub. 1 1st St., foreign 4
currency is any other currency than the currency of the Member State in which the borrower
resides. The currency of the Member State in which the borrower resides is legally defined as
the currency of the Member State in which the borrower has his residence in terms of §§ 7 et
seq. at the time of conclusion of the contract. Under the 3rd St. the parties can determine such
currency in an agreement in four different ways: (i) the currency in which the borrower
primarily receives the relevant income; (ii) the currency in which the borrower holds assets
from which the loan is to be repaid; (iii) those currencies in alternative relation to the
currency in the 1st St. (iv) In case of alternative currencies, a right to conversion exists for
each currency risk (up to three).2
IL Currency conversion
The right to convert the currency only arises if the value of the residual amount or the 5
regular interest rates exceeds the value it had under the exchange rate prevailing at the time
of conclusion of the contract by 20 percent (2nd St.).
1 BeckOK BGB/Grothe, § 503 BCiB mn. 1.
2 ßeckOK BGB/Grothe, § 503 BGB mn. 4. MüKo BGB/Schürnbrand, § 503 BGB mn. 8.
Krämer
893
§504 1
Division 8. Particular types of obligations
6 The right to convert the currency is carried out hy an informal request of the borrower at
the exchange rate that corresponds with the daily reference exchange rate published by the
European Central Bank (Sub. 2 1st St.).’ The relevant point in time is the day of the request,
unless the parties agreed otherwise.
§504
Granted overdraft
(1) ’If a consumer loan is granted such that
the lender grants, in a contractual relation¬
ship concerning a current account, to the
borrower the right to overdraw his account
up to a specific amount (overdraft), the len¬
der must provide to the borrower at regular
intervals the information set out in
Article 247 § 16 of the Introductory Act to
the Civil Code [Einführungsgesetz zum Bür¬
gerlichen Gesetzbuche]. 2A right to compen¬
sation for early repayment of the loan under
§ 502 is ruled out. 3§ 493(3) is only applied in
case of an increase in the lending rate and
applies with the necessary modifications to an
increase in the other costs that have been
agreed. 4§ 499(1) does not apply.
(2) !If it is agreed in an overdraft that after
disbursement the term is at most three
months or the lender can terminate without
complying with a notice period, §491a(3),
§§495, 499(2) and §500(1) sentence 2 do
not apply. 2§ 492(1) does not apply if apart
from the interest no further ongoing costs are
agreed, the interest is not due at intervals of
less than three months and the lender in¬
forms the borrower of the content of the
contract on a durable medium at the latest
promptly after conclusion of the contract.
§504
Eingeräumte
Überziehungsmöglichkeit
(1) 4st ein Verbraucherdariehen in der
Weise gewährt, dass der Darlehensgeber in
einem Vertragsverhältnis über ein laufendes
Konto dem Darlehensnehmer das Recht ein¬
räumt, sein Konto in bestimmter Höhe zu
überziehen (Überziehungsmöglichkeit), hat
der Darlehensgeber den Darlehensnehmer in
regelmäßigen Zeitabständen über die Anga¬
ben zu unterrichten, die sich aus Artikel 247
§ 16 des Einführungsgesetzes zum Bürgerli¬
chen Gesetzbuche ergeben. 2Ein Anspruch auf
Vorfälligkeitsentschädigung aus § 502 ist aus¬
geschlossen. 3§ 493 Abs. 3 ist nur bei einer
Erhöhung des Sollzinssatzes anzuwenden
und gilt entsprechend bei einer Erhöhung
der vereinbarten sonstigen Kosten. 4§499
Abs. 1 ist nicht anzuwenden.
(2) 4st in einer Überziehungsmöglichkeit
in Form des Allgemein-Verbraucherdarle-
hensvertrags vereinbart, dass nach der Aus¬
zahlung die Laufzeit höchstens drei Monate
beträgt oder der Darlehensgeber kündigen
kann, ohne eine Frist einzuhalten, sind § 491a
Abs. 3, die §§495, 499 Abs. 2 und §500
Abs. 1 Satz 2 nicht anzuwenden. 2§ 492 Abs. 1
ist nicht anzuwenden, wenn außer den Soll¬
zinsen keine weiteren laufenden Kosten ver¬
einbart sind, die Sollzinsen nicht in kürzeren
Zeiträumen als drei Monaten fällig werden
und der Darlehensgeber dem Darlehensneh¬
mer den Vertragsinhalt spätestens unverzüg¬
lich nach Vertragsabschluss auf einem dauer¬
haften Datenträger mitteilt.
A. Function
I. Purpose
1 Granting small Ioans in the course of a current account shall not be made difficult. Such
loans only bear minor risk because normally the overdraft is the exemption and the cost
structure is transparent.1 Therefore, § 504 deviates from 491a et seq.
’ BT-Drs. 18/5922 of 7.9.2015, p. 93.
1 BeckOK BGB/Grothe, <j 504 BGB mn. 3; BT-Drs. 11/5462 of 25.10.1989, p. 20.
894
Krämer
Advisory duty in use of an overdraft facility
§ 504a
II. Scope of application
The granted overdraft constitutes at the same time a loan contract. Therefore, the 2
borrower must be a consumer and the application of this provision must not be excluded
according to § 491(2) 2nd St. § 504 is of mandatory nature (§ 512).
B. Context
The transposition ot the EU Consumer Credit Directive split the former § 493 (concerning 3
overdraft) into two provisions (§§ 504 and 505) and made several changes.
C. Explanation
I. Current account
The ease ot the form only applies to current accounts (1st St.). A current account is at hand 4
if debiting and crediting the account in terms of § 355 HGB is based on a framework
agreement between the parties. Further, the parties must have determined a certain max¬
imum limit of the overdraft.
IL Information obligation
The lender must provide to the borrower in regular intervals the information set out in 5
Art. 247 § 16 EGBGB on a durable medium (§§ 492(5), 126b 2nd St.). The period must enable
the borrower to identify the financial burden. Thus, monthly or quarterly information should
suffice to inform the borrower adequately; yearly information on the other hand cannot
suffice.2 In case of violation of this obligation, the borrower may be entitled to damages
under § 280(1). The 2nd St. excludes the claim for compensation for early repayment because
such compensation does not comply with the principle of the overdraft. The 3rd St. limits the
information obligation under § 493(3) to the information about an increase of the lending
rate. § 499( 1) does not apply according to the 4th St.
III. Termination
If the parties agreed in an overdraft under Sub. 1 that after disbursement the term is at 6
most three months or that the lender can terminate the contract at any time, further
provisions are excluded (Sub. 2 1st St.) and a right of the lender to terminate without a notice
period (that strictly already follows from the exclusion of § 499(1) in Sub. 1) is laid down.
Moreover, under the requirements of Sub. 2 2nd St., the parties are not obliged to adhere to
the written form of § 492(1).
§ 504a
Advisory duty in use of an
overdraft facility
(1) ’The lender is to offer advice to the
borrower in accordance with subsection (2)
if the borrower uses of an overdraft facility
§ 504a
Beratungspflicht bei
Inanspruchnahme der
Überziehungsmöglichkeit
(1) ■Der Darlehensgeber hat dem Darle¬
hensnehmer eine Beratung gemäß Absatz 2
anzubieten, wenn der Darlehensnehmer eine
2 BT-Drs. 16/11643 of 21.1.2009, p. 89.
Krämer
895
Division 8. Particular types of obligations
§ 504a 1-2
available to him contiuously over a six month
period and on average in an amount which
exceeds 75 percent of the agreed maximum
amount. 2If the statement of accounts for the
current account is issued quarterly, the rele¬
vant point in time for satisfaction of the
requirements under sentence 1 is the respec¬
tive satement of account. 3The offer of advice
is to be commnicated in text form to the
borrower in the means of communication
typically used for contact with the borrower.
4The offer of advice is to be documented.
(2) ’If the borrower accepts the offer, ad¬
vice on possible more cost-effective alterna¬
tives to using the overdraft facility and on
possible consequences of a further overdrawal
of the current account as well as, if applic¬
able, suitable advisory facilities, to is to be
indicated. 2The advice must be given in the
form of a personal consultation. 3Means of
distance communication may be used for this
purpose. 4The place and the time of the ad¬
visory consultation are to be documented.
(3) ’If the borrower does not accept the
offer of advice or if a contract for a more
cost-effective financial product is not con¬
cluded, the lender must repeat the offer
when the requirements under subsection (1)
again exist. 2This does not apply if the bor¬
rower expressly declares that he does not
want to receive any further such offers of
advice.
ihm eingeräumte Überziehungsmöglichkeit
ununterbrochen über einen Zeitraum von
sechs Monaten und durchschnittlich in Höhe
eines Betrags in Anspruch genommen hat,
der 75 Prozent des vereinbarten Höchst¬
betrags übersteigt. 2Wenn der Rechnungs¬
abschluss für das laufende Konto vierteljähr¬
lich erfolgt, ist der maßgebliche Zeitpunkt für
das Vorliegen der Voraussetzungen nach
Satz 1 der jeweilige Rechnungsabschluss.
3Das Beratungsangebot ist dem Darlehens¬
nehmer in Textform auf dem Kommunikati¬
onsweg zu unterbreiten, der für den Kontakt
mit dem Darlehensnehmer üblicherweise ge¬
nutzt wird. 4Das Beratungsangebot ist zu do¬
kumentieren.
(2) ’Nimmt der Darlehensnehmer das An¬
gebot an, ist eine Beratung zu möglichen
kostengünstigen Alternativen zur Inan¬
spruchnahme der Überziehungsmöglichkeit
und zu möglichen Konsequenzen einer wei¬
teren Überziehung des laufenden Kontos
durchzuführen sowie gegebenenfalls auf ge¬
eignete Beratungseinrichtungen hinzuweisen.
2Die Beratung hat in Form eines persönlichen
Gesprächs zu erfolgen. 3Für dieses können
auch Fernkommunikationsmittel genutzt
werden. 4Der Ort und die Zeit des Beratungs¬
gesprächs sind zu dokumentieren.
(3) ’Nimmt der Darlehensnehmer das Be¬
ratungsangebot nicht an oder wird ein Ver¬
trag über ein geeignetes kostengünstigeres
Finanzprodukt nicht geschlossen, hat der
Darlehensgeber das Beratungsangebot bei er¬
neutem Vorliegen der Voraussetzungen nach
Absatz 1 zu wiederholen. 2Dies gilt nicht,
wenn der Darlehensnehmer ausdrücklich er¬
klärt, keine weiteren entsprechenden Bera¬
tungsangebote erhalten zu wollen.
A. Function
1 § 504a serves to improve the consumer protection level in case of a permanent and
considerable overdraft.1 It was implemented in course of the transposition of the EU
Mortgage Credit Directive. § 504a is of mandatory nature (§ 512).
B. Explanation
I. Offer of advice
2 Sub. 1 r* St. sets out the conditions under which the lender has to provide advice in
accordance with Sub. 2. The P- St. requires a permanent and considerable overdraft. The
overdraft amount must exceed in average 75 percent of the agreed maximum overdraft fora
1 BT-Drs. 18/5922 of 7.9.2015, p. 94.
896
Krämer
Tolerated overdraft § 505
term of six months without interruption. The term is uninterrupted, if - in spite of possible
credit entries - the balance is never settled.2 The term commences with drawing down the
overdraft, as long as the lender does his accounts on a yearly basis (§ 355(2) HGB).3 In case
ot a quarterly basis, according to the 2nd St. the term commences with the statement of
account. The otfer to provide advice must be submitted in text form (§ 126b) in the usual
communication channel between the parties. The offer must be documented by the lender
(4th St.).
II. Repeat offer
The offer of advice must be repeated if the borrower has not accept said offer or has not 3
agreed on a contract about a cost-saving financial product and the conditions of Sub. 1 occur
again (Sub. 3). It does not have to be repeated if the borrower expressly declared that he does
not want to receive more offers for advice (2nd St.).
III. Advice
It the borrower accepts the offer, the lender must provide advice pursuant to Sub. 2. The 4
purpose ot the advice is to show the borrower that drawing down the overdraft only makes
sense to bypass short term financial shortages and that other types of credit agreements are
more suitable and cost efficient for long term funding.4 The advice given must encompass
possible consequences of a further overdraft such as a termination of the credit agreement
and, additionally, the lender shall make reference to assistance offers of a third party, such as
a credit counselling centre (Schuldnerberatungsstelle). The advice must be provided in a
personal conversation, where appropriate with the help of means of distance communication
(§ 312c(2)). The conversation must be documented by the lender (4th St.).
IV. Violation
In case of a violation of this duty the borrower may be entitled to damages under § 280(1). 5
If the lender violates his duty of documentation it is presumed that the respective event did
not take place. With regard to the causality, it is presumed that the borrower would have
acted in accordance with the advice (Vermutung beratungsgerechten Verhaltens).
§505
Tolerated overdraft
(1) JIf an entrepreneur agrees in a contract
with a consumer on a current account for
which no overdraft facility has been granted
that a fee shall be payable in the event of his
tolerating the overdrawing of the account,
this contract must contain the information
under Article 247 § 17(1) of the Introductory
Act to the Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzbuche) in text form,
and such information must be notified to the
consumer at regular intervals on a durable
medium. Sentence 1 applies with the neces¬
sary modifications if a lender agrees with a
borrower in a contract on a current account
§505
Geduldete Überziehung
(1) ’Vereinbart ein Unternehmer in einem
Vertrag mit einem Verbraucher über ein lau¬
fendes Konto ohne eingeräumte Überzie¬
hungsmöglichkeit ein Entgelt für den Fall,
dass er eine Überziehung des Kontos duldet,
müssen in diesem Vertrag die Angaben nach
Artikel 247 § 17 Abs. 1 des Einführungsgeset¬
zes zum Bürgerlichen Gesetzbuche auf einem
dauerhaften Datenträger enthalten sein und
dem Verbraucher in regelmäßigen Zeit¬
abständen auf einem dauerhaften Datenträ¬
ger mitgeteilt werden. 2Satz 1 gilt entspre¬
chend, wenn ein Darlehensgeber mit einem
Darlehensnehmer in einem Vertrag über ein
2 BT-Drs. 18/5922 of 7.9.2015, p. 94.
3 BT-Drs. 18/5922 of 7.9.2015, p. 94.
4 BeckOK BGB/Moller, § 504a BGB mn. 6.
Krämer
897
§ 505 1-2 Division 8. Particular types of obligations
for which an overdraft facility has been
granted that a fee shall be payable in the
event of his tolerating the overdrawing of
the account beyond the amount agreed by
contract.
(2) 1 If in a case under subsection (1) there
is a considerable overdraft for a period of
more than one month, the lender must in¬
form the borrower promptly on a durable
medium of the details emerging from
Article 247 § 17(2) of the Introductory Act
to the Civil Code [Einführungsgesetz zum
Bürgerlichen Gesetzbuche]. 2§ 504a applies
with the necessary modifications if in a case
under subsection (1) there is a continuous
overdrawal over more than three months
and the average amount overdrawn is half
of the average monthly amount paid into
this account in the last three months. 3If the
statement of accounts for the current ac¬
count is issued quarterly, the relevant point
in time for satisfaction of the requirements
under sentence 1 is the respective satement
of account.
(3) If the entrepreneur acts in breach of
subsection (1) or subsection (2), the lender
may not demand costs and interest beyond
the repayment of the loan.
(4) §§ 491a to 496 and 499 to 502 do not
apply to consumer credit agreements estab¬
lished subject to the prerequisites named in
subsection (1).
laufendes Konto mit eingeräumter Überzie¬
hungsmöglichkeit ein Entgelt für den Fall
vereinbart, dass er eine Überziehung des Kon¬
tos über die vertraglich bestimmte Höhe hi¬
naus duldet.
(2) 1 Kommt es im Fall des Absatzes 1 zu
einer erheblichen Überziehung von mehr als
einem Monat, unterrichtet der Darlehens¬
geber den Darlehensnehmer unverzüglich auf
einem dauerhaften Datenträger über die sich
aus Artikel 247 § 17 Abs. 2 des Einführungs¬
gesetzes zum Bürgerlichen Gesetzbuche erge¬
benden Einzelheiten. 2Wenn es im Fall
des Absatzes 1 zu einer ununterbrochenen
Überziehung von mehr als drei Monaten ge¬
kommen ist und der durchschnittliche Über¬
ziehungsbetrag die Hälfte des durchschnitt¬
lichen monatlichen Geldeingangs innerhalb
der letzten drei Monate auf diesem Konto
übersteigt, so gilt § 504a entsprechend.
3Wenn der Rechnungsabschluss für das lau¬
fende Konto vierteljährlich erfolgt, ist der
maßgebliche Zeitpunkt für das Vorliegen der
Voraussetzungen nach Satz 1 der jeweilige
Rechnungsabschluss.
(3) Verstößt der Unternehmer gegen
Absatz 1 oder Absatz 2, kann der Darlehens¬
geber über die Rückzahlung des Darlehens
hinaus Kosten und Zinsen nicht verlangen.
(4) Die §§ 491a bis 496 und 499 bis 502
sind auf Allgemein-Verbraucherdarlehensver¬
träge, die unter den in Absatz 1 genannten
Voraussetzungen zustande kommen, nicht
anzuwenden.
A. Function
1 In comparison to § 504, § 505 regulates overdraft agreements that are concluded impliedly
by overdraft of the borrower. § 505 implements Art. 18 EU Consumer Credit Directive. The
purpose of the provision correlates with the purpose of § 504.1 8 505 is of mandatory nature
(§512).
B. Explanation
I. Requirement
2 The requirement of a tolerated overdraft in terms of Sub. 1 Is' St. is an agreement about a
current account.2 Under this provision, the overdraft facility is not agreed on or only to a
certain extent that is exceeded by the borrower (2"d St.) and the lender demands considera¬
tion for tolerating the overdraft (lsl St.).
1 See ► § 504 mn. 1.
2 See > § 504 mn. 4.
898
Kramer
Duty to assess creditworthiness in consumer credit agreements § 505a
II. Exemption
Sub. 4 releases a general consumer credit agreement from observing §§491a-496 and 3
499-502 to enable a flexible funding facility and to simplify payments.3 Said contract is the
contract that is concluded impliedly by overdrawing the account. The overdraft contains the
implied offer of the consumer to conclude a credit agreement that is accepted impliedly by
the lender by tolerating the overdraft.
This contract must contain the information pursuant to Art. 247 § 17(1) EGBGB on a 4
durable medium (§ 126b 2nd St.). This information has to be provided in regular intervals
regardless of a concrete overdraft (1st St.). The interval must be short enough to achieve the
required purpose of information and warning.4
III. Information obligation
In case of a considerable overdraft the lender must inform the borrower immediately 5
(§ 121(1) 2nd St.) about the details set out in Art. 247 § 17(2) EGBGB (Sub. 2). It depends on
the individual conditions of the contractual relationship whether an overdraft is considered
considerable or not.5 As § 504a( 1) 2nd St., the relevant point in time is the time of the
overdraft, or, in case of quarterly accounts, the time of the statement of account (3rd St.).
Corresponding to § 504a(l) 1st St., the duty to provide advice under § 504a applies to a
tolerated overdraft pursuant to Sub. 2 2nd St. if the overdraft amount exceeds in average
50 percent of the average incoming credits for a term of three months without interruption.6
The lender may not claim interest or costs if he is in breach of this obligation (Sub. 3). 6
§ 505a
Duty to assess creditworthiness in
consumer credit agreements
(1) !The lender must assess before the con¬
clusion of a consumer credit agreement the
creditworthiness of the borrower. 2The lender
may conclude the consumer credit agreement
only if the assessment of creditworthiness
indicates that there is no significant doubt of
creditworthiness in a general consumer credit
agreement and that it is probable in a real
estate consumer credit agreement that the
borrower will perform his obligations arising
from the credit agreement in conformity with
the agreement.
(2) If the net credit amount significantly
rises after the the conclusion of the credit
agreement, the creditworthiness is to be reas¬
sessed on the basis of updated information,
unless the incresaed amount of the net credit
§ 505a
Pflicht zur
Kreditwürdigkeitsprüfung bei
Verbraucherdarlehensverträgen
(1) ’Der Darlehensgeber hat vor dem Ab-
Schluss eines Verbraucherdarlehensvertrags
die Kreditwürdigkeit des Darlehensnehmers
zu prüfen. 2Der Darlehensgeber darf den Ver¬
braucherdarlehensvertrag nur abschließen,
wenn aus der Kreditwürdigkeitsprüfung her¬
vorgeht, dass bei einem Allgemein-Verbrau-
cherdarlehensvertrag keine erheblichen Zwei¬
fel daran bestehen und dass es bei einem
Immobiliar-Verbraucherdarlehensverlrag
wahrscheinlich ist, dass der Darlehensnehmer
seinen Verpflichtungen, die im Zusammen¬
hang mit dem Darlehensvertrag stehen, ver¬
tragsgemäß nachkommen wird.
(2) Wird der Nettodarlehensbetrag nach
Abschluss des Darlehensvertrags deutlich er¬
höht, so ist die Kreditwürdigkeit auf aktuali¬
sierter Grundlage neu zu prüfen, es sei denn,
der Erhöhungsbetrag des Nettodarlehens
3 MüKo BGB/Schürnbrand, § 505 BGB mn. 1.
4 See § 504 mn. 5.
5 MüKo BGB/Schürnbrand, § 505 BGB mn. 9.
6 See > § 504a mn. 2.
Krämer
899
Division 8. Particular types of obligations
§ 505b
was already included in the original assess¬
ment of creditworthiness.
(3) lln real estate consumer credit agree¬
ments which
1. subsequent to the credit agreement con¬
cluded by between the parties, grants a new
right to use capital to achieve the purpose
pursued by the borrower with the preciding
credit agreement, or
2. replaces or supplements another credit
agreement between the parties to the contract
in avoid termination due to delayed pay¬
ments by the borrower or to avoid an execu¬
tion of judgment against the borrower,
a new assessment of the creditworthiness is
only necessary under the requirements of
subsection (2). 2lf no assessment of credit¬
worthiness is necessary according to
subsection (2), the lender may not conclude
the new real estate consumer credit agree¬
ment if he is already aware that the borrower
will permanently not be able to perform his
obligations arising from this credit agree¬
ment. 3§ 505d applies with the necessary
modification in the case of breach.
§ 505b
Basis for the assessment of
creditworthiness in consumer
credit agreements
(1) The basis for the assessment of credit¬
worthiness in general consumer credit agree¬
ments may be information provided by the
borrower and if necessary information from
agencies which for the purpose of transfer
commercially collect, store, modify or use
personal data which may be used to assess
the creditworthiness of consumers.
(2) ’In real estate consumer credit agree¬
ments the lender must thoroughly assess the
creditworthiness of the borrower on the basis
of necessary, sufficient and proportionate in¬
formation on the borrower’s income, ex¬
penses and other financial and economic cir¬
cumstances. 2In this case the lender must take
reasonable account of the factors which are
relevent for the assessment whether the bor¬
rower can be expected to fulfil his obligations
under the credit agreement. 31 he assessment
of creditworthiness must not rely predomi¬
nantly on the value of the residential immo¬
vable property exceeding the amount of the
wurde bereits in die ursprüngliche Kredit¬
würdigkeitsprüfung einbezogen.
(3) ’Bei Immobiliar-Verbraucherdarlehens¬
verträgen, die
1. ini Anschluss an einen zwischen den
Vertragsparteien abgeschlossenen Darlehens¬
vertrag ein neues Kapitalnutzungsrecht zur
Erreichung des von dem Darlehensnehmer
mit dem vorangegangenen Darlehensvertrag
verfolgten Zweckes einräumen oder
2. einen anderen Darlehensvertrag zwischen
den Vertragsparteien zur Vermeidung von
Kündigungen wegen Zahlungsverzugs des
Darlehensnehmers oder zur Vermeidung von
Zwangsvollstreckungsmaßnahmen gegen den
Darlehensnehmer ersetzen oder ergänzen,
bedarf es einer erneuten Kreditwürdig¬
keitsprüfung nur unter den Voraussetzungen
des Absatzes 2. 2Ist danach keine Kreditwür¬
digkeitsprüfung erforderlich, darf der Darle¬
hensgeber den neuen Immobiliar-Verbrau-
cherdarlehensvertrag nicht abschließen, wenn
ihm bereits bekannt ist, dass der Darlehens¬
nehmer seinen Verpflichtungen, die im Zu¬
sammenhang mit diesem Darlehensvertrag
stehen, dauerhaft nicht nachkommen kann.
3Bei Verstößen gilt § 505d entsprechend.
§ 505b
Grundlage der
Kreditwürdigkeitsprüfung bei
Verbraucherdarlehensverträgen
(1) Bei Allgemein-Verbraucherdarlehens-
verträgen können Grundlage für die
Kreditwürdigkeitsprüfung Auskünfte des
Darlehensnehmers und erforderlichenfalls
Auskünfte von Stellen sein, die geschäfts¬
mäßig personenbezogene Daten, die zur Be¬
wertung der Kreditwürdigkeit von Verbrau¬
chern genutzt werden dürfen, zum Zweck der
Übermittlung erheben, speichern, verändern
oder nutzen.
(2) ’Bei Immobiliar-Verbraucherdarlehens¬
verträgen hat der Darlehensgeber die Kredit¬
würdigkeit des Darlehensnehmers auf der
Grundlage notwendiger, ausreichender und
angemessener Informationen zu Einkommen,
Ausgaben sowie anderen finanziellen und
wirtschaftlichen Umständen des Darlehens¬
nehmers eingehend zu prüfen. 2Dabei hat
der Darlehensgeber die Faktoren angemessen
zu berücksichtigen, die für die Einschätzung
relevant sind, ob der Darlehensnehmer seinen
Verpflichtungen aus dem Darlehensvcrtjag
voraussichtlich nachkomnien kann. 3Dic ^re
ditwUrdigkeitsprüfimg darf sich nicht haup
900
Krämer
Violation of the duty to assess creditworthiness
credit or the assumption that the residential
immovable property will increase in value
unless the purpose of the credit agreement is
to construct or renovate the residential im¬
movable property.
(3) ’The lender must obtain the informa¬
tion required under subsection (2) from rele¬
vant internal or external sources, which also
includes information from the borrower.
2The lender must also consider the informa¬
tion provided to a credit intermediary. 3The
lender is obliged to appropriately examine
the information, including through reference
to independently verifiable documentation as
necessary.
(4) In real estate consumer credit contracts
the lender is obliged to establish, document
and keep documentation of the procedure
and information forming the basis of the
assessment of creditworthiness.
(5) The provisions on the protection of
personal data remain unaffected.
§ 505d
sächlich darauf stützen, dass der Wert der
Wohnimmobilie den Darlehensbetrag über¬
steigt, oder auf die Annahme, dass der Wert
der Wohnimmobilie zunimmt, es sei denn,
der Darlehensvertrag dient zum Bau oder
zur Renovierung der Wohnimmobilie.
(3) ’Der Darlehensgeber ermittelt die ge¬
mäß Absatz 2 erforderlichen Informationen
aus einschlägigen internen oder externen
Quellen, wozu auch Auskünfte des Darlehens¬
nehmers gehören. 2Der Darlehensgeber be¬
rücksichtigt auch die Auskünfte, die einem
Darlehensvermittler erteilt wurden. 3Der Dar¬
lehensgeber ist verpflichtet, die Informatio¬
nen in angemessener Weise zu überprüfen,
soweit erforderlich auch durch Einsicht¬
nahme in unabhängig nachprüfbare Unterla¬
gen.
(4) Bei Immobiliar-Verbraucherdarlehens-
verträgen ist der Darlehensgeber verpflichtet,
die Verfahren und Angaben, auf die sich die
Kreditwürdigkeitsprüfung stützt, festzulegen,
zu dokumentieren und die Dokumentation
a ufzu bewahren.
(5) Die Bestimmungen zum Schutz per¬
sonenbezogener Daten bleiben unberührt.
§ 505c
Further duties in real estate
consumer credit contracts secured
by an encumbrance or a charge on
land
Lenders who provide real estate credit se¬
cured by an encumbrance or a charge on land
are to
1. apply reliable standards in the valuation
of residential immovable property and
2. ensure that internal and external apprai¬
sers, who undertake valuations of residential
immoveable property for the lender, are pro¬
fessionally competent and independent from
the credit underwriting process that they can
provide an objective valuation, and
3. document and keep on a durable med¬
ium valuations for immovable property
which serves as security for real estate con¬
sumer credit.
§ 505d
Violation of the duty to assess
creditworthiness
(1) ’If the lender has violated the duty
to assess creditworthiness, there is a reduc¬
tion of
§ 505c
Weitere Pflichten bei
grundpfandrechtlich oder durch
Reallast besicherten Immobiliar-
Verbraucherdarlehensverträgen
Darlehensgeber, die grundpfandrechtlich
oder durch Reallast besicherte Immobiliar-
Verbraucherdarlehen vergeben, haben
1. bei der Bewertung von Wohnimmobilien
zuverlässige Standards anzuwenden und
2. sicherzustellen, dass interne und externe
Gutachter, die Immobilienbewertungen für
sie vornehmen, fachlich kompetent und so
unabhängig vom Darlehensvergabeprozess
sind, dass sie eine objektive Bewertung vor¬
nehmen können, und
3. Bewertungen für Immobilien, die als
Sicherheit für Immobiliar-Verbraucherdarle-
hen dienen, auf einem dauerhaften Datenträ¬
ger zu dokumentieren und atifzubcwahren.
§ 505d
Verstoß gegen die Pflicht zur
Kreditwürdigkeitsprüfung
(1) ’Hat der Darlehensgeber gegen die
Pflicht zur Kreditwürdigkeitsprüfung versto¬
ßen, so ermäßigt sich
Krämer
901
§ 505e
Division 8. Particular types oj obligations
1. a fixed interest rate agreed in the credit
agreement to the prevailing market rate on
capital markets for mortgage bonds and pub¬
lic bonds whose duration corresponds to that
of the fixed interest rate and
2. a variable interest rate agreed in the
credit agreement to the prevailing market
rate in which European banks grant to one
another bonds in euro with a duration of
three months.
2The relevant point in time for determin¬
ing the prevailing market rate according to
sentence 1 is the moment of conclusion of
contract as well as, if applicable, the point in
time of contractually agreed adjustments to
the interest rate. 3The borrower may termi¬
nate the credit agreement at any time without
observing a notice period; a claim to compen¬
sation for early repayment does not arise.
4The lender is to make available a copy of
the contract to the borrower in which the
changes to the contract arising from sen¬
tences 1 to 3 are taken into account. 5Sen-
tences 1 to 4 do not apply if, had a correct
assessment of creditworthiness been con¬
ducted, the credit agreement could have been
concluded.
(2) If the borrower can not perform duties
arising under the credit agreement in confor¬
mity with the agreement, the lender may not
enforce any claims for breach of duty if the
breach results from a circumstance which,
had a correct assessment of creditworthiness
been conducted, would have ruled out the
conclusion of the credit agreement.
(3) Subsections (1) and (2) do not apply to
the extent that the defect in the assessment of
creditworthniess is based on the fact that the
borrower intentionally or with gross negli¬
gence supplied incorrect information as de¬
fined by § 505b( 1) to (3) or withheld such
information.
§ 505e
Empowerment to issue a
statutory instrument
’The Federal Ministry of Finance and the
Federal Ministry of Justice and Consumer
Protection are authorised to determine guide¬
lines on the criteria and methods of assessing
cred it worthiness in real estate consumer
credit contracts under 505a and 505b(2)
to (4) by a joint statutory instrument without
the approval of the Federal Council |Bundes-
1. ein im Darlehensvertrag vereinbarter ge.
bundener Sollzins auf den marktüblichen
Zinssatz am Kapitalmarkt für Anlagen in
Hypothekenpfandbriefe und öffentliche
Pfandbriefe, deren Laufzeit derjenigen der
Sollzinsbindung entspricht und
2. ein im Darlehensvertrag vereinbarter ver¬
änderlicher Sollzins auf den marktüblichen
Zinssatz, zu dem europäische Banken einander
Anleihen in Euro mit einer Laufzeit von drei
Monaten gewähren.
Maßgeblicher Zeitpunkt für die Bestim¬
mung des marktüblichen Zinssatzes gemäß
Satz 1 ist der Zeitpunkt des Vertragsschlusses
sowie gegebenenfalls jeweils der Zeitpunkt
vertraglich vereinbarter Zinsanpassungen.
3Der Darlehensnehmer kann den Darlehens¬
vertrag jederzeit fristlos kündigen; ein An¬
spruch auf eine Vorfälligkeitsentschädigung
besteht nicht. ’Der Darlehensgeber stellt dem
Darlehensnehmer eine Abschrift des Vertrags
zur Verfügung, in der die Vertragsänderun¬
gen berücksichtigt sind, die sich aus den Sät¬
zen 1 bis 3 ergeben. ’Die Sätze 1 bis 4 finden
keine Anwendung, wenn bei einer ordnungs¬
gemäßen Kreditwürdigkeitsprüfung der Dar¬
lehensvertrag hätte geschlossen werden dür¬
fen.
(2) Kann der Darlehensnehmer Pflichten,
die im Zusammenhang mit dem Darlehens¬
vertrag stehen, nicht vertragsgemäß erfüllen,
so kann der Darlehensgeber keine Ansprüche
wegen Pflichtverletzung geltend machen,
wenn die Pflichtverletzung auf einem Um¬
stand beruht, der bei ordnungsgemäßer Kre¬
ditwürdigkeitsprüfung dazu geführt hätte,
dass der Darlehensvertrag nicht hätte ge¬
schlossen werden dürfen.
(3) Die Absätze 1 und 2 finden keine An¬
wendung, soweit der Mangel der Kreditwür¬
digkeitsprüfung darauf beruht, dass der
Darlehensnehmer dem Darlehensgeber vor¬
sätzlich oder grob fahrlässig Informationen
im Sinne des § 505b Absatz 1 bis 3 unrichtig
erteilt oder vorenthalten hat.
§ 505e
Verordnungsermächtigung
’Das Bundesministerium der Finanzen un
das Bundesministerium der Justiz und idr
Verbraucherschutz werden ermächtigt, durc
gemeinsame Rechtsverordnung ohne Zustim
mung des Bundesrates Leitlinien cn
Kriterien und Methoden der Kreditwilr* ig
keitsprüfung bei Immobiliar-Verbraucher
darlehensverträgen nach den 505a um
902
Krämer
Empowerment to issue a statutory instrument
1-2 § 505e
rat]. 1 2The statutory instrument may deter¬
mine guidelines in particular
1. on the factors which are relevant for the
assessment whether the borrower can be ex¬
pected to fulfil his obligations under the
credit agreement,
2. on the applicable procedure and on the
collection and examination of information.
505b Absatz 2 bis 4 festzulegen. 2Durch die
Rechtsverordnung können insbesondere Leit¬
linien festgelegt werden
1. zu den Faktoren, die für die Einschät¬
zung relevant sind, ob der Darlehensnehmer
seinen Verpflichtungen aus dem Darlehens¬
vertrag voraussichtlich nachkommen kann,
2. zu den anzuwendenden Verfahren und
der Erhebung und Prüfung von Informatio¬
nen.
Contents
mn.
A. Function 1
B. Context 2
C. Explanation 3
I. Obligation to assess creditworthiness 3
1. Creditunworthiness 4
2. Exception 5
II. Requirements for assessing creditworthiness 6
1. General consumer credit agreements 7
2. Consumer credit agreements relating to real estate 8
III. Further obligations for consumer credit agreements relating to real
estate with collateral 11
IV. Violation 12
1. Burden of proof 13
2. Sanctions 14
3. Damages 15
V. Statutory instrument 16
A. Function
§§ 505a et seq. aim to prevent the borrower from entering into a credit liability that 1
exceeds his financial capability. § 505a sets out an obligation for the lender to assess the
creditworthiness of the borrower. §§ 505b and 505c contain criteria for the basis of the
assessment and § 505d states the legal consequences for a violation of this obligation. Finally,
§ 505e contains a delegated power to enact a statutory instrument with guidelines for the
criteria and methods of the assessment of the creditworthiness to establish legal certainty.1
§§ 505a-e are of mandatory nature (§ 512).
B. Context
§§ 505a-d were implemented in course of the transformation of the EU Mortgage Credit 2
Directive and replace the former § 509. § 505e was added in the Finanzaufsichtsrechtsände¬
rungsgesetz.2 Whereas before (§ 18(2) KWG) only credit institutes and selected other
businesses had to assess the borrower’s creditworthiness, now all kinds of lenders are obliged
to conduct such assessment.3
1 BeckOK BGB/Möller, § 505a BGB mn. 8a.
2 In force since 10.6.17.
3 Rank/Schmidt-Kessel, Mortgage credit in Germany, EuCML 2017, 176, 178.
Krämer
903
§ 505e 3-7
Division 8. Particular types of obligations
C. Explanation
I. Obligation to assess creditworthiness
3 The lender is obliged to assess the creditworthiness of the borrower before concluding a
consumer credit agreement (§ 505a( 1) 1" St.). The same applies to a considerable increase of
the net loan amount (Art. 247 § 3(2) 2nd St. EGBGB). An increase is deemed considerable if it
exceeds at least 10 percent of the current net loan amount.4 *
1. Creditunworthiness
4 § 505a(l) 2nd St. prohibits the entry into a credit agreement if the assessment of
creditworthiness results in a negative outcome. The result is negative if significant doubts
arise regarding the consumer’s ability to fulfil any obligations arising from a credit agree¬
ment. For consumer credit agreements relating to immovable property, the result must show
that it is likely, that the consumer will fail to perform any of his obligations. Legal
consequences for violation are stipulated in § 505d and therefore § 505a(l) 2nd St. is not a
statutory prohibition in terms of § 134.
2. Exception
5 § 505a(3) contains an exception from this obligation. According to § 505a(3) 1st St., an
assessment of creditworthiness is not necessary for real follow-up financing3 (echte An¬
schlussfinanzierungen) (No. 1) or rescheduled financing6 7 of consumer credit agreements
relating to real estate, provided that the prerequisites of § 505a(2) are not met. This shall, in
the interest of the consumer, simplify conclusions of follow-up contracts/ However, if the
lender knows that the borrower will permanently not be able to perform his obligations
under the contract, he may not enter into such contract (§ 505a(3) 2nd St.). The lender is not,
however, obliged to inquire to that effect. According to § 505a(3) 3rd St., § 505d applies for a
violation of the 1st or 2nd St of § 505a(3).
II. Requirements for assessing creditworthiness
6 § 505b states requirements for the assessment and distinguishes between general consumer
credit agreements and consumer credit agreements relating to real estate.
1. General consumer credit agreements
7 For general consumer credit agreements the lender may base the assessment on a self¬
disclosure of the financial data provided by the consumer, who is obliged to cooperate in this
regard (§ 505b( 1)). If necessary, the lender can use information of credit reference agencies in
terms of § 30 BDSG8, e.g. the SCHUFA (Schutzgenieinschaft für allgemeine Kreditsicherung -
General Credit Protection Agency).9 The lender can normally rely on the disclosure provided
by the consumer and does not have to verify its content. Plain and unsubstantiated
information of the borrower without proof cannot form a sufficient basis in this regard.10
4 MüKo BGB/Schürnbrand, § 505a BGB mn. 10; Palandt BGB/Wcidenkaff, § 505a BGB inn. 3; § '0)
ImmoKWPLV.
’ For lack of new capital agreed on, pretended follow-up financing (unechte Anschhissfinanzicrung*see
comments on $ 495 mn. 5) is not encompassed by the I'1 St. BT-Drs. 18/12568 of 31.5.2017, p 161.
6 Not equalling the term rescheduling in § 655c 2nd St
7 BT-Drs. 18/12568 of 31.5.2017, p. 160.
8 An English translation of the BDSG (Bundesdatenschutzgesetz - Federal Data Protection Act) is
available under www.gesetze-im-internet.de.
9 For further details: Beck()K-BDSG/Pohl/v. Lewinski, § 30 mn. 12 et seq.
10 CJEU C-449/13 CA Consumer binance ECLl:EU:C:2014:2464 mn. 37.
904
Kramer
Empowerment to issue a statutory instrument 8-12 § 505e
2. Consumer credit agreements relating to real estate
§ 505b(2)-(4) set out much more stringent requirements for the assessment of consumer 8
credit agreements relating to real estate. The lender has to assess the creditworthiness on the
basis ot a thorough scrutiny of necessary, sufficient and proportionate information on the
consumer s income, expenses and other financial or economic circumstances. Those indefi¬
nite terms and the other requirements are specified in the Immobiliar-Kreditwürdigkeitsprü-
fungsleitlinien-Verordnung (ImmoKWPLV; Regulation on the Guidelines for assessing cred¬
itworthiness for real estate) issued under § 505e. The lender must adequately take into
consideration the factors that are relevant for assessing the borrower’s future ability to fulfil
his obligations (§ 505b(2) 2nd St.). The quantum of these information to be gathered depends
on the individual circumstances (§ 2(3) ImmoKWPLV) and is specified under §§ 4-6
ImmoKWPLV. When assessing the creditworthiness the lender may not base the assessment
predominantly on the value of the immovable property (§ 505b(2) 3rd St. and § 4(2)
ImmoKWPLV), unless the credit agreement serves the purpose of construction or renovation
ot the residential immovable property (§ 505b(2) 3rd St.).11
Furthermore, the lender is obliged to gather that information out of appropriate internal 9
or external sources (§ 505b(3)) and document all steps taken and all information gathered
(§ 505b(4)). Possible external sources can be statements of the consumer or credit reference
agencies; however, the lender must also take into account statements made to the credit
intermediary' (§ 655a). According to § 505b(3) 3rd St., the information provided and gathered
must be scrutinised more stringent compared to § 505b( I).12 A lack of documentation under
Sub. 4 will lead to a shift of the burden of proof regarding the proper assessment.13 The
documentation must be preserved until claims arising out of § 505d can no longer be
enforced.14
The provisions of the BDSG, especially on collection and use of data, are unaffected 10
(§ 505b(5)).
TIL Further obligations for consumer credit agreements relating to real
estate with collateral
In case of a collateral in terms of this provision (i.e. as security right in land (No. 1) the 11
mortgage ($§ 1113 et seq.), the land charge (§§ 1191 et seq.) and further the annuity land
charge (§§ 1199 et seq.)), the lender must comply with the additional obligations under
§ 505c. For the documentation in § 505c No. 3, the lender must use a durable medium
(§ 126b 2nd St.) and preserve the documentation.
IV. Violation
Failure by the lender to fulfil his obligation to assess the creditworthiness of the borrower 12
does not render the agreement void. By contrast, the agreement remains valid and the
sanctions of § 505d apply. These sanctions are exhaustive,15 exclude concurrent claims for
damages,16 and apply regardless of the lenders fault to all consumer credit agreements and
for all obligations under §§ 505a-c. The sanctions apply to lenders who did not assess the
creditworthiness at all and those who have conducted the assessment insufficiently.17
However, the defect of the assessment has to be causal for the positive result (§ 505d 5’h St.).
11 The increase in value can also be taken into account, § 5 ImmoKWPLV.
12 MuKo BGB/Schürnbrand, § 505b BGB mn. 14.
13 CJEU C-449/I3 CA Consumer Finance ECLl:EU:C:2014:2464 mn. 27.
14 BT-Drs. 18/5922 of 7.9.2015, p. 99.
,s Disputed: see Rank/Schmidt Kessel, Mortgage credit in Germany, EuCML 2017, 176, 178.
16 MüKo BGB/Schurnbrand, § 507 BGB mn. 6.
17 Rank/Schmidt Kessel, Mortgage credit in Germany, EuCML 2017, 176, 178.
Krämer
905
§506
Division 8. Particular types of obligations
1. Burden of proof
13 In deviation from the general principle, the CJEU has held that the burden of proof lies
with the lender.18
2. Sanctions
14 One consequence of a defective assessment is the reduction of the agreed lending rate to
the market rate of interest, ipso iure (§ 505d(l) 1st and 2nd St.). No. 1 and 2 distinguish
between agreements with pegged and variable lending rates to determine the relevant market
rate of interest. The relevant point in time for determining the market rate of interest is the
time of conclusion of the contract or, if necessary, the time of adjustment of the interest
(§ 505d( 1) 2nd St.). Thus, the reduction is retroactive, meaning that the borrower can re¬
claim overpaid interest.19 Furthermore, the consumer can terminate the contract without
facing compensation for early repayment (§ 505d( 1)). Lastly, he can claim a copy20 of the
contract containing the changes under § 505d( 1) lst-3rd St.
3. Damages
15 If a proper assessment had resulted in the credit agreement not being concluded and the
consumer fails to fulfil his contractual obligations, the lender cannot claim damages resulting
from the failure of obligations (§ 505d(2)) such as default interest or prosecution costs.21
However, the right of termination of the lender remains unaffected, whereas § 499(3) must
be considered. Moreover, the lender may claim damages due to non-fulfilment insofar as the
consumer has withheld or manipulated information intentionally or with gross negligence
(grob fahrlässig) (§ 505d(3)). The right of termination only exists for intent (§ 499(3) 2nd St.).
Consequently, a right of avoidance based on a mistake about the creditworthiness of the
consumer (§ 119(2)) must be ruled out.22
V. Statutory instrument
16 The ImmoKWPLV, issued under § 505e, was promulgated on 30 April 2018 and entered
into force on 1 May 2018 (§ 8 ImmoKWPLV).
Subtitle 2
Financing assistance between an
entrepreneur and a consumer
Untertitel 2
Finanzierungshilfen zwischen
einem Unternehmer und einem
Verbraucher
§506
Postponement of payment, other
financing assistance
(1) 'The provisions of §§ 358 to 360, and
491a to 502 as well as 505a to 505e applicable
to general consumer credit agreements apply
§506
Zahlungsaufschub, sonstige
Finanzierungshilfe
(1) 'Dic für Allgemein-Verbraucherdarle-
hensverträge geltenden Vorschritten der
358 bis 360 und 491a bis 502 sowie 505a
18 CJEU C-449/13 CA Consumer Finance ECLI:EU:C:2014:2464 mn. 27.
2 Rank/Schmidt-Kessel, Mortgage credit in Germany, EuCML 2017 176 178
2(1 See * § 492 mn. 7. ’
n IBr',Drs' 18/5922 °f 7.9.2015, p. 101: Claims on basis of the ZPO are not covered
2 BeckOK BGB/Moller, § 505d BGB mn. 11.
906
Krämer
Postponement of payment other financing assistance
with the necessary modifications with the
exception of §492(4) and on proviso of
subsections (3) and (4) to contracts by which
an entrepreneur grants a consumer a nongra-
tuitous postponement of payment or grants
him other nongratuitous financing assis¬
tance. 2The provisions for real estate consu¬
mer credit agreements named in sentence 1 as
well as § 503 apply with the necessary mod¬
ifications it the nongratuitous postponement
of payment or other nongratuitous financing
assistance relates to the acquisition or reten¬
tion of property' rights in land or in an exist¬
ing building or a building to be constructed,
or for the acquisition or retention of rights
equivalent to those in land, or if the claim by
the entrepreneur is secured by an encum¬
brance or charge in land. 3 A gratuitous post¬
ponement of payment is considered to be a
nongratuitous postponement of payment un¬
der sentence 2 if it is made dependent upon
the claim being secured by an encumbrance
or charge on land.
(2) ’Contracts between an entrepreneur
and a consumer on the nongratuitous use of
an object are deemed to constitute nongratui¬
tous financing assistance if it is agreed that
1. the consumer is obliged to acquire the
object,
2. the entrepreneur may demand that the
consumer acquire the object, or
3. the consumer must pay for a specific
value of the object on termination of the
contract.
2§ 500(2) and § 502 do not apply to con¬
tracts under sentence 1 no. 3.
(3) For contracts for the supply of a speci¬
fied thing or the provision of a specified
other service in return for instalment pay¬
ments (instalment payment transactions),
subject to subsection (4), the special provi¬
sions contained in §§ 507 and 508 apply ad¬
ditionally.
(4) ‘To the extent laid down in §491(2)
sentence 2 Nos 1 to 5, subsection (3) sen¬
tence 2 and subsection (4), the provisions of
this subtitle do not apply, insofar as in
accordance with the type of contract there is
no net loan amount (§491(2) sentence 2
No. 1), it is replaced by the cash payment
price or, if the entrepreneur has acquired the
article for the consumer, by the purchase
price.
§506
bis 505e sind mit Ausnahme des § 492 Abs. 4
und vorbehaltlich der Absätze 3 und 4 auf
Verträge entsprechend anzuwenden, durch
die ein Unternehmer einem Verbraucher ei¬
nen entgeltlichen Zahlungsaufschub oder eine
sonstige entgeltliche Finanzierungshilfe ge¬
währt. 2Bezieht sich der entgeltliche Zah¬
lungsaufschub oder die sonstige entgeltliche
Finanzierungshilfe auf den Erwerb oder die
Erhaltung des Eigentumsrechts an Grundstü¬
cken, an bestehenden oder zu errichtenden
Gebäuden oder auf den Erwerb oder die Er¬
haltung von grundstücksgleichen Rechten
oder ist der Anspruch des Unternehmers
durch ein Grundpfandrecht oder eine Reallast
besichert, so sind die für Immobiliar-Ver-
braucherdarlehensverträge geltenden, in
Satz 1 genannten Vorschriften sowie § 503
entsprechend anwendbar. 3Ein unentgeltli¬
cher Zahlungsaufschub gilt als entgeltlicher
Zahlungsaufschub gemäß Satz 2, wenn er da¬
von abhängig gemacht wird, dass die Forde¬
rung durch ein Grundpfandrecht oder eine
Reallast besichert wird.
(2) ‘Verträge zwischen einem Unternehmer
und einem Verbraucher über die entgeltliche
Nutzung eines Gegenstandes gelten als ent¬
geltliche Finanzierungshilfe, wenn vereinbart
ist, dass
1. der Verbraucher zum Erwerb des Gegen¬
standes verpflichtet ist,
2. der Unternehmer vom Verbraucher den
Erwerb des Gegenstandes verlangen kann
oder
3. der Verbraucher bei Beendigung des
Vertrags für einen bestimmten Wert des Ge¬
genstandes einzustehen hat.
2Auf Verträge gemäß Satz 1 Nr. 3 sind
§ 500 Abs. 2 und § 502 nicht anzuwenden.
(3) Für Verträge, die die Lieferung einer
bestimmten Sache oder die Erbringung einer
bestimmten anderen Leistung gegen Teilzah¬
lungen zum Gegenstand haben (Teilzahlungs¬
geschäfte), gelten vorbehaltlich des Absatzes 4
zusätzlich die in den §§ 507 und 508 geregel¬
ten Besonderheiten.
(4) ‘Die Vorschriften dieses Untertitels
sind in dem in § 491 Absatz 2 Satz 2
Nummer 1 bis 5, Absatz 3 Satz 2 und
Absatz 4 bestimmten Umfang nicht anzuwen¬
den. 2Soweit nach der Vertragsart ein Netto¬
darlehensbetrag (§491 Absatz 2 Satz 2
Nummer 1) nicht vorhanden ist, tritt an seine
Stelle der Barzahlungspreis oder, wenn der
Unternehmer den Gegenstand für den Ver¬
braucher erworben hat, der Anschaffungs¬
preis.
Krämer
907
§ 506 1-6
Division 8. Particular types of obligations
A. Function
1 §§ 506-508 concern the postponement of payment, the other financing assistance and the
instalment payment transactions between an entrepreneur (§ 14) and a consumer (§ 13).
The provisions on consumer credit agreements apply to a large extent to those contracts
(§ 506(1)). This reflects the concept of the EU Consumer Credit Directive, where the term
credit agreement also covers other financial assistance. § 506 consistently distinguishes
between general financial assistance and financial assistance relating to real estate.
B. Context
2 §§ 506 et seq. cover all remaining types of contracts encompassed under the term credit
agreement in Art. 3(c) EU Consumer Credit Directive. These provisions were amended
substantially in their implemention into German law and transferred from the former
§§ 499-504. § 506(1) was amended in the process of transposing the EU Mortgage Credit
Directive.
C. Explanation
I. Overdraft; currency conversion
3 Sub. 1 does not refer to an overdraft (§§ 504, 505) since - under nature of things - an
overdraft does not apply under the contract types in §§ 506 et seq. The German legislator
decided to also exclude § 492(4). Currency conversion (§ 503) only applies under the
conditions of Sub. 1 2nd and 3rd St., and if the criteria of § 503 are met (Rechtsgrundverweis).1
II. Requirement
4 The unilateral condition for § 506 to apply is the counter-performance owed for the
financial assistance, even though it may only be marginal.2
III. Postponement
5 Postponement of payment is any agreement between the entrepreneur as creditor and the
consumer as debtor of a monetary debt, which becomes due and enforceable later than it
would under the general rule (§§ 320, 271).3 Most importantly it covers the deferral
(Stundung) and moreover also a pactum de non petendo, despite due date and enforceability,
are not delayed.4
IV. Instalment
6 Sub. 3 legally defines the term instalment payment transaction as a contract for the supply
of a specified thing or the provision of a specified other service in return for instalment
payments. It covers contracts that allow the consumer to pay entirely or partly at a later point
in time as set out in § 271. Subject to Sub. 4, §§ 507 and 508 apply to such transactions.
1 BT-Drs. 16/11643 of 21.1.2009, p. 91.
1 Palandt BGB/Weidenkaff, § 506 BGB mn. 5.
3 MüKo BGB/Schurnbrand, § 506 BGB mn. 6; BGH 6.2.2013- IV ZR 230/12 NJW 2013. 2195, 219t«
Palandt BGB/Weidenkaff, § 506 BGB mn. 3.
4 MuKo BGB/Schurnbrand, § 506 BGB inn. 14; Staudinger BGB/Kessal-Wulf § 506 BGB mn. 10 dt
seq.; BGH 14.6.1989 - IV a ZR 180/88, NJW-RR 1989, 1048. Credit cards are’normally not covered:
BeckOK BGB/Möller, § 506 BGB mn. 6.
908
Krämer
Instalment payment transactions
§507
V. Financial assistance
The term financial assistance aims to cover all agreements with a comparable function 7
whereby the consumer is granted money for a certain time for anticipated use of future
income for consumptive or investment purposes.5 For example, it covers financing leasing
(Finanzierungsleasing) in Sub. 2, the hire-purchase (Mietkauf) and a telecommunications
contract with a subsidised mobile phone.6
VI. Leasing
When it comes to financing leasing under Sub. 2, the parties must have agreed on either an 8
obligation ot the consumer to acquire the object (No. 1), the right of the entrepreneur to
demand such acquisition (No. 2) or the obligation of the consumer to pay for a specific value
of the object on termination of the contract (No. 3). Under No. 3, the right of early
repayment (§ 500(2)) and respective compensation (§ 502) are ruled out.
VII. Exclusions
Sub. 4 excludes §§ 506-508 under the preconditions of §§491(2) 2nd St. Nos 1-5, (3) 9
2nd St. and (4). If a net loan amount does not exist in the respective contract type, it is
replaced by the cash payment price or, if the entrepreneur has acquired the article for the
consumer, by the purchase price (2nd St.).
§507
Instalment payment transactions
(1) ’§ 494(1) to (3) and (6) sentence 2 does
not apply to instalment payment transac¬
tions. 2If the consumer submits his offer to
conclude a contract in distance selling on the
basis of a sales prospectus or of a comparable
electronic medium, revealing the cash pay¬
ment price, the lending rate, the effective
annual interest rate, a redemption plan based
on example total amounts, as well as the
securities to be provided and insurance,
§ 492( 1) is also not applicable if the entrepre¬
neur informs the consumer of the content of
the contract on a durable medium at the
latest promptly after conclusion of the con¬
tract.
(2) ’The instalment payment transaction is
void if the requirement of written form in
§ 492(1) is not observed or if in the contract
one of the items of information required by
Article 247 §§ 6, 12 and 13 of the Introduc¬
tory Act to the Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzbuche] is omitted.
Notwithstanding a defect under sentence 1,
§507
T eilzahlungsgeschäfte
(1) ’§ 494 Abs. 1 bis 3 und 6 Satz 2 zweiter
Halbsatz ist auf Teilzahlungsgeschäfte nicht
anzuwenden. 2Gibt der Verbraucher sein An¬
gebot zum Vertragsabschluss im Fernabsatz
auf Grund eines Verkaufsprospekts oder ei¬
nes vergleichbaren elektronischen Mediums
ab, aus dem der Barzahlungspreis, der Soll¬
zinssatz, der effektive Jahreszins, ein Til¬
gungsplan anhand beispielhafter Gesamt¬
beträge sowie die zu stellenden Sicherheiten
und Versicherungen ersichtlich sind, ist auch
§ 492 Abs. 1 nicht anzuwenden, wenn der
Unternehmer dem Verbraucher den Vertrags¬
inhalt spätestens unverzüglich nach Vertrags¬
abschluss auf einem dauerhaften Datenträger
mitteilt.
(2) ’Das Teilzahlungsgeschäft ist nichtig,
wenn die vorgeschriebene Schriftform des
§ 492 Abs. 1 nicht eingehalten ist oder im
Vertrag eine der in Artikel 247 6, 12 und
13 des Einführungsgesetzes zum Bürgerlichen
Gesetzbuche vorgeschriebenen Angaben fehlt.
2Ungeachtet eines Mangels nach Satz 1 wird
das Teilzahlungsgeschäft gültig, wenn dem
5 müKo BGB/Schürnbrand, § 506 BGB mn. 24; Palandt BGB/Weidenkaff, Vorb § 506 BGB mn. 5.
6 Limbach, Der Widerruf subventionierender Mobilfunkverträge, N)W 2011, 3770; AG Dortmund
13.10.2010 - 417 C 3787/10, MMR 2011, 67; BeckOK BGB/Möller, § 506 BGB mn. 9.
Krämer
909
§ 507 1-3
Division 8. Particular types of obligations
the instalment payment transaction becomes
valid if the thing is delivered to the consumer
or the service performed for him. 3Howcver,
the maximum rate of interest on the cash
payment price is the statutory rate of interest
if the information on the total amount or the
effective annual rate of interest is missing. 4If
a cash payment price is not stated, then in
case of doubt the market price is deemed to
be the cash payment price. 5lf information on
the effective annual rate of interest states a
rate that is too low, the total amount is
reduced by the percentage by which the effec¬
tive annual rate of interest is too low.
(3) ‘Notwithstanding §§ 491a and 492(2)
of the present Code, and notwithstanding
Article 247 §§ 3, 6 and 12 of the Introductory
Act to the Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzbuche], in the pre¬
liminary contract information and in the
contract the cash payment price and the ef¬
fective annual interest rate do not need to be
stated if the entrepreneur only delivers things
or provides services in return for instalments.
2In cases covered by § 501, the calculation of
the cost reduction is to be based on the
statutory interest rate (§ 246). 3A right to
compensation for early repayment of the
loan is ruled out.
Verbraucher die Sache übergeben oder die
Leistung erbracht wird. 3Jedoch ist der Bar¬
zahlungspreis höchstens mit dem gesetzlichen
Zinssatz zu verzinsen, wenn die Angabe des
Gesamtbetrags oder des effektiven Jahreszin¬
ses fehlt. 4Ist ein Barzahlungspreis nicht ge¬
nannt, so gilt im Zweifel der Marktpreis als
Barzahlungspreis. 3Ist der effektive Jahreszins
zu niedrig angegeben, so vermindert sich der
Gesamtbetrag um den Prozentsatz, um den
der effektive Jahreszins zu niedrig angegeben
ist.
(3) ‘Abweichend von den §§ 491a und 492
Abs. 2 dieses Gesetzes und von Artikel 247
§§ 3, 6 und 12 des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche müssen in der vor¬
vertraglichen Information und im Vertrag
der Barzahlungspreis und der effektive Jah¬
reszins nicht angegeben werden, wenn der
Unternehmer nur gegen Teilzahlungen Sa¬
chen liefert oder Leistungen erbringt. 2Im
Fall des § 501 ist der Berechnung der
Kostenermäßigung der gesetzliche Zinssatz
(§ 246) zugrunde zu legen. 3Ein Anspruch
auf Vorfälligkeitsentschädigung ist aus¬
geschlossen.
A. Function
1 § 507 sets out requirements for the form and the content of such instalment payment
transaction agreements in order to provide the consumer with comprehensive information
and warning with regard to the scope of his obligations.1 § 507 only applies to instalment
payment transactions (§ 506(3)) and states the special requirements for such agreements in
conjunction with § 508.
B. Explanation
I. Avoidance
2 Sub. 1 excludes the consequence of avoidance under § 494(1), the possibility of curing
(§ 494(2) Is' St.) and the sanctions of §§ 494(2) 2nd St., (3). In exchange, Sub. 2 provides an
adjusted regulation for instalment payment transaction agreements containing its own
consequence of voidance, curing and sanctions. Besides that, the second part of § 494(6)
2"a St. is ruled out.
II. Distance contracts
3 In order to meet the concerns of the process in the mail order business or e-commerce to
enable contracting without transmission of a contract document, Sub. 1 2'ld St. allows a less
1 Palandt BGB/Weidcnkaff, § 507 BGB mn. I.
910
Kriimer
Revocation the instalment payment transactions § 508
strict form than § 492(1) tor financed distance contracts (§ 312c).2 The offer of the consumer
must be based on the sales prospectus or on a comparable electronic medium containing the
details laid down in the 2nd St. and the entrepreneur has to provide the content of the
contract on a durable medium (§ 126b 2nd St.) immediately (§ 121(1) 1st St.) after conclusion
of the contract. Sub. 1 2nd St. will not apply if the details are missing from the prospectus; the
consequences tor incorrect details are disputed.3
III. Voidance, curing and sanctions
Sub. 2 provides its own mechanism for voidance, curing and sanctions. Violation of the 4
written form (§ 492(1)) or missing information in terms of Art. 247(2) 1st St. EGBGB, render
the agreement void. The agreement becomes valid if the thing is delivered4 to the consumer
or the senice is performed. However, the sanctions apply to such cured agreement. The
maximum rate of interest on the cash payment price and on the market price under the
4th St. is the statutory rate of interest (§ 246), if the information on the total amount (Art. 247
§ 3(2) l5t St. EGBGB) or the effective annual rate of interest (Art. 247 § 3(2) 1st St. EGBGB,
§6(1) PAngV) is missing. The 5th St. equates § 494(3) regarding the effective annual rate of
interest (Art. 247 § 3(2) 1st St. EGBGB, § 6(1) PAngV).5
IV. Instalments
If an entrepreneur performs exclusively in return for instalment payments, the details for 5
the cash payment price or for the calculation of the effective annual interest rate exist.
Therefore, such information does not have to be provided before entering into such contract.
With regard to early repayment, the cost reduction is based on the statutory rate of interest
(§ 246), since a cash payment price is not available. Pursuant to the 3rd St., the entrepreneur
cannot demand compensation for early repayment in such case.
§508
Revocation with regard to
instalment payment transactions
’The entrepreneur may only revoke an in¬
stalment payment transaction by reason of
default in payment by the consumer if the
requirements designated in § 498(1) sentence 1
are satisfied. 2The total amount corresponds
to the nominal amount. 3The consumer must
also compensate the entrepreneur for the ex¬
penses incurred as a result of the contract.
*The decrease in value that has since occurred
must be taken into account in the calculation
of remuneration for the emoluments of a
thing to be returned. 5If the entrepreneur
takes back the thing supplied under the instal¬
ment payment transaction, he is deemed to be
exercising the right of revocation, unless the
entrepreneur agrees with the consumer to pay
the latter the usual market value of the thing
§508
Rücktritt bei
Teilzahlungsgeschäften
'Der Unternehmer kann von einem Teil-
Zahlungsgeschäft wegen Zahlungsverzugs des
Verbrauchers nur unter den in § 498 Absatz 1
Satz 1 bezeichneten Voraussetzungen zurück¬
treten. 2Dem Nennbetrag entspricht der Ge¬
samtbetrag. 3Der Verbraucher hat dem Un¬
ternehmer auch die infolge des Vertrags
gemachten Aufwendungen zu ersetzen. 4Bei
der Bemessung der Vergütung von Nutzun¬
gen einer zurückzugewährenden Sache ist auf
die inzwischen eingetretene Wertminderung
Rücksicht zu nehmen. 5Nimmt der Unterneh¬
mer die auf Grund des Teilzahlungsgeschäfts
gelieferte Sache wieder an sich, gilt dies als
Ausübung des Rücktrittsrechts, es sei denn,
der Unternehmer einigt sich mit dem Ver¬
braucher, diesem den gewöhnlichen Vcr-
2 MuKo BGB/Schürnbrand, § 507 BGB mn. 3; BeckOK BGB/Möller, § 507 BGB mn. 6.
3 MüKo BGB/Schürnbrand, § 507 BGB mn. 9; BeckOK B(iB/Möllcr, § 507 BGB mn. 12.
4 Disputed, if substituted delivery in terms of §§ 930 et seq. is sufficient. Staudinger BGB/Kessal-Wulf,
§ 507 BGB mn. 4.
5 See * § 494 mn. 10.
Krämer
911
§ 508 1-5
Division 8. Particular types of obligations
at the time of its removal. Sentence 5 applies
with the necessary modifications if a contract
for the supply of a thing is linked to a con¬
sumer credit agreement (§ 358(3)) and if the
lender takes the thing for himself; in the case
of revocation, the legal relationship between
the lender and the consumer is determined
under sentences 3 and 4.
kaufswert der Sache im Zeitpunkt der Weg-
nähme zu vergüten. ftSatz 5 gilt entsprechend,
wenn ein Vertrag über die Lieferung einer
Sache mit einem Verbraucherdarlehensver¬
trag verbunden ist (§ 358 Absatz 3) und
wenn der Darlehensgeber die Sache an sich
nimmt; im Falle des Rücktritts bestimmt sich
das Rechtsverhältnis zwischen dem Darle¬
hensgeber und dem Verbraucher nach den
Sätzen 3 und 4
A. Function
1 By modifying § 498 § 508 sets out stringent conditions for a revocation of the entrepre¬
neur on the grounds of default of the consumer. However, § 508 does not constitute a
revocation right, but only increases the preconditions of an existing revocation right in case
of default. In contrast to normal continuing obligations (Dauerschuldverhältnisse), the
performance by the entrepreneur and the consideration paid so far are not necessarily in an
equivalent proportion. Therefore, instead of calling in the entire loan, the entire restitution
leads to more suitable results. § 508 only applies to instalment payment transactions (§ 506
(3)) and is of mandatory nature (§512).
B. Context
2 The former alternative right to give back the contractual thing was removed in the course
of the transformation of the EU Consumer Credit Directive.
C. Explanation
I. Requirements
3 Firstly, the preconditions of § 498(1) 1st St. must be met. The total amount corresponds to
the nominal amount. The general provisions of §§ 323, 346 et seq. apply with regard to
restitution and the right of revocation.
IL Expenses; remuneration
4 In addition to the general revocation right, the 3rd St. grants the entrepreneur a claim
for compensation of incurred expenses, which are causally linked to the individual
contract. Regarding the calculation of the remuneration of emoluments (§§ 346, 347) of
a thing to be returned, the decrease in value between delivery and return must be taken
into account.1 2
III. Revocation
5 Under the 5,h St. the entrepreneur is deemed to have exercised his revocation right if he
takes back the thing without agreeing with the consumer to pay the latter the usual market
value of the thing at the time of its removal. This shall protect the consumer from losing
possession and emoluments of the thing while being further obliged to pay the instalments '
The revocation right must exist. The thing is taken back if the entrepreneur regains the
1 For further details: MüKo BGB/Schürnbrand, § 50« BGB mn 2« et seq
2 MüKo BGB/Schürnbrand, § 50« BGB mn. 43; BeckOK BGB/Möller, § 50« BGB mn. 14.
912
Krämer
Contracts for delivery by instalments § 510
possession or the value ot the thing from an economic perspective. This presumption also
applies to a linked (§ 358(3)) consumer credit agreement (6lh St.), if the lender takes the thing
for himself.
§509
(repealed)
§509
(weggefallen)
Subtitle 3
Contracts for delivery by
installments between a trader and
a consumer
Untertitel 3
Ratenlieferungsverträge zwischen
einem Unternehmer und einem
Verbraucher
§510
Contracts for delivery by
instalments
(1) *The contract between a consumer and
a trader must be in writing if the contract
1. has as its subject matter the supply of
more than one thing sold as belonging to¬
gether by way of instalments and remunera¬
tion is to be paid for the totality of the things
in instalments,
2. has as its subject matter the periodic
supply of things of the same kind, or
3. has as its subject matter the duty of
recurrent acquisition or procurement of
things.
2This does not apply if the consumer is
given the opportunity to retrieve the terms
of the contract, including the standard busi¬
ness terms, when he enters into the contract,
and to store them in a reproducible form.
5The trader must provide the consumer with
the contents of the contract in text form.
(2) Subject to the stipulations of
subsection (3), the consumer is entitled to a
right of withdrawal pursuant to § 355 in the
case of contracts pursuant to subsection (1)
that are neither distance contracts nor off-
premises contracts.
(3) ’The right of withdrawal pursuant to
subsection (2) does not apply to the extent
specified in §491(2) sentence 2 Nos 1 to 5,
subsection (3) sentence 2 and subsection (4).
2The net loan amount referred to in § 491(2)
sentence 2 No. 1 is equal to the sum of all
instalments to be paid by the consumer prior
to the earliest termination date.
§510
Ratenlieferungsverträge
(1) ’Der Vertrag zwischen einem Verbrau¬
cher und einem Unternehmer bedarf der
schriftlichen Form, wenn der Vertrag
1. die Lieferung mehrerer als zusammen¬
gehörend verkaufter Sachen in Teilleistungen
zum Gegenstand hat und das Entgelt für die
Gesamtheit der Sachen in Teilzahlungen zu
entrichten ist,
2. die regelmäßige Lieferung von Sachen
gleicher Art zum Gegenstand hat oder
3. die Verpflichtung zum wiederkehrenden
Erwerb oder Bezug von Sachen zum Gegen¬
stand hat.
2Dies gilt nicht, wenn dem Verbraucher die
Möglichkeit verschafft wird, die Vertrags¬
bestimmungen einschließlich der Allgemei¬
nen Geschäftsbedingungen bei Vertrags¬
schluss abzurufen und in wiedergabefahiger
Form zu speichern. 2 3Der Unternehmer hat
dem Verbraucher den Vertragsinhalt in Text¬
form mitzuteilen.
(2) Dem Verbraucher steht vorbehaltlich
des Absatzes 3 bei Verträgen nach Absatz 1,
die weder im Fernabsatz noch außerhalb von
Geschäftsräumen geschlossen werden, ein Wi¬
derrufsrecht nach § 355 zu.
(3) ’Das Widerrufsrecht nach Absatz 2 gilt
nicht in dem in §491 Absatz 2 Satz 2
Nummer 1 bis 5, Absatz 3 Satz 2 und
Absatz 4 bestimmten Umfang. 2Dem in § 491
Absatz 2 Satz 2 Nummer 1 genannten Nct-
todarlehcnsbetrag entspricht die Summe aller
vom Verbraucher bis zum frühestmöglichen
Kündigungszcitpunkt zu entrichtenden Teil¬
zahlungen.
Krämer
913
§ 510 1-9
Division 8. Particular types of obligations
A. Function
1 The provision for a contract for delivery in instalments is positioned in connection with the
consumer credit law as the risk of difficulties to foresee the total financial burden due to the
long-term nature of such contracts. The enumeration of the contract types for delivery in
instalments in Sub. 1 1st St. is deemed to be exhaustive.1 § 510 is of mandatory nature (§ 512).
B. Context
2 The transposition of the EU Consumer Credit Directive resulted in substantial changes to
the relationship to distance and off-premises contracts. Only minor editorial changes to
§ 510 were necessary in order to transpose the corresponding elements of the EU Mortgage
Credit Directive.
C. Explanation
I. Requirements
3 The contract between a consumer and a trader (entrepreneur, § 14) must be in writing, if
the contract falls under Nos 1-3 (Sub. 1).
4 Under No. 1, a contract for delivery in instalments has as its subject matter the supply of
more than one thing sold as belonging together by way of instalments and remuneration is to
be paid for the totality of the things in instalments.
5 A contract for delivery in instalments in terms of No. 2 requires the periodic supply of
things of the same kind. It is disputed if the scope of application must be limited to contracts
where the consumer pays his consideration in instalments as well (as under No. I).2 3
6 No. 3 applies to all contracts that stipulate a duty of recurrent acquisition or procurement
of things.
II. Violation of formal requirements
7 Noncompliance with the written form renders the contract void (§ 125), unless the
requirements of the 2nd St. are met and thus the contract does not need to be in writing. In
any case, the trader must provide the consumer with the content of the contract in text form
(§ 126b) under the 3rd St.
III. Right of withdrawal
8 According to Sub. 2, the consumer may withdraw from the contract in terms of § 355
unless the contract is a distance contract (§ 312c( 1)) or an off-premises contract (§ 3l2b(l))-
In other words: the right of withdrawal under § 312g prevails. Nothing different follows from
the reference in § 312g(3) as it requires an existing right of withdrawal under §§ 491 et seq.
that does not exist in such case pursuant to Sub. 2?
9 The right of withdrawal is subject to the same limitation as consumer credit agreements
(Sub. 3), whereas the sum of all instalments to be paid by the consumer prior to the earliest
termination date equals the net loan amount.
1 BGH 13.3.2003 - I ZR 290/00, NJW 2003, 1932, 1933; disputed.
2 BeckOK BGB/Möller, §510 BGB mn. 11; MüKo BGB/Schürnbrand, §510 BGB mn. 20; contrast:
Palandt BGB/Weidenkaff, § 510 BGB mn. 3.
3 MüKo BGB/Schürnbrand, § 510 BGB mn. 41.
914
Kramer
Advisory services in real estate consumer credit contracts
1 § 511
Subtitle 4
Advisory services in real estate
consumer credit contracts
Untertitel 4
Beratungsleistungen bei
Immobiliar-
Verbraucherdarlehensverträgen
§511
Advisory services in real estate
consumer credit contracts
(1) Before the lender provides the borrower
with individual recommendations on one or
more transactions in relation to a real estate
consumer credit agreement (advisory ser¬
vices), he must inform the borrower of the
particulars set out in Article 247 § 18 of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche]
in the form provided for therein.
(2) ’Prior to perfoming the advisory service
the lender must inform himself of the bor¬
rower’s need for assistance, the personal and
financial situation as well as of the borrower’s
preferences and aims to the extent that this is
necessary' for a suitable recommendation of a
credit agreement. 2On the basis of this cur¬
rent information and using reasonable as-
sumprtions regarding the risks which are to
be expected during the credit agreement, the
lender has to examine the suitability of a
sufficient number of credit agreements, at
least from his own product range.
(3) ’The lender must recommend to the
borrower on the basis of the examination
under subsection (2) a suitable or several sui¬
table products or state that he cannot recom¬
mend a product. 2The recommendation or
statement is to be made available to the
borrower on a durable medium.
§511
Beratungsleistungen bei
Immobiliar-
V erbraucherdarlehensverträgen
(1) Bevor der Darlehensgeber dem Darle¬
hensnehmer individuelle Empfehlungen zu
einem oder mehreren Geschäften erteilt, die
im Zusammenhang mit einem Immobiliar-
Verbraucherdarlehensvertrag stehen (Bera¬
tungsleistungen), hat er den Darlehensneh¬
mer über die sich aus Artikel 247 § 18 des
Einführungsgesetzes zum Bürgerlichen Ge¬
setzbuche ergebenden Einzelheiten in der
dort vorgesehenen Form zu informieren.
(2) ’Vor Erbringung der Beratungsleistung
hat sich der Darlehensgeber über den Bedarf,
die persönliche und finanzielle Situation so¬
wie über die Präferenzen und Ziele des Dar¬
lehensnehmers zu informieren, soweit dies
für eine passende Empfehlung eines Darle¬
hensvertrags erforderlich ist. 2Auf Grundlage
dieser aktuellen Informationen und unter
Zugrundelegung realistischer Annahmen hin¬
sichtlich der Risiken, die für den Darle¬
hensnehmer während der Laufzeit des Darle¬
hensvertrags zu erwarten sind, hat der
Darlehensgeber eine ausreichende Zahl an
Darlehensverträgen zumindest aus seiner
Produktpalette auf ihre Geeignetheit zu prü¬
fen.
(3) ’Der Darlehensgeber hat dem Darle¬
hensnehmer auf Grund der Prüfung gemäß
Absatz 2 ein geeignetes oder mehrere geeig¬
nete Produkte zu empfehlen oder ihn darauf
hinzuweisen, dass er kein Produkt empfehlen
kann. 2Die Empfehlung oder der Hinweis ist
dem Darlehensnehmer auf einem dauerhaften
Datenträger zur Verfügung zu stellen.
A. Function
The purpose of this provision is to ensure that the lender presents financial products to the
consumer that suit his needs and personal circumstances. § 511 only applies to consumer
credit agreements relating to real estate; it is of mandatory nature (§ 512).
Kramer
915
§512 1
Division 8. Particular types of obligations
B. Context
2 §511 was implemented in the transposition of the EU Mortgage Credit Directive.
C. Explanation
3 Sub. 1 sets out a pre-contractual information obligation in terms of Art. 247 § 18 EGBGB
on a durable medium (Art. 247 § 18(2) EGBGB; § 126b 2nd St.) if the lender provides
advisory sendees in conjunction with the consumer credit agreement relating to real estate.
Advisory services are legally defined as the issuance of individual recommendations to a
consumer in relation to one or several transactions in conjunction with the consumer credit
agreement relating to immovable property. The advisory service differs from the pre-
contractual information provided in terms of § 491a in its higher degree of individualisation
and exceeds the obligation to provide suitable explanations under § 491a(3) since this duty
does not include giving advice.
4 Before providing advice, the lender must inform himself about the current personal and
financial situation of the consumer and his current preferences and goals. On this basis, the
lender must - with realistic assumptions in relation to the expected risks for the consumer
during the period of the contract - examine a sufficient amount of credit agreements from
his range of products with regard to their suitability. The exact amount depends on the
individual case.
5 According to Sub. 3, eventually the lender must advise on one or several products to the
consumer based on the gathered information under Sub. 2 or give notice that he cannot
advise any product in the individual case. The lender must use a durable medium (§ 126b
2nd St.) for his advice or the notice.
6 The suitability of the product must be determined in relation to the client and the real
estate object.1
Subtitle 5
Mandatory nature, application to
founder of new business
Untertitel 5
Unabdingbarkeit, Anwendung auf
Existenzgründer
§512
Deviating agreements
’The provisions of §§ 491 to 511 may not
be derogated from to the disadvantage of the
consumer unless otherwise provided. 2These
provisions apply even if they are circum¬
vented by other constructions.
§512
Abweichende Vereinbarungen
’Von den Vorschriften der §§491 bis 511
darf» soweit nicht ein anderes bestimmt ist»
nicht zum Nachteil des Verbrauchers abge¬
wichen werden. 2Diese Vorschriften finden
auch Anwendung» wenn sie durch anderwei
tige Gestaltungen umgangen werden.
A. Function
1 § 512 aims to obtain the level of consumer protection set out under §§ 491-511 et **!•
and prevent this protection from being frustrated. The 1st St. renders those provisions
1 BGH 22.3.2011 - XI ZR 33/10, NJW 2011, 1949, 1950 el seq.; BT-Drs. 18/5922 of 7.9.2015. P-,()7-
916
Krämer
Application to founders of new businesses 1 § 513
mandatory to the benefit of the consumer. This means that the parties cannot deviate from
the respective provision to the disadvantage of the consumer, whereas an agreement to the
advantage ot the lender is unaffected. According to the 2nd St., the provisions also apply if
they are circumvented by other constructions.
B. Context
§ 512 is based on § 18 VerbrKrG. It was modified in course of transposing the EU 2
Consumer Credit Directive and was shifted from the former § 511 to § 512 in implementing
the EU Mortgage Credit Directive.
C. Explanation
The question of a deviation to the disadvantage of the consumer in terms of the 1st St. is 3
not answered on the basis of an overall assessment, but in relation to every individual
provision.1 One single disadvantageous arrangement cannot be compensated.
In accordance with the legislative intent, the 2nd St. should especially encompass the 4
division of a credit agreement into several single contracts in order to satisfy the de minimis
rule in § 491(2) 2nd St. No. I.2
In case of violation of the 1st or 2nd St., § 134 and in certain cases § 139 apply.3 5
§513
Application to founders of new
businesses
§§491 to 512 also apply to natural persons
who are granted a Ioan, postponement of
payment or other financing assistance to
take up a trade or self-employed occupation
or who enter into a contract for delivery
by instalments for this purpose, unless the
net loan amount or the cash price exceeds
75,000 euro.
§513
Anwendung auf Existenzgründer
Die §§ 491 bis 512 gelten auch für natürli¬
che Personen, die sich ein Darlehen, einen
Zahlungsaufschub oder eine sonstige Finan¬
zierungshilfe für die Aufnahme einer gewerb¬
lichen oder selbständigen beruflichen Tätig¬
keit gewähren lassen oder zu diesem Zweck
einen Ratenlieferungsvertrag schließen, es sei
denn, der Nettodarlehensbetrag oder Barzah¬
lungspreis übersteigt 75 000 Euro.
A. Function
§ 513 extends the scope of application of §§ 491-512 to the founders of new businesses. It 1
shall provide consumer protection for natural persons for taking up a self-employed
occupation or trade because - even though it is a professional transaction - the need for
protection in general is comparable to a consumer, if the financial volume does not exceed
75,000 euro. § 513 does not qualify the entrepreneur as a consumer (§ 13), but just extends
the scope of application of certain consumer protection provisions.1
1 MuKo BGB/Schumbrand, § 512 BGB mn. 3; Staudinger BGB/Kessal-Wulf, § 511 BGB mn. 3.
2 BT-Drs 11 /5462 of 25.10.1989, p. 30. Further examples: BeckOK BGB/Möllcr, § 512 BGB mn. 7.
3 BGH 16 2 2016 - XI ZR 96/15, NJW 2016, 1879 (mn. 30).
1 Palandt BGB/Weidenkaff, § 513 BGB mn. 7; BeckOK BGB/MOller, § 513 BOB mn. 2.
Krämer
917
§514
Division 8. Particular types of obligations
B. Context
2 § 513 pursues § 3(1) No. 2 in conjunction with § 1(1) 2nd St. VerbrKrG almost without
amendments and was positioned in § 513 in the course of transposing the EU Mortgage
Credit Directive.
C. Explanation
3 The scope of application also encompasses the collateral assumption of a debt of a
founder of new businesses, if it is concluded in conjunction with the founding of the new
business.2 * The transaction does not necessarily have to be concluded before founding, but
must be linked to it. The question if the credit seeking entrepreneur is still in the founding
phase must be determined based on the objective circumstances and the objective purpose of
his action when entering into the agreement.’
Subtitle 6
Gratuitous credit agreements and
gratuitous financing assistance
between a trader and a consumer
Untertitel 6
Unentgeltliche Darlehensverträge
und unentgeltliche
Finanzierungshilfen zwischen
einem Unternehmer und einem
Verbraucher
§514
Gratuitous credit agreements
(1) ’§497(1) and (3) as well as §498 and
§§ 505a to 505c as well as 505d(2) and (3) as
well as 505e apply with the necessary modifi¬
cations to agreements in which an entpreneur
grants a gratuitous loan to a consumer. 2This
does not apply in the extent determined in
§ 491(2) sentence 2 No. 1.
(2) ’The consumer has a right of withdra¬
wal according to § 355 in gratuitous credit
agreements pursuant to subsection (1). 2This
does not apply if a right of withdrawal under
§ 312g( 1) exists, and does not apply in con¬
tracts corresponding to §495(2) no. 1. ’The
entrepreneur must inform the consumer of
his right of withdrawal in accordance with
Article 246 (3) of the Introductory Act to the
Civil Code (Einführungsgesetz zum Bürgerli¬
chen Gesetzbuche] prior to the consumer’s
declaration of intent. 4The entreprcncuer can
perform this duty by transmitting to the con-
§ 514
Unentgeltliche Darlehensverträge
(1) '§ 497 Absatz 1 und 3 sowie § 498 und
die §§ 505a bis 505c sowie 505d Absatz 2 und
3 sowie § 505e sind entsprechend auf Ver¬
träge anzuwenden, durch die ein Unterneh¬
mer einem Verbraucher ein unentgeltliches
Darlehen gewährt. 2Dies gilt nicht in dem in
§ 491 Absatz 2 Satz 2 Nummer 1 bestimmten
Umfang.
(2) ’Bei unentgeltlichen Darlehensverträ¬
gen gemäß Absatz 1 steht dem Verbraucher
ein Widerrufsrecht nach § 355 zu. 2Dies gilt
nicht, wenn bereits ein Widerrufsrecht nach
§ 312g Absatz 1 besteht, und nicht bei Ver¬
trägen, die § 495 Absatz 2 Nummer 1 ent¬
sprechen. ’Der Unternehmer hat den Ver¬
braucher rechtzeitig vor der Abgabe von
dessen Willenserklärung gemäß Artikel 246
Absatz 3 des EinfUhrungsgesetzes zum Bür¬
gerlichen Gesetzbuche über sein Widerrufs
recht zu unterrichten. 4Der Unternehme1*
kann diese Pflicht dadurch erfüllen, dass er
2 OLG Düsseldorf 7.1.2015 - VI U (Kart) 17/14, BeckRS 2015. 06787 mn. 37. c
' BGH 15.11.2007 - 111 ZR 295/06, NJW 2008, 435, 436; BGH 24.2.2005 - III ZB 36/04, N)W '
1273, 1274; Staudinger BGB/Kessal-Wulf, § 512 BGB mn. 6 et seq.
918
Krämer
Gratuitous financing assistance
1-3 §515
sum er in text form the correctly completed
model withdrawal form pursuant to schedule
9 ot the Introductory Act to the Civil Code.
dem Verbraucher das in der Anlage 9 zum
Einführungsgesetz zum Bürgerlichen Gesetz¬
buche vorgesehene Muster für die Widerrufs¬
belehrung ordnungsgemäß ausgefüllt in Text¬
form übermittelt.
§515
Gratuitous financing assistance
§ 514 as well as §§ 358 to 360 apply with
the necessary modifications if a entrenpre-
neur grants a gratuitous postponement of
payment or other gratuitous financing assis-
tnace to a consumer.
§515
Unentgeltliche
Finanzierungshilfen
§ 514 sowie die §§ 358 bis 360 gelten ent¬
sprechend, wenn ein Unternehmer einem
Verbraucher einen unentgeltlichen Zahlungs¬
aufschub oder eine sonstige unentgeltliche
Finanzierungshilfe gewährt.
A. Function
§§514 and 515 were implemented in the course of transposing the EU Mortgage Credit 1
Directive. The purpose of these provisions is to eliminate the risk of indebtedness or the risk
ot a premature conclusion of a consumer agreement in case of a credit agreement or other
gratuitous financial assistance. The legislator reacted to the increasing number of ‘Zero¬
percentage financing’ contracts (Nullprozentfinanzierung)} This risk should be avoided by
applying selected protection instruments of the consumer protection law. Credit agreements
without charge are not governed by European law (i.e. especially the EU Consumer Credit
Directive and the EU Mortgage Credit Directive). Therefore, every Member State is free to
stipulate such protection mechanisms.
B. Explanation
I. Gratuitous
The agreement is gratuitous if interest or other consideration for the use of the sum is not 2
owed and therefore the total amount (Art. 247 § 3(2) 1st St. EGBGB) equals the net loan
amount (Art. 247 § 3(2) 2nd St. EGBGB).1 2 According to § 514(1) 1st St., §§ 497(1) and (3),
498, 505a-c, d(2) and (3) and 5O5e apply to such contracts. Especially with the help of the
obligation to assess the creditworthiness, the indebtedness of the consumer shall be avoided.
The 2nd St. applies the de minimis limitation of §491(2) 2nd St. No. 1 also to credit
agreements without charge. Further, in academic writing some authors argue that the scope
of § 514 must be reduced if the preconditions of § 491(2) No. 3 are met. The consumer shall
also not require protection in such case.3
IL Right of withdrawal
§ 514(2) grants the consumer a right of withdrawal according to § 355. Even though the 3
right of withdrawal under § 312g prevails over the right of the P’ St., this precedence takes no
effect as the scope of application for § 312g requires counter-performance (Gegenleistung)
1 MuKo BGB/Schürnbrand, § 514 BGB mn. 4; BT-Drs. 18/7584 of 17.2.2016, p. 140.
2 BeckOK BGB/Moller, § 514 BGB mn. 2.
3 Pro: BeckOK BGB/Möller, § 514 BGB mn. 2a; Schürnbrand, Verbraucherschutz bei unentgeltlichen
Finanzierungen, WM 2016, 1105, 1108 et seq., applies § 514 analogously to consumer credit agreements
under §§ 492(2) 2nd St. Nos 4 and 5.
Krämer
919
§ 516 1-2 Division 8. Particular types of obligations
(§ 312(1)). The lender must inform the consumer about the right of withdrawal in due time
before the consumer declares his contractual intention. This obligation can be fulfilled by
transmission in text form (§ 126b) of the correctly completed model withdrawal form under
schedule 9 EGBGB (4,h St.).
III. Financing assistance
4 § 515 extends the scope of application of § 514 to the postponement of payment and the
other gratuitous financing assistance. Furthermore, § 514 also applies §§ 358 et seq. because
those provisions encompass the gratuitous credit agreement (§ 358(2)), but not the post¬
ponement of payment or other financial assistance without charge.
Title 4 Titel 4
Donation Schenkung
§516
Concept of donation
(1) A disposition by means of which some¬
one enriches another person from his own
assets is a donation if both parties are in
agreement that the disposition occurs gratui¬
tously.
(2) ’If the disposition occurs without the
intention of the other party, the donor may,
specifying a reasonable period of time, re¬
quest him to make a declaration as to accep¬
tance. 2Upon expiry of the period of time, the
donation is deemed to be accepted if the
other party has not previously rejected it. 3In
the case of rejection, return of what has been
bestowed may be demanded under the provi¬
sions on the return of unjust enrichment.
§516
Begriff der Schenkung
(1) Eine Zuwendung, durch die jemand aus
seinem Vermögen einen anderen bereichert,
ist Schenkung, wenn beide Teile darüber ei¬
nig sind, dass die Zuwendung unentgeltlich
erfolgt.
(2) lIst die Zuwendung ohne den Willen
des anderen erfolgt, so kann ihn der Zuwen¬
dende unter Bestimmung einer angemessenen
Frist zur Erklärung über die Annahme auf¬
fordern. 2Nach dem Ablauf der Frist gilt die
Schenkung als angenommen, wenn nicht der
andere sie vorher abgelehnt hat. 3Im Falle der
Ablehnung kann die Herausgabe des Zuge¬
wendeten nach den Vorschriften über die
Herausgabe einer ungerechtfertigten Berei¬
cherung gefordert werden.
A. Function
1 Sub. 1 explains the notion (or concept) of donation on which die detailed following
provisions are based. Donation is a gratuitous disposition by one party, the donor, to
another party, the donee. The BGB regulates this as a unilaterally obliging contract. It
object of the donation (the gift) is property (§ 90, chattels or land), the performance ot this
contract requires the transfer of ownership in accordance with the provisions of property law
(§§ 929 et seq. for chattels, 873, 925 for land). If this performance is to be made at a later
stage, the promise of donation requires notarial recording (§§ 518, 128). However, no form is
required if the contract of donation is performed at the time of its conclusion. This is referred
to as Handschenkung, or donation into the hand of the recipient.
2 Sub. 2 regulates a peculiarity for the conclusion of a contract of donation: if one party
disposes of assets in favour of another party without the intention of the recipient, this would
normally be regarded as an offer to an absent recipient which would be binding for a
reasonable period of time under §§ 145 et seq. If the recipient remains silent and thus fails to
accept the offer in accordance with § 146, this would normally prevent the conclusion of a
920
Sch u Ize/Dannctnann
Concept of donation 3-6 § 516
contract. Sub. 2 2nd St. provides otherwise: silence of the recipient is construed as consent,
and a contract of donation is concluded.
Sub. 2 3rd St. covers the situation where the intended donee rejects the donation. If any 3
assets have been transferred to the intended donee in the expectation of this (now failed)
contract, these can be claimed back under the provisions of unjustified enrichment,
§§ 812-822.
B. Context
Provisions on donation form the cornerstone of gratuitous contracts regulated in the 4
BGB, which also include the gratuitous Ioan of a specific object (Leihe, § 598) and mandate
(§ 662). Other contracts, in particular contracts for works (§ 635), for services (§ 611), for
medical treatment (§ 630a), for safekeeping (§§ 688-689), for loan of money (Darlehen,
§ 488) or tor loan of other tiingibles (Sachdarlehen, § 607), can be gratuitous by agreement of
the parties.
C. Explanation
I. Donation
A contract of donation arises by agreement between the parties. The object of this 5
agreement must be a disposition of the donor in favour of the donee. Such a disposition
requires that the donor provides an asset (the gift) to the donee, thus increasing the donee’s
assets, with a corresponding loss in the assets of the donor. This occurs e.g. if the donor
transfers ownership in property, assigns a claim against a third party, or releases the donee
from a debt. Donation can occur by an act, but also by omission, e.g. where the donee
allows limitation of a claim against the donee to occur in donative intent. It is not necessary
that the object of the donation belongs to the donor; the donor may also use own funds to
provide an object belonging to a third party (so-called mittelbare Zuwendung - indirect
disposition). An objective increase in the assets of the donee suffices; it is not necessary that
the donor aims at this increase. On the other hand, the disposition must be permanent; it
is not sufficient if the donor makes an object available to the donee on a temporary basis.1
Note that an agreement for the gratuitous provision of services is not a contract of
donation, but either a contract of mandate under § 662, or a gratuitous service contract
under § 611.
II. Gratuitous
Parties must also agree that the disposition is gratuitous, i.e. must not depend on any 6
counter-performance. This rules out not only any synallagmatic counter-performance in
reciprocal contracts under § 320, but also making the disposition subject to any condition
of counter-performance. Likewise, if the disposition is recognisably made for the purpose
of causing the other party to act in a particular way as counter-performance to the donor’s
performance, this also excludes a contract of donation.2 But see § 525 for a permissible
right of the donor (Auflage) that restricts the donee’s free use of the gift. Both parties must
intend the disposition to be gratuitous, i.e. neither party may expect any counter¬
performance.
1 BGH 11.12.1981 - V ZR 247/80, NJW 1982, 820. This is rather a contract for a gratuitous loan of an
object under § 598.
2 BGH 17.4.2002 - IV ZR 259/01, NJW 2002, 2469; but sec > §§ 525-527 mn. 2 for the so-called
purposive donation (Zweckschenkung).
Sch u lze/Da nnema n n
921
§ 517 1-2
Division 8. Particular types of obligations
III. Particular situations:
7 Tips given e.g. to restaurant staff are donations as between the guest and the waiter,3
whereas between the waiter and the employer, tips are considered as remuneration. A
donation made to a minor4 is valid even if made without parental consent if it legally
entails only advantages to the minor.5 If a disposition is intended to be partially gratuitous
and partially remunerated (gemischte Schenkung - mixed donation), §§ 519, 528 and 530 as
donation provisions giving specific rights to the donor apply if the gratuitous character of the
contract dominates.6
IV. Consequences
8 The contract of donation obliges the donor to transfer specified assets, e.g. goods, to the
donee. If the disposition (the transfer of assets) is made on the spot (Handschenkung), i.e. at
the time of the conclusion of the contract of donation, German law nevertheless sees the
donation contract (creating an obligation) as separate from the actual transfer of assets (a
disposition of rights), although this has been debated. Both the donation executed on the spot
and the donation contract to be executed later provide the donor with some rights which do
not exist under general contract law or in e.g. a sales contract. These include the defence of
need of the donor in § 519, reduced liability of the donor under §§ 521-524, and rights to
dissolve the contract under §§ 528 and 530.
§517
Failure to acquire assets
It is not a donation if someone, to the
advantage of another person, fails to acquire
assets or waives a right that has become
available but not yet been definitively ac¬
quired, or declines an inheritance or a legacy.
§517
Unterlassen eines
Vermögenserwebs
Eine Schenkung liegt nicht vor, wenn je¬
mand zum Vorteil eines anderen einen Ver¬
mögenserwerb unterlässt oder auf ein ange¬
fallenes, noch nicht endgültig erworbenes
Recht verzichtet oder eine Erbschaft oder ein
Vermächtnis ausschlägt.
A. Function
1 § 517 excludes some borderline situations from the scope of donation as defined in § 516.
B. Explanation
I. Option
2 § 517 specifies three situations which are not covered by provisions on donation contracts
under §§ 516 et seq. The first is the mere option of a, perhaps lucrative, deal: if a person
passes such an opportunity on to another party, this is not a donation.
3 An alternative view is that of a retroactively concluded service contract
4 See * § 106.
5 But see * § 107 mn. 3.
6 BGH 18.10.2011 - X ZR 45/10, NJW 2012, 606; this remains controversial. The BGH ruled out an)
hard and fast rule as applied by the lower court, namely that the gratuitous part must be at least twice th<
worth of the remunerated part.
922
Schulze/Danncmann
Form of promise of donation
1-2 §518
IL Waiver
The second situation which does not amount to a donation is the waiver of a right that has 3
not yet fully accrued, in particular because a condition precedent has not yet occurred. It is
disputed whether this includes the so-called Anwartschaftsrecht, an inchoate property right of
expectancy that is bound to mature into full ownership, in particular after the payment of
additional instalments.1
III. Inheritance/legacy
§ 517 expressly excludes from the ambit of §§516 et seq. where a person declines an 4
inheritance under §§ 1942 et seq., or a legacy under §§2180.
§518
Form of promise of donation
(1) ’For a contract by which performance is
promised as a donation to be valid, notarial
recording of the promise is required. 2The
same applies to a promise or a declaration of
acknowledgement if the promise to fulfil an
obligation or the acknowledgement of a debt
is made as a donation in the manner cited in
§§ 780 and 781.
(2) A defect of form is cured by rendering
the performance promised.
§518
Form des Schenkungsversprechens
(1) ’Zur Gültigkeit eines Vertrags, durch
den eine Leistung schenkweise versprochen
wird, ist die notarielle Beurkundung des Ver¬
sprechens erforderlich. ?Das Gleiche gilt,
wenn ein Schuldversprechen oder ein Schuld¬
anerkenntnis der in den §§ 780, 781 bezeich¬
neten Art schenkweise erteilt wird, von dem
Versprechen oder der Anerkennungserklä¬
rung.
(2) Der Mangel der Form wird durch die
Bewirkung der versprochenen Leistung ge¬
heilt.
A. Function
I. Purpose
Sub. 1 requires notarial recording of any promise of donation which is not executed on the 1
spot. This is primarily intended to warn donors against rash decisions to part with their
property. The required form serves also evidential functions and is to demonstrate the serious
intention of the donor to be bound by the agreement. An additional function is to prevent
contracts of donation circumventing form requirements for testamentary dispositions.1 These
functions are not required for donations which are executed on the spot, or which were
executed later in spite of the lack of form. Sub. 2, by providing that a defect in form is cured
once the donation has been executed, excludes a right of the donor to restitution under the
unjustified enrichment provisions in §§ 812-822.
II. Scope of application
§ 518 applies to all donations which are not executed on the spot (Handsehenkungen), 2
including donations made between merchants (Kaufleute) under the HGB.
• See MüKo BGB/Koch, § 517 BGB mn. 4.
'See * § 2301 for donations made subject to the condition that the donee survives the donor.
Sch u Ize/Da n nema n n
923
§519
Division 8. Particular types of obligations
B. Explanation
I. Notarial recording
3 Sub. 1 1st St. requires notarial recording of a promise of donation (Schenkungsversprechen).
The recording thus needs not include the acceptance of the promise by the donee. Any
subsequent extension ot the promise with additional obligations is subject to the same form
requirement. Notarial recording is listed as one of the form requirements in § 128 and can
be substituted by a court settlement (§ 127a). Details are governed by a separate Act
(Beurkundungsgesetz - Notarisation Act).
II. Abstract promises
4 According to Sub. 1 2nd St., the same form requirement applies also to two so-called
abstract promises (promises which do not reveal an underlying cause such as donation),
namely the promise to fulfil an obligation (Schuldversprechen) under § 780, and the acknowl¬
edgement of a debt (Schuldanerkenntnis) under § 781, but only if these were given with
donative intent. Courts have extended this form requirement to other abstract promises
which are valid regardless of whether an assumed obligation on which they are based does in
fact exist, as the donation of a cheque,2 or the acceptance of a bill of exchange with donative
intent.3
III. Cure
5 Lack of the prescribed form can be cured according to Sub. 2, provided the following two
requirements are met: first, the parties must continue to be in agreement about the donation,
and second, the donation must be performed. The latter is the case if the donor has
voluntarily done everything which is needed for the performance to be effectuated. The
mere act of performance (Leistungshandlung) is sufficient for this purpose; it is not necessary
that the intended effect of performance (Leistungserfolg) has already occurred. In the case of a
donation of real property, it is therefore sufficient if the declaration of conveyance
(Auflassung) under § 925 has been made, plus also either the application for transfer in the
Land Register (§ 13 GBO), or an appropriate priority notice (Auflassungsvormerkung) has
been entered into the Land Register. If the donor has promised a sum of money, it is
sufficient that the amount has been credited to the donee s bank account, or if the donee has
directly taken the money out of the donor’s bank account with that person’s consent.4 In case
of payment by cheque, the mere handing over to the donee does not cure a lack of form; this
only occurs when the donee successfully cashes the cheque.5
§519
Defence of paying for necessaries
(1) The donor is entitled to refuse to fulfil
his promise given as a donation to the extent
that he, taking account of his other duties, is
not in a position to fulfil the promise without
jeopardising his reasonable maintenance or
§519
Einrede des Notbedarfs
(1) Der Schenker ist berechtigt, die Erfül¬
lung eines schenkweise erteilten Versprechens
zu verweigern, soweit er bei Berücksichtigung
seiner sonstigen Verpflichtungen außerstan e
ist, das Versprechen zu erfüllen, ohne dass
2 BGH 6.3.1975 - II ZR 150/74, NJW 1975, 1HH1.
3 RG 16.6.1909 - I 189/09, RGZ 71, 289.
4 BGH 18.5.1999 - X ZR 158/97, NJW 1999, 2887.
5 BGH 6.3.1975 - II ZR 150/74, NJW 1975, 1881.
924
Schulze/Da n nema n n
Defence of paying for necessaries
1-3 §519
the performance of duties of maintenance
incumbent upon him by operation of law.
(2) If the claims of more than one donee
coincide, the earlier claim takes precedence.
sein angemessener Unterhalt oder die Erfül¬
lung der ihm kraft Gesetzes obliegenden Un¬
terhaltspflichten gefährdet wird.
(2) Treffen die Ansprüche mehrerer Be¬
schenkten zusammen, so geht der früher ent¬
standene Anspruch vor.
A. Function
§ 5191, which was contained in the BGB of 1900, can now be understood as a sub-set of 1
§ 313 on interference with the basis of the transaction (Störung der Geschäftsgrundlage), which
in 2002 codified earlier case law.2 § 519 allows a donor to refuse performance if the donor is
in urgent need of the assets which are to be transferred under the contract of donation. The
donor cannot waive this defence in advance. § 519 provides a strictly personal (höchstpersön¬
lich) right which is available only to the donor and any co-debtor, whereas the donor’s heirs
or a surety under § 765 cannot rely on the donor’s impecuniosity.3 § 519 applies only to a
donation which has not yet been executed. After performance of the donation, an impover¬
ished donor may require return of the assets under 528, 529.
B. Explanation
I. Maintenance
§ 519 applies where performance of the donation contract would leave the donor with 2
insufficient funds to cover the donor’s reasonable living expenses,4 5 or unable to meet the
donor’s statutory maintenance obligations? It is sufficient for the donor to show credible
concerns that such impecuniosity might occur in the future. Other obligations which
diminish the donor’s assets must also be taken into account.
II. Rank of claims
Where claims of several donees coincide, Sub. 2 ranks these according to the time when 3
the claims have accrued, with the older donations taking precedence. If competing claims for
donations have accrued at the same time, the dominant view is that these are to be reduced to
the same proportions.6
’ Note: Sub. 1 contains a rare grammatical error in the BGB: this should read cither Ansprüche
mehrerer Beschenkter or Ansprüche von mehreren Beschenkten.
2 Note that § 313 remains applicable for situations not covered by the specific provisions in §§ 519,
527, 528 and 530, BGH 23.2.1968 - V ZR 166/64, BeckRS 1968, 31172241 (predating the codification of
§313).
3 See MuKo BGB/Koch, § 519 BGB mn. 4; details are disputed.
4 See -* § 1610.
5 As those under 1360 et seq., 1570 et seq., 1601 ct seq.
6 See MuKo BGB/Koch, § 519 BGB mn. 5.
Schulze/Da nnemann
925
§ 521 1-2
Division 8. Particular types of obligations
§520
Expiry of the promise of an
annuity
If the donor promises maintenance consist¬
ing of recurrent performance, the obligation
expires with his death unless the promise
leads to a different conclusion.
§520
Erlöschen eines
Rentenversprechens
Verspricht der Schenker eine in wiederkeh¬
renden Leistungen bestehende Unterstützung,
so erlischt die Verbindlichkeit mit seinem
Tode, sofern nicht aus dem Versprechen sich
ein anderes ergibt.
A. Function
1 § 520 is a rule of interpretation for annuities under § 759 which have been granted by
way of donation. § 520 does not apply to donations of a fixed sum of money to be paid out in
instalments.
B. Explanation
2 As a rule of interpretation, § 520 only applies where the contract between donor and donee
does not specify what should happen in case of the donor’s death (this could arguably be better
translated than with the words unless the promise leads to a different conclusion). In this case,
the obligation to provide the annuity ends with the death of the donor, so that no instalments
become due after that date. Instalments which were already due at that date remain unaffected.
§521
Liability of the donor
The donor is responsible only for intent
and gross negligence.
§521
Haftung des Schenkers
Der Schenker hat nur Vorsatz und grobe
Fahrlässigkeit zu vertreten.
A. Function
I. Purpose
1 In view of the altruistic conduct of the donor, § 521 excludes liability under § 276(1) tor
simple negligence. The donor’s privilege of being liable only for intent and gross negligence
also applies to vicarious liability of the donor under § 278, and can also be invoked by the
donor’s co-debtors, sureties (§ 765), and successors.
II. Scope of application
2 While § 521 generally applies to all provisions which could establish the donor’s perfor¬
mance based liabilities (Leistungspflichten), a number of more specific provisions take
precedence. These include §§ 287 (liability during delay), 292 (liability in the case of a duty
to return), and 987 et seq. (liabilities between owners and unauthorised possessors). More
over, § 521 is replaced by the provisions on liability for defects, §§ 523, 524. There is some
controversy as to whether § 521 applies to duties with protective effect under § 241(2) and
any corresponding claims in tort. According to the BGH, the privilege of § 521 affects these
duties if their violation occurs in connection with the gift.1 In that case, a producer of crisps
1 BGH 20.11.1984 - IVa ZR 104/83, NJW 1985, 794.
926
Schulze/Dannemann
Liability for legal defects 1-2 § 523
had donated a surplus of potato pulp to farmers as animal feed, for which it was suitable only
it the amounts were strictly limited. The court expressly left open whether the same privilege
should apply to promotional giveaways.
§522
§522
No default interest
Keine Verzugszinsen
The donor is not obliged to pay default
interest.
Zur Entrichtung von Verzugszinsen ist der
Schenker nicht verpflichtet.
§ 522 exempts the donor from paying interest while in default as normally required under 1
§§ 286, 288. As for § 521, this exemption reflects the altruistic conduct of the donor. § 522
does not otherwise affect the consequences of default as provided by §§ 286, 291 (interest to
be paid during legal proceedings) and 292 (liability in the case of a duty to return).
§ 523
Liability for legal defects
(1) If the donor fraudulently conceals a
legal defect, he is obliged to compensate the
donee for the resulting damage.
(2) ’If the donor promised to provide an
object that he had to acquire first, the donee
may demand damages for non-performance
for a legal defect if the defect was known to
the donor upon acquisition of the thing or
remained unknown as a result of gross negli¬
gence. 2The provisions of §433(1) and
§§ 435, 436, 444, 452 and 453 on the liability
of the seller for legal defects apply with the
necessary modifications.
§523
Haftung für Rechtsmängel
(1) Verschweigt der Schenker arglistig ei¬
nen Mangel im Recht, so ist er verpflichtet,
dem Beschenkten den daraus entstehenden
Schaden zu ersetzen.
(2) ’Hatte der Schenker die Leistung eines
Gegenstandes versprochen, den er erst erwer¬
ben sollte, so kann der Beschenkte wegen
eines Mangels im Recht Schadensersatz wegen
Nichterfüllung verlangen, wenn der Mangel
dem Schenker bei dem Erwerb der Sache
bekannt gewesen oder infolge grober Fahr¬
lässigkeit unbekannt geblieben ist. 2Die für
die Haftung des Verkäufers für Rechtsmängel
geltenden Vorschriften des § 433 Abs. 1 und
der §§ 435, 436, 444, 452, 453 finden entspre¬
chende Anwendung.
A. Function
In view of the altruistic conduct of the donor, § 523 limits liability for legal defects, and 1
§ 524 for defects in substance.
B. Explanation
I. Fraudulent concealment
While sellers are strictly liable for legal defects as defined in § 435, and while § 521 limits the 2
general liability of donors to intention and gross negligence, Sub. 1 further restricts the liability
of the donor for legal defects to cases of fraudulent concealment.1 The reason for this restriction
is that altruistic donors who hand over a part of their assets will usually not intend to promise
the object of the donation to be in a better state than it actually is. As a result, the donee is
1 For fraudulent concealment, see -► § 442.
Schulze/Dannemann
927
§ 524 1-2 Division 8. Particular types of obligations
protected only against fraudulent concealment of a defect, in which case the donee is entitled to
damages, and even these are limited to reliance losses, such as wasted expenditure?
II. Initial acquisition
3 A different rationale applies where the donor promises to transfer an object which is not
part of the donor’s assets. In this situation, Sub. 2 follows again the general rule in § 512,
whereby the donor is liable (in this case: for damages for non-performance, thus including
expectation interest) in cases of intent and gross negligence.3 Sub. 2 2nd St. furthermore
invokes provisions on §§ 435 (legal defects), 436 (public charges on real property), 444
(liability limitation clauses), 452 (sale of ship) and 453 (sale of rights).
§524
Liability for material defects
(1) If the donor fraudulently conceals a
defect in the donated thing, he is obliged to
compensate the donee for the resulting da¬
mage.
(2) ’If the donor promised to provide a
thing designated only by class that he had to
acquire first, the donee may, if the thing
provided is defective and the donor was
aware of the defect when the thing was ac¬
quired or remained unaware of it due to
gross negligence, demand that in place of the
defective thing a thing free of defects is sup¬
plied. 2If the donor fraudulently concealed
the defect, the donee may demand damages
for non-performance in place of supply of a
thing free of defects. 3The provisions applic¬
able to a warranty for defects in a thing sold
apply to these claims with the necessary mod¬
ifications.
§524
Haftung für Sachmängel
(1) Verschweigt der Schenker arglistig ei¬
nen Fehler der verschenkten Sache, so ist er
verpflichtet, dem Beschenkten den daraus
entstehenden Schaden zu ersetzen.
(2) 1 Hatte der Schenker die Leistung einer
nur der Gattung nach bestimmten Sache ver¬
sprochen, die er erst erwerben sollte, so kann
der Beschenkte, wenn die geleistete Sache feh¬
lerhaft und der Mangel dem Schenker bei dem
Erwerb der Sache bekannt gewesen oder infolge
grober Fahrlässigkeit unbekannt geblieben ist,
verlangen, dass ihm anstelle der fehlerhaften
Sache eine fehlerfreie geliefert wird. 2Hat der
Schenker den Fehler arglistig verschwiegen, so
kann der Beschenkte statt der Lieferung einer
fehlerfreien Sache Schadensersatz wegen Nicht¬
erfüllung verlangen. 3Auf diese Ansprüche fin¬
den die für die Gewährleistung wegen Fehler
einer verkauften Sache geltenden Vorschriften
entsprechende Anwendung.
A. Function
1 In view of the altruistic conduct of the donor, both § 524 and § 523 limit the donors
liability for defects.
B. Explanation
I. Defects in substance
In a slight variance from the rules on liability for legal defects in § 523, § 524 generally
restricts liability for defects in substance (as defined in § 434)1 to cases where such detects were
fraudulently concealed by the donor. In this case, the donor is only liable for reliance losses.2
3 BGH 2.10.J981 - V ZR 134/80. NJW 1982, 818. Sec also the provisions on damages in §§ 249-254.
See the provisions on damages in §§ 249-254.
1 The heading of the English translation uses material defects, which could be mistaken for dejects
which amount to a material breach of contract.
2 See § 523 mn. 2.
928
Schu Ize/Da nnemann
Non-fulfillment of the condition
§527
IL Initial acquisition
An exception comparable to § 523(2) 1st St. is made in Sub. 2 1st St. only for fungible goods 3
as generally regulated in § 243, and only when these did not form part of the assets of the
donor at the time when the donation was promised. In this case, the donor is liable for both
intent and for gross negligence. If the donor acted (only) with gross negligence, the donee’s
only remedy is to demand a replacement object which is free of defects. For details on the
supply ot a replacement object, Sub. 2 3rd St. refers to the corresponding provisions in sales
law, in particular 439, 438, 442.
III. Damages
If the donor fraudulently conceals a defect in substance in a fungible object which did not 4
form part of his assets at the time when the donation was promised, the donor is liable in
damages for non-performance (Sub. 2 2nd St.). For details, Sub. 2 3rd St. refers to the
corresponding provisions in sales law, in particular §§ 437 No. 3 (with further references)
and 440. These rights do not affect the donor’s defence of impecuniosity under § 519.
§525
Donation subject to conditions
(1) Anyone who makes a donation subject
to a condition may demand that the condi¬
tion is fulfilled if he himself has performed.
(2) If fulfilment of the condition is in the
public interest, then the competent public
authority may also demand fulfilment after
the death of the donor.
§525
Schenkung unter Auflage
(1) Wer eine Schenkung unter einer Auf¬
lage macht, kann die Vollziehung der Auflage
verlangen, wenn er seinerseits geleistet hat.
(2) Liegt die Vollziehung der Auflage im
öffentlichen Interesse, so kann nach dem Tod
des Schenkers auch die zuständige Behörde
die Vollziehung verlangen.
§526
Refusal to fulfil the condition
’Insofar as due to a legal defect or a defect
in the donated thing the value of the disposi¬
tion does not reach the amount of the ex¬
penses required to fulfil the condition, the
donee is entitled to refuse to fulfil the condi¬
tion until the deficit caused by the defect is
made up for. 2If the donee fulfils the condi¬
tion without knowledge of the defect, then he
may demand from the donor reimbursement
of the expenses caused by fulfilment to the
extent that, as a result of the defect, they
exceed the value of the disposition.
§526
Verweigerung der Vollziehung der
Auflage
'Soweit infolge eines Mangels im Recht
oder eines Mangels der verschenkten Sache
der Wert der Zuwendung die Höhe der zur
Vollziehung der Auflage erforderlichen Auf¬
wendungen nicht erreicht, ist der Beschenkte
berechtigt, die Vollziehung der Auflage zu
verweigern, bis der durch den Mangel ent¬
standene Fehlbetrag ausgeglichen wird. 2Voll¬
zieht der Beschenkte die Auflage ohne Kennt¬
nis des Mangels, so kann er von dem
Schenker Ersatz der durch die Vollziehung
verursachten Aufwendungen insoweit verlan¬
gen, als sie infolge des Mangels den Wert der
Zuwendung übersteigen.
§527
Non-fulfillment of the condition
(1) If fulfilment of the condition fails to
occur, the donor may demand the return of
the gift under the conditions determined for
§527
Nichtvollziehung der Auflage
(1) Unterbleibt die Vollziehung der Auf¬
lage, so kann der Schenker die Herausgabe
des Geschenkes unter den für das Rücktritts-
Schulze/Dannemann
929
§ 527 1-3
Division 8. Particular types of obligations
the right of revocation of reciprocal contracts
under the provisions on return of unjust
enrichment to the extent that the gift would
have had to be used to fulfil the condition.
(2) The claim is excluded if a third party is
entitled to demand fulfilment of the condi¬
tion.
recht bei gegenseitigen Verträgen bestimmten
Voraussetzungen nach den Vorschriften über
die Herausgabe einer ungerechtfertigten Be¬
reicherung insoweit fordern, als das Geschenk
zur Vollziehung der Auflage hätte verwendet
werden müssen.
(2) Der Anspruch ist ausgeschlossen, wenn
ein Dritter berechtigt ist, die Vollziehung der
Auflage zu verlangen.
A. Function
1 §§ 525-527 regulate a particular variety of donation, namely where the donor reserves a
right which restricts the use of the gift in a particular way, for example that a certain part of
the donated assets are to be used for a specified charitable purpose, or that the donor of real
property may continue to use a flat.1 The donor’s right to such a particular performance is
actionable. This Auflage is more of a charge than a condition as the term used in the English
translation. Condition is normally - and arguably more correctly - used as translation of
Bedingung in § 158. The same term Auflage is defined in § 1940 (an inheritance law
provision, and translated as testamentary burden) as an obligation to perform an act without
giving another person a right to the performance. This definition does not work equally well
for donation, as the donor does indeed acquire a right to performance. As can be gleaned
from § 527(2), a contract of donation may also specify that a third party is entitled to
demand performance of the conditions imposed on the donee.
B. Explanation
I. Contract of donation
2 §§ 525-527 require a contract of donation under § 516(1) which links the donation with
such conditions. The form requirement in § 518 applies to both the promise of a transfer of
assets, and the imposed conditions. Any obligation to perform as understood by § 241(1)
can be the object of such conditions. It is not necessary that a pecuniary value can be
attached to the conditions, nor are these necessarily fulfilled by using the transferred assets. It
is necessary, however, that these conditions can be understood as restrictions imposed on
the use of the gift (as in the example of the donor of real property who reserves the right to
continued use of a flat)2 rather than as a counter-performance in a synallagmatic contractual
relationship under §§ 320 et seq. Such a synallagmatic relationship would make the contract
non-gratuitous and exclude the application of §§ 516 et seq.3
II. Distinctions
3 A donation under conditions in the meaning of §§ 525-527 must be distinguished from a
mixed donation (gemischte Schenkung), where one part of the transfer of assets is gratuitous,
and another is against remuneration,4 but also from a donation serving a particular purpose
(Zweckschenkung). In the case of the latter, the content of the donation contract, or its basis
of transaction (Geschäftsgrundlage, §313 BGB) include a particular purpose which is
’ BGH 2.10.1981 - V ZR 134/80, NJW 1982, 818
2 BGH 2.10.1981 - V ZR 134/80, NJW 1982, 818.
3 See >§516 mn. 6.
4 See > § 516 mn. 7.
930
Schulze/Dannemann
Claim for return due to impoverishment of the donor § 528
recognisable for the donee and which goes beyond the increase in the donee’s assets, but
which is not actionable. For example, the donation may be intended to encourage the donee
to a particular behaviour, or parents may donate to the spouse of their child in order to
secure this marriage. The prevailing, but not undisputed view is that donors may in such
cases require restitution of the assets under § 812(1) 2nd St., 2nd Alt. (condictio causa data
causa non secuta) if the intended purpose does not materialise.5
III. Performance
The donee is under no obligation to perform the conditions before the donor has 4
effectuated the transfer of assets to the donee (§ 525(1)). Parties may, however, agree
otherwise in the contract of donation.
IV. Defects
§ 526 protects the donee in the situation where the gift suffers from legal defects6 or 5
defects in substance7 which reduce the value of the gift below the costs which the donee
must incur for the fulfilment of the conditions. § 526 1st St. allows the donee to refuse
performance of the conditions until the loss in value caused by the defect has been
compensated. If the donee has already performed the conditions, § 526 2nd St. allows the
donee to recover from the donor that part of the expenses which, due to the defect(s),
exceeds the value of the gift.8
V. Non-performance
§ 527 protects the donor in the situation where the donee fails to fulfil the conditions 6
wholly or in part. Rather than enforcing the conditions, the donor may alternatively
terminate the contract of donation under the provision on revocation for non-performance
(§ 323, which otherwise applies only to reciprocal contracts) and claim back the gift under
the provisions on unjustified enrichment (§§ 812 et seq.), However, the donor may exercise
this right to restitution only to the extent that the gift would have been used to fulfil the
conditions. Note that the donee’s increased liability under § 819 occurs only when the donee
learns that the donor demands restitution of the gift.
VI. Termination
The donor’s right to terminate the donation contract and claim restitution of the gift under 7
§ 527 is excluded in situations where a third party may claim performance of the conditions,
§ 527(2). This is not regularly the case, but may be provided in the donation contract.
§528
Claim for return due to
impoverishment of the donor
(1) ’To the extent that the donor, after
fulfilment of the condition, is not in a posi¬
tion to maintain himself reasonably and to
meet the maintenance obligation incumbent
upon him by law in relation to his relatives,
§528
Rückforderung wegen Verarmung
des Schenkers
(1) ’Soweit der Schenker nach der Vollzie¬
hung der Schenkung außerstande ist, seinen
angemessenen Unterhalt zu bestreiten und die
ihm seinen Verwandten, seinem Ehegatten,
seinem Lebenspartner oder seinem früheren
5 BGH 23.9.1983 - V ZR 67/82, NJW 1984, 233, see ► § 812 mn. 16.
6 See > § 523.
7 See -> tj 524.
’ See also BGH 2.10.1981 - V ZR 134/80, NJW 1982, 818.
Schulze/Dannemann
931
§ 529 1-2
Division 8, Particular types of obligations
his spouse, his civil partner or his previous
spouse or civil partner, he may demand re¬
turn of the gift from the donee under the
provisions on the return of unjust enrich¬
ment. 2The donee may avoid return by paying
the amount required for maintenance. 3The
provision of § 760 and the provision applic¬
able to the maintenance obligation of rela¬
tives under § 1613, and in the case of the
death of the donor also the provision of
§ 1615, apply to the duty of the donee with
the necessary modifications.
(2) Among more than one donee, the ear¬
lier donee is Hable only to the extent that the
later donee is not obliged.
§529
Exclusion of claim for return
(1) The claim to return of the gift is ex¬
cluded if the donor has caused his indigence
by intent or gross negligence or if at the time
of onset of his indigence ten years have
passed since the donated object was provided.
(2) The same applies to the extent that the
donee, taking into account his other duties, is
not in a position to return the gift without
the maintenance suitable to his station in life
or the discharging of the duties of mainte¬
nance incumbent upon him by operation of
law being jeopardised.
Ehegatten oder Lebenspartner gegenüber ge¬
setzlich obliegende Unterhaltspflicht zu erfül¬
len, kann er von dem Beschenkten die Heraus¬
gabe des Geschenkes nach den Vorschriften
über die Herausgabe einer ungerechtfertigten
Bereicherung fordern. 2Der Beschenkte kann
die Herausgabe durch Zahlung des für den
Unterhalt erforderlichen Betrags abwenden.
3Auf die Verpflichtung des Beschenkten findet
die Vorschrift des § 760 sowie die für die
Unterhaltspflicht der Verwandten geltende
Vorschrift des § 1613 und im Falle des Todes
des Schenkers auch die Vorschrift des § 1615
entsprechende Anwendung.
(2) Unter mehreren Beschenkten haftet der
früher Beschenkte nur insoweit, als der später
Beschenkte nicht verpflichtet ist.
§529
Ausschluss des
Rückforderungsanspruchs
(1) Der Anspruch auf Herausgabe des Ge¬
schenkes ist ausgeschlossen, wenn der Schen¬
ker seine Bedürftigkeit vorsätzlich oder durch
grobe Fahrlässigkeit herbeigeführt hat oder
wenn zur Zeit des Eintritts seiner Bedürftig¬
keit seit der Leistung des geschenkten Gegen¬
standes zehn Jahre verstrichen sind.
(2) Das Gleiche gilt, soweit der Beschenkte
bei Berücksichtigung seiner sonstigen Ver¬
pflichtungen außerstande ist, das Geschenk
herauszugeben, ohne dass sein standesmäßi-
ger Unterhalt oder die Erfüllung der ihm
kraft Gesetzes obliegenden Unterhaltspflich¬
ten gefährdet wird.
A. Function
1 §§ 528, 529 seek to balance the conflicting interests between donor and donee if the donor
becomes impoverished after having effectuated the donation. Whereas § 519 provides the
donor with a defence of impecuniosity if this occurs before the donor has transferred the
promised assets to the donee, § 528 allows a donor who subsequently becomes needy to
reclaim the gift under requirements and with limits detailed in §§ 528, 529. Note that § 534 on
donations corresponding a moral duty or common decency takes precedence over §§ 528, 529.
B. Explanation
I. Reclaim
2 § 528(1) 1st St. makes the donor’s right to reclaim the gift subject to two requirements,
namely that the donee has already acquired the gift, and that the donor has since become
indigent. This is the case if the donor is no longer able to cover the own reasonable living
expenses and at the same time meet all the donor’s maintenance obligations towards persons
932
Sch ulze/Da nnemann
Exclusion of claim for return 3-7 § 529
who are listed in § 528(1) 1st St. Whereas § 519 provides a defence as soon as there is a
danger of the donor s future impecuniosity, this mere danger is not sufficient for § 528.
IL Reasonable living expenses
Past lifestyle is not necessarily an indicator of what are reasonable living expenses for 3
the donor; these are rather determined by the donor’s initial financial situation after the
gift was made.1 The donor may be required to engage in reasonable gainful activity, or to
live oft the remaining substance in order to pay for the reasonable living expenses. On the
other hand, donors cannot be expected to use their assets in an uneconomic way. Donors
are also not required to rely on maintenance rights which arise as a result of their
impecuniosity.2
III. Restitution
The donee may ward off restitution of the gift by paying the required maintenance to the 4
donor or the donor’s dependants (§ 528(1) 2nd St.). For this purpose, § 528(1) 3rd St. invokes
other provisions on maintenance. This must be paid in advance under § 760. § 1613 regulates
retroactive demands for maintenance. § 1615 applies to the death of the donor.
IV. Several donees
§ 528(2) covers the situation where the impoverished donor has made donations to several 5
donees. These are obliged to return gifts in reverse chronological order: last one in, first one
out, with earlier donees being liable only to the degree that later donees are not,3 4 or that the
shortfall is not already covered by the return of later gifts. If several donations are made at
the same time, these donees are jointly and severally liable under § 421, and are entitled
and obliged to contributions in accordance with § 426?
V. Exclusion of right to reclaim
Under § 529, there are three situations in which the donor’s right to reclaim the gift is 6
excluded. Two of these are contained in § 529(1), the third in § 529(2). All three provide a
defence to the donee, who must thus rely on an available defence in order to prevent the
donor from reclaiming the gift.5 Moreover, as § 528(1) refers to unjust enrichment law, bona
fide donees can also rely on change of position under § 818(3), i.e. that they have already
spent the gift without having obtained any substitute.
1. Intention or gross negligence
The first covers donors who have caused their impecuniosity intentionally or with gross 7
negligence (§ 519(1)), referring to general standards of liability in § 276. It is not grossly
negligent, though, if a donor continues with the same lifestyle without taking sufficiently into
account the economic consequences of the donation, i.e. that the donor’s assets have been
reduced.6 Moreover, the donee can only rely on this defence if it was not foreseeable for the
donee that the donor would subsequently cause his own indigence.7
1 BGH 5.11.2002 - X ZR 140/01, NJW 2002, 1384, 1387.
2 BGH 13.2.1991 - IV ZR 108/90, NJW 1991, 1824.
3 Liability may also be excluded under § 818(3) if the gift has already been spent.
4 BGH 28.10.1997 - X ZR 157/96, NJW 1998, 537.
5 BGH 19.12.2000 - X ZR 146/99, NJW 2001, 1207.
6 BGH 5.11.2002 - X ZR 140/01, NJW 2003, 1384.
7 BGH 5.11.2002 - X ZR 140/01, NJW 2003, 1384.
Schulze/Dannemann
933
§533
Division 8. Particular types of obligations
2. Lapse of time
8 If 10 years have passed between the time when the donor transferred the gift and the
time when the donor became indigent, the donor is not entitled to reclaim the gift, (§ 529(1)
2nd Alt.).
3. Deprivation of means
9 § 529(2) solves the conflict between an indigent donor and an indigent donee in favour of
the latter. Donees thus need not surrender a gift if this would deprive them of means
required for meeting their own reasonable living expenses or their statutory maintenance
obligations. This corresponds to the requirements set out in § 519 under which a donor can
refuse to perform.
§530
Revocation of donation
(1) A donation may be revoked if the donee
is guilty of gross ingratitude by doing serious
wrong to the donor or a close relative of the
donor.
(2) The heir of the donor only has the right
of revocation if the donee has intentionally
and unlawfully killed the donor or prevented
him from revoking.
§531
Declaration of revocation
(1) Revocation is effected by declaration to
the donee.
(2) If the donation is revoked, return of the
gift may be demanded under the provisions
on the return of unjust enrichment.
§532
Exclusion of revocation
’Revocation is excluded if the donor has
forgiven the donee or if one year has passed
since the time when the person entitled to
revoke obtained knowledge that the require¬
ments for him to have the right had been
satisfied. Revocation is no longer permissible
after the death of the donor.
§533
Waiver of the right of revocation
The right of revocation may only be waived
when the person entitled to revoke has be¬
come aware of the ingratitude.
§530
Widerruf der Schenkung
(1) Eine Schenkung kann widerrufen wer-
den, wenn sich der Beschenkte durch eine
schwere Verfehlung gegen den Schenker oder
einen nahen Angehörigen des Schenkers gro¬
ben Undanks schuldig macht.
(2) Dem Erben des Schenkers steht das Recht
des Widerrufs nur zu, wenn der Beschenkte
vorsätzlich und widerrechtlich den Schenker
getötet oder am Widerruf gehindert hat.
§531
Widerrufserklärung
(1) Der Widerruf erfolgt durch Erklärung
gegenüber dem Beschenkten.
(2) Ist die Schenkung widerrufen, so kann
die Herausgabe des Geschenks nach den Vor¬
schriften über die Herausgabe einer unge¬
rechtfertigten Bereicherung gefordert werden.
§532
Ausschluss des Widerrufs
’Der Widerruf ist ausgeschlossen, wenn der
Schenker dem Beschenkten verziehen hat
oder wenn seit dem Zeitpunkt, in welchem
der Widerrufsberechtigte von dem Eintritt
der Voraussetzungen seines Rechts Kenntnis
erlangt hat, ein Jahr verstrichen ist. 2Nach
dem Tode des Beschenkten ist der Widerruf
nicht mehr zulässig.
§533
Verzicht auf Widerrufsrecht
Auf das Widerrufsrecht kann erst verlieh"
tet werden, wenn der Undank dem Wider"
rufsberechtigten bekannt geworden ist.
934
Sch u lze/Da n ne mann
Donations for duty and decency
1-3 § 534
§534
Donations for duty and decency
Donations to meet a moral duty or made
from considerations of decency are not sub¬
ject to a claim for return or to revocation.
§534
Pflicht- und Anstandsschenkungen
Schenkungen, durch die einer sittlichen
Pflicht oder einer auf den Anstand zu nehmen¬
den Rücksicht entsprochen wird, unterliegen
nicht der Rückforderung und dem Widerruf.
A. Function
§§ 530, 531 protect the donor in what can be seen as another sub-set of interference with 1
the basis of transaction (Störung der Geschäftsgrundlage, generally regulated in § 313).1 In
case ot the donee’s gross ingratitude, the donor can no longer be reasonably expected to
adhere to the donation contract. As an exception to the rule of pacta sunt servanda, the
donor is thus entitled to revoke the donation by making a declaration to that effect towards
the donee. The prevailing view is that § 530 applies only to donations made between natural
persons. §§ 532, 534 exclude the right to revocation in specified situations; § 534 also applies
to claims tor return due to the donor’s impoverishment under § 528. § 533 restricts a donor’s
waiver of the right to revoke.
B. Explanation
I. Serious wrong
Revocation under § 530 requires that the donee has committed a serious wrong. From an 2
objective viewpoint, this must include a high degree of misconduct, which from a subjective
viewpoint must demonstrate a reproachable attitude which expresses a serious lack of
gratitude. The serious wrong must affect either the donor or a close relative of the donor.
Examples are cases of grave defamation, assault, an unjustified reporting of criminal activity,2
misuse of guardianship or related powers against the donor,3 and, in some cases, marital
misconduct.4 If the donee sells the gift without having consulted the donor, this does not per
se qualify as serious wrong.5 Mere omissions to act may amount to a serious wrong if there is
a moral duty of the donee to act. Conduct of third parties is generally not attributed to the
donee. Regard must always be given to all relevant circumstances of the case, and in
particular the conduct of the donor.6
IL Strictly personal right
The right to revoke the donation is strictly personal (höchstpersönlich). It thus cannot be 3
assigned, and is inheritable only within the narrow confines of § 530(2), namely if the donee
has both unlawfully and intentionally killed the donor, or if the donor had wanted to revoke
but was prevented from doing so by the donee.
1 See also § 519.
2 BGH 30.1.1970 - V ZR 41/67, BeckRS 1970, 31123200.
5 BGH 25.3.2014 - X ZR 94/12, NJW 2014, 3021.
4 See MüKo BGB/Koch, § 530 BGB mn. 10-11; the relationship between marital property rules on
divorce (which generally take precedence) and retraction of a donation made to a spouse (which may
nevertheless be available in some cases) is rather complex.
5 BGH 14.12.2004 - X ZR 3/03, ZEV 2005, 213.
6 BGH 23.1.1967 - II ZR 166/65, NJW 1967, 1081.
Schulze/Dannemann
935
§ 534 4-8
Division 8. Particular types of obligations
III. Declaration
4 Revocation occurs by a declaration which the donor makes to this effect towards the donee
(§ 531(1)). General rules on declarations of intent apply.7 The effect of a revocation is that
the transfer of assets is no longer supported by a legal ground in the sense of provisions on
unjust enrichment in §§812 et seq., under which restitution of the gift is then required,
provided that all their conditions are met (so-called Rechtsgrundverweis):8
IV. Forgiveness
5 § 532 regulates three different situations in which the right to revocation is excluded. The
first is where the donor has forgiven the donee (§ 532(1) 1st St. 1st Alt.). This does not require
a declaration, just actual conduct which expresses that the donor no longer bears a grudge
against the donee. A mere attempt to reconciliation is not sufficient.9 Reconciliation which
occurs after the donor has revoked the gift does not affect the right to revocation.
6 The right to revocation lapses after one year has passed counted from the time when the
donor learned of the circumstances which gave rise to the right of revocation, § 532(1) 1st St. 2nd
Alt. It also lapses on the death of the donee (§ 532(2)); see § 530(2) for the death of the donor.
V. No advance forgiveness
7 According to § 533, a mandatory provision, the donor cannot forgive a serious wrong in
advance, i.e. prior to having obtained knowledge. Deviating clauses in donation contracts are
ineffective.
VI. Moral duty
8 § 534 excludes both any right to revocation under § 530, and any right to return of the gift
under § 528, in cases where the donation corresponded to a moral duty or considerations of
decency. Donations corresponding to a moral duty are supported by a motive of solidarity
which goes beyond the mere existence of a close relationship between donor and donee, such
as when close relatives or partners have become destitute. Donations corresponding to
considerations of decency include presents made for a birthday, wedding or anniversary, or
other presents usually made between close relatives.
7 See -► §§ 114 et seq.
8 BGH 28.2.1996 - XJI ZR 181/93, NJW 1996, 1411
9 BGH 19.1.1999 - X ZR 42/97, NJW 1999, 1626; this is the dominant, but not undisputed view.
936
Schulze/Da nnemann
Contents and primary duties of the lease agreement
1-3 § 535
Title 5
Lease, usufructuary lease
Subtitle 1
General provisions for leases
Titel 5
Mietvertrag, Pachtvertrag
Untertitel 1
Allgemeine Vorschriften für
Mietverhältnisse
§535
Contents and primary duties of
the lease agreement
(1) ’A lease agreement imposes on the
lessor a duty to grant the lessee use of the
leased property for the lease period. 2The
lessor must surrender the leased property to
the lessee in a condition suitable for use in
conformity with the contract and maintain it
in this condition for the lease period. 3He
must bear all costs to which the leased prop¬
erty’ is subject.
(2) The lessee is obliged to pay the lessor
the agreed rent.
§535
Inhalt und Hauptpflichten des
Mietvertrags
(1) ’Durch den Mietvertrag wird der Ver-
mietet verpflichtet, dem Mieter den Gebrauch
der Mietsache während der Mietzeit zu ge¬
währen. 2Der Vermieter hat die Mietsache
dem Mieter in einem zum vertragsgemäßen
Gebrauch geeigneten Zustand zu überlassen
und sie während der Mietzeit in diesem Zu¬
stand zu erhalten. 3Er hat die auf der Mietsa¬
che ruhenden Lasten zu tragen.
(2) Der Mieter ist verpflichtet, dem Ver¬
mieter die vereinbarte Miete zu entrichten.
A. Function
I. Purpose
§ 535 defines in general terms the mutual obligations of each party under any lease 1
contract, once the respective contract has been concluded according to §§ 145 et seq.
IL Position within the BGB
The lease contract under § 535 is the most important of all contracts containing an 2
element of permission of use such as the usufructuary lease (§§ 581-584b), the farm lease
(§§ 585-597) as well as the gratuitous lease (§§ 598-606). They all share the same structural
feature of the temporary use of the relevant object.
The inner structure of Title 5 of the BGB is arranged in the same fashion as the overarching 3
structure of the BGB: it contains a general part (§§ 533-548) which applies to all subtitles. This
general part covers the rights and obligations of the parties, the rules of warranties for defects
(Gewährleistungsrecht) and the general rules of termination. The second subtitle regulates the
most important field of lease of residential space (§§ 549-577a). The third subtitle covers the
rules of leases of certain other objects such as land, other rooms than residential space as well
as ships (§§ 578-580a).
Hübner
937
§ 535 4-7
Division 8. Particular types of obligations
III. Scope of application
4 The provisions of §§ 535 et seq. apply not only to pure lease contracts regarding land,
movables or residential space but also to finance lease contracts being described as a typical
lease contract.1 The rules, however, must be modified in the light of the particular features of
financial lease.2
B. Context
5 The history of the lease law within the BGB is regarded as a continuous struggle between
the private autonomy and the (social) protection of the residential lessee.3 While the original
concept was much more liberal since the lease contract was seen as a usual promissory
contract (schuldrechtlicher Vertrag) establishing a continuing relationship (Dauerschuldver¬
hältnis), the more recent reforms all aim to strengthen the protection of the residential
lessees such as the introduction of statutory control of residential rents (Mietpreisbremse)
pursuant to §§ 556d-556g. This especially applies to the provisions for the protection of
termination in cases of residential lease (§§ 569 et seq.). As approx. 60 percent of all
Germans have concluded lease contracts for residential space, the regulation of lease
contracts is an enormously politically sensitive issue.
C. Explanation
I. Lessor’s duties
6 Sub. 1 reflects the primary duties of the lessor, which include the duty to grant (1st St.) and
to surrender and to preserve (2nd St.) the leased object. The duty to surrender the leased
object for the period of the contract demonstrates the character of the continuous relation¬
ship. This duty includes the obligation to accept the lessee’s use of the object as long as it is in
line with the provisions of the contract. An especially prominent example of this obligation
to surrender concerns the enduring arguments about the right of (foreign) residential lessees
to install satellite dishes outside of the building.4 The lessor shall bear all costs to which the
leased object is subject (3rd St.). This usually comprises, inter alia, the property taxes, building
insurance, waste collection, or operating costs (Betriebskosten). Nevertheless, the BGB
allocates the operating costs as well as the costs of cosmetic repairs (Schönheitsreparaturen)
to the sphere of the lessor since the cosmetic repairs are included in the duty of the lessor to
surrender use of the leased object to the lessee. However, party autonomy allows for both
duties to be passed on to the responsibility of the lessee as long as this allocation is in line
with §§ 305 et seq. This is justified by the following idea: Sub. 1 3rd St. is based upon the idea
that the landlord and lessor is in a better position to calculate these costs. Thus, he can factor
said costs by fixing the rent at a certain level or he may proactively engage to find another
solution. The allocation of all costs to the lessee constitutes an unreasonable disadvantage in
violation of § 307(2) No. I.5 It does not come as a surprise that both issues account for most
of the disputes in modern day residential lease contracts.
7 The party autonomy of the residential lessor is further limited by the Allgemein«
Gleichbehandlungsgesetz (AGG; General Act on equal treatment6), if he rents more than 50
1 BGH 14.12.1989 - IX ZR 283/88, NJW 1990, 1113.
2 See HK-BGB/Scheuch, Vor 535-580a BGB mn. 13 et seq.
3 Emmerich, Miete, in: Eckpfeiler des Zivilrechts (6"> edn, Sellicr-dc Gruyter 2018) mn. 3.
4 e.g. BVerfG 9.2.1994 - 1 BvR 1687/92, NJW 1994, 1147
5 HK-BGB/Scheuch, § 535, BGB mn. 1.
6 An English translation of the AGG is available under www.gesctze-im-intcrnet.de.
938
Hübner
Rent reduction for material and legal defects § 536
flats (§ 19(5) 3rd St. AGG). The lessor is then prohibited to discriminate lessees on the basis
ot their racial or ethnic origin (§ 19(2) in conjunction with § 2(1) No. 8 AGG). In the event
ot infringement the lessor is obliged to pay damages pursuant to § 21(2) AGG.
IL Lessee’s duty
Sub. 2 states the corresponding primary duty of the lessee: to pay the agreed rent. The 8
corresponding character of these obligations entitles the respective party to the right of
retention if the other does not perform his duties (cf. § 320). The rent falls due in advance,
i.e. before the relevant period (month, quarter etc.). This follows for residential lease and
other rooms’ leases from §§ 556b(l), 579(2), while the parties agree on these payment
deadlines in cases of rent for land, ships, and movables (since the BGB generally foresees
the rent to be paid in arrears, cf. § 579(1) 1st and 2nd St.).
The parties are free to agree upon the payment (whether money or rendering services etc.) 9
and the amount of rent, but their autonomy is limited by public policy (§ 138), the principle
of good faith (§ 242), the rules on standard business terms (§§ 305 et seq.) as well as the
newly introduced provisions about the statutory control of residential rents (Mietpreisbremse)
pursuant to §§ 556d-556g. Finally, the general ban on usury under § 138(2) is supplemented
by two special usury prohibitions for residential renting in § 5 WiStG (Wirtschaftsstrafgesetz
- Commercial Crime Act) and § 291 StGB.7
III. Form
The lease contract may be concluded informally. However, lease contracts for apart- 10
ments, other rooms, and land lasting for more than one year shall be concluded in written
form (§ 126), unless the contract shall be concluded for an unlimited period of time (§ 550
1st St.).
§536
Rent reduction for material and
legal defects
(1) *If the leased property at the time of
surrender to the lessee has a defect which
removes its suitability for the contractually
agreed use, or if such a defect arises during
the lease period, then the lessee is exempted
for the period when suitability is removed
from paying the rent. 2For the period of time
when suitability is reduced, he need only pay
reasonably reduced rent. 3A trivial reduction
of suitability is not taken into account.
(la) A reduction of suitability will not be
considered for the duration of three months
insofar as this takes place because of a mea¬
sure which serves the purpose of energy effi¬
ciency modernisation in accordance with
§ 555b No. 1.
(2) Subsection (1) sentences 1 and 2 also
apply if a warranted characteristic is lacking
or later ceases.
§536
Mietminderung bei Sach- und
Rechtsmängeln
(1) !Hat die Mietsache zur Zeit der Über¬
lassung an den Mieter einen Mangel, der ihre
Tauglichkeit zum vertragsgemäßen Gebrauch
aufhebt, oder entsteht während der Mietzeit
ein solcher Mangel, so ist der Mieter für die
Zeit, in der die Tauglichkeit aufgehoben ist,
von der Entrichtung der Miete befreit. 2Für
die Zeit, während der die Tauglichkeit gemin¬
dert ist, hat er nur eine angemessen herab¬
gesetzte Miete zu entrichten. 3Eine unerheb¬
liche Minderung der Tauglichkeit bleibt
außer Betracht.
(la) Für die Dauer von drei Monaten bleibt
eine Minderung der Tauglichkeit außer Be¬
tracht, soweit diese auf Grund einer Ma߬
nahme eintritt, die einer energetischen Mo¬
dernisierung nach § 555b Nummer 1 dient.
(2) Absatz 1 Satz 1 und 2 gilt auch, wenn
eine zugesicherte Eigenschaft fehlt oder spä¬
ter wegfällt.
7 Emmerich, Miete, in: Eckpfeiler des Zivilrechts (6,h edn, Sellier-de Gruyter 2018), mn. 13.
Hübner
939
§ 536 1-4
Division 8. Particular types of obligations
(3) If the lessee is fully or partially deprived
by a third-party right of use of the leased
property, then subsections (1) and (2) apply
with the necessary modifications.
(4) With regard to a lease for residential
space, a deviating agreement to the disadvan¬
tage of the lessee is ineffective.
(3) Wird dem Mieter der vertragsgemäße
Gebrauch der Mietsache durch das Recht ei¬
nes Dritten ganz oder zum Teil entzogen, so
gelten die Absätze 1 und 2 entsprechend.
(4) Bei einem Mietverhältnis über Wohn¬
raum ist eine zum Nachteil des Mieters ab¬
weichende Vereinbarung unwirksam.
A. Function
I. Purpose
1 The provision regulates the interests of the parties regarding the equivalence of perfor¬
mance and counter-performance (justice of contract). If the leased object is defective the
lessee is obliged to only pay a diminished rent. § 536 is the pivotal provision of warranty law
(Gewährleistungsrecht) with regard to lease contracts. It defines the various possibilities of a
material or legal defect under any lease contract. If the lessor violates his obligations under
the lease contract the lessee is entitled to claims resulting from the general law of irregularity
in performance (Allgemeines Leistungsstörungsrecht, §§ 280 et seq., 320 et seq.). These,
however, do not apply if the leased object has a material or legal defect. The claims and
rights of the lessee arise instead from the special provisions under §§ 536 et seq.
II. Scope of application
2 The provision applies to all lease contracts as well as to usufructuary lease contracts (§ 581
(2)). It cannot be ruled out under a residential lease contract at the expense of the lessee
(Sub. 4).
B. Explanation
I. Defects
3 § 536 contains three types of defects: the material defect (Sachmangel), the legal defect
(Rechtsmangel), and the lack of promised feature (Fehlen einer zugesicherten Eigenschaft).
The latter is a separate category of defect, which used to be a part of all warranty laws (sales
contract, contract to produce work), but is now limited to lease contracts.
4 Any defect is to be assumed if the factual quality of the rented property (Ist-Beschaffenheit)
deviates from the contractually agreed nominal quality of said rented property (Soll-
Beschaffenheit).1 The so-called subjective notion of defect applies (subjektiver Fehlerbegriff).
The nominal quality is primarily defined by the agreement of the parties; any objective
criteria may only fill the potential gaps of the agreement. A material defect can be presumed
if the defect downgrades the suitability of the leased object. The quality of the object includes
the physical characteristics (e.g. humidity in a leased apartment or the (faulty) brakes of a
leased car) as well as external factors, which are not directly attributable to the rented
property such as noise nuisance, public law-restrictions or clauses regarding protection
against competitors.2 Legal defects and the lack of promised features are comparatively less
relevant. Examples of legal defects include the double letting (the same object is let to two
lessees in the same time) or subletting by the lessee.
1 BGH 18.12.2013 - XII ZR 80/12, NJW 2014, 685.
2 Palandt BGB/Weidenkaff, § 536 BGB mn. 16.
940
Hübner
Claim of lessee for damages and reimbursement
§ 536a
IL Right of reduction
The reduction can be asserted in addition to the following performance claim for the 5
provision of a defect-free rented property, which entitles the tenant to a right of retention
with respect to the payment of the rent (§ 320). The rent shall be diminished or shall be
cancelled by virtue of law under the conditions laid down by Subs 1 1st St., 2. The rent
reduction therefore does not presuppose a one-sided declaration of the lessee; this represents a
significant difference compared to the price reduction in case of a sales contract, or, a contract
to produce work sales. In these cases, a declaration is required to execute the reduction.
1. Effect
The reduction - dependent on the particular defect - either leads to the expiry (Erlöschen) 6
of the lessor's claim for the payment of rent or to its corresponding reduction. If the lessee
has already paid the rent, he is entitled to reimbursement pursuant to § 812(1) 1st St.
(condictio indebiti).
2. Limitations
However, the right to reduction is limited by several criteria. First, a qualitative criterion 7
limits the scope of § 536, since a trivial reduction of suitability is not taken into account
(Sub. 1 3rd St.). A defect is trivial if it can be remedied at little expense in a short period of
time or if it is only an irrelevant impairment (e.g. used door handles in an apartment).
§ 536 (especially for material defects3) is further only applicable after the lessor has already
permitted the use of the object. Additionally, if the lessor was prevented from providing
relief due to the omission of the lessee to report the defect (§ 536c(2)) or if the lessee did
already know or should have known the defect under the respective circumstances (§ 536b
(1)), the lessee is not entitled to enforce his rights under either § 536 or other provisions. The
legislator recently introduced another ground for exclusion, as he wants to facilitate energy
efficiency modernisations (§ 555c No. 1) if they do not last longer than three months
(Sub. la). Finally, the liability of the lessor may be contractually limited or excluded as long
as he did not maliciously conceal the particular defect (§ 536d) and the relevant contract is
not a contract for residential space (Sub. 4).
§ 536a
Claim of lessee for damages and
reimbursement of expenses due to
a defect
(1) If a defect within the meaning of § 536
exists when the lease agreement is entered
into, or if such a defect arises subsequently
due to a circumstance that the lessor is re¬
sponsible for, or if the lessor is in default in
remedying a defect, then the lessee may, not¬
withstanding the rights under § 536, demand
damages.
(2) The lessee may remedy the defect him¬
self and demand reimbursement of the neces¬
sary expenses if
§ 536a
Schadens- und
Aufwendungsersatzanspruch des
Mieters wegen eines Mangels
(1) Ist ein Mangel im Sinne des § 536 bei
Vertragsschluss vorhanden oder entsteht ein
solcher Mangel später wegen eines Umstands,
den der Vermieter zu vertreten hat, oder
kommt der Vermieter mit der Beseitigung
eines Mangels in Verzug, so kann der Mieter
unbeschadet der Rechte aus § 536 Schadens¬
ersatz verlangen.
(2) Der Mieter kann den Mangel selbst
beseitigen und Ersatz der erforderlichen Auf¬
wendungen verlangen, wenn
3 BGH 5.7.1991 - V ZR 115/90, NJW 1991, 3277.
Hübner
941
§ 536a 1-5
Division 8. Particular types of obligations
1. the lessor is in default in remedying the
defect, or
2. immediate remedy of the defect is neces¬
sary to preserve or restore the state of the
leased property.
1. der Vermieter mit der Beseitigung des
Mangels in Verzug ist oder
2. die umgehende Beseitigung des Mangels
zur Erhaltung oder Wiederherstellung des
Bestands der Mietsache notwendig ist.
A. Function
I. Purpose and underlying principles
1 § 536a sanctions the behaviour of the lessor in case he does not grant the contractually
agreed use of the leased object, which then leads to a damage claim. It not only covers the
interest for performance of the contract (Äquivalenzinteresse) but also the interest for
integrity (principle of restitutio in integrum; Integritätsinteresse). Sub. 2 states a reimburse¬
ment claim for necessary expenses on behalf of the lessee.
2 § 536a provides for an exception of the fault-based approach for liability of the BGB. In
case of initial defects the lessor is strictly liable with no chance of excuse (Garantiehaftung).
The reason for imposing strict liability on the lessor for initial defects is the fact that the
lessor has the possibility to check the property before the permission of use and to
incorporate a contractual exclusion of liability; this also applies to residential leases since
§ 536a is default rule (dispositives Recht). Furthermore, the lessee is expected to be able to use
the rented property without concern for the integrity of his property.1
IL Scope of application
3 The application is limited to situations after the permission of use. Before this event, the
lessee is entitled to claims resulting from the general law of irregularity in performance
(§§ 280 et seq., 320 et seq.).
B. Explanation
I. Standard of liability
4 Sub. 1 includes three cases: (i) the defect (be it material or legal) occurred before the
permission of use, (ii) the defect (be it material or legal) occurred after the permission of use,
and (iii) the lessor in default with the remedial action. They all differ regarding their
requirements for damages. Under (i) the lessor is (exceptionally) strictly liable (Garantie¬
haftung), under (ii) the lessor must have acted intentionally or negligently with regard to the
defect, and under (iii) the lessor must be in default according to § 286. As in the case of
§ 536, the same limitations apply. Finally, even under strict conditions, the forfeiture of the
reduction right (Verwirkung) may be considered in individual cases if the lessee does not
refer to the reduction for an extended period so that the lessor rightly assumes that the lessee
will not derive any rights from the defects.2
II. Self-help
5 Sub. 2 supplements the rights of the lessee in case of a defect of the leased object. It
provides the lessee with a right to self-help (Selbstvornahme). The lessee may remedy the
defect himself and demand reimbursement if the lessor is in default in remedying the defect,
or immediate remedy of the defect is necessary to preserve or restore the state of the leased
1 Medicus/Lorenz, Schuldrecht II Besonderer Teil (C.H.Beck 2018) 8 23 mn 23
2 BGH 18.10.2006 - XII ZR 33/04, NJW 2007, 147.
942
Hübner
Lessee's knowledge of defect 1 § 536b
property. The lessee needs to be aware that his claims are subject to a six-month limitation
period after the termination of the lease (§ 548(2)). If the requirements of § 536(2) (expenses
to remedy any detect) are not fulfilled the lessee may demand necessary expenses under
§ 539. The claim according to § 539» however, does only encompass any other expenses than
those for remedy for damages since the requirements of Sub. 2 may not be circumvented.3
Any other statutory ground for such a claim (§§ 677 et seq. or §§812 et seq.) is not
applicable since the requirements of § 536a may not be undermined.
III. Scope of damages
The damages contain not only the damages directly resulting from the defect (Man- 6
gelschaden) but also the consequential damages (Mangelfolgeschaden)4 such as health
damages or damages to other property as well as compensation for intangible loss pursuant
to § 253(2) (Schmerzensgeld - compensation for pain and suffering). This broad under¬
standing is justified by the lessee’s need for protection.5 Since third parties may come into
contact with the leased object they may claim damages according to § 536a in conjunction
with the rules of contracts with protective effect to the benefit of third parties (Vertrag mit
Schutzwirkung zugunsten Dritter).6 This is of practical importance in case of defects
occurring before the permission of use since this leads to strict liability for third parties
usually relying on fault-based tort law.7
§ 536b
Lessee knows of the defect upon
entering into the agreement or
upon acceptance
’If the lessee knows of the defect when
entering into the agreement, then he does
not have the rights under §§ 536 and 536a.
2If he remains unaware of the defect due to
gross negligence, then he has these rights
only if the lessor fraudulently concealed the
defect. 3If the lessee accepts a defective thing
although he is aware of the defect, then he
may only assert the rights under §§ 536 and
536a if he reserved his rights at the time of
acceptance
§ 536b
Kenntnis des Mieters vom Mangel
bei Vertragsschluss oder Annahme
’Kennt der Mieter bei Vertragsschluss den
Mangel der Mietsache, so stehen ihm die
Rechte aus den §§ 536 und 536a nicht zu.
2Ist ihm der Mangel infolge grober Fahrläs¬
sigkeit unbekannt geblieben, so stehen ihm
diese Rechte nur zu, wenn der Vermieter den
Mangel arglistig verschwiegen hat. 3Nimmt
der Mieter eine mangelhafte Sache an, obwohl
er den Mangel kennt, so kann er die Rechte
aus den §§ 536 und 536a nur geltend machen,
wenn er sich seine Rechte bei der Annahme
vorbehält.
A. Function
I. Purpose
This provision is justified by the notion of presumed waiver of the lessee with regard to the 1
lessor’s liability for defects.1
3 BGH 16.1.2008 - VIII ZR 222/06, NJW 2008, 1216.
4 BGH 5.12.1990 - VIII ZR 331/89, NJW-RR 1991, 970.
5 MüKo BGB/Häublein, § 536a BGB mn. 1.
6 BGH 21.7.2010 - XII ZR 189/08, NJW 2010, 3152.
7 Looschelders, Schuldrecht Besonderer Teil (13,h cdn, Vahlen 2018), mn. 423.
1 Eisenschmid, in: Schmidt-Futterer (ed.), Mictrecht (13,h edn, C.H.Bcck 2017), § 536b BGB mn. 1.
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943
§ 536c
Division 8. Particular types of obligations
II. Scope of application
2 § 536b applies to all lease contracts but is limited to the lessee’s claims under § 536 and
§ 536a. It does not cover the claim for performance under § 535(1) 2nd St.,2 3 the right of
retention under § 320, and the claims under tort law. Deviating agreements which favour the
lessee are rare and can only be enforced on a regular basis if there is a corresponding
bargaining power, which may only exist for certain lessees of business premises.
B. Explanation
I. Exclusions
3 The claims of the lessee are excluded if either did not reserve his rights at the time of
acceptance (3rd St.), if he knew of the defect when entering into the agreement (1st St.), or if
he remains unaware of the defect due to gross negligence, though the rights are not excluded
in this latter instance if the lessor fraudulently concealed the defect (2nd St.).
4 If the lessee ascertains the defect after the permission of use, his rights may not be
excluded on the basis of § 536b but only on the basis of § 536c? This provision may also
not be applied directly or analogously if the lease contract is prolonged by the execution of an
option on behalf of the lessee or in the event of an agreed rent increase.4 5
IL Examples
5 Typical examples for disputes between the parties are information about the size of rooms
(especially if the lessee had measured the apartment) or knowledge of existing construction
sites around the apartment?
§ 536c
Defects occurring during the lease
period; notice of defect by the
lessee
(1) ’If a defect in the leased property comes
to light during the lease period or if action to
protect the leased property from an unfore¬
seen hazard becomes necessary, then the les¬
see must without undue delay report this to
the lessor. 2The same applies if a third party
arrogates to himself a right to the thing.
(2) ’If the lessee fails to report this, then he
is liable to the lessor for damage incurred
thereby. 2To the extent that the lessor was
prevented from providing relief due to the
failure of the lessee to report it, the lessee is
not entitled
1. to assert the rights specified in § 536,
§ 536c
Während der Mietzeit auftretende
Mängel; Mängelanzeige durch den
Mieter
(1) ’Zeigt sich im Laufe der Mietzeit ein
Mangel der Mietsache oder wird eine Ma߬
nahme zum Schutz der Mietsache gegen eine
nicht vorhergesehene Gefahr erforderlich, so
hat der Mieter dies dem Vermieter unverzüg¬
lich anzuzeigen. 2Das Gleiche gilt, wenn ein
Dritter sich ein Recht an der Sache anmaßt.
(2) ’Unterlässt der Mieter die Anzeige, so
ist er dem Vermieter zum Ersatz des daraus
entstehenden Schadens verpflichtet. 2Soweit
der Vermieter infolge der Unterlassung der
Anzeige nicht Abhilfe schaffen konnte, ist der
Mieter nicht berechtigt,
1. die in § 536 bestimmten Rechte geltend
zu machen,
2 BGH 28.11.1979 - VIII ZR 302/78, NJW 1980, 777.
3 BGH 16.7.2003 - VIII ZR 274/02, NJW 2003, 2601.
4 BGH 5.11.2014 - XII ZR 15/12, NJW 2015, 402.
5 Palandt BGB/Weidenkaff, § 536b BGB mn. 5.
944
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Contractual exclusion of rights of lessee with regard to defects § 536d
2. to demand damages under §536a(l),
or
3. to give notice without specifying a rea¬
sonable period for relief under § 543(3) sen¬
tence 1.
2. nach § 536a Abs. 1 Schadensersatz zu
verlangen oder
3. ohne Bestimmung einer angemessenen
Frist zur Abhilfe nach § 543 Abs. 3 Satz 1 zu
kündigen.
A. Function
I. Purpose and underlying principle
The obligation ot the lessee to notify the lessor of material and legal defects and of 1
unanticipated dangers for the rented property results from his obligation to take care of the
property (Obhutspflicht). It is the necessary consequence of the lessor’s obligation to preserve
the rented property and to defend him against unauthorised claims of third parties during the
entire rental period. The responsibility is however limited to the lessor’s determination on how
to fulfil these obligations and claims. He is dependent on the lessee to receive information about
defects and dangers in order to be able to take appropriate actions and to remedy defects.1
IL Scope of application
§ 536c applies to all lease contracts including the usufructuary lease (§ 581(2)). It is limited 2
to those defects unknown to the lessor.
B. Explanation
I. Obligation to take care
The lessee’s obligation to take care of the leased object contains the duty to treat the object 3
with due care as to avoid any damages to the leased object. This may not only lead to a loss of
the lessee’s claims under § 536(2) (Rechtsverlust )\ the lessor may also claim damages pursuant
to §§ 280(1), 241(2) and even terminate the contract under § 543(2) 1st St. No. 2 in case the
lessee acted negligently or intentionally
II. Notification obligation
The lessee shall immediately notify the lessor (§ 121(1) 1st St.) of all objectively perceivable 4
circumstances resulting to material defects2 and unforeseeable dangers, requiring measures to
the protection of the rented property, as well as any presumption of a right of use by a third
party.3
§ 536d
Contractual exclusion of rights
of lessee with regard to defects
The lessor may not invoke an agreement by
which the rights of the lessee are excluded or
restricted with regard to a defect in the leased
property if he fraudulently concealed the de-
feet.
§ 536d
Vertraglicher Ausschluss von
Rechten des Mieters wegen eines
Mangels
Auf eine Vereinbarung, durch die die Rechte
des Mieters wegen eines Mangels der Mietsache
ausgeschlossen oder beschränkt werden, kann
sich der Vermieter nicht berufen, wenn er den
Mangel arglistig verschwiegen hat.
1 MüKo BGB/Häublein, § 536c BGB mn. 1.
2 BGH 4 4 1977 - VIII ZR 143/75, NJW 1977, 1236.
3 cf. BGH 31.8.2010 - VIII ZR 231/09, ZMR 2001, 107.
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945
§ 537 1 Division 8. Particular types of obligations
A. Function
I. Purpose
1 § 536d serves the protection of the lessee and is a special feature of the general principle of
§ 276(3), according to which liability for intent cannot be waived in advance. The provision
is therefore mandatory.
IL Scope of application
2 The scope of application is severely limited as the relevant clause shall be initially
scrutinised under §§ 305 et seq. (standard business term) as well as § 536(4) (lease of
residential space). However, the strict liability pursuant to § 536a(l) 1st Alt. - even for lease
of residential space - may be waived.1
B. Explanation
3 The provision applies to material and legal defects. Reference is made to § 123 for the
requirements of a fraudulent concealment.2 As § 139 on partial validity is not applicable, the
relevant clause remains part of the agreement, however the lessor is prevented from invoking
the particular clause with regard to the specific defect.
§537
Payment of rent when the lessee is
unable to be present in person
(1) ’The lessee is not released from his
obligation to pay rent due to the fact that,
for a reason relating to his person, he is
unable to exercise his right of use. 2However,
the lessor must allow to be credited against
him the value of the expenses saved and of
the advantages he enjoys from exploiting the
use in another way.
(2) As long as the lessor is unable to grant
the lessee use because use has been permitted
to a third party, the lessee is not obliged to
pay the rent.
§537
Entrichtung der Miete bei
persönlicher Verhinderung des
Mieters
(1) ’Der Mieter wird von der Entrichtung
der Miete nicht dadurch befreit, dass er durch
einen in seiner Person liegenden Grund an
der Ausübung seines Gebrauchsrechts gehin¬
dert wird. 2Der Vermieter muss sich jedoch
den Wert der ersparten Aufwendungen sowie
derjenigen Vorteile anrechnen lassen, die er
aus einer anderweitigen Verwertung des Ge¬
brauchs erlangt.
(2) Solange der Vermieter infolge der
Überlassung des Gebrauchs an einen Dritten
außerstande ist, dem Mieter den Gebrauch zu
gewähren, ist der Mieter zur Entrichtung der
Miele nicht verpflichtet.
A. Function
1 § 537 is an exception to the general rule of § 326(1): the lessee generally bears the risk of
use. The lessor retains the right to the rent (§ 535(2)) if the lessee is prevented fro"1
exercising his right of use, even without his own fault, insofar as the reasons for the non
use fall into the lessee s sphere of risk (Risikosphärc). However, the lessor shall not take
advantage of the non-use of the rented property which is beyond the control of the lessee.
1 BGH 21.7.2010 - XII ZR 189/0«, NJW 2010, 3152.
2 See -*§123 mn. 1 et seq.
946
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Wear and tear on the leased property from use 1-2 § 538
Hence, the lessor must allow the value of expenses he saved as well as the benefits he enjoys
from exploiting the use in another way, to be credited against him. The provision applies as
soon as the contract is concluded.1
B. Explanation
The lessee’s obligation to pay the rent only comes from the conclusion of the contract and is 2
based upon the permission of use (Gebrauchsüberlassung). The only exception is provided by
Sub. 2: the lessee is obviously not obliged to pay the rent if the lessor rents the leased object to a
third party. The lessee is also obliged to pay the rent if the reason falls into his sphere of risk.
This means that even a personal impediment beyond his control, e.g. death, illness, job-related
relocation or change of job, do not release him from his obligation to pay the rent. This
includes the maintenance and service costs or reduced operating costs, e. g. hotel room.2
§538
Wear and tear on the leased
property from use in conformity
with the contract
The lessee is not responsible for modifica¬
tions to or deterioration of the leased prop¬
erty brought about by use in conformity with
the contract.
§538
Abnutzung der Mietsache durch
vertragsgemäßen Gebrauch
Veränderungen oder Verschlechterungen
der Mietsache, die durch den vertragsgemä¬
ßen Gebrauch herbeigeführt werden, hat der
Mieter nicht zu vertreten.
A. Function
The provision is based upon the notion that the lessee pays the rent for the ordinary use of 1
the apartment while the lessor is obliged to maintain the leased object, e.g. the lessor
generally shall be responsible for the modifications and deteriorations.1 However, the parties
may agree for a different solution since the provision only has default character (abdingbar;
dispositiv). Therefore, the lessor usually transfers the duty to undertake cosmetic repairs
(Schönheitsreparaturen) upon the lessee in case of residential lease.2
B. Explanation
The lessee is not liable for the use of the object in conformity with the contract. 2
Nevertheless, where he intentionally or negligently causes damages to the object, he shall
pay damages under §§ 280(1), 241(2).3 Cases include excessive smoking indoors4 or the
return of an apartment in which the walls are painted in a different colour than before.5 If the
lessee slightly negligently (leicht fahrlässig) causes damage to the real estate object and the
lessor obtains a building insurance for which the lessee (partly) pays, the lessor has to make
use of the insurance.6 Claims of the lessor are time-barred after a six-month period after the
return of the object (§ 548(1)).
1 Palandt BGB/Weidenkaff, § 537 BGB mn. 1.
2 Palandt BGB/Weidenkaff, § 537 BGB mn. 6.
1 MuKo BGB/Bieber, § 538 BGB mn. 1.
2 HK-BGB/Scheuch, § 538 BGB mn. 3.
3 Jauernig BGB/Teichmann, § 548 BGB mn. 4.
4 BGH 28.6.2006 - VIII ZR 124/05, NJW 2006, 2915.
5 BGH 6.11.2013 - VIH ZR 416/12, NJW 2014, 143.
6 bgH 3.11.2004 - VIII ZR 28/04, NJW 2005, 381.
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947
§ 539 1-3
Division 8. Particular types of obligations
§539
Reimbursement of other expenses
and right of removal of the lessee
(1) The lessee may, under the provisions on
agency without specific authorisation, demand
reimbursement from the lessor for outlays on
the leased property that the lessor need not
compensate him for under § 536a(2).
(2) The lessee is entitled to remove an
installation that he has provided the leased
property with.
§539
Ersatz sonstiger Aufwendungen
und Wegnahmerecht des Mieters
(1) Der Mieter kann vom Vermieter Auf¬
wendungen auf die Mietsache, die der Vermie¬
ter ihm nicht nach § 536a Abs. 2 zu ersetzen
hat, nach den Vorschriften über die Geschäfts¬
führung ohne Auftrag ersetzt verlangen.
(2) Der Mieter ist berechtigt, eine Einrich¬
tung wegzunehmen, mit der er die Mietsache
versehen hat.
A. Function
1 The provision covers the reimbursement of expenses of the lessee not being covered under
§ 536a (Sub. 1) as well as a removal right for his installations (Sub. 2). However, it does not
cover costs of unjustified self-help of the lessee.1 The provisions generally bars all other
grounds for claim in the same regard such as §§ 812 et seq.
B. Explanation
I. Agency without specific authorisation
2 Sub. 1 refers to the requirements of § 677(1), the rules on agency without specific
authorisation (negotorium gestio). The lessee may only claim reimbursement of the require¬
ments if §§ 684, 684 or § 687(2) 2nd St. are fulfilled, the lessor authorised the expenses or the
expenses comply with either his will (§§ 670, 683, 684 2nd St.) or the public interest (§ 679). If
not, the lessee may only claim reimbursement under §§ 812 et seq. (§ 684 1st St.). The lessee
often lacks the will to do another’s business (Fremdgeschäftsführungswille) according to
§§ 677 et seq. if he installs objects only aiming at furthering his own interests, e.g. instalment
of blinds, fitted kitchens etc. Consequently, these costs are not covered by Sub. 1. The BGH
assumes an implied (konkludent) exclusion of reimbursement in these cases.2 The claim of
the lessee is time-barred within six months after the return of the leased object (§ 548(2).
IL Right of removal
3 Sub. 2 regulates an exceptional case for reimbursement since the lessee obtains a right to
removal under § 258. Special rules exist for residential lease under §§ 552, 578(2). Installa¬
tions are movables that the lessor connected with the object and which aim at furthering
the economic main goal of the object, e.g. fitted-ovens or sinks.3 4 If the installed object had
become part of the property of the lessor and owner due to mixing
according to §§ 946, 947 as the connection was not only made for a temporary goa^
(vorübergehender Zweck), this claim is the only possible remedy ot the lessee.*1 In the event
of removal the lessee must restore the object in question to its previous condition at his
own expense (§ 258 1st St.).5 He does not need to inform the lessor about the intention to
1 BGH 16.1.2008 - VIII ZR 222/06, NJW 2008, 1216.
2 BGH 13.6.2007- VIII ZR 387/04, NJW-RR 2007, 1309.
3 BGH 13.5.1987-VIII ZR 136/86, NJW 1987, 2861.
4 HK-BGB/Scheuch, § 539 BGB mn. 7.
5 MüKo BGB/Bieber, § 539 BGB mn. 17.
948
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Permitting use by third parties 1-3 § 540
remove the object. After return of the leased object he may only claim the permission to the
deinstallation but not the actual return (§ 258 2nd St.).
§ 540
Permitting use by third parties
(1) ’Without the permission of the lessor,
the lessee is not entitled to permit a third
party to use the leased property, in particular
not to sublet it. 1 2lf the lessor refuses permis¬
sion, then the lessee may terminate the lease
for cause with the statutory notice period
unless the person of the third party constitu¬
tes cause.
(2) If the lessee permits a third party to use
the property, then he is responsible for the
culpability in the use of the property attribu¬
table to that third party even if the lessor has
given permission for this.
§540
Gebrauchsüberlassung an Dritte
(1) JDer Mieter ist ohne die Erlaubnis des
Vermieters nicht berechtigt, den Gebrauch
der Mietsache einem Dritten zu überlassen,
insbesondere sie weiter zu vermieten. 2Ver¬
weigert der Vermieter die Erlaubnis, so kann
der Mieter das Mietverhältnis außerordent¬
lich mit der gesetzlichen Frist kündigen, so¬
fern nicht in der Person des Dritten ein
wichtiger Grund vorliegt.
(2) Überlässt der Mieter den Gebrauch ei¬
nem Dritten, so hat er ein dem Dritten bei
dem Gebrauch zur Last fallendes Verschulden
zu vertreten, auch wenn der Vermieter die
Erlaubnis zur Überlassung erteilt hat.
A. Function
The provision is based upon the idea that, despite the far-reaching right of use of the 1
lessee, he may not permit a third party to use the leased object without the lessor’s consent.
The lessor shall not be obliged to accept the use of his object let to a person he knows and
trusts (the lessee) by an often unknown and uncontrolled third party. The interests are
balanced by Sub. 1 2nd St. which entitles the lessee to extraordinarily terminate the contract in
case of an unjustified refusal of permission by the lessee. The lessee generally has no grounds
for a claim to receive the permission for a sublease. An exception exists for the lessee of
residential space under § 553.
B. Explanation
I. Permission of use
The permission of use requires the letting of the leased object to a third person, be it 2
wholly or partly, against payment or gratuitous, for dependent or independent use or for sole
or common use.1 The spouse is not a third party pursuant to § 540 even if he is not a party to
the to the contract.2
II. Termination
The third party constitutes a cause in terms of Sub. 1 1st St. if he is either quarrelsome or 3
untenable or if he is in competition with the lessor or other lessees regarding contracts for
leasing commercial premises. Otherwise, the lessee may terminate the contract under the
requirement of Sub. 1 2nd St. However, if the lessor has not consented to the sublease, the
sublet contract is still valid.3 The lessor may not claim the rent under the sublet contract as
the lessee is regarded as the user of the leased object; this even applies if the lessee generates a
1 HK-BGB/Scheuch, § 540 BGB mn. 2.
2 BGH 12.6.2013 - XII ZR 143/11, NJW 2013, 2507.
3 BGH 10.10.2007 - XII ZR 12/07, BeckRS 2007, 17580.
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949
§ 541 1-3 Division 8. Particular types of obligations
higher price under the sublet contract than agreed under the original lease contract?
However, the lessor then may terminate the contract for a cause under § 543(2) I’* 1 St. No. 2
if he had already set a deadline to remedy under § 543(3).
III. Liability
4 If the sub-lessee negligently or intentionally causes damages to the leased object, he is
liable vis-ä-vis the lessor under § 823 (unlawful injury to property). Besides, the lessor
obtains contractual claims against the lessee being responsible for the sub-lessee’s behaviour
according to § 278. In the event of an unpermitted sub-let, the lessee is strictly liable for any
damages unless they would have been caused regardless of the unpermitted sublease.
IV. Third party claims
5 Vice versa, the sub-lessee has no direct claims against the lessor. This also applies for the
rules of contracts with protective effect to the benefit of third parties (Vertrag mit Schutz¬
wirkung zugunsten Dritter). He is not in the need of protection since he can assert his own
claims under the sublet contract against the lessee.
§541
Application for injunction for use
in breach of contract
If the lessee persists with use of the leased
property in breach of contract despite a warn¬
ing by the lessor, then the latter may seek a
prohibitory injunction.
§541
Unterlassungsklage bei
vertragswidrigem Gebrauch
Setzt der Mieter einen vertragswidrigen
Gebrauch der Mietsache trotz einer Abmah¬
nung des Vermieters fort, so kann dieser auf
Unterlassung klagen.
A. Function
1 The provision is also based upon the notion that, despite the far-reaching right of use of
the lessee, this right is subject to the condition that the use of the leased object corresponds
with the agreement. As a consequence, the lessor obtains a performance claim under § 535
which is supported by the claim for prohibitory injunction under § 541.
B. Explanation
I. Warning
2 Besides the use violating the contract and before applying for the prohibitory injunction,
the lessor generally must warn the lessee. When warning, he must exactly describe the
relevant behaviour and demand cessation. The warning, nevertheless, is dispensable it the
requirements of an extraordinary termination of the contract under § 543(3) 2nd St. No. 1 are
fulfilled, i.e. the warning carries no guarantee of success since the lessee rigorously and
definitively refuses to or could not end the behaviour violating the contract, or in the event
the lessee fraudulently concealed the behaviour violating the contract.1
II. Knowledge
3 7he lessor must continue his behaviour despite the warning. This requires the knowledge
of the warning.
4 BGH 13.12.1995 - XII ZR 194/93, NJW 1996, 838.
1 Jauernig BGB/Teichmann, § 541 BGB mn. 2.
950
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End of the lease
1-4 § 542
III. Further rights
In case of a substantial impairment of the rights of the lessor, the lessor may extra- 4
ordinarily terminate the contract under § 543. Further claims for damages under the contract
or tort may arise, too.2 3
§542
End of the lease
(1) If the lease period is indefinite, then
each of the parties to the contract may give
notice of termination in accordance with the
statutory provisions.
(2) A lease entered into for a definite per¬
iod of time ends at the end of that period
unless it
1. has been terminated for cause in legally
permissible cases, or
2. is extended.
§542
Ende des Mietverhältnisses
(1) Ist die Mietzeit nicht bestimmt, so kann
jede Vertragspartei das Mietverhältnis nach
den gesetzlichen Vorschriften kündigen.
(2) Ein Mietverhältnis, das auf bestimmte
Zeit eingegangen ist, endet mit dem Ablauf
dieser Zeit, sofern es nicht
1. in den gesetzlich zugelassenen Fällen
außerordentlich gekündigt oder
2. verlängert wird.
A. Function
This provision deals with the end of lease by ordinary termination (Sub. 1) or lapse of 1
time (Sub. 2). Other - less important - grounds for termination include the cancellation
agreement (Aufhebungsvertrag), the satisfaction of a condition subsequent (§ 158(2), but see
§ 572(2) for residential lease), revocation (Rücktritt, but see § 572(1) for residential lease),
extraordinary termination with notice (§§ 540(1) 2nd St., 544, 555e, 561, 563(4), 563a(2),
564 2nd St., 580) or without notice (§§ 543, 569).
B. Explanation
Lease contracts are generally concluded for an indefinite term; accordingly they may be 2
terminated by ordinary termination. The termination implies a unilateral declaration which
must be communicated to the addressee to be effective (einseitige empfangsbedürftige Wil¬
lenserklärung). This declaration ends the contract at a certain point in time. If there is more
than one person as lessor or lessee the termination must be issued by all and addressed to all
persons being party to the contract; agency is possible.1 Moreover, the termination may
generally not be declared with a condition since the other party shall be certain about the
legal consequences.2 A conditioned termination may only be effective if the recipient may
influence the entry of the potential event (Potestativbedingung)}
In case of residential lease, the termination must be in writing (§ 568(1)). Furthermore, 3
the lessor shall have a justified interest according to § 573.
An unjustified termination represents a breach of duty leading to claim of damages for 4
the recipient under § 280(1), e.g. for the costs of a lawyer.
2 Palandt BGB/Weidenkaff, § 541 BGB mn. 3.
1 BGH 10.12.2014 - VIII ZR 25/14, NJW 2015, 473.
2 HK-BGB/Scheuch, § 542 BOB mn. 2.
3 Jauernig BGB/Teichmann, § 542 BGB mn. 4.
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951
§543
Division 8. Particular types of obligations
§543
Termination for cause without
notice for a compelling reason
(1) 'Each part)' to the contract may termi¬
nate the lease for cause without notice for a
compelling reason. 2A compelling reason is
deemed to obtain if the party giving notice,
with all circumstances of the individual case
taken into account, including without limita¬
tion fault of the parties to the contract, and
after weighing the interests of the parties,
cannot be reasonably expected to continue
the lease until the end of the notice period
or until the lease ends in another way.
(2) 1A compelling reason is deemed to obtain
in cases including without limitation where
1. the lessee is not permitted the use of the
leased property in conformity with contract,
in whole or in part, in good time, or is
deprived of this use,
2. the lessee violates the rights of the lessor
to a substantial degree by substantially en¬
dangering the leased property by neglecting
to exercise the care incumbent upon him or
by allowing a third party to use it without
authorisation, or
3. the lessee
a) is in default, on two successive dates, of
payment of the rent or of a portion of the
rent that is not insignificant, or
b) in a period of time spanning more than
two dates is in default of payment of the rent
in an amount that is as much as the amount
of rent for two months.
2In the case of sentence 1 No. 3, termination
is excluded if the lessor has by then obtained
satisfaction. 3It becomes ineffective if the les¬
see has succeeded in discharging his debt by
set-off and declares set-off without undue de¬
lay after notice of termination is given.
(3) ‘If the compelling reason consists in the
violation of an obligation under the lease,
then the notice of termination is only per¬
mitted after the expiry without result of a
reasonable period specified for the purpose
of obtaining relief or after an unheeded warn¬
ing notice. 2This does not apply if
1. a notice period or a warning notice
obviously shows no chance of succeeding,
2. immediate termination for special rea¬
sons is justified, weighing the interests of
both parties, or
3. the lessee is in default of payment of
rent within the meaning of subsection (2)
No. 3.
§543
Außerordentliche fristlose
Kündigung aus wichtigem Grund
(1) 'Jede Vertragspartei kann das Mietver¬
hältnis aus wichtigem Grund außerordentlich
fristlos kündigen. JEin wichtiger Grund liegt
vor, wenn dem Kündigenden unter Berück¬
sichtigung aller Umstände des Einzelfalls,
insbesondere eines Verschuldens der Vertrags¬
parteien, und unter Abwägung der beiderseiti¬
gen Interessen die Fortsetzung des Mietverhält-
nisses bis zum Ablauf der Kündigungsfrist
oder bis zur sonstigen Beendigung des Miet¬
verhältnisses nicht zugemutet werden kann.
(2) ’Ein wichtiger Grund liegt insbesondere
vor, wenn
1. dem Mieter der vertragsgemäße Ge¬
brauch der Mietsache ganz oder zum Teil
nicht rechtzeitig gewährt oder wieder entzo¬
gen wird,
2. der Mieter die Rechte des Vermieters
dadurch in erheblichem Maße verletzt, dass er
die iMietsache durch Vernachlässigung der ihm
obliegenden Sorgfalt erheblich gefährdet oder
sie unbefugt einem Dritten überlässt oder
3. der Mieter
a) für zwei aufeinander folgende Termine
mit der Entrichtung der Miete oder eines
nicht unerheblichen Teils der Miete in Ver¬
zug ist oder
b) in einem Zeitraum, der sich über mehr als
zwei Termine erstreckt, mit der Entrichtung
der Miete in Höhe eines Betrages in Verzug
ist, der die Miete für zwei Monate erreicht.
2Im Falle des Satzes 1 Nr. 3 ist die Kündi¬
gung ausgeschlossen, wenn der Vermieter vor¬
her befriedigt wird. 3Sie wird unwirksam, wenn
sich der Mieter von seiner Schuld durch Auf¬
rechnung befreien konnte und unverzüglich
nach der Kündigung die Aufrechnung erklärt
(3) ’Besteht der wichtige Grund in der
Verletzung einer Pflicht aus dem Mietvertrag,
so ist die Kündigung erst nach erfolglosem
Ablauf einer zur Abhilfe bestimmten ange¬
messenen Frist oder nach erfolgloser Abmah¬
nung zulässig. 2Dies gilt nicht, wenn
1. eine Frist oder Abmahnung offensicht¬
lich keinen Erfolg verspricht,
2. die sofortige Kündigung aus besonderen
Gründen unter Abwägung der beiderseitigen
Interessen gerechtfertigt ist oder
3. der Mieter mit der Entrichtung cr
Miete im Sinne des Absatzes 2 Nr. 3 in ^tr
zug ist.
952
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Termination for cause without notice
1-3 § 543
(4) *§§ 536b and 536d are to be applied with
the necessary modifications to the right to
notice of termination to which the lessee is
entitled under subsection (2) No. 1. 1 2If it is in
dispute whether the lessor granted use of the
leased property’ in good time or provided relief
prior to expiry ot the period specified for this
purpose, then he bears the burden of proof.
(4) ’Auf das dem Mieter nach Absatz 2
Nr. 1 zustehende Kündigungsrecht sind die
§§ 536b und 536d entsprechend anzuwen¬
den. 2Ist streitig, ob der Vermieter den Ge¬
brauch der Mietsache rechtzeitig gewährt
oder die Abhilfe vor Ablauf der hierzu be¬
stimmten Frist bewirkt hat, so trifft ihn die
Beweislast.
A. Function
This provision deals with the end of lease by extraordinary termination for cause being 1
applicable for any contract with continuing obligations (Dauerschuldverhiiltnis). The basic
provision in BGB is § 314. This provision is, therefore, lex specialis to § 314 in the context of
a lease contract. On the other hand, § 569 contains special rules for the termination of
contracts for residential lease. The general structure of § 543 is as follows: Sub. 1 1st St.
statutes the indispensable right to extraordinarily terminate the lease contract for cause while
the 2nd St. broadly defines the cause / compelling reason as the outcome of balancing the
interests ot both parties along the lines of § 314(1) 2nd St. Sub. 2 names the most important
reasons to terminate the contract without notice, Sub. 3 requires a warning for the termina¬
tion to be valid and deals with exceptions to that precondition. Sub. 4 contains references to
536b and 536d as well as a burden of proof rule as regards the timely permission of use
and the timely remedy of the relevant impairment.
B. Explanation
I. Requirements
Any extraordinary’ termination for cause without notice requires (i) a declaration of 2
termination; (ii) a compelling reason under Subs 1 2nd St., 2; (iii) a warning (Sub. 3);1 and
(iv) no exclusion of the termination under Sub. 4.
II. Compelling reason
The arguments mainly circulate around the compelling reason. One has to be aware 3
that the hurdles are high since the party terminating the contract cannot be reasonably
expected to continue the lease until the end of the notice period or until the lease ends in
another way (Sub. 1 2nd St.). Compelling reasons on behalf of the lessor are wrong answers
of the lessee to permissible questions of the lessor regarding earlier lease contracts,
creditworthiness,2 repeated severe violations of the house rules; enduring unbearable
harassment of other lessees by the children of the lessee, lessee’s denial to give access to
the lessor3 in case of an access right, mistreatment of the lessor.4 5 Nevertheless, while
balancing the parties’ interests one must keep in mind that the lessor might have provoked
the lessee’s behaviour? Compelling reasons on behalf of the lessee are the contesting of
the receipt of a declaration of ordinary termination by the lessor, public defamations or
suspicions, and lessors’ statements damaging the business of a lessee of business premises.6
1 See * § 541 mn. 2.
2 BGH 9.4.2014 - VIII ZR 107/13, NJW 2014, 1954.
3 BGH 5.10.2010 - VIII ZR 221/09, ZMR 2011, 366.
4 BGH 12.5.2010 - VIII ZR 96/09, NJW 2010, 3015.
5 BGH 4.6.2014 - VIII ZR 289/13, NJW 2014, 2566.
6 BGH 15.9.2010 - XII ZR 188/0«, NJW-RR 2011, «9.
Hübner
953
§543 4-11
Division 8. Particular types of obligations
III. Specific reasons
4 The more specific reasons under Sub. 2 include the non-permission of the contractually
agreed use by the lessor (No. 1), the lessee’s use contrary to the contract (No. 2), and the
payment default of the lessee (No. 3).
5 No. 1 includes material and legal defects and the delayed permission of use. The termina¬
tion has only effect for the future, so other claims ot the lessee such as the right to reduction
or claims for damages still apply.
6 No. 2 necessitates that the lessee heavily endangers the leased object or sub-let the leased
object to a third party without lessor’s permission (§ 540). This liability is not fault-based.
7 No. 3 presupposes that the lessee is in default, on two successive dates, of payment of the
rent or of a portion of the rent that is not insignificant (a), or in a period of time spanning
more than two dates is in default of payment of the rent in an amount that is as much as the
amount of rent for two months (b). Any fault is irrelevant since the BGB strictly follows the
rule: ’You must pay your dues (Geld hat man zu haben)'. The lessee, thus, may not be
excused on the basis that he lacks hands to afford the rent/ According to a recent judgment
of the BGH this rule even applies if the social authorities wrongfully did not provide the
lessee relying on social security with sufficient funds.7 8 The same applies if the lessee errs
about his right of reduction.9 Even if the lawyer of the lessee errs in the same fashion, this
error and the relevant fault is attributed to the lessee by means of § 278.10
8 However, in the event of a permanent lease of residential space, § 569(3) No. 1 narrows
the requirement for default of the lessee. The lessee only defaults in the amount of a
significant part of the rent if he paid less than the rent for one month at two consecutive
dates. This exception dramatically narrows the lessor’s possibility to terminate the contract
for default. If this is the statutory assessment for lease of residential space it can be inferred
that the same situation will also entitle the lessor of business premises to extraordinarily
terminate the contract under Sub. 2 1st St. No. 3(a).11
IV. Exclusion
9 The termination may not be executed under Sub. 3 if the lessee satisfies the lessor before
he receives the termination declaration or the lessee could offset his claims. In case of a lease
of residential space the termination is also excluded pursuant to § 569(3) No. 2 if, at the latest
by the end of two months after the eviction claim is pending, the lessor is satisfied or a public
authority agrees to satisfy the lessor with regard to the rent due and the compensation due
under § 546a( 1). This does not apply if, no longer than two years earlier, the notice ot
termination was preceded by a notice of termination that became ineffective under § 569(3)
1st St. above. § 314(4) requiring a reasonable notice period is inapplicable because § 543 is lex
specialis.
10 The termination right for cause without notice is excluded if the lessee knows of the defect
at the conclusion of the contract (Sub. 4, § 536d). It can be generally excluded or limited, but
not in the case of a lease of residential space (§ 569(5) 1” St.).
V. Consequence
11 The effective exercise of the termination right for cause without notice leads to the
dissolution of the lease contract with immediate effect.
7 HK-BGB/Scheuch, § 543 BGB mn. 9.
8 BGH 4.2.2015 - VIII ZR 175/14, NJW 2015, 1296
9 BGH 11.7.2012 - VIII ZR 138/11. N|W 2012, 2882.
10 BGH 30.4.2014 - VIII ZR 103/13, N|W 2014, 2720.
11 HK-BGB/Scheuch, § 543 BGB mn. 9.
954
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Tacit extension of the lease
1 §545
§544
Lease for more than thirty years
‘If a lease agreement is signed for a period
of more than thirty years» then each of the
parties to the contract» after thirty years have
passed» may after surrender of the leased
property terminate the lease for cause with
the statutory notice period, termination is
not permissible if the agreement has been
signed for the duration of the life of the
lessor or lessee.
§544
Vertrag über mehr als 30 Jahre
'Wird ein Mietvertrag für eine längere Zeit
als 30 Jahre geschlossen, so kann jede Ver¬
tragspartei nach Ablauf von 30 Jahren nach
Überlassung der Mietsache das Mietverhältnis
außerordentlich mit der gesetzlichen Frist
kündigen. * 2Dic Kündigung ist unzulässig,
wenn der Vertrag für die Lebenszeit des Ver¬
mieters oder des Mieters geschlossen worden
ist.
A. Function
The provision aims to avoid that lessee may bequest their contract to the next generation.1 1
It is a mandatory’ provision and applies to all lease contracts.
B. Explanation
One of the parties must be bound by the contract for more than 30 years. Such contracts 2
are valid but both parties may terminate the contract after the expiry of 30 years if they
comply with the periods under §§ 575a(3), 580a(4) 1st St. No. 3, (2) and (3) No. 2. The
general provisions for protection of the lessee apply to the lease of residential space (§ 575a,
573 et seq. 574 et seq.). The termination is impossible if the contract was concluded for
the lifetime of one of the parties (2nd St.). This only applies to natural persons.2
§545
Tacit extension of the lease
'If the lessee continues to use the leased
property after the end of the lease period,
then the lease is extended for an indefinite
period of time, unless one of the parties to
the contract has declared his intention to the
contrary to the other party within two weeks.
2The period commences
1. for the lessee upon continuation of use,
2. for the lessor at the point of time when
he receives knowledge of the continuation.
§545
Stillschweigende Verlängerung des
Mietverhältnisses
'Setzt der Mieter nach Ablauf der Mietzeit
den Gebrauch der Mietsache fort, so verlän¬
gert sich das Mietverhältnis auf unbestimmte
Zeit, sofern nicht eine Vertragspartei ihren
entgegenstehenden Willen innerhalb von
zwei Wochen dem anderen Teil erklärt. 2Die
Frist beginnt
1. für den Mieter mit der Fortsetzung des
Gebrauchs»
2. für den Vermieter mit dem Zeitpunkt, in
dem er von der Fortsetzung Kenntnis erhält.
A. Function
The provision aims to avoid a period in which there is no contract between both parties. 1
The application of §§ 987 et seq. or 812 et seq. would not be appropriate and would
j BGH 17.4.1996 - XII ZR 168/94, NJW 1996, 2028.
2 Palandt BGB/Weidenkaff, § 544 BGB mn. 3.
Hübner
955
§ 546 1 Division 8. Particular types of obligations
contradict the will of the parties. Accordingly, the BGB irrefutably presumes a tacit extension
of the lease leading to the further application of §§ 535 et seq.1
B. Explanation
I. Requirements
2 The tacit extension necessitates that the lessee continues to use the leased object after
the expiry of the contract. If he neither uses the leased object anymore nor returns it to the
lessor, he might become liable under § 546a, and § 571 in case of lease of residential
space.2 3 Secondly, no one declares their will to terminate the lease. The lessor may
impliedly declare his will by demanding either the return to or the termination of the
contract? Thirdly, the lessee shall declare his intention not to continue the lease within
two weeks after either the continuation of use (2nd St. No. 1), or the end of the contract,
while the lessor shall declare his will within two weeks as soon as he receives knowledge of
said continuation.
IL Effect
3 The tacit extension leads to a prolongation of the contract for an indefinite term. If the
original contract contained particular termination periods, the statutory periods now apply.4
This consequence is independent of the respective will of the parties, whereby defects of
intent (Willensmängel) become irrelevant.5
§546
Duty of lessee to return
(1) The lessee is obliged to return the
leased property after termination of the lease.
(2) If the lessee has permitted a third party
to use the leased property, the lessor may also
demand return of the leased property from
the third party after termination of the lease.
§546
Rückgabepflicht des Mieters
(1) Der Mieter ist verpflichtet, die Mietsa¬
che nach Beendigung des Mietverhältnisses
zurückzugeben.
(2) Hat der Mieter den Gebrauch der Miet¬
sache einem Dritten überlassen, so kann der
Vermieter die Sache nach Beendigung des
Mietverhältnisses auch von dem Dritten zu¬
rückfordern.
A. Function
1 The provision states the most important consequence after the end of a lease contract,
which is the duty of the lessee to return the leased object. This, however, is not a
synallagmatic duty vis-ä-vis the lessor’s obligation under § 535(1) 2nd St. The lessor’s
claim under § 546 is accompanied by the claim under § 985 frei vindication). Only § 985
will be applicable if there is no valid contract. The consequence for late return arises out of
§ 546a.
1 Staudinger BGB/Emmerich, § 545 BGB mn. 2.
2 Jauernig BGB/Teichmann, § 545 BGB mn. 2.
3 Staudinger BGB/Emmerich. § 545 BGB mn. ) 1.
4 MüKo BGB/Bieber, § 545 BGB mn. 9.
5 Palandt BGB/Weidenkaff, tj 545 BGB mn. 10.
956
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Compensation of the lessor in the case of late return
1 § 546a
B' Explanation
I. Return
Return means the provision of (direct) possession. The condition of the leased object (e.g. 2
the apartment) is of no relevance for this obligation. So, the lessor is in default of acceptance
it he refuses to take back the apartment due to its condition contradicting the contract.1
However, the lessee is obliged to return the apartment in decent condition, cleaned and
vacated, and to remove his installations.2 The duty to return includes accessories (Zubehör)
in accordance with § 97, such as keys. Consequently, the lessor may claim damages for a
justified change of the lock system if the lessee cannot return the keys.3
A multitude of lessees are called joint debtors (Gesamtschuldner) as regards the duty to 3
return.4 Had the lessee sublet the leased object to a third party (e.g. a sublessee), the lessor
may claim return from both after the end of the main lease contract (Sub. 2); this is a
statutory accumulation of debt (gesetzlicher Schuldbeitritt). As an exception, § 565 provides
that in case of a commercial subletting contract, the lessor and the subletter enter into a lease
contract by law.
II. Vacation
Note the procedural specifics of the vacation claims. First, the codes of civil procedure 4
contain specific jurisdiction rules under 23 No. 2(a) GVG, 29a ZPO. In order to enforce a
vacation title (Räumungstitel), all possessors of the apartment must be named in the tide even
though they are not a stated party in the contract.5 This does not apply to minor children of
the lessees since they are only agents in possession (Besitzdiener). Note also the facilitation
for third party’s vacation in preliminary proceedings of § 940a(2) ZPO or the facilitation for
vacation in § 885a ZPO. The arbitrary vacation by the lessor represents an unauthorised self¬
help under § 231 leading to strict liability for damages.6
§ 546a
Compensation of the lessor in the
case of late return
(1) If the lessee fails to return the leased
property after termination of the lease, the
lessor may for the duration of retention de¬
mand as compensation the agreed rent or the
rent that is customarily paid for comparable
items in the locality.
(2) The assertion of further damage is not
excluded.
§ 546a
Entschädigung des Vermieters bei
verspäteter Rückgabe
(1) Gibt der Mieter die Mietsache nach
Beendigung des Mietverhältnisses nicht zu¬
rück, so kann der Vermieter für die Dauer
der Vorenthaltung als Entschädigung die ver¬
einbarte Miete oder die Miete verlangen, die
für vergleichbare Sachen ortsüblich ist.
(2) Die Geltendmachung eines weiteren
Schadens ist nicht ausgeschlossen.
A. Function
The provision grants a compensation claim based on strict liability to the lessor if the 1
lessee does not return the leased object after the end of the contract. It aims at improving the
* BGH 10 1.1983 - VIII ZR 304/81, NJW 1983, 1049.
2 § 539 BGB mn. 2; MüKo BGB/Bieber, § 546 BGB mn. 7.
3 BGH 5.3.2014 - VIII ZR 205/13.
4 BGH 10 12.2014 - VIII ZR 25/14, NJW 2015, 473.
5 BGH 19.3.2008 - I ZB 56/07, NJW 2008, 1959.
6 BGH 14.7.2010 - VH1 ZR 45/09, NJW 2010, 3434.
Hübner
957
§ 546a 2-5 Division 8. Particular types of obligations
position of lessor by providing him with a minimum amount as compensation for use.1 It
presupposes that the lessee withholds the object although the contract was not prolonged by
tacit extension under § 545 (Sub. 1). The lessor, however, may claim further damages
(Sub. 2). Note that § 571 contains a special rule for leases of residential space.
B. Explanation
I. Withholding
2 The withholding of the leased object is the precondition of this claim under Sub. 1.
Withholding in this context means that the lessee does not return the leased object against
the will of the lessor, although the lessee is able to do it.2 This claim is not based on any
intentional or negligent fault of the lessee.3 Withholding is even assumed if the lessee
successfully requested a period to vacate (Räumungsfrist) under §§ 721, 794a ZPO or stay
of execution (Vollstreckungsschutz) pursuant to § 765a ZPO.4 It is not a case of withholding if
the lessee returns the leased object in a state of non-conformity with the contract, e.g. if he
did not complete the cosmetic repairs, if the lessor denied the return5, or the lessee keeps
possession of the vacated apartment in order to execute the necessary cosmetic repairs upon
request of the lessor.6
IL Claim for rent
3 The lessor may generally claim the agreed rent under Sub. 1 1st St. 1st Alt. or the rent that
is customarily paid for comparable items in the locality Sub. 1 1st St. 2nd Alt. It becomes due
in accordance with the completed contract.7 A multitude of lessees are liable as joint debtors
(Gesamtschuldner) as long as only one of them withholds the leased object.8
III. Damages
4 Further claims for damages may result from default of the lessee regarding the return of
the leased object under §§ 280(1), (2), 286 or from §§ 280(1), 241 (2).9 Moreover, the lessor
may claim compensation for use, especially in case of unpermitted sub-letting. This claim
may arise if the vacation action is pending in court pursuant to § 987 in conjunction with
§§ 546(1), 292(2).10
IV. Third party
5 Nevertheless, the lessor is not entitled to any claim under § 546a vis-ä-vis the third party
possessing the leased object. But the lessor might also be able to assert the said claims under
§ 987. The third party is liable for compensation for use as a joint debtor besides the
lessee.11
1 HK-BGB/Scheuch, § 546a BGB mn. 1.
2 BGH 15.2.1984 - VIII ZR 213/82, NJW 1984, 1527.
3 BGH 1.3.2007 - IX ZR 81/05, NJW 2007, 1594.
4 HK-BGB/Scheuch. § 546a BGB mn. 3.
5 MuKo BGB/Bieber, § 546a BGB mn. 6.
6 BGH 13.7.2010 - VIII ZR 326/09, NJW-RR 2010, 1521.
7 Palandt BGB/Weidenkaff, § 546a BGB mn. 10.
8 Palandt BGB/Weidenkaff, § 546a BGB mn. 14.
9 MuKo BGB/Bieber, § 546a BGB mn. 18.
10 BGH 12.8.2009 - XII ZR 76/08, NJW-RR 2009, 1522
11 BGH 14.3.2014 - V ZR 218/13, WM 2014, 1445.
958
Hübner
Limitation of compensation claims and right of removal
§548
§547
Reimbursement of rent paid in
advance
(1) ’Where rent has been paid in advance
for the period after termination of the lease,
the lessor must reimburse it with interest
accrued since receiving it. 1 2If the lessor is
not responsible for termination of the lease,
then he must reimburse his gains under the
provisions on the return of unjust enrich¬
ment.
(2) In the case of a lease for residential
space, any deviating agreement to the disad¬
vantage of the lessee is ineffective.
§547
Erstattung von im Voraus
entrichteter Miete
(1) '1st dic Miete für die Zeit nach Beendi-
gung des Mietverhältnisses im Voraus ent¬
richtet worden, so hat der Vermieter sie
zurückzuerstatten und ab Empfang zu verzin¬
sen. 2Hat der Vermieter die Beendigung des
Mietverhältnisses nicht zu vertreten, so hat er
das Erlangte nach den Vorschriften über die
Herausgabe einer ungerechtfertigten Berei¬
cherung zurückzuerstatten.
(2) Bei einem Mietverhältnis über Wohn¬
raum ist eine zum Nachteil des Mieters ab¬
weichende Vereinbarung unwirksam.
A. Function
The provision regulates under which conditions the lessor must repay unused rent paid in 1
advance after the end of the lease contract. § 547 is indispensable for lease contracts for
residential space insofar as it discriminates the lessee (Sub. 2).
B. Explanation
I. Advance payment
Advance payment in accordance with this provision covers not only the rent itself but also 2
levies, additional costs (Nebenkosten), lessees’ loans, and unconsumed contributions to
construction costs on behalf of the lessee (Baukostenzuschüsse).1
II. Reimbursement
If the lessor negligently or intentionally caused the end of the lease contract (e.g. §§ 543, 3
569), he must reimburse the lessee the rent paid in advance if this sum is not yet consumed
(Sub. 1 1st St.). He further must pay interest on said sum in the amount of 4 percent (Sub. 1
1st St., § 246). If he was not responsible for the end of the lease contract (§§ 540, 544, 580), he
is only liable under 812 et seq. Hence, his liability is potentially limited by § 818(3).
III. Limitation
The limitation of the reimbursement claim of the lessee is not subject to § 548 but rather 4
the general limitation period under §§ 195, 197.2
§548
Limitation of compensation claims
and right of removal
(1) 'The compensation claims of the lessor
for modifications to or deterioration of the
leased property are subject to a six-month
§548
Verjährung der Ersatzansprüche
und des Wegnahmerechts
(1) 'Die Ersatzansprüche des Vermieters
wegen Veränderungen oder Verschlechterun¬
gen der Mietsache verjähren in sechs Mona-
1 BGH 26.4.197« - VIII ZR 236/76. NJW 197«. 14H3.
2 BGH 21.10.1970 - VIII ZR 63/69, NJW 1970, 22«9.
Hühner
959
§ 548 1-4
Division 8, Particular types of obligations
limitation period. * 2The limitation period
commences at the time when the leased prop¬
erty is returned to him. 3When the claim of
the lessor to return of the leased property is
statute-barred, the compensation claims of
the lessor are likewise statute-barred.
(2) The claims of the lessee to reimburse¬
ment of expenses or to permission to remove
an installation are subject to a six-month
limitation period after the termination of
the lease.
ten. 2Die Verjährung beginnt mit dem Zeit-
punkt, in dem er die Mietsache zurückerhält
3Mit der Verjährung des Anspruchs des Ver¬
mieters auf Rückgabe der Mietsache verjäh¬
ren auch seine Ersatzansprüche.
(2) Ansprüche des Mieters auf Ersatz von
Aufwendungen oder auf Gestattung der Weg¬
nahme einer Einrichtung verjähren in sechs
Monaten nach der Beendigung des Mietver¬
hältnisses.
A. Function
1 Sub. 1 regulates the limitation of compensation claims of the lessor, Sub. 2 those of the
lessee. Its very short limitation periods aim to achieve a fast settlement of the outstanding
claims and to avoid difficulties in the collecting of evidence as to the question whether the
modification or deterioration of the leased object relies on a breach of duty of the lessee.1 To
accomplish this goal, the provision shall be interpreted in a wide sense.2
B. Explanation
I. Claims
2 The short limitation period only applies to claims arising out of contractual claims such
as the lessor’s claim for completion of the cosmetic repairs by the lessee or any further claims
for damages resulting from it but also to claims arising from property or tort3, unjustified
enrichment or §§ 677 et seq.4 Even third party’s claims, e.g. the landlord not being identical
with the lessor,5 may fall under § 548. Furthermore, § 548 also covers claims of the lessor
against third parties insofar as they belong to the protective sphere of the contract
(Schutzbereich).6 Take for example, children causing a fire in the leased apartment.7 § 548
shall be applicable mutatis mutandis in case of legal relationships comparable with a lease
contract, i.e. deterioration of the purchased object during a test drive by the potential buyer.8
3 Nonetheless, some claims do not fall within the scope of § 548: performance claims of the
lessor, claims for damages in case of the complete destruction of the leased object9, claims for
deterioration of other objects not belonging to the leased object10 as wrell as the lessee’s claims
under § 547.
IL Six-month limitation period
4 The limitation period of six months regarding the lessor’s claims commences with the
return of the leased object as he is then able check his object. This may lead to an earlier
* BGH 18.9.1986 - III ZR 227/84, NJW 1987, 187.
2 BGH 23.6.2010 - XII ZR 52/08, NJW 2010, 2652.
3 BGH 24.5.1976 - VIII ZR 10/74, NJW 1976, 1505, BGH 18.9.1986 - III ZR 227/84, NJW 1987, 187;
BGH 23.5.2006 - VI ZR 259/04, NJW 2006, 2399.
4 MuKo BGB/Bieber, § 548 BGB mn. 3.
5 BGH 21.3.1997 - V ZR 217/95. NJW 1997, 1983.
6 BGH 19.9 1973 - VIII ZR 175/72, NJW 1973, 2059; BGH 29 3 1978 - VIII ZR 220/76, NJW 1978,
1426.
7 HK-BGB/Scheuch, § 548 BGB mn. 3.
Ä Staudinger BGB/Emmench. § 548 BGB mn. 3a.
9 Palandt BGB/Weidenkaff, § 548 BGB mn. 10.
10 BGH 24.11.1993 - XII ZR 79/92, NJW 1994, 251.
960
Hübner
Provisions applicable to leases of residential space
§549
beginning
contract.11
where the lessor is able to properly check the object before the actual end of the
1 he limitation period for damages begins immediately with the return of the
leased object and the lessor’s knowledge thereof11 12 even if the contract ends later.13 This is a
deviation from the general rule in § 199 stating that the limitation period begins to run from
the emergence of the claim (Entstehung des Anspruchs).14
The limitation period of six months regarding the lessee’s claims for reimbursement or 5
permission of deinstallation commences with the end of the lease contract. Accordingly, the
return ot the leased object is therefore irrelevant.
Subtitle 2
Leases for residential space
Chapter 1
General provisions
Untertitel 2
Mietverhältnisse über Wohnraum
Kapitel 1
Allgemeine Vorschriften
§ 549
Provisions applicable to leases of
residential space
(1) §§ 535 to 548 apply to leases relating to
residential space to the extent not otherwise
stipulated by §§ 549 to 577a.
(2) The provisions relating to rent amount
at the beginning of a lease in areas with over¬
stretched housing markets (§§ 556d to 556g),
rent increases (§§ 557 to 561) and to lessee
protection upon termination of the lease as
well as when residential property is created
(§568(2), §§ 573, 573a and 573d(l), §§574
to 575, 575a(l) and §§ 577 and 577a) do not
apply to leases of
1. residential space that is leased only for
temporary use,
2. residential space that is part of the dwell¬
ing inhabited by the lessor himself and has
largely to be furnished with furniture and
fixtures by the lessor himself, provided that
permission to use the residential space has
not been given for permanent use to the
lessee with his family or with persons with
whom he maintains a joint household set up
permanently,
3. residential space that a legal person
under public law or a recognised private wel¬
fare work organisation has leased to permit
use by persons in urgent need of accommoda¬
tion if, when the lease was entered into, it
§549
Auf Wohnraummietverhältnisse
anwendbare Vorschriften
(1) Für Mietverhältnisse über Wohnraum
gelten die §§ 535 bis 548, soweit sich nicht
aus den §§ 549 bis 577a etwas anderes ergibt.
(2) Die Vorschriften über die Miethöhe bei
Mietbeginn in Gebieten mit angespannten
Wohnungsmärkten (§§ 556d bis 556g), über
die Mieterhöhung (§§ 557 bis 561) und über
den Mieterschutz bei Beendigung des Miet¬
verhältnisses sowie bei der Begründung von
Wohnungseigentum (§ 568 Abs. 2, §§ 573,
573a, 573d Abs. 1, §§ 574 bis 575, 575a Abs. 1
und §§ 577, 577a) gelten nicht für Mietver¬
hältnisse über
1. Wohnraum, der nur zum vorübergehen¬
den Gebrauch vermietet ist,
2. Wohnraum, der Teil der vom Vermieter
selbst bewohnten Wohnung ist und den der
Vermieter überwiegend mit Einrichtungs¬
gegenständen auszustatten hat, sofern der
Wohnraum dem Mieter nicht zum dauernden
Gebrauch mit seiner Familie oder mit Per¬
sonen überlassen ist, mit denen er einen auf
Dauer angelegten gemeinsamen Haushalt
führt,
3. Wohnraum» den eine juristische Person
des öffentlichen Rechts oder ein anerkannter
privater Träger der Wohlfahrtspflege ange¬
mietet hat, um ihn Personen mit dringendem
Wohnungsbedarf zu überlassen, wenn sie den
11 BGH 12.4.1989 - VIII ZR 52/88, NJW 1989. 1854.
12 BGH 23.10.2013 - Vlll ZR 402/12, NJW 2014, 684.
13 BGH 15.3.2006 - VIII ZR 123/05, NJW 2006, 1588.
14 HK-BGB/Scheuch, § 548 BGB mn. 5; cf. BGH 8.1.2014 - XII ZR 12/13, NJW 2014, 920.
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961
§550 1
Division 8. Particular types of obligations
drew the attention of the lessee to the in¬
tended purpose of the residential space and
to its exemption from the provisions referred
to above.
(3) §§ 556d to 561 and §§ 573» 573a and
573d(l) and §§ 575, 575a(l) and §§ 577 and
577a do not apply to residential space in a
student hostel or a hostel for young people.
Mieter bei Vertragsschluss auf die Zweck¬
bestimmung des Wohnraums und die Aus-
nähme von den genannten Vorschriften hin¬
gewiesen hat.
(3) Für Wohnraum in einem Studenten¬
oder Jugendwohnheim gelten die 556d bis
561 sowie die 573, 573a, 573d Abs. 1 und
§§ 575, 575a Abs. 1, §§ 577, 577a nicht.
A. Function
1 Sub. 1 clarifies at the outset that §§ 535-548 only apply for leases of residential space insofar
as §§ 549-577a do not contain contradictory statements. Sub. 2, however, limits the scope of
protective provisions in favour of the lessee in special situations. While the legislator focuses
the protective means on the lease of residential space for a longer period of time as the centre
of the lessee’s life, Subs 2 and 3 apply to situations where the lease is only temporary (Sub. 2
No. 1), or where a potential conflict might easily arise if the lessor lives together in the
apartment with the lessee (Sub. 2 No. 2). Sub. 2 No. 3 serves the purpose of providing people
with access to appropriate housing in precarious situations, so that a serious intermediary lessee
is called in in order to ensure that the lessor will be satisfied in particular with regard to the
payment of the rent and the timely return of the rented property. Sub. 3 only clarifies that the
legislator’s idea that residential leases in student hostels or alike fall under the exemption of
Sub. 2 since it was doubtful if leases to students represent a temporary use.* 1
B. Explanation
2 One of the most important issues in that regard is to separate lease of residential space
from other leases. The provisions regulating lease of residential space only apply to leases for
other rooms and land insofar as § 578 explicitly refers to them. Furthermore, this distinction
is of high significance in order to determine the competent court (§ 23 No. 2 GVG).
Complications arise if the leased space is rented for private and professional use. While the
interpretation of §§ 549 et seq. by the BGH is very broad, the courts take into account the
respective floor space and the shares of the total rent allocated to each use.2
§550
Form of the lease agreement
’If a lease agreement for a longer period of
time than one year is not entered into in
written form, then it applies for an indefinite
period of time. 2However, termination is only
allowed at the earliest at the end of one year
after use of the residential space has been
permitted.
§550
Form des Mietvertrags
’Wird der Mietvertrag fur längere Zeit als
ein Jahr nicht in schriftlicher Form geschlos¬
sen, so gilt er für unbestimmte Zeit. 2Die
Kündigung ist jedoch frühestens zum Ablauf
eines Jahres nach Überlassung des Wohn¬
raums zulässig.
A. Function
§ 550 aims at protecting the buyer of the apartment who enters into the existing I«*
agreement under § 566 in order to get an impression of the content of the contractua
1 cf. BGH 13.6.2012 - VH1 ZR 92/11, N|W 2012, 2H« I
1 BGH 9.7.2014 - VIH ZR 376/13, NJW 2014. 2B64.
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Restriction and investment of rent security deposits §551
relationship.1 In addition, long-term contracts are to be fixed and arranged by the parties
themselves.* Any contract for lease of residential space running longer than a year that is not
put down in writing is not invalid but will apply for an indefinite period of time. § 550
applies also tor leases of other rooms and land.
B. Explanation
Due to the teleological aim of the provision, § 550 BGB applies not only to the conclusion 2
ot contracts but also to later relevant changes of the contract covering more than one year.
The most prominent change might be the modification of the amount of rent.3 Any
termination - even it the modification was agreed without formal validity - can only be
made at the end ot the first year atter the prolongation (2nd St.).
§551
Restriction and investment of rent
security deposits
(1) If the lessee must give the lessor a
security deposit for the performance of his
duties, then this security' deposit, subject to
subsection (3) sentence 4, may amount at
most to three times the rent for one month,
exclusive of the operating costs shown as a
lump sum or as an advance payment.
(2) ’If security is to be provided in the
form of a sum of money, then the lessee is
entitled to pay in three equal monthly instal¬
ments. 2The first instalment is due upon
commencement of the lease. 3The further in¬
stalments are due together with the immedi¬
ately ensuing rent payments.
(3) *The lessor must invest a sum of money
transferred to him as a deposit with a bank¬
ing institution at the usual rate of interest for
savings deposits with withdrawal notice of
three months. 2The parties to the contract
may agree on another form of investment.
3In either case the investment must be made
separately from the assets of the lessor and
the lessee is entitled to the income. 4It accrues
to the security deposit. 5For residential space
in a student hostel or a hostel for young
people, there is no duty for the lessor to pay
interest on the security deposit.
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§551
Begrenzung und Anlage von
Mietsicherheiten
(1) Hat der Mieter dem Vermieter für die
Erfüllung seiner Pflichten Sicherheit zu leis¬
ten, so darf diese vorbehaltlich des Absatzes 3
Satz 4 höchstens das Dreifache der auf einen
Monat entfallenden Miete ohne die als Pau¬
schale oder als Vorauszahlung ausgewiesenen
Betriebskosten betragen.
(2) Ust als Sicherheit eine Geldsumme be¬
reitzustellen, so ist der Mieter zu drei glei¬
chen monatlichen Teilzahlungen berechtigt.
2Die erste Teilzahlung ist zu Beginn des Miet¬
verhältnisses fällig. 3Die weiteren Teilzahlun¬
gen werden zusammen mit den unmittelbar
folgenden Mietzahlungen fällig.
(3) *Der Vermieter hat eine ihm als Sicher¬
heit überlassene Geldsumme bei einem Kre¬
ditinstitut zu dem für Spareinlagen mit drei¬
monatiger Kündigungsfrist üblichen Zinssatz
anzulegen. 2Die Vertragsparteien können eine
andere Anlageform vereinbaren. 3ln beiden
Fällen muss die Anlage vom Vermögen des
Vermieters getrennt erfolgen und stehen die
Erträge dem Mieter zu. 4Sie erhöhen die Si¬
cherheit. 5Bei Wohnraum in einem Studen¬
ten- oder Jugendwohnheim besteht für den
Vermieter keine Pflicht, die Sicherheitsleis¬
tung zu verzinsen.
(4) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
1 BGH 7 5.2008 - XH ZR 69/06. NJW 2008, 2178.
2 BGH 2 6 2010 - XII ZR 110/08. NJW RR 2010. 1309.
3 cf BGH 25.11.2015 - XII ZR 114/14. NJW 2016, 311.
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963
§552
Division 8. Particular types of obligations
A. Function
1 §551 serves to regulate the modalities of the agreements on rental securities (especially
deposit). Its application is limited to leases for residential space. §551 is mandatory insofar as
there may be no deviation from its content to the disadvantage of the lessee (Sub. 4).
B. Explanation
I. Security
2 The amount of the security is strictly limited to the amount of three monthly rents and
payable in three instalments (Subs 1, 2). The payments by way of instalment shall reduce the
financial burden of moving for the lessee. The provision applies to all securities including
guarantees (Bürgschaft) or cash deposits.
3 The provision does not provide a right for the lessor but regulates the conditions for
agreeing on a rental security. The non-performance of the lessee entitles the lessor to
terminate the contract for cause under the conditions set out in § 569(2a).
II. Deposit
4 The lessor is obligated to invest the money transferred to him as a deposit with a banking
institution. It must be made sure that the special character of this agreement as fiduciary
relationship (Treuhandverhältnis) is discernible by the name of the bank account.1 Notwith¬
standing, the parties may agree on another form of investment (Sub. 3 2nd St.). The interest
increases the security and must be paid back to the lessee upon termination of the rental
contract (Sub. 3 4th St.). The lessor may only seize the deposited money during the lease if the
claim is undisputed between the parties or the lessor obtained a judgment in his favour.
III. Restitution
5 The restitution claim of the lessee becomes due after the lessor had had reasonable time to
reflect and finally calculate the outstanding claims. The period should generally not be longer
than nine months.2 The limitation period is defined by the general rules of §§ 195, 199 and
not by § 548.
§552
Warding off the right of removal
of the lessee
(1) The lessor may ward off exercise of the
right of removal (§ 539(2)) by payment of
appropriate compensation unless the lessee
has a justified interest in removal.
(2) An agreement excluding the right of
removal is only effective if reasonable com¬
pensation is provided for.
§552
Abwendung des Wegnahmerechts
des Mieters
(1) Der Vermieter kann die Ausübung des
Wegnahmerechts (§ 539 Abs. 2) durch Zah¬
lung einer angemessenen Entschädigung ab¬
wenden, wenn nicht der Mieter ein berechtig¬
tes Interesse an der Wegnahme hat.
(2) Eine Vereinbarung, durch die das Weg"
nahmerecht ausgeschlossen wird, ist nur
wirksam, wenn ein angemessener Ausgleich
vorgesehen ist.
1 BGH 9.6.2015 - VJIJ ZR 324/14, N1W-RR 2015, 1289.
2 BGH 18.1.2006 - VIII ZR 71/05. NJW 2006, 1442.
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Permitting use by third parties
1-2 § 553
§ 552 contains an exception to the lessee’s right of removal under § 539(2). One the one 1
hand the economic values created by the installation, which are destroyed by the removal,
shall be preserved. On the other hand, the lessor shall not be unjustifiably enriched by the
retention of the installation. The lessor may avoid the removal if he pays an appropriate
compensation. The justified interest of the lessee can have a non-economic character. The
adequacy of the compensation is based on the value of the installation minus the costs for
removal and restoration of the original status.3 1 Any deviation can only be made against
payment ot a reasonable compensation (Sub. 2).
§553
Permitting use by third parties
(1) lIf the lessee, after entering into the
lease agreement, acquires a justified interest
in permitting a third party to use part of the
residential space, then he may demand per¬
mission to do so from the lessor. 2This does
not apply if there is a compelling reason in
the person of the third party, if the residen¬
tial space would be overcrowded or if the
lessor cannot for other reasons reasonably be
expected to permit third-party use.
(2) If the lessor can only be expected to
permit third-party use on a reasonable in¬
crease of the rent, then he may make permis¬
sion dependent upon the lessee agreeing to
such an increase in rent.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§553
Gestattung der
Gebrauchsüberlassung an Dritte
(1) ‘Entsteht für den Mieter nach Ab¬
schluss des Mietvertrags ein berechtigtes In¬
teresse, einen Teil des Wohnraums einem
Dritten zum Gebrauch zu überlassen, so
kann er von dem Vermieter die Erlaubnis
hierzu verlangen. 2Dies gilt nicht, wenn in
der Person des Dritten ein wichtiger Grund
vorliegt, der Wohnraum übermäßig belegt
würde oder dem Vermieter die Überlassung
aus sonstigen Gründen nicht zugemutet wer¬
den kann.
(2) Ist dem Vermieter die Überlassung nur
bei einer angemessenen Erhöhung der Miete
zuzumuten, so kann er die Erlaubnis davon
abhängig machen, dass der Mieter sich mit
einer solchen Erhöhung einverstanden er¬
klärt.
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Function
§ 553 substantiates the rights and obligations of the contractual partners in § 540 as 1
regards the sub-letting of the apartment. The provision is mandatory insofar as it may not be
deviated from the disadvantage of the lessee (Sub. 3).
B. Explanation
I. Permission
By deviating from § 540, the lessor may demand the permission if he acquires a justified 2
interest in permitting a third party, after entering into the lease agreement, to use parts (!) of
the residential space. It may, therefore, suffice if the lessee holds back one room to store his
personal objects.1 In times of AirBnB and other internet-based agencies, the lessor’s permis¬
sion to sub-let the apartment only for days to tourists typically includes a certain minimum
period.2 To balance the interests, the lessor may make permission dependent on the lessee’s
1 MüKo BGB/Bieber, § 552 BGB mn. 6.
1 BGH 11.6.2014 - VIH ZR 349/13, NJW 2014, 2717.
2 BGH 8.1.2014 - VIII ZR 210/13, NJW 2014, 622.
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965
§ 554a 1 Division 8. Particular types of obligations
acceptance to increase the amount ot rent. The permission is not required if the lessee wants
to accommodate his spouse, registered civil partner, close relative. Notwithstanding, if the
stay is not temporary, the lessee shall notify the lessor.
IL Unjustified refusal
3 If the lessor unjustifiably refuses the permission the lessee may terminate the contract
under § 540(1) 2nd St. and claim the lost gain from the sub-letting under § 280?
§554
(repealed)
§554
( weggefallen)
§ 554a
Accessibility
(1) lThe lessee may demand the approval
of the lessor to structural changes or other
installations required to make the use of the
leased property or access to it fit for the needs
of the disabled, if he has a justified interest in
this. 2The lessor may refuse approval if his
interest in maintaining the leased property or
building unchanged outweighs the interest of
the lessee in making use of the leased prop¬
erty fit for the needs of the disabled. 3When
this is done, the justified interests of the
other lessees in the building are to be taken
into account
(2) The lessor may make his approval de¬
pendent upon payment of a reasonable addi¬
tional security deposit for restoration of the
original condition. §551(3) and (4) applies
with the necessary modifications.
(3) An agreement deviating from
subsection (1) to the disadvantage of the les¬
see is ineffective.
§ 554a
Barrierefreiheit
(1) lDer Mieter kann vom Vermieter die
Zustimmung zu baulichen Veränderungen
oder sonstigen Einrichtungen verlangen, die
für eine behindertengerechte Nutzung der
Mietsache oder den Zugang zu ihr erforder¬
lich sind, wenn er ein berechtigtes Interesse
daran hat. 2Der Vermieter kann seine Zu¬
stimmung verweigern, wenn sein Interesse
an der unveränderten Erhaltung der Mietsa¬
che oder des Gebäudes das Interesse des Mie¬
ters an einer behindertengerechten Nutzung
der Mietsache überwiegt. 3Dabei sind auch
die berechtigten Interessen anderer Mieter in
dem Gebäude zu berücksichtigen.
(2) Der Vermieter kann seine Zustimmung
von der Leistung einer angemessenen zusätz¬
lichen Sicherheit für die Wiederherstellung
des ursprünglichen Zustandes abhängig ma¬
chen. § 551 Abs. 3 und 4 gilt entsprechend.
(3) Eine zum Nachteil des Mieters von
Absatz 1 abweichende Vereinbarung ist un¬
wirksam.
A. Function
§ 554a empowers the disabled lessee or his disabled relatives living with him to modify the
apartment to the needs of the disabled (Sub. 1 1st St.). The lessor may only refuse his consent
if his interest or the interests of the lessees overweigh the interests of the disabled lessee
(Subs 1 2 St., 3). The lessor may claim a deposit for the potential restoration (Sub. 2). The
provision is mandatory insofar as there may be no deviation from its content to the
disadvantage of the lessee (Sub. 3).
3 BGH 8.1.2014 - VH1 ZR 210/13, NJW 2014, 622.
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ineffectiveness oj contractual penalty
B. Explanation
I. General aspects
The cornerstone of this section is the justified interest of the lessee. Disability means any 2
significant and enduring limitation of the movability.* 1 It does not matter whether the
disability existed before or after the conclusion of the lease contract. Therefore, even elderly
people try ing to avoid the move into a home for the elderly may have a justified interest.2
The structural changes may apply to changes within or outside the apartment (e.g. entry to
the apartment).3
II. Balance of interests
According to § 553, balancing the interests of the lessee and the lessor, but here also of the 3
other lessees, is required. This includes the severity and type of disability, the extent and
duration ot the construction works, the possibility of deconstruction, the extent of the
impairment for the other lessees etc.4
III. Security
The security the lessor mayr claim for the costs of deconstruction is additional to the 4
general security in favour of the lessor. The amount is determined by the potential costs of
the construction and those of the deconstruction.
§555
Ineffectiveness of
contractual penalty
An agreement by which the lessor binds the
lessee to promise a contractual penalty is
ineffective.
§555
Unwirksamkeit einer
Vertragsstrafe
Eine Vereinbarung, durch die sich der Ver-
mieter eine Vertragsstrafe vom Mieter ver¬
sprechen lasst, ist unwirksam.
§ 555 prohibits contractual penalties from being generally admissible under §§ 339 et seq. 1
that bind the lessee of residential space. It covers not only the contractual rules on
contractual penalties but also extends to expity and forfeiture clauses (Verfall- und Verwir¬
kungsklauseln) to the disadvantage of the lessor1 as well as to clauses by which third parties
are obliged instead of the lessee.2 It may even apply to excessive lump sum compensation in
damages to the disadvantage of the lessee3 or to the lessee’s waiver of the reimbursement for
expenses.4 All in all, this section has a very broad scope of application. Any contractual
clauses contradicting this rule are void under § 134. Nevertheless, § 139 on partial validity
does not apply; the contract therefore remains in force although the relevant clause is
invalid?
1 HK BGB/Scheuch/Ebert, § 554a BGB mn. 3.
2 HK-BGB/Scheuch/Ebert, § 554a BGB mn. 3.
3 MuKo BGB/Bieber, § 554a BGB mn. 6.
4 HK BGB/Scheuch, § 554a BGB mn. 6.
1 BGH 27.6.1960 - VII ZR 101/59, NJW 1960, 156«.
2 MuKo BGB/Bieber, § 555 BGB mn. 4.
3 BGH 6.11.1967 - VIII ZR 81/65, NJW 1968, 149.
4 Staudinger BGB/Emmerich, § 555 BGB mn. 5.
$ Jauernig BGB/Teichmann, § 555 BGB mn. 1.
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9ö7
§ 555b
Division 8. Particular types of obligations
Chapter la
Structural maintenance and
modernisation measures
Kapitel la
Erhaltungs- und
Modernisierungsmaßnahmen
§ 555a
Structural maintenance measures
(1) The lessee must tolerate measures that
are necessary for the structural maintenance
or repair of the leased property (structural
maintenance measures).
(2) The lessee is to be given notice of
structural maintenance measures in good
time unless they only entail an insignificant
impact on the leased property or it is impera¬
tive for them to be implemented immedi¬
ately.
(3) *The lessor must compensate for expen¬
diture incurred by the lessee as a result of a
structural maintenance measure to a suitable
degree. 2He is to make an advance payment
on request.
(4) An agreement deviating from
subsection (2) or (3) to the disadvantage of
the lessee is ineffective.
§ 555a
Erhaltungsmaßnahmen
(1) Der Mieter hat Maßnahmen zu dulden,
die zur Instandhaltung oder Instandsetzung
der Mietsache erforderlich sind (Erhaltungs¬
maßnahmen).
(2) Erhaltungsmaßnahmen sind dem Mie¬
ter rechtzeitig anzukündigen, es sei denn, sie
sind nur mit einer unerheblichen Einwirkung
auf die Mietsache verbunden oder ihre sofor¬
tige Durchführung ist zwingend erforderlich.
(3) Aufwendungen, die der Mieter infolge
einer Erhaltungsmaßnahme machen muss,
hat der Vermieter in angemessenem Umfang
zu ersetzen. 2Auf Verlangen hat er Vorschuss
zu leisten.
(4) Eine zum Nachteil des Mieters von
Absatz 2 oder 3 abweichende Vereinbarung
ist unwirksam.
§ 555b
Modernisation measures
Modernisation measures are building al-
terations
1. by means of which final energy is saved
with lasting effect in relation to the leased
property (energy efficiency modernisation),
2. by means of which non-renewable pri¬
mary energy is saved with lasting effect or the
climate is protected with lasting effect, unless
energy efficiency modernisation has already
been carried out in accordance with No. 1,
3. by means of which water consumption is
reduced with lasting effect,
4. by means of which the utility value of
the leased property is increased with lasting
effect,
5. by means of which the general living
conditions are permanently improved,
6. which are carried out due to circum¬
stances for which the lessor is not responsi¬
ble, and which do not constitute structural
maintenance measures in accordance with
§ 555a, or
7. by means of which new residential space
is created.
§ 555b
Modernisierungsmaßnahmen
Modemisierungsniaßnahmen sind bauliche
Veränderungen,
1. durch die in Bezug auf die Mietsache
Endenergie nachhaltig eingespart wird (ener¬
getische Modernisierung),
2. durch die nicht erneuerbare Primärener¬
gie nachhaltig eingespart oder das Klima
nachhaltig geschützt wird, sofern nicht be¬
reits eine energetische Modernisierung nach
Nummer 1 vorliegt,
3. durch die der Wasserverbrauch nachhal¬
tig reduziert wird,
4. durch die der Gebrauchswert der Miet¬
sache nachhaltig erhöht wird,
5. durch die die allgemeinen Wohnverhält¬
nisse auf Dauer verbessert werden,
6. die auf Grund von Umständen durch¬
geführt werden, die der Vermieter nicht zu
vertreten hat, und die keine Erhaltungsma߬
nahmen nach § 555a sind, oder
7. durch die neuer Wohnraum geschaffen
wird.
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Toleration of modernisation measures, time limit
§ 555d
§ 555c
Announcement of
modernisation measures
(1) ’The lessor must announce a moderni¬
sation measure to the lessee at the latest three
months prior to its commencement in text
form (modernisation notice). 1 2The moderni¬
sation notice must contain information on:
1. the nature and the likely extent of the
modernisation measure in its essentials,
2. the likely commencement and the likely
duration ot the modernisation measure,
3. the amount of the anticipated rent in¬
crease where an increase is to be demanded in
accordance with § 559 and § 559c, as well as
the anticipated future operating costs.
(2) The lessor should notify the lessee in
the modernisation notice of the form and the
time limit of the hardship objection in accor¬
dance with § 555d(3) sentence 1.
(3) The lessor may refer in the modernisa¬
tion notice for a modernisation measure in
accordance with § 555b Nos 1 and 2 to gen¬
erally-recognised standard values, in particu¬
lar with regard to the quality of construction
components in terms of energy efficiency.
(4) Subsections (1) to (3) do not apply to
modernisation measures which only entail an
insignificant impact on the leased property
and only lead to an insignificant rent in¬
crease.
(5) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 555d
Toleration of modernisation
measures, time limit
(1) The lessee is to tolerate a modernisa-
tion measure.
(2) ’There is no obligation of toleration in
accordance with subsection (1) if the moder¬
nisation measure would constitute a hardship
for the lessor, his/her family or a member of
his/her household that is not justifiable even
considering the justified interests of both the
lessor and other lessees in the building, as
well as the interests of energy saving and
climate protection. 2'I he anticipated rent in¬
crease, as well as the anticipated future oper¬
ating costs, shall not be included in the con-
§ 555c
Ankündigung von
Modernisierungsmaßnalimen
(1) ’Der Vermieter hat dem Mieter eine
Modernisierungsmaßnahme spätestens drei
Monate vor ihrem Beginn in Textform anzu¬
kündigen (Modernisierungsankündigung).
2Die Modernisierungsankündigung muss An¬
gaben enthalten über:
1. die Art und den voraussichtlichen Um¬
fang der Modernisierungsmaßnahme in we¬
sentlichen Zügen,
2. den voraussichtlichen Beginn und die
voraussichtliche Dauer der Modernisierungs¬
maßnahme,
3. den Betrag der zu erwartenden Miet¬
erhöhung, sofern eine Erhöhung nach § 559
oder § 559c verlangt werden soll, sowie die
voraussichtlichen künftigen Betriebskosten.
(2) Der Vermieter soll den Mieter in der
Modernisierungsankündigung auf die Form
und die Frist des Härteeinwands nach § 555d
Absatz 3 Satz 1 hinweisen.
(3) In der Modernisierungsankündigung
für eine Modernisierungsmaßnahme nach
§ 555b Nummer 1 und 2 kann der Vermieter
insbesondere hinsichtlich der energetischen
Qualität von Bauteilen auf allgemein aner¬
kannte Pauschalwerte Bezug nehmen.
(4) Die Absätze 1 bis 3 gelten nicht für
Modernisierungsmaßnahmen, die nur mit ei¬
ner unerheblichen Einwirkung auf die Miet¬
sache verbunden sind und nur zu einer un¬
erheblichen Mieterhöhung führen.
(5) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 555d
Duldung von
Modernisierungsmaßnahmen,
Ausschlussfrist
(1) Der Mieter hat eine Modernisierungs¬
maßnahme zu dulden.
(2) ’Eine Duldungspflicht nach Absatz 1
besteht nicht, wenn die Modernisierungsma߬
nahme für den Mieter, seine Familie oder
einen Angehörigen seines Haushalts eine
Härte bedeuten würde, die auch unter Wür¬
digung der berechtigten Interessen sowohl
des Vermieters als auch anderer Mieter in
dem Gebäude sowie von Belangen der Ener¬
gieeinsparung und des Klimaschutzes nicht
zu rechtfertigen ist. 2l)ie zu erwartende Miet¬
erhöhung sowie die voraussichtlichen künfti-
Hübner
9b9
§ 555e
Division 8, Particular types of obligations
sideration of the obligation of toleration; they
shall only be included in accordance with
§ 559(4) and (5) in case of a rent increase.
(3) ’The lessee shall inform the lessor, in
text form, of circumstances constituting a
hardship with regard to the toleration or to
the rent increase by the end of the month
following receipt of the modernisation notice.
2The time limit shall only start to run if the
modernisation notice complies with the pro¬
visions contained in § 555c.
(4) ’Once the time limit has expired, cir¬
cumstances giving rise to a hardship with
regard to the toleration or to the rent in¬
crease are still to be taken into consideration
if the lessee was prevented without blame
from meeting the deadline and he/she in¬
forms the lessor of the circumstances as well
as of the reasons for the delay promptly and
in text form. 2Circumstances which constitute
a hardship with regard to the rent increase
shall only be taken into consideration if they
are notified at the latest by the time of com¬
mencement of the modernisation measure.
(5) ’If the lessor has not referred in the
modernisation notice to the form and the
time limit applying to the hardship objection
(§ 555c(2)), the notice of the lessee in accor¬
dance with subsection (3) sentence 1 does not
have to be submitted in the form and time
limit determined therein. 2Subsection (4) sen¬
tence 2 applies with the necessary modifica¬
tions.
(6) § 555a subsection (3) applies with the
necessary modifications.
(7) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 555e
Special termination right of the
lessee in case of
modernisation measures
(1) ’On receipt of the modernisation no¬
tice, the lessee may give extraordinary notice
with regard to the tenancy as per the end of
the month after next. 2Notice must be given
by the end of the month following receipt of
the modernisation notice.
(2) § 555c(4) applies with the necessary
modifications.
(3) A deviating agreement which is to the
disadvantage of the lessee is ineffective.
gen Betriebskosten bleiben bei der Abwägung
im Rahmen der Duldungspflicht außer ße.
tracht; sie sind nur nach § 559 Absatz 4 und
5 bei einer Mieterhöhung zu berücksichtigen.
(3) ’Der Mieter hat dem Vermieter Um¬
stände, die eine Härte im Hinblick auf die
Duldung oder die Mieterhöhung begründen,
bis zum Ablauf des Monats, der auf den
Zugang der Modernisierungsankündigung
folgt, in Textform mitzuteilen. 2Der Uuf der
Frist beginnt nur, wenn die Modernisierungs¬
ankündigung den Vorschriften des § 555c
entspricht.
(4) ’Nach Ablauf der Frist sind Umstände,
die eine Härte im Hinblick auf die Duldung
oder die Mieterhöhung begründen, noch zu
berücksichtigen, wenn der Mieter ohne Ver¬
schulden an der Einhaltung der Frist gehin¬
dert war und er dem Vermieter die Umstände
sowie die Gründe der Verzögerung unverzüg¬
lich in Textform mitteilt. 2Umstände, die eine
Härte im Hinblick auf die Mieterhöhung be¬
gründen, sind nur zu berücksichtigen, wenn
sie spätestens bis zum Beginn der Modemi-
sierungsmaßnahme mitgeteilt werden.
(5) ’Hat der Vermieter in der Modemisie-
rungsankündigung nicht auf die Form und
die Frist des Härteeinwands hingewiesen
(§ 555c Absatz 2), so bedarf die Mitteilung
des Mieters nach Absatz 3 Satz 1 nicht der
dort bestimmten Form und Frist. 2Absatz4
Satz 2 gilt entsprechend.
(6) § 555a Absatz 3 gilt entsprechend.
(7) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 555e
Sonderkündigungsrecht des
Mieters bei
Modernisierungsmaßnahmen
(1) ’Nach Zugang der Modernisierungs¬
ankündigung kann der Mieter das Mietver¬
hältnis außerordentlich zum Ablauf des über¬
nächsten Monats kündigen. 2Die Kündigung
muss bis zum Ablauf des Monats erfolgen,
der auf den Zugang der Modernisierungs¬
ankündigung folgt.
(2) § 555c Absatz 4 gilt entsprechend.
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
970
Hübner
Agi cements on structural maintenance or modernisation measures 1-4 § 555f
§ 555f
Agreements on structural
maintenance or
modernisation measures
The contracting parties may reach agree¬
ments after conclusion ot the tenancy agree¬
ment where structural maintenance or mod¬
ernisation measures are to be carried out, in
particular with regard to the
1. time and technical implementation of
the measures,
2. lessee’s guarantee rights and rights to
compensation for expenditure,
3. future rent amount.
§ 555f
Vereinbarungen über Erhaltungs¬
oder Modernisierungsmaßnahmen
Die Vertragsparteien können nach Ab¬
schluss des Mietvertrags aus Anlass von Er-
haltungs- oder Modernisierungsmaßnahmen
Vereinbarungen treffen, insbesondere über
die
1. zeitliche und technische Durchführung
der Maßnahmen,
2. Gewährleistungsrechte und Aufwendungs¬
ersatzansprüche des Mieters,
3. künftige Höhe der Miete.
A. Function
I. Purpose
These relatively recent provisions were introduced in 2014 with the aim of facilitating 1
energy-saving and climate-friendly modernisations. Furthermore, climate protection and the
energy revolution (Energiewende) shall be supported. The provisions distinguish between the
type of the relevant measure; § 555a regulates maintenance measures, while §§ 555b-e
contain the rules on modernisation measures, and § 555f applies to both.
II. Scope of application
Pursuant to § 578(2) 2 1st St. §§ 555a-555f also apply to leases of business premises. 2
However, the parties to these contracts may agree on a different solution. The parties to a
contract for residential lease may not agree on a solution to the disadvantage of the lessee (as
expressed in each provision).
B. Explanation
I. Maintenance measures
Maintenance measures are those which aim to achieve the maintenance and restoration of 3
the leased object. It includes the conservation of the contracted usability by eliminating the
defects resulting from the ordinary use or those relating to ageing of the object as well as the
repair of damages.* 1 In contrast to modernisation, it focuses on preserving the status quo.
The lessee must accept the maintenance measures under § 555a(l). If not, and the lessor 4
therefore cannot remedy the defect, the lessee may not claim his reduction right pursuant to
§ 536(1). Nonetheless, the lessor, under certain circumstances, may terminate the contract for
cause.2 Although there is - other than for modernisation measures according to § 556d(2) - no
generic balancing of interests provided for maintenance measures, the tolerance of such
measures may be unacceptable on a case-by-case basis. In order to become due the lessor
must generally announce the relevant measure under § 555a(2).
1 HK-BGB/Scheuch, W 555a-555f, BGB mn. 2.
1 BGH 15.4.2015 - VIII ZR 281/13, NJW 2015, 2417.
Hübner
971
§556
Division 8. Particular types of obligations
II. Modernisation measures
5 § 555b defines modernisation measures in seven case groups. The most important case
group is the reduction of the energy consumption within the building (No. 1). Others include
water saving (No. 3) or the general improvement of the value in use of the apartment (No. 4).
A recent example is the mandatory installation ot smoke detectors. No. 7, relating to the
creation of new residential space, is of significant political importance. § 555d states a far-
reaching obligation of the lessee to tolerate these measures; however, §§ 555d(2)-(4)
empowers the lessee to object to these measures under certain conditions. This is different
to the concept for maintenance measures. As shown above, the lessor is obliged to announce
the measure (§ 555c). Even more importantly, the lessee may extraordinarily terminate the
contract under § 555e with a two-month notice period. A temporary modernisation measure
of not more than three months does not entitle the lessee to reduce the rent under § 536(la).
Chapter 2
Rent
Subchapter 1
Agreements on rent
Kapitel 2
Die Miete
Unterkapitel 1
Vereinbarungen über die Miete
§556
Agreements on operating costs
(1) ’The parties to the contract may agree
that the lessee is to bear operating costs. Op¬
erating costs are the costs that are incurred
from day to day by the owner or the holder of
the heritable building right as a result of the
ownership of or the heritable building right
to the plot of land or as a result of the
intended use of the building, the outbuild¬
ings, facilities, installations and the land.
3The drawing up of the statement of operat¬
ing costs continues to be governed by the
Operating Costs Order [BetriebskostenVer¬
ordnung] of 25 November 2003 (Federal Law
Gazette I pp. 2346, 2347). 4The Federal Gov¬
ernment is authorised to pass provisions on
the drawing up of the statement of operating
costs by statutory order without the approval
of the Federal Council [Bundesrat].
(2) ’The parties to the contract may agree,
subject to other provisions, that operating
costs may be reported as a lump sum or as
an advance payment. 2Advance payments for
operating costs may only be agreed in a
reasonable amount.
§556
Vereinbarungen über
Betriebskosten
(1) ’Die Vertragsparteien können verein¬
baren, dass der ^Mieter Betriebskosten trägt.
Betriebskosten sind die Kosten, die dem Ei¬
gentümer oder Erbbauberechtigten durch das
Eigentum oder das Erbbaurecht am Grund¬
stück oder durch den bestimmungsmäßigen
Gebrauch des Gebäudes, der Nebengebäude,
Anlagen, Einrichtungen und des Grundstücks
laufend entstehen. 3Für die Aufstellung der
Betriebskosten gilt die Betriebskostenverord¬
nung vom 25. November 2003 (BGBl. I
S. 2346, 2347) fort. 4Die Bundesregierung
wird ermächtigt, durch Rechtsverordnung
ohne Zustimmung des Bundesrates Vor¬
schriften über die Aufstellung der Betriebs¬
kosten zu erlassen.
(2) ’Die Vertragsparteien können vor¬
behaltlich anderweitiger Vorschriften verein¬
baren, dass Betriebskosten als Pauschale oder
als Vorauszahlung ausgewiesen werden. Vo¬
rauszahlungen für Betriebskosten dürfen nur
in angemessener Höhe vereinbart werden.
’ BGH 17.6.2015 - VIII ZR 216/14, NJW 2015, 248«.
972
Hübner
Accounting criterion for operating costs
§ 556a
(3) 'Advance payments for operating costs
are to be invoiced once per year, and when
this is done the principle of economic effi¬
ciency is to be observed. 2The lessee is to be
notified of the statement of operating costs at
the latest by the end of the twelfth month
subsequent to the accounting period. 'After
this period, assertion of a subsequent demand
by the lessor is excluded unless the lessor is
not responsible for the lateness of the asser¬
tion. 3 4The lessor is not obliged to provide
interim invoicing. 5The lessor must be in¬
formed by the lessee of any objections to
invoicing at the latest by the end of the
twelfth month after receipt of the invoice.
6After expiry of this period, objections may
no longer be asserted unless the lessee is not
responsible for the lateness of the assertion.
(4) An agreement deviating to the disad¬
vantage of the lessee from subsections (1) and
(2) sentence 2 or subsection (3) is ineffective.
(3) 'Über die Vorauszahlungen für Be¬
triebskosten ist jährlich abzurechnen; dabei
ist der Grundsatz der Wirtschaftlichkeit zu
beachten. 2Die Abrechnung ist dem Mieter
spätestens bis zum Ablauf des zwölften Mo¬
nats nach Ende des Abrechnungszeitraums
mitzuteilen. 'Nach Ablauf dieser Frist ist die
Geltendmachung einer Nachforderung durch
den Vermieter ausgeschlossen, es sei denn,
der Vermieter hat die verspätete Geltendma¬
chung nicht zu vertreten. 4Der Vermieter ist
zu Teilabrechnungen nicht verpflichtet. '’Ein¬
wendungen gegen die Abrechnung hat der
Mieter dem Vermieter spätestens bis zum
Ablauf des zwölften Monats nach Zugang
der Abrechnung mitzuteilen. 6Nach Ablauf
dieser Frist kann der Mieter Einwendungen
nicht mehr geltend machen, es sei denn, der
Mieter hat die verspätete Geltendmachung
nicht zu vertreten.
(4) Eine zum Nachteil des Mieters von
Absatz 1, Absatz 2 Satz 2 oder Absatz 3 ab¬
weichende Vereinbarung ist unwirksam.
§ 556a
Accounting criterion for
operating costs
(1) ’If the parties to the contract have not
agreed otherwise and subject to other provi¬
sions, operating costs are to be apportioned
in proportion to the floor space. Operating
costs depending on recorded consumption or
causation by the lessees are to be apportioned
according to criteria that take into account
the differing consumption or causation.
(2) 'If the parties to the contract have
agreed otherwise, the lessor may by declara¬
tion in text form specify that the operating
costs may in future, contrary to the agree¬
ment reached, be apportioned in whole or in
part according to a criterion that takes into
account the recorded differing consumption
or the recorded differing causation. 2The de¬
claration may only be made prior to com¬
mencement of an accounting period. ’If the
costs have previously been included in the
rent, the rent is to be reduced accordingly.
(3) An agreement deviating to the disad¬
vantage of the lessee from subsection (2) is
ineffective.
§ 556a
Abrechnungsmaßstab für
Betriebskosten
(1) ’Haben die Vertragsparteien nichts an¬
deres vereinbart, sind die Betriebskosten vor¬
behaltlich anderweitiger Vorschriften nach
dem Anteil der Wohnfläche umzulegen. Be¬
triebskosten, die von einem erfassten Ver¬
brauch oder einer erfassten Verursachung
durch die Mieter abhängen, sind nach einem
Maßstab umzulegen, der dem unterschiedli¬
chen Verbrauch oder der unterschiedlichen
Verursachung Rechnung trägt.
(2) ’Haben die Vertragsparteien etwas an¬
deres vereinbart, kann der Vermieter durch
Erklärung in Textform bestimmen, dass die
Betriebskosten zukünftig abweichend von der
getroffenen Vereinbarung ganz oder teilweise
nach einem Maßstab umgelegt werden dür¬
fen, der dem erfassten unterschiedlichen Ver¬
brauch oder der erfassten unterschiedlichen
Verursachung Rechnung trägt. 2Die Erklä¬
rung ist nur vor Beginn eines Abrechnungs¬
zeitraums zulässig. 'Sind die Kosten bislang
in der Miete enthalten, so ist diese entspre¬
chend herabzusetzen.
(3) Eine zum Nachteil des Mieters von
Absatz 2 abweichende Vereinbarung ist un¬
wirksam.
Hübner
973
§ 556a 1-4 Division 8. Particular types of obligations
A. Function
1 While the BGB assumes that the lessor bears the operating costs, the reality is different. In
all lease contracts for residential lease it is the lessee who bears the operating costs. The
justification for this contractual agreement is that the lessor otherwise will include the
operating costs into the calculation ot the rent; this would cause a non-transparent situation
for the lessee. § 556 is a mandatory provision insofar as there may not be a deviation from its
content to the disadvantage of the lessee (Sub. 4). § 556a defines the consumption standard
for operating costs. § 556a(2) ensures that operating costs are charged according to con¬
sumption in order to promote the economical and cost-conscious use of energy, water, etc.
§ 556a(l) permits however an amicable deviating regulation.1 § 556a is mandatory with
regard to contrary agreements.
B. Explanation
I. Operating costs
2 Any agreement requires that the lease contract contains the two elements of (basic) rent
and operating costs. The rent covers the permission of use while the operating costs include
all other additional services of the lessor defined in § 556(1) 2nd St. It is, therefore, a
deviation from § 535(1) 3rd St. § 556(2) substantiates the possibilities and limitations of the
agreement on advance payments for operating costs. Sub. 3 regulates the settlement. This
provision does not apply to leases for business premises under § 578. Such contracts, if they
contain standard terms, may be evaluated under §§ 305 et seq.2 The lessor is obliged to
make sure that the measures potentially influencing the amount of the operating costs
qualify for an appropriate cost-benefit-ratio pursuant to § 556(3) 1st St. (Wirtschaftlich¬
keitsgebot).3
II. Advance payments
3 The advance payments must be calculated on the real operating costs. The lessor must
settle the operating costs on a yearly basis. He, therefore, accumulates the actual costs and
deducts the advance payments, so the lessee either must pay a residual amount or the lessee
receives a rebate. This calculation must be carried out duly; if not, the claim of the lessor
shall not be due.4 The calculation should be done within a period of 12 months (§ 556(3)
2nd St.) otherwise the lessor’s claim is time-barred (§ 556(3) 3rd St.). If the advance
payments exceeded the actual costs, the lessee may demand reimbursement of sums already
paid.5
III. Objection
4 The lessee must object to the settlement within another 12 months (§ 556(3) 5,h St.)
otherwise his claim is time-barred (§ 556(3) 6'1’ St.). The period begins with the receipt of the
settlement.6
1 Jauernig BGB/Teichmann, tj 556a BGB mn. 1.
2 Bor further references HK BGB/Scheuch. (j 556 BGB mn. 2 et seq
’ BGH 28.11.2007 - VIII ZR 243/06, N|W 2008, 440.
1 BGH 19.12.1990 - VIII ARZ 5/90, NJW 1991, 836.
5 BGH 9.3.2005 - VIII ZR 57/04, NJW 2005, 1499.
6 BGH 8.12.2010 - VIII ZR 27/10, NJW 2011, 1867.
974
Hübner
Due date of rent, right to set-off and right of retention 1-3 § 556b
§ 556b
Due date of rent, right to set-off
and right of retention
(1) Rent is to be paid at the commence¬
ment of the periods of time according to
which it is computed but at the latest by the
third working day of each such period.
(2) !The lessee may, notwithstanding a
contract provision to the contrary, set off a
claim based on §§ 536a and 539 or a claim for
unjust enrichment for excess payment of rent
against a claim for rent, or may exercise a
right of retention in relation to such a claim
it he has notified the lessor in text form of his
intention to do so at least one month prior to
the due date of the rent. 1 2 A deviating agree¬
ment to the disadvantage of the lessee is
ineffective.
§ 556b
Fälligkeit der Miete,
Aufrechnungs- und
Zurückbehaltungsrecht
(1) Die Miete ist zu Beginn, spätestens bis
zum dritten Werktag der einzelnen Zeit¬
abschnitte zu entrichten, nach denen sie be¬
messen ist.
(2) lDer Mieter kann entgegen einer ver¬
traglichen Bestimmung gegen eine Mietforde¬
rung mit einer Forderung auf Grund der
536a, 539 oder aus ungerechtfertigter Be¬
reicherung wegen zu viel gezahlter Miete auf¬
rechnen oder wegen einer solchen Forderung
ein Zurückbehaltungsrecht ausüben, wenn er
seine Absicht dem Vermieter mindestens ei¬
nen Monat vor der Fälligkeit der Miete in
Textform angezeigt hat. 2Eine zum Nachteil
des Mieters abweichende Vereinbarung ist
unwirksam.
A. Function
Sub. 1 defines the due date of the rent for residential space. Sub. 1 is dispensable but it may 1
be scrutinised under § 307(2) lsl St. since it belongs to the statutory concept for residential
lease (gesetzliches Leitbild). However, the parties may agree on different solutions for specific
contracts such as contracts for the rent for holiday apartments.1 Sub. 1 does not apply to
leases for land, ships and movables (§ 579(1)). Under Sub. 2 the obvious interests of the
lessee in the adjustment of his rent payments shall be balanced here with the interest of the
lessor in the regular payment of the rent - e.g. due to external financing.2 There may be no
deviations from Sub. 2 to the disadvantage of the lessor (Sub. 2. 2nd St.).
B. Explanation
I. Advance payment
The rent must be paid in advance. In practical terms, note that Saturday does not count as 2
a working day because banks usually do not carry out transactions on that day.3
II. Set-off; retention
Sub. 2 limits the opportunity to agree on exclusions of prohibitions of set-off and rights of 3
retention as long as claims for damages (§ 536a( 1)), expenses (§ 536a(2)), and claims for
restitution under § 539 are concerned. Such rules are invalid (cf. § 309 Nos 2, 3). The lessee is
only required to notify the lessor of his intention to exercise his relevant right one month in
advance (Sub. 3 2nd St.).
1 Jauernig BGB/Teichmann, § 556b BGB mn. 1.
2 BT-Drs. IV/2195 of 23.4.1964, p. 4.
3 Bf/H 13 7 2010 - VIH ZR 129/09, VIII 291/09, NJW 2010, 2«79.
Hübner
975
§ 556c 1
Division 8. Particular types of obligations
§ 556c
Costs of heat supply as operational
costs, empowerment to issue an
ordinance
(1) ’If the lessee must pay the operating
costs for heat or hot water, and if the lessor
converts the supply from interna) supply to
an independent commercial supply from a
heat supplier (heat supply), the lessee must
meet the cost of heat supply as operational
costs if
1. the heat is supplied more efficiently,
either from a new system constructed by the
heat supplier or from a heat network, and
2. the costs of heat supply do not exceed
the operating costs for the previous internal
supply of heat or hot water.
2If the annual utilisation rate of the exist¬
ing system prior to conversion is at least
80 percent, the heat supplier may restrict it¬
self to improving the operation of the system
in place of the measures in accordance with
no. 1.
(2) The lessor must announce the conver¬
sion at the latest three months in advance and
in text form (conversion notice).
(3) ’The Federal Government is herewith
empowered to issue by means of a legal ordi¬
nance without the consent of the Federal
Council provisions for heat supply contracts
which are concluded on conversion in accor¬
dance with subsection (1), as well as for
the requirements in accordance with
subsections (1) and (2). 2The interests of les¬
sors, lessees and heat suppliers must be ade¬
quately taken into account in doing so.
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 556c
Kosten der Wärmelieferung als
Betriebskosten,
Verordnungsermächtigung
(1) 'Hat der Mieter die Betriebskosten für
Wärme oder Warmwasser zu tragen und stellt
der Vermieter die Versorgung von der Eigen¬
versorgung auf die eigenständig gewerbliche
Lieferung durch einen Wärmelieferanten
(Wärmelieferung) um» so hat der Mieter die
Kosten der Wärmelieferung als Betriebskos¬
ten zu tragen, wenn
1. die Wärme mit verbesserter Effizienz
entweder aus einer vom Wärmelieferanten
errichteten neuen Anlage oder aus einem
Wärmenetz geliefert wird und
2. die Kosten der Wärmelieferung die Be¬
triebskosten für die bisherige Eigenversor¬
gung mit Wärme oder Warmwasser nicht
übersteigen.
2Beträgt der Jahresnutzungsgrad der beste¬
henden Anlage vor der Umstellung mindestens
80 Prozent, kann sich der Wärmelieferant an¬
stelle der Maßnahmen nach Nummer 1 auf die
Verbesserung der Betnebsführung der Anlage
beschränken.
(2) Der Vermieter hat die Umstellung spä¬
testens drei Monate zuvor in Textform anzu¬
kündigen (Umstellungsankündigung).
(3) ’Die Bundesregierung wird ermächtigt,
durch Rechtsverordnung ohne Zustimmung
des Bundesrates Vorschriften für Wärmelie¬
ferverträge, die bei einer Umstellung nach
Absatz 1 geschlossen werden, sowie für die
Anforderungen nach den Absätzen 1 und 2
zu erlassen. 2Hierbei sind die Belange von
Vermietern, Mietern und Wärmelieferanten
angemessen zu berücksichtigen.
(4) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 556c entered into force on 1 July 2013 and serves to stipulate the conditions which
allow the lessee to bear the costs of heat supply as operational costs. The provision aims to
improve energy-efficiency and to save non-renewable resources by encouraging the so-called
contracting of heat supply to a third party but without burdening the lessee.
976
Hübner
Permissible rent amount upon lease commencement
§ 556d
Subchapter la
Agreements on rent amount upon
commencement of a lease in areas
with an overstretched housing
market
Unterkapitel la
Vereinbarungen über die Miethöhe
bei Mietbeginn in Gebieten mit
angespannten Wohnungsmärkten
§ 556d
Permissible rent amount upon
lease commencement;
empowerment to issue
an ordinance
(1) If a lease agreement is concluded for
residential space in an area with an over¬
stretched housing market, as determined by
a statutory’ order pursuant to subsection (2),
the rent at the start of the lease may exceed
the reference rent customary7 in the locality
(§ 558(2)) by a maximum of 10 percent.
(2) ’The Land governments are empowered
to determine areas with overstretched hous¬
ing markets through statutory’ orders with a
maximum duration of five years. 2Areas with
overstretched housing markets are present if
adequate supply of leased dwellings to the
population on reasonable conditions in a
municipality’ or part of a municipality is
particularly jeopardised. 5This can be the
case in particular when
1. rents are rising clearly faster than on
national average;
2. the average household spending on rent
clearly exceeds the national average,
3. the residential population is growing
while the necessary residential space is not
created by new building activity, or
4. there is high demand, but a low vacancy
rate.
4A statutory order in accordance with sen¬
tence 1 must enter into force by 31 December
2020 at the latest. 5Reasons must be given.
'’The reasons must explain the factual basis
on which an overstretched housing market is
assumed in each individual case. 7The reasons
must also indicate which measures the Lind
government will take in order to provide
relief in the area and time frame determined
in the statutory order in accordance with
sentence 1.
§ 556d
Zulässige Miethöhe bei
Mietbeginn;
Verordnungsermächtigung
(1) Wird ein Mietvertrag über Wohnraum
abgeschlossen, der in einem durch Rechtsver¬
ordnung nach Absatz 2 bestimmten Gebiet
mit einem angespannten Wohnungsmarkt
liegt, so darf die Miete zu Beginn des Miet¬
verhältnisses die ortsübliche Vergleichsmiete
(§ 558 Absatz 2) höchstens um 10 Prozent
übersteigen.
(2) ’Die Landesregierungen werden er¬
mächtigt, Gebiete mit angespannten Woh¬
nungsmärkten durch Rechtsverordnung für
die Dauer von höchstens fünf Jahren zu be¬
stimmen. 2Gebiete mit angespannten Woh¬
nungsmärkten liegen vor, wenn die ausrei¬
chende Versorgung der Bevölkerung mit
Mietwohnungen in einer Gemeinde oder ei¬
nem Teil der Gemeinde zu angemessenen
Bedingungen besonders gefährdet ist. 3Dies
kann insbesondere dann der Fall sein, wenn
1. die Mieten deutlich stärker steigen als im
bundesweiten Durchschnitt,
2. die durchschnittliche Mietbelastung der
Haushalte den bundesweiten Durchschnitt
deutlich übersteigt,
3. die Wohnbevölkerung wächst, ohne dass
durch Neubautätigkeit insoweit erforderli¬
cher Wohnraum geschaffen wird, oder
4. geringer Leerstand bei großer Nachfrage
besteht.
4Eine Rcchtsverordnung nach Satz 1 muss
spätestens am 31. Dezember 2020 in Kraft
treten. 5Sie muss begründet werden. 6Aus der
Begründung muss sich ergeben, auf Grund
welcher Tatsachen ein Gebiet mit einem an¬
gespannten Wohnungsmarkt im Einzelfall
vorliegt. 7Fcrner muss sich aus der Begrün¬
dung ergeben, welche Maßnahmen die Lin¬
desregierung in dem nach Satz 1 durch die
Rcchtsverordnung jeweils bestimmten Gebiet
und Zeitraum ergreifen wird, um Abhilfe zu
schaffen.
Hübner
977
§ 556g
Division 8. Particular types of obligations
§ 556e
Consideration of prior rent or of
modernisation undertaken
(1) lIf the rent that was due to be paid by
the previous lessee (prior rent)» is higher than
the rent permitted under § 556d(l), rent may
be agreed up to the amount of the prior rent.
2Rent reductions as well as such rent in¬
creases which had been agreed with the pre¬
vious lessee during the last year prior to
termination of the lease» are not to be con¬
sidered in calculating the prior rent.
(2) ’If the lessor has undertaken modernisa¬
tion measures within the meaning of § 555b in
the three years before the beginning of the
lease, the rent permitted under § 556d(l) may
be exceeded by the amount which would result
from an increase in rent under § 559(1) to (3a)
and § 559a(l) to (4). 2The calculation accord¬
ing to sentence 1 is to be based on the refer¬
ence rent customary in the locality (§ 558(2))
which would apply but for the modernisation.
§ 556e
Berücksichtigung der Vormiete
oder einer durchgeführten
Modernisierung
(1) ‘1st die Miete, die der vorherige Mieter
zuletzt schuldete (Vormiete), höher als die
nach § 556d Absatz 1 zulässige Miete, so darf
eine Miete bis zur Höhe der Vormiete verein¬
bart werden. 2Bei der Ermittlung der Vor¬
miete unberücksichtigt bleiben Mietmin¬
derungen sowie solche Mieterhöhungen, die
mit dem vorherigen Mieter innerhalb des
letzten Jahres vor Beendigung des Mietver¬
hältnisses vereinbart worden sind.
(2) ’Hat der Vermieter in den letzten drei
Jahren vor Beginn des Mietverhältnisses Mo¬
dernisierungsmaßnahmen im Sinne des
§ 555b durchgeführt, so darf die nach § 556d
Absatz 1 zulässige Miete um den Betrag über¬
schritten werden, der sich bei einer Mieterhö¬
hung nach § 559 Absatz 1 bis 3a und § 559a
Absatz 1 bis 4 ergäbe. 2Bei der Berechnung
nach Satz 1 ist von der ortsüblichen Ver¬
gleichsmiete (§ 558 Absatz 2) auszugehen,
die bei Beginn des Mietverhältnisses ohne
Berücksichtigung der Modernisierung anzu¬
setzen wäre.
§ 556f
Exceptions
’§ 556d does not apply to a dwelling which
was first used and leased after 1 October
2014. 2§§ 556d and 556e do not apply to the
first letting following comprehensive moder¬
nisation.
§ 556f
Ausnahmen
’§ 556d ist nicht anzuwenden auf eine
Wohnung, die nach dem l. Oktober 2014
erstmals genutzt und vermietet wird. 2Die
§§ 556d und 556e sind nicht anzuwenden auf
die erste Vermietung nach umfassender Mo¬
dernisierung.
§ 556g
Legal consequences; information
on rent
(1) ’An agreement deviating from the pro¬
visions of this subchapter to the detriment of
the lessee is ineffective. 2This applies to agree¬
ments on the rent amount on commencement
of the lease only as far as the permitted rent is
exceeded. 'The lessor is to return the excess
rent in accordance with the provisions on the
return of unjust enrichment. 814 and 817
sentence 2 do not apply.
§ S56g
Rechtsfolgen; Auskunft über die
Miete
(1) 'Eine zum Nachteil des Mieters von den
Vorschriften dieses Unterkapitels abwei¬
chende Vereinbarung ist unwirksam. 2Für
Vereinbarungen über die Miethöhe bei Miel-
beginn gilt dies nur, soweit die zulässige
Miete überschritten wird. 'Der Vermieter hat
dem Mieter zu viel gezahlte Miele nach den
Vorschriften über die Herausgabe einer «n
gerechtfertigten Bereicherung herauszugcben.
’’Die 814 und 817 Satz 2 sind nicht anzu¬
wenden.
978
Hübner
Legal consequences;
(la) ’To the extent that the admissibility
of the rent is based on § 556e or § 556f, the
lessor is obliged to provide the lessee, without
him having to request it, with the following
information before he submits his contract
declaration:
1. in the event of § 556e(l), the amount of
the prior rent one year before termination of
the prior lease,
2. in the event of § 556e(2), that moderni¬
sation measures were undertaken in the three
years before the beginning of the lease,
3. in the event of § 556f sentence 1, that the
dwelling was first used and leased after 1
October 2014,
4. in the event of § 556f sentence 2, that it
is the first letting after comprehensive mod¬
ernisation.
2To the extent that the lessor has not pro¬
vided the information, he may not invoke an
admissible rent pursuant to § 556e or § 556f.
3If the lessor has not provided the informa¬
tion and he has provided subsequently the
information in the required form, he may
only invoke an admissible rent pursuant to
§ 556e or § 556f two years after the subse¬
quent provision of the information. 4If the
lessor has not provided the information in
the required form, he may only invoke an
admissible rent when he has subsequently
provided the information in the required
form.
(2) ’The lessee may demand from the lessor
return of rent not due by virtue of §§ 556d
and 556e only if he has given notice of a
breach of the provisions of this sub-chapter
and the rent demanded became due after
receipt of the notice. 2If the lessor has pro¬
vided information in accordance with
subsection (la) sentence 1, the notification
must refer to this information.
(3) ’Upon demand from the lessee, the
lessor is obliged to give information of the
facts that are material for the admissibility of
the agreed rent in accordance with the provi¬
sions of this sub-chapter as far as these facts
are not generally accessible and the lessee can
provide the information without difficulty.
559b( 1) sentences 2 and 3 apply with ne¬
cessary modifications to the information on
modernisation measures (§ 556e(2).
(4) All declarations under subsections (2)
to (3) must be in text form.
information on rent § 556g
(la) ’Soweit die Zulässigkeit der Miete auf
§ 556e oder § 556f beruht, ist der Vermieter
verpflichtet, dem Mieter vor dessen Abgabe
der Vertragserklärung über Folgendes unauf¬
gefordert Auskunft zu erteilen:
1. im Fall des § 556e Absatz 1 darüber, wie
hoch die Vormiete ein Jahr vor Beendigung
des Vormietverhältnisses war,
2. im Fall des § 556e Absatz 2 darüber, dass
in den letzten drei Jahren vor Beginn des
Mietverhältnisses Modernisierungsmaßnah¬
men durchgeführt wurden,
3. im Fall des § 556f Satz 1 darüber, dass
die Wohnung nach dem 1. Oktober 2014 erst¬
mals genutzt und vermietet wurde,
4. im Fall des § 556f Satz 2 darüber, dass es
sich um die erste Vermietung nach umfassen¬
der Modernisierung handelt.
2Soweit der Vermieter die Auskunft nicht
erteilt hat, kann er sich nicht auf eine nach
§ 556e oder § 556f zulässige Miete berufen.
3Hat der Vermieter die Auskunft nicht erteilt
und hat er diese in der vorgeschriebenen
Form nachgeholt, kann er sich erst zwei Jahre
nach Nachholung der Auskunft auf eine nach
§ 556e oder § 556f zulässige Miete berufen.
4Hat der Vermieter die Auskunft nicht in der
vorgeschriebenen Form erteilt, so kann er
sich auf eine nach § 556e oder § 556f zuläs¬
sige Miete erst dann berufen, wenn er die
Auskunft in der vorgeschriebenen Form
nachgeholt hat.
(2) ’Der Mieter kann von dem Vermieter
eine nach den §§ 556d und 556e nicht ge¬
schuldete Miete nur zurückverlangen, wenn
er einen Verstoß gegen die Vorschriften die¬
ses Unterkapitels gerügt hat und die zurück¬
verlangte Miete nach Zugang der Rüge fällig
geworden ist. 2Hat der Vermieter eine Aus¬
kunft nach Absatz la Satz 1 erteilt, so muss
die Rüge sich auf diese Auskunft beziehen.
(3) ’Der Vermieter ist auf Verlangen des
Mieters verpflichtet, Auskunft über diejeni¬
gen Tatsachen zu erteilen, die für die Zuläs¬
sigkeit der vereinbarten Miete nach den Vor¬
schriften dieses Unterkapitels maßgeblich
sind, soweit diese Tatsachen nicht allgemein
zugänglich sind und der Vermieter hierüber
unschwer Auskunft geben kann. 2Für die
Auskunft über Modernisierungsmaßnahmen
(§ 556e Absatz 2) gilt § 559b Absatz 1 Satz 2
und 3 entsprechend.
(4) Sämtliche Erklärungen nach den Absät¬
zen la bis 3 bedürfen der Textform.
§ 556g(la) entered into force on 1.1.2019.
Hübner
979
§ 556g 1-4
Division 8. Particular types of obligations
A. Function
I. Purpose
1 §§ 556d-556g were included with effect from 1 June 2015. The legislator wanted to react
to a shortage of affordable residential space in certain urban areas leading to dramatic
increases of rents in case of new leases.* 1 * * The limitation of the permissible new rent is
expected to affect the market for new leases, but also to affect the increase in existing rents
(§ 558), as the new leases will be included in the reference rent customary in the locality
(ortsübliche Vergleichsmiete) under § 558? This act regulates the statutory control of
residential rents ''(Mietpreisbremse). It goes without saying that these rules are indispensable
to avoid a disadvantage for the lessee (Sub. 1 1” St.).
II. Scope of application
2 Such rules were unknown to the BGB. They apply in accordance with the limitations to
rent increases during the lease under §§ 557 et seq. It, obviously, only applies to leases for
residential space. A first constitutional complaint (Verfassungsbeschwerde) was dismissed by
the BVerfG in 2015? But it is expected that the court will have to decide on that matter once
again.
B. Explanation
I. Requirements
3 The centrepiece of the new rules is enclosed in § 555d setting the requirements of the
specification for the rent control. The government of the relevant Land is empowered to issue
a legislative decree to define the affected areas (§ 556d(2)). The affected areas are further
defined in § 556(2) 2nd and 3rd St. For example, areas where the increases of rents are well
above the federal average, the resident population is growing fast, but no corresponding
construction activity can be observed, or a low vacancy rate co-exists with massive demand,
(§ 556(2) 3rd St.). If the relevant government implements such regulation until end of 2020
the rent for new contracts for residential lease may not exceed 10 percent of the reference
rent customary in the locality (§ 558(2)). The calculation of such rent, however, is quite
complicated.4 An important issue is whether the change of party to the contract (e. g. a new
lessee) triggers the application of the new rules. This is denied by some authors? Such
interpretation would cause enormous possibilities to circumvent these rules.
II. Prior rent
4 If the previous lessee paid rent which by far exceeded the customary rent, the lessor may
rightly claim the prior rent since his legitimate expectation shall be protected (§ 556e(l))-
Such application also applies if the lessor modernised the apartment within the last three
years before the beginning of the lease contract (§ 556e(2)). Another exception concerns
leases of apartments which are firstly used and leased after 1 October 2014.
'BT-Drs. 18/3121 of 10.11.2014, p. 11.
1 Jauernig BGB/Teichmann, § 556d BGB mn. 1.
’ BVerfG 24.6.2015 - I BvR 1360/15, NJW 2015, 3024.
4 HK-BGB/Scheuch, 556d-g BGB inn, 4.
5 Blank, Die Regelungen zur Mictpreisbrcmse im Entwurf zum Mietrechtsnovellierungsgesetz,
2014, 641, 643.
980
Hübner
Stepped rent
§ 557a
III. Legal consequences
§ 556g contains the legal consequences of an overpayment pursuant to §§ 556e et seq. 5
§ 556g( 1) 2nd St. states that the reduction is fixed at the highest permissible amount of rent
while the rest of the contract remains untouched. The lessee may reclaim the overpaid rent
by way of restitution (§§ 812 et seq.).
Subchapter 2
Provisions on the rent amount
Unterkapitel 2
Regelungen über die Miethöhe
§557
Increases in agreement or by law
(1) During the lease, the parties may agree
an increase in rent.
(2) Future changes in the amount of rent
may be agreed by the parties to the contract
as stepped rent under § 557a or as indexed
rent under § 557b.
(3) Apart from this, the lessor may only
demand rent increases under the provisions
of §§ 558 to 560 to the extent that an increase
is not excluded by agreement or the exclusion
emerges from the circumstances.
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§557
Mieterhöhungen nach
Vereinbarung oder Gesetz
(1) Während des Mietverhältnisses können
die Parteien eine Erhöhung der Miete verein¬
baren.
(2) Künftige Änderungen der Miethöhe
können die Vertragsparteien als Staffelmiete
nach § 557a oder als Indexmiete nach § 557b
vereinbaren.
(3) Im Übrigen kann der Vermieter Miet¬
erhöhungen nur nach Maßgabe der §§ 558 bis
560 verlangen, soweit nicht eine Erhöhung
durch Vereinbarung ausgeschlossen ist oder
sich der Ausschluss aus den Umständen er¬
gibt.
(4) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
The provision summarises the only allowable ways to increase the rent together. Subs 1 1
and 2 refer to agreed rent increases through agreements, while Sub. 3 contains the landlord’s
claim to a rent increase in the comparable rental system (Vergleichsmietensystem). The clause
allows agreements on current rent increases and agreements of future rent increases only on
the basis of §§ 557a, 557b, 558-560. Other forms of future rent increases are inadmissible
(Sub. 4).
§ 557a
Stepped rent
(1) The rent may be agreed in writing in
varying amounts for specific periods of time;
in the agreement, each rent amount or each
increase must be indicated as a monetary
amount (stepped rent).
(2) ’The rent must remain unchanged on
each occasion for at least one year. 2During
the period of stepped rent, an increase under
§§ 558 to 559b is excluded.
§ 557a
Staffeliniete
(1) Die Miete kann für bestimmte Zeit¬
räume in unterschiedlicher Flöhe schriftlich
vereinbart werden; in der Vereinbarung ist
die jeweilige Miete oder die jeweilige Erhö¬
hung in einem Geldbetrag auszuweisen (Staf¬
felmiete).
(2) ‘Die Miete muss jeweils mindestens ein
Jahr unverändert bleiben. 2Während der
Laufzeit einer Staffelmiete ist eine Erhöhung
nach den §§ 558 bis 559b ausgeschlossen.
Hübner
981
Division 8. Particular types of obligations
§ 557b
(3) !The right of the lessee to give notice
may be excluded for a maximum of four years
after the stepped rent agreement is entered
into. 1 2Notice of termination is allowed to the
end of this period at the earliest.
(4) ’§§ 556d to 556g are to be applied to
each step within a stepped rent agreement.
2The time material for the calculation of the
permitted increase of the second and all
further steps pursuant to § 556d(l) is not
the start of the lease but the time when the
first rent payment within each step is due. 3 A
valid increase in a previous step remains un¬
changed.
(5) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
(3) ’Das Kündigungsrecht des Mieters
kann für höchstens vier Jahre seit Abschluss
der Staffelmietvereinbarung ausgeschlossen
werden. 2Dic Kündigung ist frühestens zum
Ablauf dieses Zeitraums zulässig.
(4) ’Die §§ 556d bis 556g sind auf jede
Mietstaffel anzuwenden. Maßgeblich für die
Berechnung der nach § 556d Absatz 1 zuläs¬
sigen Höhe der zweiten und aller weiteren
Mietstaffeln ist statt des Beginns des Mietver¬
hältnisses der Zeitpunkt, zu dem die erste
Miete der jeweiligen Mietstaffel fällig wird.
3Die in einer vorangegangenen Mietstaffel
wirksam begründete Miethöhe bleibt erhal¬
ten.
(5) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Explanation
I. Stepped rent
1 A stepped rent is an adjustment (usually increase) of the rent in amount according to
amounts stated at fixed times at intervals of at least one year (Subs 1 and 2). The agreement
may be made after the conclusion of the lease contract and must be made in writing (§ 126).
By virtue of the agreement entered into (i.e. without any additional declaration), the rent will
be modified, i.e. raised to the extent intended, regardless of the market rent.1
II. Exclusion of termination
2 The tenant’s ordinary termination right (§ 573c) can also be excluded by general terms
and conditions2 up to the expiry of the four-year period since conclusion of the agreement on
stepped rent.
III. Other increases
3 Other forms of rent increase are permitted only for increases in operating costs in
accordance with § 560, i.e. not in case of modernisation pursuant to § 559 (cf. Sub. 2
2nd St.)3 These limits of rent increase are mandatory in favour of the lessee (Sub. 4).
§ 557b
Indexed rent
(1) The parties to the contract may agree in
writing that the rent is to be determined by
means of the price index for the cost of living
of all private households in Germany com¬
puted by the Federal Statistics Office [Statis¬
tisches Bundesamt] (indexed rent).
§ 557b
Indexmiete
(1) Die Vertragsparteien können schriftlich
vereinbaren, dass die Miete durch den vom
Statistischen Bundesamt ermittelten Preis¬
index für die Lebenshaltung aller privaten
Haushalte in Deutschland bestimmt wird (In¬
dexmiete).
1 KG 1.2.2001 8 RE-Mict 10411/00, NJW-RR 2001, 871; BGH 27.10.2004 - XII ZR 175/02. NJW-RB
>05, 236.
2 BGH 23.11.2011 - Vlll ZR 120/11, NJW 2012, 521.
’ Jauernig BGB/Teichmann, § 557a BGB mn. 3.
982
Hübner
Increase in rent up to the reference rent
§558
(2) 1 While an indexed rent is applicable,
the rent, except tor increases under 559 to
560, must remain unchanged for at least one
year at a time. 2An increase under § 559 may
only be demanded to the extent that the
lessor has carried out structural measures
due to circumstances for which he is not
responsible. 3An increase under § 558 is ex¬
cluded.
(3) ’A change in rent under subsection (1)
must be made by declaration in text form. In
this declaration, the change in the price index
that has occurred as well as the rent in the
individual case or the increase must be indi¬
cated as a monetary amount. 2The revised
rent must be paid at the commencement of
the second month beginning after receipt of
the declaration.
(4) §§ 556d to 556g only apply to the base
rent in an agreement on indexed rent
(5) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
(2) ’Während der Geltung einer Indexmiete
muss die Miete, von Erhöhungen nach den
559 bis 560 abgesehen, jeweils mindestens
ein Jahr unverändert bleiben. 2Eine Erhöhung
nach § 559 kann nur verlangt werden, soweit
der Vermieter bauliche Maßnahmen auf
Grund von Umständen durchgeführt hat, die
er nicht zu vertreten hat. JEine Erhöhung nach
§ 558 ist ausgeschlossen.
(3) ’Eine Änderung der Miete nach
Absatz 1 muss durch Erklärung in Textform
geltend gemacht werden. Dabei sind die ein¬
getretene Änderung des Preisindexes sowie
die jeweilige Miete oder die Erhöhung in
einem Geldbetrag anzugeben. 2Dic geänderte
Miete ist mit Beginn des übernächsten Mo¬
nats nach dem Zugang der Erklärung zu ent¬
richten.
(4) Die §§ 556d bis 556g sind nur auf die
Ausgangsmiete einer Indexmietvereinbarung
anzuwenden.
(5) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Explanation
I. Indexed rent
The lessor is to be allowed to receive in long-term contracts his return from a tenancy 1
without relying on the complicated procedure under § 558 with its limits. This indexed rent
can be made as an agreement on the right of both parties to require an adjustment of the
lease to the index referred to in the schedule at intervals of at least one year.1 The upper limit
of the increase is the percentage increase of the index since conclusion of the agreement or
the first rent adjustment.2 The agreement may be made after the conclusion of the lease
contract and must be made in writing (§ 126).
IL Other increases
Other forms of rent increase are permitted only for increases in case of modernisation 2
pursuant to § 559 if the lessor has carried out structural measures due to circumstances for
which he is not responsible or for increases in operating costs in accordance with § 560?
These limits of rent increase are mandatory in favour of the lessee (Sub. 5).
§558
Increase in rent up to the
reference rent customary in the
locality
(1) 'The lessor may demand approval of an
increase in rent up to the reference rent
customary in the locality if> at the time when
§558
Mieterhöhung bis zur ortsüblichen
Verglcichsmiete
(1) 'Der Vermieter kann die Zustimmung
zu einer Erhöhung der Miete bis zur ortsüb¬
lichen Vcrgleichsmlete verlangen, wenn die
1 Jauernig BGB/Teichmann, Jj 557b BGH mn. 2.
2 Jauernig BGB/J eichmann, tj 557b BGB mn. 2.
’ HK BGB/Scheuch, (j 557b BGB mn. K.
Hübner qgt
Division 8. Particular types of obligations
§558
the increase is to occur» the rent has remained
unchanged for fifteen months. 2The demand
for a rent increase may be made at the earliest
one year after the most recent rent increase.
Increases under §§ 559 to 560 are not taken
into account.
(2) ‘The reference rent customary in the
locality is formed from the usual payments
that have been agreed or, with the exception
of increases under § 560, that have been
changed in the last four years in the munici¬
pality or in a comparable municipality for
residential space that is comparable in type,
size, furnishings, quality and location, includ¬
ing the energy systems and characteristics.
2Exempted from this is residential space
where the amount of rent has been stipulated
by law or in connection with a promise of
sponsorship.
(3) lIn the case of increases under
subsection (1), the rent may not be raised
within three years, except for increases under
§§ 559 to 560, by more than twenty percent
(capping limit). 2The percentage in accor¬
dance with sentence 1 is 15 percent if the
adequate supply of the population with
rented dwellings under suitable conditions in
a municipality or a part of a municipality is
particularly placed at risk and these areas are
determined in accordance with sentence 3.
3The Land Governments are herewith em¬
powered to determine these areas by means
of a legal ordinance for a maximum duration
of five years in each case.
(4) ‘The capping limit does not apply
1. if a duty of the lessee to make compensa¬
tion payments under the provisions on the
reduction of improper subsidisation in hous¬
ing has lapsed because the public-sector con¬
nection has ceased, and
2. to the extent that the increase does not
exceed the amount of the most recently pay¬
able compensation payment.
2The lessor may at the earliest four months
prior to the cessation of the public-sector
connection demand that the lessee inform
him within one month of the duly to pay
compensation and of its amount. ^Sentence 1
applies with the necessary modifications if
the duty of the lessee to make a compensation
payment under 34 to 37 of the Residential
Housing Subsidisation Act [Wohnraumför-
derungsgesetz] and provisions of Land law
issued thereunder has lapsed due to the re¬
peal of rent control.
(5) From the annual amount that would
result in the case of an increase to the refer-
Miete in dem Zeitpunkt, zu dem die Erhö¬
hung eintreten soll, seit 15 Monaten unverän¬
dert ist. 2Das Mieterhöhungsverlangen kann
frühestens ein Jahr nach der letzten Miet¬
erhöhung geltend gemacht werden. Erhöhun¬
gen nach den §§ 559 bis 560 werden nicht
berücksichtigt.
(2) ‘Die ortsübliche Vergieichsmiete wird
gebildet aus den üblichen Entgelten, die in
der Gemeinde oder einer vergleichbaren Ge¬
meinde für Wohnraum vergleichbarer Art,
Größe, Ausstattung, Beschaffenheit und Lage
einschließlich der energetischen Ausstattung
und Beschaffenheit in den letzten vier Jahren
vereinbart oder, von Erhöhungen nach § 560
abgesehen, geändert worden sind. Aus¬
genommen ist Wohnraum, bei dem die Miet¬
höhe durch Gesetz oder im Zusammenhang
mit einer Förderzusage festgelegt worden ist.
(3) ‘Bei Erhöhungen nach Absatz 1 darf
sich die Miete innerhalb von drei Jahren, von
Erhöhungen nach den §§ 559 bis 560 abge¬
sehen, nicht um mehr als 20 vom Hundert
erhöhen (Kappungsgrenze). 2Der Prozentsatz
nach Satz 1 beträgt 15 vom Hundert, wenn
die ausreichende Versorgung der Bevölke¬
rung mit Mietwohnungen zu angemessenen
Bedingungen in einer Gemeinde oder einem
Teil einer Gemeinde besonders gefährdet ist
und diese Gebiete nach Satz 3 bestimmt sind.
3Die Landesregierungen werden ermächtigt,
diese Gebiete durch Rechtsverordnung für
die Dauer von jeweils höchstens fünf Jahren
zu bestimmen.
(4) ‘Die Kappungsgrenze gilt nicht,
1. wenn eine Verpflichtung des Mieters zur
Ausgleichszahlung nach den Vorschriften
über den Abbau der Fehlsubventionierung
im Wohnungswesen wegen des Wegfalls der
Öffentlichen Bindung erloschen ist und
2. soweit die Erhöhung den Betrag der
zuletzt zu entrichtenden Ausgleichszahlung
nicht übersteigt.
2Der Vermieter kann vom Mieter frühes¬
tens vier Monate vor dem Wegfall der öffent¬
lichen Bindung verlangen, ihm innerhalb ei¬
nes Monats über die Verpflichtung iur
Ausgleichszahliing und über deren Höhe Aus¬
kunft zu erteilen. 'Satz 1 gilt entsprechend»
wenn die Verpflichtung des Mieters zur Leis
tung einer Aiisgleichszahhing nach den §§ -
bis 37 des Wohnraumförderungsgesetzes u«
den hierzu ergangenen landesrechtlichen
Vorschriften wegen Wegfalls der Mie‘bin‘
dung erloschen ist. ...
(5) Von dein Jahresbetrag, der sich *
einer Erhöhung auf die ortsübliche e
984
Hübner
Increase in rent up to the reference rent
1-5 § 558
ence rent customary in the locality« third-
party funds within the meaning of § 559a are
to be deducted« in the case of § 559a(l) in the
amount of eight percent of the subsidy.
(6) A deviating agreement to the disadvan¬
tage ot the lessee is ineffective.
gleichsmiete ergäbe, sind Drittmittel im
Sinne des § 559a abzuziehen, im Falle des
§ 559a Absatz 1 mit 8 Prozent des Zuschus¬
ses.
(6) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Function
This provision supplements § 573: if the lessor can only terminate the contract in the event 1
ot rather extraordinary reasons he must be given the opportunity to raise the rent in the
course ot the lease to compensate for inflation, but also in the light of rising rents on the
market. This, in turn, must be subject to limitations in the sense that the lessor not just
simply profits economically.1 The provision is indispensable insofar as it may not be deviated
from to the disadvantage of the lessee (Sub. 6).
B. Explanation
I. Approval
The law does not provide the lessor with any right to increase the rent unilaterally, but a 2
right to the lessee’s approval to the rent increase, e.g. to the amendment of the contract,
considering the procedural requirements of § 558a and § 558b.
II. Waiting period
In order to claim a rent increase, the lessor must, under Sub. 1 1st St., wait a period of 15 3
months from the initial payment or the maturity of the rent at current rate until the increase
(waiting period). Increases under §§ 590, 560 are not disregarded for that purpose (Sub. 1
3rd St.). However, any further increase is barred for a period of one year from the last increase
(minimum period) (Sub. 1 2nd St.). This aims at the protection of the lessee against increases
in rapid succession. The difference between the waiting period and the minimum period is
explained by the fact that the lessee is to be given a period of consideration whether he wishes
to comply with the request (cf. § 558b, 561).
III. Reference rent
The rent up to the reference rent customary in the locality is established under Sub. 2 by 4
five factors determining the residential space including type, size, furnishings, quality and
location, including the energy systems and characteristics during the last four years. The
reference rents are calculated from the average of all rents for comparable living space.2 3
IV. Cap
Sub. 3 contains another limitation, the capping limit: the rent may not be raised by more 5
than 20 percent within three years, except for increases under §§ 559 to 560. It is a second
limit besides the 10 percent limitation of the reference rent under Sub. 1. It has the effect that
the rent increase may not be more than a certain percentage of the initial lease three years
ago, even if the reference leases are higher? T his means that the capping limit only becomes
relevant where the reference rent would justify a higher increase. Sub. 3 2nd St. contains
1 Jauernig BGB/Teichmann, § 558 BGB mn. 1.
2 BGH 29.2,2012 - VIII ZR 346/10, NJW 2012, 1351.
3 HK-BGB/Scheuch, § 558 BGB mn. 4.
Hühner
985
§ 559 Division 8. Particular types of obligations
another option for governments of the Lander to decrease the capping limit to 15 percent by
means of legislative decree.
V. Termination
6 § 561 contains an indispensable termination right of the lessee for cause by special notice
to the end of the second month after the lessor asserts a right to a rent increase under §§ 558
or 559. The lessee, therefore, is entitled to a reflection period of two months commencing
with the receipt of the declaration of increase.
§559
Rent increase after
modernisation measures
(1) If the lessor has carried out modernisa¬
tion measures within the meaning of § 555b
Nos 1, 3, 4, 5 or 6, he may increase the annual
rent by 8 percent of the costs spent on the
dwelling.
(2) Costs which would have been necessary
for structural maintenance measures do not
belong among the costs expended in accor¬
dance with subsection (1); where necessary,
they arc to be ascertained by estimation.
(3) If modernisation measures are carried
out for more than one dwelling, the costs
must be apportioned reasonably among the
individual dwellings.
*(3a) For increases of the annual rent in
accordance with subsection 1, the monthly
rent may not increase by more than 3 euros
per square metre of floor space within six
years, apart from increases in accordance
with § 558 or § 560. If the monthly rent
before the rent increase is less that 7 euros
per square metre of floor space, in derogation
from sentence 1, it may not increase by more
than 2 euros per square metre of floor space.
(4) ’The rent increase is ruled out where,
also taking account of the likely future oper¬
ating costs for the lessee, it would signify a
hardship which cannot be justified, even tak¬
ing account of the legitimate interests of the
lessor. 1 2No consideration in accordance with
sentence 1 shall take place if
1. the property was merely restored to a
generally customary condition, or
2. the modernisation measure was carried
out as a result of circumstances for which the
lessor was not responsible.
(5) ’Circumstances which constitute a
hardship in accordance with subsection (4)
sentence 1 are only to be taken into account
§559
Mieterhöhung nach
Modernisierungsmaßnahmen
(1) Hat der Vermieter Modernisierungs¬
maßnahmen im Sinne des § 555b Nummer 1,
3, 4, 5 oder 6 durchgeführt, so kann er die
jährliche Miete um 8 Prozent der für die
Wohnung aufgewendeten Kosten erhöhen.
(2) Kosten, die für Erhaltungsmaßnahmen
erforderlich gewesen wären, gehören nicht zu
den aufgewendeten Kosten nach Absatz 1; sie
sind, soweit erforderlich, durch Schätzung zu
ermitteln.
(3) Werden Modernisierungsmaßnahmen
für mehrere Wohnungen durchgeführt, so
sind die Kosten angemessen auf die einzelnen
Wohnungen aufzuteilen.
(3a) ’Bei Erhöhungen der jährlichen Miete
nach Absatz 1 darf sich die monatliche Miete
innerhalb von sechs fahren, von Erhöhungen
nach § 558 oder § 560 abgesehen, nicht um
mehr als 3 Euro je Quadratmeter Wohnfläche
erhöhen. 2Beträgt die monatliche Miete vor
der Mieterhöhung weniger als 7 Euro pro
Quadratmeter Wohnfläche, so darf sie sich
abweichend von Satz 1 nicht um mehr als
2 Euro je Quadratmeter Wohnfläche erhöhen.
(4) ’Die Mieterhöhung ist ausgeschlossen,
soweit sie auch unter Berücksichtigung der
voraussichtlichen künftigen Betriebskosten
für den Mieter eine Härte bedeuten würde,
die auch unter Würdigung der berechtigten
Interessen des Vermieters nicht zu rechtfer¬
tigen ist. 2Einc Abwägung nach Satz 1 fio
nicht statt, wenn .
1. die Mietsache lediglich in einen Zustan
versetzt wurde, der allgemein üblich ist, oder
2. die Modernisierungsinaßnahmc au
Grund von Umständen diirchgeführt ivunc»
die der Vermieter nicht zu vertreten hatte.
(5) ’Umstände, die eine Härte
Absatz 4 Satz l begründen, sind nur au
rücksichtigen, wenn sie nach § 555d Absa r
* § 559(3a) entered into force on 1,1.2019.
986
Hübner
Crediting of third-party funds
§ 559a
if they have been notified in good time in
accordance with § 555d(3) to (5). 2The provi¬
sions on the cut-off period in accordance with
sentence 1 are not to be applied if the de facto
rent increase exceeds that which had been
announced by more than ten percent.
(6) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
bis 5 rechtzeitig mitgeteilt worden sind. 2Die
Bestimmungen über die Ausschlussfrist nach
Satz 1 sind nicht anzuwenden, wenn die tat¬
sächliche Mieterhöhung die angekündigte um
mehr als 10 Prozent übersteigt.
(6) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Function
The provision authorises the lessor to pass on the costs for modernisation measures under 1
§ 555b Nos 1, 3-5, or 6 to the lessee. This should trigger the lessor's interest in modernising
his apartment. While §§ 555a et seq. regulate the lessee’s duty to tolerate the modernisation
measures, § 559 only refers to the right of the lessor to increase the rent because of the
modernisation measure. As usual, there may be no deviations from this provision to the
disadvantage of the lessee (Sub. 6).
B. Explanation
I. Rent increase
Sub. 1 includes not only the lessor’s claim for the lessee’s consent to the rent increase (cf. 2
§ 558(1)) but the lessor is also entitled to unilaterally declare the rent increase pursuant to
§ 559b( 1) if the increase is calculated on the basis of the costs incurred and explained by the
lessor.1 According to § 559b(2) the lessee owes the increased rent from the beginning of the
third month after receipt of the declaration.
The lessor may increase the rent by 8 percent of the costs spent for the relevant apartment. 3
The lessee is obliged to tolerate measures under § 555b Nos 2 and 7 but they do not entitle
the lessor to increase the rent.
II. Limitations
Subs 4 and 5 are at the heart of the concept of modernisation as they provide the only 4
possibility of taking account the lessee’s (economic) interests. They limit the possibilities to
increase the rent if it is economically unbearable for the lessee.
§ 559a
Crediting of third-party funds
(1) Costs assumed by the lessee or assumed
by a third party for the lessee or covered by
subsidies from public authorities do not form
part of costs spent within the meaning of
§ 559.
(2) 1 If the costs of the modernisation mea¬
sures are covered in full or in part by low-
interest or interest-free loans from public
authorities, then the amount of the increase
under § 559 is reduced by the annual amount
of the interest reduction. 2The latter is calcu-
§ 559a
Anrechnung von Drittmitteln
(1) Kosten, die vom Mieter oder für diesen
von einem Dritten übernommen oder die mit
Zuschüssen aus öffentlichen Haushalten ge¬
deckt werden, gehören nicht zu den aufge¬
wendeten Kosten im Sinne des § 559.
(2) ‘Werden die Kosten für die Moderni¬
sierungsmaßnahmen ganz oder teilweise
durch zinsverbilligte oder zinslose Darlehen
aus öffentlichen Ilaushalten gedeckt, so ver¬
ringert sich der Erhöhungsbetrag nach § 559
um den Jahresbetrag der Zinsermäßigung.
1 HK BGB/Scheuch, § 559 BGB mn. 2.
Hübner
987
Division 8. Particular types of obligations
§ 559c
lated from tlie difference between the reduced
rate of interest and the going market interest
rate for the original amount of the loan. 3The
going market interest rate for first-priority
mortgages at the date when the modernisa¬
tion measures ended is conclusive. 4If subsi¬
dies or loans are used to cover ongoing out¬
lays, then the amount of the increase is
reduced by the annual amount of the subsidy
or loan.
(3) ’A lessee loan, an advance rent payment
or a service performed for the lessee by a
third party for the modernisation measures
are equivalent to a loan from public autho¬
rities. 2Funds from the financial institutions
of the Federal Government or of a Land are
deemed to be funds from public authorities.
(4) If it cannot be ascertained in what
amount subsidies or loans have been granted
for the individual dwellings, then they must
be apportioned according to the ratio of costs
spent on individual dwellings.
(5) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 559b
Assertion of an increase; effect of
declaration of increase
(1) ’The rent increase under § 559 must be
declared to the lessee in text form. 2The
declaration is only effective if in it the in¬
crease is calculated on the basis of the costs
incurred and explained in accordance with
the requirements of §§ 559 and 559a. 3§ 555c
(3) applies with the necessary modifications.
(2) ‘The lessee owes the increased rent
from the beginning of the third month after
receipt of the declaration. 2The period is ex¬
tended by six months
1. if the lessor has failed to notify the lessee
of the modernisation measure as required in
accordance with the provisions contained in
§ 555c( 1) and (3) to (5), or
2. if the de facto rent increase is more than
ten percent greater than the increase notified.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
•§ 559c
Simplified procedure
(1) 'If the costs claimed for the modernisa¬
tion measure for the dwelling do not exceed
2Dicser wird errechnet aus dem Unterschied
zwischen dem ermäßigten Zinssatz und dem
marktüblichen Zinssatz für den Ursprungs¬
betrag des Darlehens. Maßgebend ist der
marktübliche Zinssatz für erstrangige Hypo¬
theken zum Zeitpunkt der Beendigung der
Modernisierungsmaßnahmen. 4Werden Zu¬
schüsse oder Darlehen zur Deckung von lau¬
fenden Aufwendungen gewährt, so verringert
sich der Erhöhungsbetrag um den Jahres¬
betrag des Zuschusses oder Darlehens.
(3) ‘Ein Mieterdariehen, eine Mietvoraus¬
zahlung oder eine von einem Dritten für den
Mieter erbrachte Leistung für die Modemisie-
rungsmaßnahmen stehen einem Darlehen aus
öffentlichen Haushalten gleich. 2Mittel der
Finanzierungsinstitute des Bundes oder eines
Landes gelten als Mittel aus öffentlichen
Haushalten.
(4) Kann nicht festgestellt werden, in welcher
Höhe Zuschüsse oder Darlehen für die einzel¬
nen Wohnungen gewährt worden sind, so sind
sie nach dem Verhältnis der für die einzelnen
Wohnungen aufgewendeten Kosten aufzuteilen.
(5) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 559b
Geltendmachung der Erhöhung,
Wirkung der Erhöhungserklärung
(1) ‘Die Mieterhöhung nach § 559 ist dem
Mieter in Textform zu erklären. 2Die Erklä¬
rung ist nur wirksam, wenn in ihr die Erhö¬
hung auf Grund der entstandenen Kosten
berechnet und entsprechend den Vorausset¬
zungen der §§ 559 und 559a erläutert wird.
3§ 555c Absatz 3 gilt entsprechend.
(2) ‘Der Mieter schuldet die erhöhte Miete
mit Beginn des dritten Monats nach dem
Zugang der Erklärung. 2Die Frist verlängert
sich um sechs Monate, wenn
1. der Vermieter dem Mieter die Moderni¬
sierungsmaßnahme nicht nach den Vorschrif¬
ten des § 555c Absatz 1 und 3 bis 5 ange¬
kündigt hat oder
2. die tatsächliche Mieterhöhung die ange¬
kündigte um mehr als 10 Prozent übersteigt
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 559c
Vereinfachtes Verfahren
(1) ‘Übersteigen die für die Modcrnisie-
rungsmaßnahme geltend gemachten Kosten
‘ § 559c entered into force on 1,1.2019.
988
Hübner
Simplified procedure
10,000 euros before deduction of the lump
sum according to sentence 2, the lessor may
calculate the rent increase according to a
simplified procedure. 2 As costs which would
have been necessary for the structural main¬
tenance measures (§ 559(2)), 30 percent of
the costs asserted in accordance with sentence
1 shall be deducted as a lump sum. 3§ 559(4)
and § 559a(2) sentences 1 to 3 do not apply.
(2) If the lessor has already increased the
rent in the last five years in accordance with
subsection 1 or section 559, the costs, which
under subsection 1 sentence 1 may be as¬
serted for further modernisation measures,
are reduced by the costs which would have
been asserted in this earlier procedure for
modernisation measures.
(3) !§ 559b applies with the necessary mod¬
ifications to the simplified procedure. 2The
lessor must state in the declaration of rent
increase that he has calculated the rent in¬
crease in accordance with the simplified pro¬
cedure.
(4) !If the lessor has asserted a rent in¬
crease under the simplified procedure, he
may not assert any rent increases in accor¬
dance with § 559 within five years after re¬
ceipt of the declaration of rent increase by the
lessee. 2This does not apply
1. to the extent that in this period the
lessor has undertaken modernisation mea¬
sures due to a legal obligation and in assert¬
ing the rent increase in the simplified proce¬
dure he was not aware or did not have to be
aware of this obligation,
2. unless a modernisation measure is un¬
dertaken on the basis of a resolution of dwell¬
ing owners, which was adopted at the earliest
two years after receipt by the lessee of the
declaration of rent increase.
(5) For the modernisation announcement,
which shall lead to a rent increase in accor¬
dance with the simplified procedure, § 555c
applies with the proviso, that
1. the lessor must state in the modernisa¬
tion announcement that he is using the sim¬
plified procedure,
2. it does not require information of the
anticipated future operating costs in accor¬
dance with § 555c(l) sentence 2 No. 3.
§ 559c
für die Wohnung vor Abzug der Pauschale
nach Satz 2 10 000 Euro nicht, so kann der
Vermieter die Mieterhöhung nach einem ver¬
einfachten Verfahren berechnen. 2Als Kosten,
die für Erhaltungsmaßnahmen erforderlich
gewesen wären (§ 559 Absatz 2), werden pau¬
schal 30 Prozent der nach Satz 1 geltend ge¬
machten Kosten abgezogen. 3§ 559 Absatz 4
und § 559a Absatz 2 Satz 1 bis 3 finden keine
Anwendung.
(2) Hat der Vermieter die Miete in den
letzten fünf fahren bereits nach Absatz 1
oder nach § 559 erhöht, so mindern sich die
Kosten, die nach Absatz 1 Satz 1 für die wei¬
tere Modernisierungsmaßnahme geltend ge¬
macht werden können, um die Kosten, die in
diesen früheren Verfahren für Modernisie¬
rungsmaßnahmen geltend gemacht wurden.
(3) ’§ 559b gilt für das vereinfachte Ver¬
fahren entsprechend. 2Der Vermieter muss in
der Mieterhöhungserklärung angeben, dass er
die Mieterhöhung nach dem vereinfachten
Verfahren berechnet hat.
(4) lHat der Vermieter eine Mieterhöhung
im vereinfachten Verfahren gehend gemacht,
so kann er innerhalb von fünf Jahren nach
Zugang der Mieterhöhungserklärung beim
Mieter keine Mieterhöhungen nach § 559 gel¬
tend machen. 2Dies gilt nicht,
1. soweit der Vermieter in diesem Zeitraum
Modemisierungsmaßnahmen auf Grund einer
gesetzlichen Verpflichtung durchzuführen hat
und er diese Verpflichtung bei Geltendma¬
chung der Mieterhöhung im vereinfachten
Verfahren nicht kannte oder kennen musste,
2. sofern eine Modernisierungsmaßnahme
auf Grund eines Beschlusses von Wohnungs¬
eigentümern durchgeführt wird, der frühes¬
tens zwei Jahre nach Zugang der Mieterhö¬
hungserklärung beim Mieter gefasst wurde.
(5) Für die Modernisierungsankündigung,
die zu einer Mieterhöhung nach dem verein¬
fachten Verfahren führen soll, gilt § 555c mit
den Maßgaben, dass
1. der Vermieter in der Modernisierungs¬
ankündigung angeben muss, dass er von dein
vereinfachten Verfahren Gebrauch macht,
2. es der Angabe der voraussichtlichen
künftigen Betriebskosten nach § 555c Ab¬
satz 1 Satz 2 Nummer 3 nicht bedarf.
Hübner
989
§560
Division 8. Particular types of obligations
’§ 559d
Breach of duty in announcing or
implementing a structural change
llt is presumed that the lessor hat breached
his duties arising from the obligation if
1. the structural change does not begin
within 12 months after its announced com¬
mencement date or, if no such information
has been provided, after receipt of the an¬
nouncement of the structural change,
2. the announcement pursuant to § 555c(l)
states an amount for the expected rent in¬
crease which would at least double the
monthly rent,
3. the structural change is implemented in
such a manner that is suitable to lead to
considerable, objectively unnecessary' burdens
on the lessee, or
4. the work is suspended for more than
twelve months after the start of the structural
change.
2This presumption does not apply if the
lessor shows that there is a comprehensible
objective reason for the behaviour in the in¬
dividual case.
§ 559d
Pflichtverletzungen bei
Ankündigung oder Durchführung
einer baulichen Veränderung
’Es wird vermutet, dass der Vermieter seine
Pflichten aus dem Schuldverhältnis verletzt
hat, wenn
1. mit der baulichen Veränderung nicht
innerhalb von zwölf Monaten nach deren
angekündigtem Beginn oder, wenn Angaben
hierzu nicht erfolgt sind, nach Zugang der
Ankündigung der baulichen Veränderung be¬
gonnen wird,
2. in der Ankündigung nach § 555c Absatz 1
ein Betrag für die zu erwartende Mieterhöhung
angegeben wird, durch den die monatliche
Miete mindestens verdoppelt würde,
3. die bauliche Veränderung in einer Weise
durchgeführt wird, die geeignet ist, zu erheb¬
lichen, objektiv nicht notwendigen Belastun¬
gen des Mieters zu führen, oder
4. die Arbeiten nach Beginn der baulichen
Veränderung mehr als zwölf Monate ruhen.
2Diese Vermutung gilt nicht, wenn der
Vermieter darlegt, dass für das Verhalten im
Einzelfall ein nachvollziehbarer objektiver
Grund vorliegt.
§560
Changes in operating costs
(1) ’In the case of a lump sum charge for
operating costs, the lessor is entitled to ap¬
portion increases in operating costs propor¬
tionately to the lessee by a declaration in text
form, to the extent that this has been agreed
in the lease agreement. 2The declaration is
only effective if the basis of the apportion¬
ment is referred to and explained in it.
(2) ’The lessee owes the part of the appor¬
tionment falling to him from the beginning of
the second month following the month in
which the declaration is made. 2To the extent
that the declaration is based on the fact that
operating costs have risen retroactively, it has
a retroactive effect from the date when the
operating costs rose, but at the earliest from
the beginning of the calendar year preceding
the year of the declaration, provided the lessor
makes the declaration within three months
after he first has knowledge of the increase.
§560
Veränderungen von
Betriebskosten
(1) ’Bei einer Betriebskostenpauschale ist
der Vermieter berechtigt, Erhöhungen der
Betriebskosten durch Erklärung in Textform
anteilig auf den Mieter umzulegen, soweit
dies im Mietvertrag vereinbart ist. 1 2Die Er¬
klärung ist nur wirksam, wenn in ihr der
Grund für die Umlage bezeichnet und erläu¬
tert wird.
(2) ’Der Mieter schuldet den auf ihn ent¬
fallenden Teil der Umlage mit Beginn des au
die Erklärung folgenden übernächsten M°"
nats. 2Soweit die Erklärung darauf beruht,
dass sich die Betriebskosten rückwirkend er¬
höht haben, wirkt sie auf den Zeitpunkt der
Erhöhung der Betriebskosten, höchstens je¬
doch auf den Beginn des der Erklärung
raiisgehenden Kalenderjahres zurück, soiern
der Vermieter die Erklärung innerhalb w>n
drei Monaten nach Kenntnis von der Er
hung abgibt.
’ § 559d entered into force on 1.1.2019.
990
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Special right of termination of the lessee
(3) ’If operating costs arc reduced, then the
lump sum tor operating costs must be re¬
duced accordingly from the date of such re¬
duction. 2The lessee must be informed of the
reduction without undue delay.
(4) If advance payments of operating costs
have been agreed, then, after a statement of
operating costs, each of the parties to the
contract may undertake an adjustment to a
reasonable amount by a declaration in text
form.
(5) In the case of changes in operating
costs, the principle of economic efficiency
must be observed.
(6) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
1 § 561
(3) ’Ermäßigen sich die Betriebskosten, so
ist eine Betriebskostcnpauschale vom Zeit¬
punkt der Ermäßigung an entsprechend he¬
rabzusetzen. 2Die Ermäßigung ist dem Mieter
unverzüglich mitzuteilen.
(4) Sind Bctricbskostenvorauszahlungen
vereinbart worden, so kann jede Vertragspar¬
tei nach einer Abrechnung durch Erklärung
in Textform eine Anpassung auf eine ange¬
messene Höhe vornehmen.
(5) Bei Veränderungen von Betriebskosten
ist der Grundsatz der Wirtschaftlichkeit zu
beachten.
(6) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 560 does not refer to the exceptional agreements including clauses in which a lump sum 1
payment tor operating costs (irrespective of actual consumption) has been made. The
standard contract contains a clause allocating costs to the actual consumption and an
agreement on advance payments (see § 556). There may be no deviations from this provision
which disadvantage the lessee (Sub. 6).
§561
Special right of termination of the
lessee following a rent increase
(1) ’If the lessor asserts a right to a rent
increase under 558 or 559, then, until the
end of the second month after receipt of the
declaration of the lessor, the lessee may ter¬
minate the lease for cause by special notice to
the end of the second month thereafter. 2If
the lessee gives notice of termination, then
the rent increase does not take effect.
(2) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§561
Sonderkündigungsrecht des
Mieters nach Mieterhöhung
(1) ’Macht der Vermieter eine Mieterhö¬
hung nach § 558 oder § 559 geltend, so kann
der Mieter bis zum Ablauf des zweiten Mo¬
nats nach dem Zugang der Erklärung des
Vermieters das Mietverhältnis außerordent¬
lich zum Ablauf des übernächsten Monats
kündigen. 2Kündigt der Mieter, so tritt die
Mieterhöhung nicht ein.
(2) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
The provision balances the adjustment of the rent to the (higher) local comparative rent 1
(§ 558) or due to modernisation measures (§ 559) with an extraordinary right of termination
of the lessee. In all other adjustments such as a stepped rent (§ 557a), an indexed rent
(§ 557b) or an increase in operating costs (§ 556) or a flat rate for operating costs (§ 560), the
lessee has no extraordinary right of termination.1 The standard is mandatory in favour of the
lessee (Sub. 2).
1 Jauermg BGB/Teichmann, § 561 BGB mn. 1.
Hühner
991
§ 562 1-3
Division 8. Particular types of obligations
Chapter 3
Security right of the lessor
Kapitel 3
Pfandrecht des Vermieters
§562
Extent of the security right
of the lessor
(1) 'The lessor, for his claims under the
lease, has a security right over things contrib¬
uted by the lessee. 2It does not extend to the
things that are not subject to attachment.
(2) The security right may not be asserted
for future compensation claims and for rent
for periods subsequent to the current and the
following year of the lease.
§562
Umfang des Vermieterpfandrechts
(1) !Der Vermieter hat für seine Forderun¬
gen aus dem Mietverhältnis ein Pfandrecht an
den eingebrachten Sachen des Mieters. 2Es
erstreckt sich nicht auf die Sachen, die der
Pfändung nicht unterliegen.
(2) Für künftige Entschädigungsforderun¬
gen und für die Miete für eine spätere Zeit als
das laufende und das folgende Mietjahr kann
das Pfandrecht nicht geltend gemacht wer¬
den.
A. Function
1 The lessor, who leaves the object to the lessee and thus has to surrender it to a foreign
sphere of influence, may be at considerable risk, even if a security such as a cash deposit is
agreed (cf. § 551). § 562 is intended to provide him with compensation through additional
security. The provision shall also apply to lease agreements on land and premises which are
not residential (§ 578(1) 2nd St.). The lessor may waive the right of lien (Pfandrecht), the
lessee cannot extend it beyond the limitations of Sub. 1 2nd St. A pledge of individual items to
the landlord pursuant to §§ 1205 et seq. according to an individual agreement remains
permissible in the same regard as the (temporary) transfer of security for hedging purpose
(Sich eru ngsü bereign u ng).
B. Context
2 The lessor’s right of lien is a dispossessed (besitzloses) statutory right of lien in accordance
with § 1257. It is an other right in the sense of § 823(1) and also protected by criminal law
(cf. § 289 StGB); an infringement can trigger claims arising from § 812(1) lsl St. 2nd Alt.
C. Explanation
L Claims
3 The secured claims are limited in objective and temporary respect. First, it covers all claims
arising from the (effective) lease relationship arising at the time of assertion such as those tor
rent, additional costs, claims for damages, law enforcement costs, or contractual penalties.
Compensation claims must be sufficiently precise and payable at the time of assertion.1
However, the lien can be repeatedly exercised until the end of the rental agreement, thus
extending the temporal range. For the rent, the lien also applies to future claims, but only tor
the remainder of the current and following rental year (not calendar year).
* BGH 8.3.1972 - VIII ZR 183/70. NJW 1972, 721.
992
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Extinction of the security right of the lessor
1 § 562a
IL Security right
The security right (lien) is created only on things owned by the lessee (§ 90), not on 4
claims. Ownership in this sense means sole ownership. In case of co-ownership in fractions
(Miteigentum nach Bruchteilen), the part belonging to the lessee is subject to the lien.2 In case
ot a community of joint owners (Gesamthandgemeinschaft), the lien is only established if all
owners are also lessees.3 A lien is not established on foreign property, even if the lessor is in
good faith. Vice versa, the lien may be deleted by a bona fide and unencumbered acquisition
(gutgläubiger lastenfreier Erwerb) under §§ 929, 932, 936.4
III. Thing
The thing must be contributed by the lessee. The thing must be brought into the rented 5
premises or produced there with the lessee’s intention for a permanent purpose.5 Note the
limitations by Sub. 1 2nd St. referring to §§811, 811c, 812 ZPO for socially unacceptable
attachments.
IV. Sale
The lessor is entitled to realise the contributed objects via sale of lien under §§ 1257, 1228, 6
133 et seq. The claim arising from the lease contract must therefore be due (§ 1228(2)). The
lessee must hand over the thing according to § 1231. If the lessee unjustifiably removes the
object, the lessor may exercise his rights under §§ 562b( 1) and Sub. 2 1st St. Further claims
may arise from § 1257 in conjunction with § 1227 as well as § 823 and §§ 280(1), 241(2)
(against the lessee).
§ 562a
Extinction of the security right of
the lessor
’The security right of the lessor is extin¬
guished upon the removal of the things from
the plot of land, except if this removal occurs
without the knowledge of or despite the ob¬
jection of the lessor. 2The lessor may not
object if this is consistent with the ordinary
circumstances of life or if things left behind
evidently suffice to give the lessor security.
§ 562a
Erlöschen des
Vermieterpfandrechts
’Das Pfandrecht des Vermieters erlischt
mit der Entfernung der Sachen von dem
Grundstück, außer wenn diese ohne Wissen
oder unter Widerspruch des Vermieters er¬
folgt. 2Der Vermieter kann nicht widerspre¬
chen, wenn sie den gewöhnlichen Lebens¬
verhältnissen entspricht oder wenn die
zurückbleibenden Sachen zur Sicherung des
Vermieters offenbar ausreichen.
A. Function
The provision deals with the legal structure of the lessor’s security right (lien) and 1
regulates a special case of extinction, which adds to the general grounds of extinction
§§ 1242(2), 1252 et seq., 936. The provision is indispensable since the 1st St. establishes a
principle of property law and the 2nd St. has protective character.1
2 RG 21.1.1935 - IV 261/34, RGZ 146, 337.
3 MuKo BGB/Artz, § 562 BGB mn. 15.
4 Staudinger BGB/Emmerich, § 562 BGB mn. 21.
5 Jauermg BGB/Teichmann, § 562 BGB mn. 3.
1 Lammel, in: Schmidt-Futterer (cd.), Mietrecht (13'b edn, C.H.Beck 2017), § 562a BGB mn. 2.
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993
§ 562b
Division 8. Particular types of obligations
B. Explanation
I. Removal
2 Removal means permanently moving the object from the area of the property or from the
apartment even if the object is taken by the bailiff. It is unclear whether a temporary removal
(e. g. for repair ot the object) falls within the ambit of the provision.
3 § 562a is formulated in the negative because the lessor bears the burden of proof for his
ignorance.2 3 Gross negligence does not suffice.4 The knowledge of the lessor is irrelevant if he
does not object to the removal under the 2nd St.5
IL Objection
4 The lessor’s objection is irrelevant if the removal is temporary, e.g. for repairs or for travel
(see above). The same applies in case of lease of business premises if the things are removed
in the course of the ordinary business.6 An objection of the lessor is exceptionally
unauthorised if the things left behind evidently suffice to give the lessor security to transfer
security. This means that they, without closer examination, give the impression that the
lessor will be satisfied by their exploitation.7
§ 562b
Self-help; claim for return
(1) ’The lessor may prevent the removal of
the things that are subject to his security
right, even without having recourse to the
court, to the extent that he is entitled to
object to removal. 2If the lessee moves out,
the lessor may take possession of these things.
(2) ’If the things have been removed with¬
out the knowledge of or despite the objection
of the lessor, then he may demand surrender
of the items for the purpose of returning
them to the plot of land and, if the lessee has
moved out, surrender of possession. 2The
security right is extinguished at the end of
one month after the lessor has obtained
knowledge of removal of the things, unless
he has previously asserted this claim in court.
§ 562b
Selbsthilferecht,
Herausgabeanspruch
(1) ’Der Vermieter darf die Entfernung der
Sachen, die seinem Pfandrecht unterliegen,
auch ohne Anrufen des Gerichts verhindern,
soweit er berechtigt ist, der Entfernung zu
widersprechen. 2Wenn der Mieter auszieht,
darf der Vermieter diese Sachen in seinen
Besitz nehmen.
(2) ’Sind die Sachen ohne Wissen oder
unter Widerspruch des Vermieters entfernt
worden, so kann er die Herausgabe zum Zwe¬
cke der Zurückschaffung auf das Grundstück
und, wenn der Mieter ausgezogen ist, die
Überlassung des Besitzes verlangen. 2Das
Pfandrecht erlischt mit dem Ablauf eines
Monats, nachdem der Vermieter von der Ent¬
fernung der Sachen Kenntnis erlangt hat,
wenn er diesen Anspruch nicht vorher ge¬
richtlich geltend gemacht hat.
2 Pro: Oi.G Frankfurt a.M. 19.5.2006 - 24 U 11/06, ZMU 2006, 609- contra: Staudinger »•'»/
Emmerich, § 562a BGB mn. 5; MüKo BGB/Artz, § 562a BGB mn. 5.
3 Jauernig BGB/Teichmann, § 562a BGB mn. 2.
4 MuKo BGB/Artz, § 562a BGB mn. 9.
5 Jauernig BGB/Teichmann, § 562a BGB mn. 2.
6 HK-BGB/Scheuch, § 562a BGB mn. 5.
7 MüKo BGB/Artz, § 562a BGB mn. 12.
994
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Warding off the security right by provision of security
1 § 562c
A. Function
I. Purpose
The lessors security right (lien) is to be effectively secured by Sub. 1; Sub. 2 2nd St. 1
supplements § 562a by another (legal) extinction. The provision is compulsory insofar as an
extension ot self-help and an extension of the exclusion period cannot be agreed.
II. Scope of application
Sub. 1 applies in addition to § 229 and sets lower requirements: § 231 is not applicable; 2
§ 823 can be considered.1
B. Explanation
I. Prevention
The lessor may prevent the lessee to remove the objects being subject to his lien under the 3
requirements of 562 and 562a, if the lessee has begun to remove his objects.2 After
removal, the lessor may no longer object. Before removal, the lessor may prevent in the
context of proportionality3 that the objects being subject to his lien remain on the property or
in the apartment etc. If the lessee starts with the immediate preparations for the complete
withdrawal, the lessor can take the objects in sole possession.
IL Surrender
The claim for surrender under Sub. 2 requires the lack of knowledge of the lessee as 4
regards the removal of the items. It can be directed not only against the lessee but also against
third parties.4 Sub. 2 1st St. contains a limitation period of one month for that claim. It aims
at protecting the opportunity’ of bona fides acquisitions.
§ 562c
Warding off the security right by
provision of security
'The lessee may ward off assertion of the
security right of the lessor by provision of
security. 2He may release each individual
thing from the security right by providing
security in the amount of its value.
§ 562c
Abwendung des Pfandrechts durch
Sicherheitsleistung
‘Der Mieter kann die Geltendmachung des
Pfandrechts des Vermieters durch Sicher¬
heitsleistung abwenden. 2Er kann jede ein¬
zelne Sache dadurch von dem Pfandrecht
befreien, dass er in Höhe ihres Wertes Sicher¬
heit leistet.
The provision allows the lessee to prevent the lessor from exercising his security right 1
(lien). In case of § 562c, the lien will remain in place, but the landlord has no right to self¬
help, no claim to surrender and no exploitation right. The security shall be provided in
1 Jauernig BGB/Teichmann, § 562b BGB mn. 2.
2 OLG Dusseldorf 4.3.1982 - 10 U 199/81.
3 Even by the use of violence; Lammcl, in: Schmidt-Futterer (cd.), Mietrecht (13,h edn, C.H.Beck 2017),
§ 562b BGB mn. 15.
4 Jauernig BGB/Teichmann, {j 562b BGB mn. 3.
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995
§ 563 Division 8. Particular types of obligations
accordance with §§ 232et seq. The amount of the security corresponds with the amount of
the claims of the lessor against the lessee. The provision is mandatory.
§ 562d
Attachment by a third party
If a thing subject to the security right of
the lessor is attached for another creditor,
then in relation to this other creditor the
security right may not be asserted for rent
from an earlier period than the last year prior
to the attachment.
§ 562d
Pfändung durch Dritte
Wird eine Sache, die dem Pfandrecht des
Vermieters unterliegt, für einen anderen
Gläubiger gepfändet, so kann diesem gegen¬
über das Pfandrecht nicht wegen der Miete
für eine frühere Zeit als das letzte Jahr vor
der Pfändung geltend gemacht werden.
1 In case of enforcement by another creditor the lessor can preferably demand satisfaction
within the boundaries of § 562d (§ 805 ZPO). § 562d limits the temporal scope of the claims
on the rent covered by the lien, e.g. the security right may not be asserted for rent from a
period earlier than the last year prior to the attachment. The claims for advance payment of
the operating costs or the operating costs are also included in this period. The limitation does
not apply to other claims, such as damages. The provision is mandatory.
Chapter 4
Change of parties to the contract
§563
Right of succession upon death of
the lessee
(1) A spouse or civil partner who maintains
a joint household with the lessee succeeds to
the lease upon the death of the lessee.
(2) ’If children of the lessee live in the joint
household of the lessee, then these children
succeed to the lease on the death of the lessee
if the spouse or civil partner does not suc¬
ceed. 2Other family members who maintain a
joint household with the lessee succeed to the
lease on the death of the lessee if the spouse
or the civil partner does not succeed. 3The
same applies to persons who maintain a joint
household of a permanent nature with the
lessee.
(3) ’If persons who have succeeded to the
lease within the meaning of subsection (1) or
(2) declare to the lessor within one month of
obtaining knowledge of the death of the les¬
see that they do not wish to continue the
lease, the succession is deemed not to have
occurred. 2For persons without capacity to
contract or having limited capacity to con-
Kapitel 4
Wechsel der Vertragsparteien
§563
Eintrittsrecht bei Tod des Mieters
(1) Der Ehegatte oder Lebenspartner, der
mit dem Mieter einen gemeinsamen Haushalt
fuhrt, tritt mit dem Tod des Mieters in das
Mietverhältnis ein.
(2) ’Leben in dem gemeinsamen Haushalt
Kinder des Mieters, treten diese mit dem Tod
des Mieters in das Mietverhältnis ein, wenn
nicht der Ehegatte oder Lebenspartner ein¬
tritt. 2Andere Familienangehörige, die mit
dem Mieter einen gemeinsamen Haushalt
fuhren, treten mit dem Tod des Mieters in
das Mietverhältnis ein, wenn nicht der Ehe¬
gatte oder der Lebenspartner eintritt. 3Das-
selbe gilt für Personen, die mit dem Mieter
einen auf Dauer angelegten gemeinsamen
Haushalt führen.
(3) ’Erklären eingetretene Personen im
Sinne des Absatzes 1 oder 2 innerhalb eines
Monats, nachdem sie vom Tod des Mieters
Kenntnis erlangt haben, dem Vermieter, dass
sie das Mietverhältnis nicht fortsetzen wollen»
gilt der Eintritt als nicht erfolgt. 2Fiiy
schäftsunfähige oder in der Geschättsldh’g
keit beschränkte Personen gilt § 210 entspi**
1 MüKo BGB/Artz, § 562c BGB mn. 2.
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Continuation with surviving lessees
tract, § 210 applies with the necessary mod¬
ifications. 3If more than one person succeeds
to the lease, then each may make the declara¬
tion on his own behalf.
(4) The lessor may terminate the lease for
cause with the statutory notice period within
one month after obtaining knowledge of the
definitive succession to the lease if there is a
compelling reason in the person of the suc¬
cessor.
(5) A deviating agreement to the disadvan¬
tage of the lessee or of such persons as are
entitled to succeed under subsection (1) or
(2) is ineffective.
1-2 § 563a
chend. 3Sind mehrere Personen in das Miet¬
verhältnis eingetreten, so kann jeder die Er¬
klärung für sich abgeben.
(4) Der Vermieter kann das Mietverhältnis
innerhalb eines Monats, nachdem er von dem
endgültigen Eintritt in das Mietverhältnis
Kenntnis erlangt hat, außerordentlich mit der
gesetzlichen Frist kündigen, wenn in der Per¬
son des Eingetretenen ein wichtiger Grund
vorliegt.
(5) Eine abweichende Vereinbarung zum
Nachteil des Mieters oder solcher Personen,
die nach Absatz 1 oder 2 eintrittsberechtigt
sind, ist unwirksam.
§ 563a
Continuation with surviving
lessees
(1) If more persons than one within the
meaning of § 563 are joint lessees, then the
lease is continued, after the death of one
lessee, with the surviving persons.
(2) The surviving lessees may, within one
month after obtaining knowledge of the
death of the lessee, terminate the lease for
cause with the statutory notice period.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 563a
Fortsetzung mit überlebenden
Mietern
(1) Sind mehrere Personen im Sinne des
§ 563 gemeinsam Mieter, so wird das Miet¬
verhältnis beim Tod eines Mieters mit den
überlebenden Mietern fortgesetzt.
(2) Die überlebenden Mieter können das
Mietverhältnis innerhalb eines Monats, nach¬
dem sie vom Tod des Mieters Kenntnis er¬
langt haben, außerordentlich mit der gesetz¬
lichen Frist kündigen.
(3) Eine abweichende Vereinbarung zum
Nachteil der Mieter ist unwirksam.
A. Function
I. Purpose
The death of the lessor or the lessee does not affect the contract since the heirs enter into 1
the contract by way of universal succession under § 1922. § 1922 therefore applies if the
lessor dies. These provisions, however, create a special singular succession for persons who
have lived with the original lessee in the joint household. Any solution on the basis of
inheritance law is a subsidiary application (§ 564). The reason for the special singular
succession is that these persons have a legitimate interest in maintaining the centre of their
life. This is to be weighed against the lessors interest, not to be inadequately faced with new
contracting parties and to secure the originally agreed usage as well as the rent.1 The
distinction is made between the situations that the beneficiary was already a contract partner
with the deceased lessee (§ 563a) or that he had no legal position as a lessee (§ 563).
II. Scope of application
The provision on the continuation of the lease contract with the beneficiaries is mandatory 2
in favour of the lessee (§§ 563(5), 563a(2)). These provisions are not applicable to other
forms of lease contracts (cf. § 580).
1 Jauernig BGB/Teichmann, §§ 563, 563a BGB mn. 1.
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997
§ 563b
Division 8. Particular types of obligations
B. Explanation
I. Groups
3 Five groups of persons are distinguished: spouses or life partners, children, other family
members of the lessee, other persons who have a permanent household with the lessee.
Spouses or life partners take precedence over children and other family or household
members (§ 563(2)). On the other hand, all persons holding a right to enter into the contract
(Eintrittsrecht) may reject by declaration to the lessor (§ 563(3)).
II. Termination
4 The lessor may terminate the contract for cause under § 563(4) only if there is a
compelling reason in the person of the successor in the sense of § 540(1) 2nd St. He has a
reflection period of one month.
III. Right of continuation
5 § 563a contains the co-lessee s right to continue the contract. This encompasses the
situation that other persons besides the deceased lessee were parties to the contract. This
singular succession should avoid the universal succession under § 1922. The surviving co¬
lessees may continue the lease contract without the heirs.
6 The beneficiary will, as a matter of principle, enter fully into the lease agreement, which
will continue unchanged, except for the change of persons.2
§ 563b
Liability in the case of succession
or continuation
(1) *The persons who succeed to the lease
under § 563 or with whom it is continued
under § 563a are liable together with the heir
as joint and several debtors for obligations
incurred up to the death of the lessee. 2ln
relation to these persons, the heir has sole
liability to the extent that nothing else has
been specified.
(2) If the lessee paid rent in advance for a
period of time subsequent to his death, the
persons who succeed to the lease under § 563
or with whom it is continued under § 563a
are obliged to surrender to the heir the sum
that they save or gain due to such advance
payment.
(3) The lessor may, if the deceased lessee
did not provide any security, demand provi¬
sion of security under § 551 from persons
who succeed to the lease under § 563 or with
whom it is continued under § 563a.
§ 563b
Haftung bei Eintritt oder
Fortsetzung
(1) !Die Personen, die nach § 563 in das
Mietverhältnis eingetreten sind oder mit de¬
nen es nach § 563a fortgesetzt wird, haften
neben dem Erben für die bis zum Tod des
Mieters entstandenen Verbindlichkeiten als
Gesamtschuldner. 2Im Verhältnis zu diesen
Personen haftet der Erbe allein, soweit nichts
anderes bestimmt ist.
(2) Hat der Mieter die Miete für einen nach
seinem Tod liegenden Zeitraum im Voraus
entrichtet, sind die Personen, die nach § 563
in das Mietverhältnis eingetreten sind oder
mit denen es nach § 563a fortgesetzt wird,
verpflichtet, dem Erben dasjenige herauszuge¬
ben, was sie infolge der Vorausentrichtung
der Miete ersparen oder erlangen.
(3) Der Vermieter kann, falls der verstor¬
bene Mieter keine Sicherheit geleistet hat, von
den Personen, die nach § 563 in das Mietver-
hältnis eingctreten sind oder mit denen ^s
nach § 563a fortgesetzt wird, nach Maßga e
des § 551 eine Sicherheitsleistung verlangen*
2 BGH 9.7.2003 - VIII ZR 26/03, NJW 2003, 3265.
998
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Continuation of the lease with the heir
1 §564
A. Explanation
I. Liability
The persons entering into the contract shall be jointly and severally liable in addition to 1
the heirs (possibly the same persons in different functions) for the debts incurred until death
ot the original lessee. For the internal relationship, Sub. 1 2nd St. applies as a rule different
from § 426(1) 1st St. whereby the heir has sole liability. Since this is not justified as a general
rule it the co-lessees continue the lease contract, the parties may agree on another solution.
The persons entering into the contract, however, are solely liable for any liabilities arising
after death of the original lessee.
IL Compensation
The provision provides for a compensation claim by the heirs who do not enter into the 2
lease contract against the persons with whom the lease is continued. The lessor can keep a
prepayment made to him.
III. Security
It the deceased lessee did not provide any security the lessor may demand provision of 3
security’ under § 551 from persons who succeed to the lease. The lessor is entitled to
extraordinarily terminate the contract under § 573d if those persons do not provide any
security upon request of the lessor.1
§564
Continuation of the lease with the
heir; termination for cause
1 If, on the death of the lessee, no persons
within the meaning of § 563 succeed to the
lease or the lease is not continued with them
under § 563a, then it is continued with the
heir. 2In this case, both the heir and the lessor
are entitled to terminate the lease for cause
within one month with the statutory notice
period after they obtain knowledge of the
death of the lessee and of the fact that there
has been no succession to the lease and no
continuation thereof.
§564
Fortsetzung des Mietverhältnisses
mit dem Erben, außerordentliche
Kündigung
’Treten beim Tod des Mieters keine Per¬
sonen im Sinne des § 563 in das Mietverhält¬
nis ein oder wird es nicht mit ihnen nach
§ 563a fortgesetzt, so wird es mit dem Erben
fortgesetzt. 2In diesem Fall ist sowohl der
Erbe als auch der Vermieter berechtigt, das
Mietverhältnis innerhalb eines Monats außer¬
ordentlich mit der gesetzlichen Frist zu kün¬
digen, nachdem sie vom Tod des Mieters und
davon Kenntnis erlangt haben, dass ein Ein¬
tritt in das Mietverhältnis oder dessen Fort¬
setzung nicht erfolgt sind.
§ 564 separates the singular succession under §§ 563, 563a from the universal succession 1
of the heir under § 1922. It states the priority of the right to enter into the contract pursuant
to 563, 563a. § 564 is only a default provision. Both sides (heir of the lessee or lessor) are
entitled to extraordinarily terminate the contract with a statutory notice period of one month
beginning with the knowledge of the death of the original lessee and that nobody will enter
into or continue the contract.
* Jauernig BGB/Teichmann, § 563b BGB mn. 3.
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999
§566
Division 8. Particular types of obligations
§565
Commercial subletting
(1) ’If under the lease agreement the lessee
is to sublet the leased residential space to a
third party on a commercial basis for resi¬
dential purposes, then upon termination of
the lease the lessor takes over the rights and
duties under the lease agreement between the
lessee and the third party. 1 2If the lessor enters
into a new lease agreement for subletting on a
commercial basis, then the lessee, in place of
the previous party to the contract, takes over
the rights and duties under the lease agree¬
ment with the third party.
(2) §§ 566a to 566e apply with the neces¬
sary modifications.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§565
Gewerbliche Weitervermietung
(1) ’Soll der Mieter nach dem Mietvertrag
den gemieteten Wohnraum gewerblich einem
Dritten zu Wohnzwecken weitervermieten, so
tritt der Vermieter bei der Beendigung des
Mietverhältnisses in die Rechte und Pflichten
aus dem Mietverhältnis zwischen dem Mieter
und dem Dritten ein. Schließt der Vermieter
erneut einen Mietvertrag zur gewerblichen
Weitervermietung ab, so tritt der Mieter an¬
stelle der bisherigen Vertragspartei in die
Rechte und Pflichten aus dem Mietverhältnis
mit dem Dritten ein.
(2) Die §§ 566a bis 566e gelten entspre¬
chend.
(3) Eine zum Nachteil des Dritten abwei¬
chende Vereinbarung ist unwirksam.
A. Function
1 § 565 serves to secure the protection of the third party/final lessee (Endmieter) against
termination when the contract is terminated between (commercial) temporary lessee and
lessor/owner.1 The BVerfG requested a change of the legal situation before the inclusion of
that provision.2 The provision is mandatory in favour of the final lessee (Sub. 3).
B. Explanation
2 The provision only applies to commercial sub-lettings. The lessor and the sub-lessee must
have concluded a valid contract about rooms in the sense of § 578, which the sub-lessee
renders to the final lessee residential space.3 The sub-lessee must act in the intention to make
profits. According to BGH the provision is inapplicable if the sub-letting is carried out on a
commercial basis, but not with the intention to make profits, but only on charitable grounds.4
3 The lessor enters into the contract between final lessee and sub-lessee (Sub. 1 2n<* St.). If the
lessor subsequently finds a new sub-lessee, he becomes the contracting partner. A direct
transition from one to another sub-lessee is also possible.5
§566
Purchase is subject to
existing leases
(1) If, after the lessee is given use of the
leased residential space, it is disposed of by
the lessor to a third party, then the acquirer,
§566
Kauf bricht nicht Miete
(1) Wird der vermietete Wohnraum nach
der Überlassung an den Mieter von dem
mieter an einen Dritten veräußert, so tritt e
1 BT-Drs. 12/3254 of 27.7.1983, p. 37.
2 BVerfG 11.6.1991 - 1 BvR 538/90, NJW 1991, 2272.
3 See -* § 549 mn. 2.
4 BGH 3.7.1996 - VIII ZR 278/95, NJW 1996, 2862; BGH 20.1.2016 - VIII ZR 311/14» NJW
>86.
5 HK-BGB/Scheuch, § 565 BGB mn. 4 et seq.
1000
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Purchase is subject to existing leases
1-4 § 566
in place of the lessor, takes over the rights
and duties that arise under the lease agree¬
ment during the period of his ownership.
(2) ’If the acquirer does not perform his
duties, then the lessor is liable in the same
way as a surety who has waived the defence of
unexhausted remedies for the damage to be
compensated for by the acquirer. 1 2If the lessee
obtains knowledge of the passing of owner¬
ship by notification from the lessor, then the
lessor is released from liability unless the
lessee terminates the lease to the earliest date
at which termination is allowed.
Erwerber anstelle des Vermieters in die sich
während der Dauer seines Eigentums aus dem
Mietverhältnis ergebenden Rechte und Pflich¬
ten ein.
(2) ’Erfüllt der Erwerber die Pflichten nicht,
so haftet der Vermieter für den von dem
Erwerber zu ersetzenden Schaden wie ein Bür¬
ge, der auf die Einrede der Vorausklage ver¬
zichtet hat. 2Erlangt der Mieter von dem
Übergang des Eigentums durch Mitteilung
des Vermieters Kenntnis, so wird der Vermie¬
ter von der Haftung befreit, wenn nicht der
Mieter das Mietverhältnis zum ersten Termin
kündigt, zu dem die Kündigung zulässig ist.
A. Function
I. Purpose
Due to the relativity of the contract the lessee would not have any claims against the 1
acquirer from the lease in the event of the acquisition of the apartment/property. He would
have to rely on damages claims against the former landlord, i.e. his lessor (e.g. from §§ 280
(1), (3), 283). § 566 aims to prevent these consequences for certain lessees and gives the lessee
to this extent a quasi-in rem position. The provision contains a statutory transfer of
contract (gesetzliche Vertragsübernahme)1 as the acquirer takes over the rights and duties
that arise under the lease agreement.
II. Scope of application
§ 550 is a consequence of this provision. It applies to all lease contracts for land and other 2
rooms (§ 578(1), (2)), usufructuary lease (§ 581(2)) and other forms of lease.2 It applies by
analogy in case of an acquisition by law.3 The provision is dispensable by agreement of all
persons involved.4
B. Explanation
I. Requirements
§ 566 requires the sale/acquisition of leased residential space after the use is given by the 3
original owner/lessor. Disposition (Veräußerung) means any transactional (rechtsgeschäftli¬
cher) in rem transfer of property.5 § 567a applies if the disposition occurs before the use is
given.
IL Transfer
The acquirer, irrespective of his knowledge of the lease contract, becomes party to the 4
contract by operation of law. He has all claims falling due after the transfer of property; all
claims falling due before the transfer belong to the original owner/lessor;6 this does not apply
1 Different opinion: BGH 23.2.2012 - IX ZR 29/11, NJW 2012, 1881, 1883.
2 cf. HK-BGB/Scheuch, § 566 BGB mn. 2.
3 BGH 9.7.2008 - VIII ZR 280/07, NJW 2008, 2773.
4 MüKo BGB/Häublein, § 566 BGB mn. 47.
5 Jauernig BGB/Teichmann, § 566 BGB mn. 2.
6 Staudinger BGB/Emmerich, § 566 BGB mn. 8.
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1001
§ 566a 1 Division 8. Particular types of obligations
to the claims for the deposit.7 Periods for termination, rent increases, and beauty repairs
continue without prejudice to the change. The transfer does not have any effect on a lessors
lien under § 562 and, for example, his priority over later securities.8 The following rights are
transferred to the acquirer: rent from transfer of ownership (see §§ 566b-566d), rent increase
in accordance with § 559 (also in case of measures taken before the acquisition9), right to
terminate if occurred after the transfer, right to a non-paid secuiity such as deposit,10 claims
for compensation pursuant to § 571 (l).11 The following obligations are transferred to the
acquirer: extension of the contract;12 strict liability from § 536a(l), if the defect existed at the
time of conclusion of the contract with the seller;13 installation of a night storage heater;14
billing of operating costs15 and reimbursement of surpluses;16 compensation for damages
after the delay of the transferor;17 claim for restitution under §§ 812 et seq.;18 repayment of
the deposit.19
III. Non-performance
5 The purpose of Sub. 2 is to protect the lessee from the fact that the acquirer, upon whom
the lessee has no influence, does not fulfil his own (assumed) obligations from the contract.
The original lessor retains all rights and obligations that have already become due before the
transfer of ownership. Additionally, he is liable in the same way as a surety who has waived
the defence of unexhausted remedies for any claims unfulfilled by the new owner/lessor.
§ 566a
Rent security deposit
!If the lessee of the residential space dis¬
posed of has provided security to the lessor
for the performance of his duties, then the
acquirer takes over the rights and duties cre¬
ated by this. 2If, upon termination of the
lease, the lessee is unable to obtain the secur¬
ity from the acquirer, then the lessor con¬
tinues to be obliged to return it.
§ 566a
Mietsicherheit
’Hat der Mieter des veräußerten Wohn¬
raums dem Vermieter für die Erfüllung seiner
Pflichten Sicherheit geleistet, so tritt der Er¬
werber in die dadurch begründeten Rechte
und Pflichten ein. 2Kann bei Beendigung des
Mietverhältnisses der Mieter die Sicherheit
von dem Erwerber nicht erlangen, so ist der
Vermieter weiterhin zur Rückgewähr ver¬
pflichtet.
A. Function
1 § 566a is a default rule applicable to all lease contracts for land and other rooms (§ 578(1).
(2)), usufructuary lease (§ 581(2)) and other forms of lease.
7 BGH 25.7.2012 - XII ZR 22/11, NJW 2012, 3032.
8 Jauernig BGB/Teichmann, § 566 BGB mn. 3.
’ KG 17.7.2000 - 8 RE-Miet 4110/00, NJW-RR 2001 81
10 BGH 25.7.2012 - Xll ZR 22/11, NJW 2012, 3032
11 BGH 28.6.1978 - VIII ZR 139/77, NJW 1978, 2148
12 BGH 2.12.1970 - VIII ZR 77/69, NJW 1971, 422
13 BGH 22.1.1968 - VIII ZR 195/65, NJW 1968, 885.
14 LG Hamburg 5.11.1976 - 11 S 141/76.
15 BGH 29.9.2004 - XII ZR 148/02, NJW-RR 2005 96
16 BGH 3.12.2003 - VIII ZR 168/03, NJW 2004 851
17 BGH 9.2.2005 - VIII ZR 22/04, NJW 2005 1187
18 BGH 5.10.2005 - XII ZR 43/02, NJW-RR 2006, 294
” cf. § 566a, BGH 25.7.2012 - XII ZR 22/11, NJW 2012, 3032
1002
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Agreement between lessee and lessor on the rent
§ 566c
B. Explanation
I. Security
The 1st St. extends the effects of transfer of § 566 to the security rights (e.g. deposit). Thus, 2
it provides the acquirer with a claim against the transferor for the purpose of issuing the
security. At the same time, the acquirer enters into the obligations of the seller, especially
with regard to the reimbursement of the security. The latter is the substantial protective
function in favour of the lessee. The acquirer, thereby, is obliged toward the lessee regardless
of whether the acquirer actually has received the security from the pre-owner/-lessor or the
acquirer has assumed any obligation by contract with the pre-owner1.
II. Cash deposit
In the case of a cash deposit the acquirer also assumes the obligation to repay interest for 3
accrued interest (§ 551(3) 3rd St.).
§ 566b
Advance disposition of the rent
’If the lessor, prior to the passing of own¬
ership, disposes of the rent attributable to the
period when the acquirer is entitled, then the
disposition is effective to the extent that it
relates to the rent for the calendar month
current at the time when the ownership
passes. 2If ownership passes after the fifteenth
day of the month, then the disposition is also
effective to the extent that it relates to the
rent for the following calendar month.
(2) The acquirer must allow a disposition
of the rent for a later period to be asserted
against himself if he has knowledge of it at
the time when ownership passes.
§ 566b
Vorausverfügung über die Miete
(1) ’Hat der Vermieter vor dem Übergang
des Eigentums über die Miete verfugt, die auf
die Zeit der Berechtigung des Erwerbers ent¬
fallt, so ist die Verfügung wirksam, soweit sie
sich auf die Miete für den zur Zeit des Eigen¬
tumsübergangs laufenden Kalendermonat be¬
zieht. 2Geht das Eigentum nach dem 15. Tag
des Monats über, so ist die Verfügung auch
wirksam, soweit sie sich auf die Miete für den
folgenden Kalendermonat bezieht.
(2) Eine Verfügung über die Miete für eine
spätere Zeit muss der Erwerber gegen sich
gelten lassen, wenn er sie zur Zeit des Über¬
gangs des Eigentums kennt.
§ 566c
Agreement between lessee and
lessor on the rent
’A legal transaction entered into between
lessee and lessor on the rent claim, including
without limitation payment of rent, is effec¬
tive in relation to the acquirer to the extent
that it does not relate to rent for a period of
time subsequent to the calendar month in
which the lessee obtains knowledge of the
passing of ownership. 2If the lessee obtains
knowledge of this after the fifteenth day of
the month, then the legal transaction is also
effective to the extent that it relates to the
rent for the next calendar month. 3 A legal
transaction undertaken after the passing of
§ 566c
Vereinbarung zwischen Mieter
und Vermieter über die Miete
’Ein Rechtsgeschäft, das zwischen dem
Mieter und dem Vermieter über die Mietfor-
derung vorgenommen wird, insbesondere die
Entrichtung der Miete, ist dem Erwerber ge¬
genüber wirksam, soweit es sich nicht auf die
Miete für eine spätere Zeit als den Kalender¬
monat bezieht, in welchem der Mieter von
dem Übergang des Eigentums Kenntnis er¬
langt. 2Erlangt der Mieter die Kenntnis nach
dem 15. Tag des Monats, so ist das Rechts¬
geschäft auch wirksam, soweit es sich auf die
Miete für den folgenden Kalendermonat be¬
zieht. 3Ein Rechtsgeschäft, das nach dem
1 BGH 7.3.2012 - XII ZR 13/10, NJW 2012, 1353 - insolvency of the pre-owner.
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1003
§ 566e 1
Division 8. Particular types of obligations
ownership is, however, ineffective if the lessee
has knowledge of the passing of ownership
when the legal transaction is entered into.
§ 566d
Set-off by the lessee
lrTo the extent that payment of the rent to
the lessor is effective in relation to the ac¬
quirer under § 566c, the lessee can set off
against the claim to rent of the acquirer a
claim to which he is entitled against the
lessor. 2Set-off is excluded if the lessee ac¬
quires the counterclaim after obtaining
knowledge of the passing of ownership, or if
the counterclaim becomes due only after the
lessee obtains knowledge and after the rent
becomes due.
Übergang des Eigentums vorgenommen wird
ist jedoch unwirksam, wenn der Mieter bei
der Vornahme des Rechtsgeschäfts von dem
Übergang des Eigentums Kenntnis hat.
§ 566d
Aufrechnung durch den Mieter
’Soweit die Entrichtung der Miete an den
Vermieter nach § 566c dem Erwerber gegen¬
über wirksam ist, kann der Mieter gegen die
Mietforderung des Erwerbers eine ihm gegen
den Vermieter zustehende Forderung auf¬
rechnen. 2Die Aufrechnung ist ausgeschlos¬
sen, wenn der Mieter die Gegenforderung
erworben hat, nachdem er von dem Übergang
des Eigentums Kenntnis erlangt hat, oder
wenn die Gegenforderung erst nach der Er¬
langung der Kenntnis und später als die
Miete fällig geworden ist.
§ 566e
Notification by the lessor of
passing of ownership
(1) If the lessor notifies the lessee that he
has transferred ownership of the leased resi¬
dential space to a third party, then he must,
in regard to the rent claim, allow the notifica¬
tion of the transfer to be asserted against
himself by the lessee even if it has not oc¬
curred or is not effective.
(2) The notification may be retracted only
with the approval of the person who has been
named as the new owner.
§ 566e
Mitteilung des
Eigentumsübergangs durch den
Vermieter
(1) Teilt der Vermieter dem Mieter mit,
dass er das Eigentum an dem vermieteten
Wohnraum auf einen Dritten übertragen
hat, so muss er in Ansehung der Mietforde¬
rung dem Mieter gegenüber die mitgeteilte
Übertragung gegen sich gelten lassen, auch
wenn sie nicht erfolgt oder nicht wirksam ist.
(2) Die Mitteilung kann nur mit Zustim¬
mung desjenigen zurückgenommen werden,
der als der neue Eigentümer bezeichnet wor¬
den ist.
A. Function
1 Since, according to § 566, the acquirer is entitled to the rent from the date of the transfer
of ownership, he may dispose of it. The transferor/former lessor and owner would be
unauthorised; his disposal would be definitely ineffective as the BGB does not allow for the
bona fides assignment of claims without the consent of the acquirer (sole exception: § 405).
§ 566b protects the third party benefitting from the disposition of the seller in a limited time,
while § 566d protects the lessee himself. The provisions ensure that the lessee is protecte
against double payments in the event of advance dispositions of the rent, and the acquirer >$
protected against the loss of the rental claim. They also apply to leases on land and premises
which are not residential (§ 578(1), (2)). They are non-mandatory but the consent of the
third party is required.1
1 Palandt BGB/Weidenkaff, § 566b BGB mn. 3.
1004
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Encumbrance of the residential space by the lessor
1 § 567
B. Explanation
L Advance disposition
The notion of the advance disposition in the sense of § 566b refers to all legal transactions 2
with third parties, which have an impact on the rental claim including assignments or
pledges.2 The same applies to seizure by compulsory enforcement (Zwangsvollstreckung).
IL § 566c
§ 566c replicates § 407. The legal transaction between the lessor and lessee pursuant to 3
§ 566c must relate to the contractual rental claim. This includes the fulfillment of the
payment obligation and its surrogations under §§ 362, 364 or §§ 387, 392. Any modification
of the lease agreement itself (e. g. reduction of rent) falls under § 566.
III. § 556d
§ 566d replicates § 406. The provisions draw the consequences from the fact that the lessee 4
cannot meet his payment obligation by fulfillment but also by the fulfillment surrogate of the
unilateral set-off. The lessee is therefore granted a legal right equivalent to § 566c.
IV. § 556e
§ 566e replicates § 409. The provision protects the lessee in the event of an actual, but not 5
effective, acquisition of the rented property as a debtor in the event of the transfer of claims.
§567
Encumbrance of the residential
space by the lessor
’If, subsequent to permission of use to the
lessee, the leased residential space is encum¬
bered by the lessor with a third-party right,
then §§ 566 to 566e are to be applied with the
necessary modifications if by exercise of the
right the lessee is deprived of the use of it in
conformity with the contract. 2If the lessee is
restricted by the exercise of this right in his
use in conformity with the contract, then the
third party has a duty to the lessee to refrain
from exercising the right to the extent that
exercising the right would adversely affect use
in conformity with the contract.
§567
Belastung des Wohnraums durch
den Vermieter
’Wird der vermietete Wohnraum nach der
Überlassung an den Mieter von dem Vermie¬
ter mit dem Recht eines Dritten belastet, so
sind die §§ 566 bis 566e entsprechend anzu¬
wenden, wenn durch die Ausübung des
Rechts dem Mieter der vertragsgemäße Ge¬
brauch entzogen wird. 2Wird der Mieter
durch die Ausübung des Rechts in dem ver¬
tragsgemäßen Gebrauch beschränkt, so ist
der Dritte dem Mieter gegenüber verpflichtet,
die Ausübung zu unterlassen, soweit sie den
vertragsgemäßen Gebrauch beeinträchtigen
würde.
The provision extends the lessee’s protection in the case of the acquisition of the rented 1
apartments to subsequent encumbrances on the rented property by the original lessor. The
lessee must be totally deprived from the use of the residential space; e. g. if the lessor grants a
right of usufruct over the apartment to a third party.* 1 However, any restriction of use does
not trigger the application of §§ 566-566e.
2 Palandt BGB/Weidenkaff, § 566b BGB mn. 4.
1 cf. HK-BGB/Scheuch, § 567 BGB mn. 1.
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1005
§568
Division 8. Particular types of obligations
§ 567a
Disposal or encumbrance prior to
permission of use of residential
space
If, prior to transferring the use of the
leased residential space to the lessee, the les¬
sor disposes of the residential space to a third
party or encumbers it with a right by the
exercise of which the lessee is deprived of or
restricted in the use of it in conformity with
the contract, then the same applies as in the
cases of §§ 566(1) and 567 if the acquirer has
agreed with the lessor to take over the perfor¬
mance of the duties arising from the lease
agreement.
§ 567a
Veräußerung oder Belastung vor
der Überlassung des Wohnraums
Hat vor der Überlassung des vermieteten
Wohnraums an den Mieter der Vermieter den
Wohnraum an einen Dritten veräußert oder
mit einem Recht belastet, durch dessen Aus¬
übung der vertragsgemäße Gebrauch dem
Mieter entzogen oder beschränkt wird, so
gilt das Gleiche wie in den Fällen des § 566
Abs. 1 und des § 567, wenn der Erwerber dem
Vermieter gegenüber die Erfüllung der sich
aus dem Mietverhältnis ergebenden Pflichten
übernommen hat.
1 The effects of § 566 and/or § 567 occur, if the lessor sells the property, etc., after the use is
given to the lessee. In case of the transfer after conclusion of the rental agreement and
before transfer of use to the lessee, the lessee’s rental provisions apply between lessor and
lessee but there are no contractual relations between the acquirer and the lessee. This
provision aims to protect the lessee in that regard by facilitating the acquirer to enter into
the rental agreement with the lessee.1
§ 567b
Further disposal or encumbrance
by the acquirer
’If the leased residential space is further
disposed of or encumbered by the acquirer,
then § 566(1) and §§ 566a to 567a are to be
applied with the necessary modifications. 2If
the new acquirer fails to perform the duties
arising from the lease, then the lessor is liable
to the lessee under § 566(2).
Chapter 5
Termination at the lease
§ 567b
Weiterveräußerung oder
Belastung durch Erwerber
'Wird der vermietete Wohnraum von dem
Erwerber weiterveräußert oder belastet, so
sind § 566 Abs. 1 und die §§ 566a bis 567a
entsprechend anzuwenden. 2Erfiillt der neue
Erwerber die sich aus dem Mietverhältnis
ergebenden Pflichten nicht, so haftet der Ver¬
mieter dem Mieter nach § 566 Abs. 2.
Kapitel 5
Beendigung des Mietverhältnisses
Subchapter 1
General provisions
Unterkapitel 1
Allgemeine Vorschriften
§568
Form and contents of the
notice of termination
(1) The notice of termination of the lease
must be in written form.
§568
Form und Inhalt der
Kündigung
(1) Die Kündigung des Mietverhältnisses
bedarf der schriftlichen Form.
1 BeckOK BGB/Herrmann, § 567a BGB mn. 1.
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Termination for cause without notice
§569
(2) The lessor should, in good time, draw
the attention of the lessee to the possibility of
an objection and the form and period for the
objection under §§ 574 to 574b.
(2) Der Vermieter soll den Mieter auf die
Möglichkeit, die Form und die Frist des Wi¬
derspruchs nach den §§ 574 bis 574b recht¬
zeitig hinweisen.
A. Explanation
L General requirements
Sub. 1 lays down a general requirement of written form for termination (§ 126). Any 1
declaration of termination in other form is void (§ 125). Furthermore, the lessor must inform
the lessee of the possibility of an objection and the form and period for the objection under
§§ 574 to 574b. This reference does not have to be included in the declaration of termina¬
tion;1 however, the lessee may then declare his objection in the first hearing in the eviction
proceedings (§ 574b(2) 2nd St.). The omission of this reference does not lead to the invalidity
of the termination.2
IL Additional requirements
Various provisions contain an additional form requirement as the reasons for the 2
termination must be explained. These include the lessor’s ordinary termination under § 573
(3), the lessor’s extraordinary termination with statutory notice period (§§ 573d, 575a(l)),
and - for both parties - the extraordinary termination without notice period (§ 569(4)).
§569
Termination for cause without
notice for a compelling reason
(1) !A compelling reason within the mean¬
ing of § 543(1) for the lessee also exists if the
leased residential space is in such a condition
that its use entails a significant endanger¬
ment of health. 2This also applies if the lessee
knew of the hazardous condition when he
entered into the lease agreement or waived
his rights arising from this condition.
(2) A compelling reason within the mean¬
ing of § 543(1) also exists if one party to the
contract permanently disturbs the domestic
peace in such a way that the party giving
notice, taking all circumstances of the specific
case into account, including without limita¬
tion fault of the parties to the contract, and
weighing the interests of both parties, cannot
reasonably be expected to continue the lease
to the end of the notice period or until the
lease is terminated in another way.
(2a) ’An important reason within the
meaning of § 543(1) is furthermore deemed
§569
Außerordentliche fristlose
Kündigung aus wichtigem Grund
(1) ’Ein wichtiger Grund im Sinne des
§ 543 Abs. 1 liegt für den Mieter auch vor,
wenn der gemietete Wohnraum so beschaffen
ist, dass seine Benutzung mit einer erhebli¬
chen Gefährdung der Gesundheit verbunden
ist. 2Dies gilt auch, wenn der Mieter die
Gefahr bringende Beschaffenheit bei Ver¬
tragsschluss gekannt oder darauf verzichtet
hat, die ihm wegen dieser Beschaffenheit zu¬
stehenden Rechte geltend zu machen.
(2) Ein wichtiger Grund im Sinne des § 543
Abs. 1 liegt ferner vor, wenn eine Vertrags¬
partei den Hausfrieden nachhaltig stört, so
dass dem Kündigenden unter Berücksichti¬
gung aller Umstände des Einzelfalls, insbeson¬
dere eines Verschuldens der Vertragsparteien,
und unter Abwägung der beiderseitigen Inte¬
ressen die Fortsetzung des Mietverhältnisses bis
zum Ablauf der Kündigungsfrist oder bis zur
sonstigen Beendigung des Mietverhältnisses
nicht zugemutet werden kann.
(2a) ’Ein wichtiger Grund im Sinne des
§ 543 Absatz 1 liegt ferner vor, wenn der
1 Jauernig BGB/Teichmann, § 568 BGB mn. 2.
2 HK-BGB/Scheuch, § 568 BGB mn. 4.
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1007
§569
Division 8. Particular types of obligations
to exist if the lessee is in arrears with regard
to a provision of security in accordance with
§551 in the amount of a sum corresponding
to twice the monthly rent, operating costs to
be shown as a flat-rate or advance payment
are not to be taken into account in the calcu¬
lation of the monthly rent in accordance with
sentence 1. 3 A grace period or a reminder in
accordance with § 543(3) sentence 1 is not
needed. Subsection (3) No. 2 sentence 1, as
well as § 543(2) sentence 2, are to be applied
with the necessary modifications.
(3) In supplement to § 543(2) sentence 1
No. 3, the rules are:
1. ’In the case of § 543(2) sentence 1, No. 3,
letter a, the part of the rent in arrears may
only be deemed not to be insignificant if it
exceeds the rent for one month. 2This does
not apply if the residential space is leased
only for temporary use.
2. ’The notice of termination also becomes
ineffective if, at the latest by the end of two
months after the eviction claim is pending,
the lessor is satisfied or a public authority
agrees to satisfy the lessor with regard to the
rent due and the compensation due under
§ 546a(l). 2This does not apply if, no longer
than two years earlier, the notice of termina¬
tion was preceded by a notice of termination
that became ineffective under sentence 1
above.
3. If the lessee has been finally and abso¬
lutely ordered to pay an increased rent under
§§ 558 to 560, then the lessor may not termi¬
nate the lease for default in payment of the
lessee before the end of two months after the
final and absolute order unless the require¬
ments for termination for cause without no¬
tice have already been satisfied due to rent
previously owed.
(4) The compelling reason leading to ter¬
mination must be stated in the notice of
termination.
(5) ’An agreement diverging from
subsections (1) to (3) of this provision or
from § 543 to the disadvantage of the lessee
is ineffective. 2In addition, an agreement is
also ineffective under which the lessor is to be
entitled to terminate the lease for cause with¬
out notice for other reasons than those per¬
mitted by law.
Mieter mit einer Sicherheitsleistung nach
§551 in Höhe eines Betrages im Verzug ist,
der der zweifachen Monatsmiete entspricht.
2Die als Pauschale oder als Vorauszahlung
ausgewiesenen Betriebskosten sind bei der
Berechnung der Monatsmiete nach Satz 1
nicht zu berücksichtigen. 3Einer Abhilfefrist
oder einer Abmahnung nach § 543 Absatz 3
Satz 1 bedarf es nicht. 4 5Absatz 3 Nummer 2
Satz 1 sowie § 543 Absatz 2 Satz 2 sind ent¬
sprechend anzuwenden.
(3) Ergänzend zu § 543 Abs. 2 Satz 1 Nr. 3
gilt:
1. ’Im Falle des § 543 Abs. 2 Satz 1 Nr. 3
Buchstabe a ist der rückständige Teil der
Miete nur dann als nicht unerheblich anzuse¬
hen, wenn er die Miete für einen Monat über¬
steigt. 2Dies gilt nicht, wenn der Wohnraum
nur zum vorübergehenden Gebrauch vermie¬
tet ist.
2. ’Die Kündigung wird auch dann unwirk¬
sam, wenn der Vermieter spätestens bis zum
Ablauf von zwei Monaten nach Eintritt der
Rechtshängigkeit des Räumungsanspruchs
hinsichtlich der fälligen Miete und der fäl¬
ligen Entschädigung nach § 546a Abs. 1 be¬
friedigt wird oder sich eine öffentliche Stelle
zur Befriedigung verpflichtet. 2Dies gilt nicht,
wenn der Kündigung vor nicht länger als zwei
Jahren bereits eine nach Satz 1 unwirksam
gewordene Kündigung vorausgegangen ist.
3. Ist der Mieter rechtskräftig zur Zahlung
einer erhöhten Miete nach den §§ 558 bis 560
verurteilt worden, so kann der Vermieter das
Mietverhältnis wegen Zahlungsverzugs des
Mieters nicht vor Ablauf von zwei Monaten
nach rechtskräftiger Verurteilung kündigen,
wenn nicht die Voraussetzungen der außer¬
ordentlichen fristlosen Kündigung schon we¬
gen der bisher geschuldeten Miete erfüllt
sind.
(4) Der zur Kündigung führende wichtige
Grund ist in dem Kündigungsschreiben an¬
zugeben.
(5) ’Eine Vereinbarung, die zum Nachte
des Mieters von den Absätzen 1 bis 3 dieser
Vorschrift oder von § 543 abweicht, ist un¬
wirksam. 2Ferner ist eine Vereinbarung un
wirksam, nach der der Vermieter berechtig
sein soll, aus anderen als den im Gesetz zu
gelassenen Gründen außerordentlich fr’s 0
zu kündigen.
1008
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Termination for cause without notice
1-6 § 569
A. Function
§ 569 supplements the general provision of § 543 for lease contracts for residential space. 1
Sub. 2 also applies to lease contracts for non-residential rooms with necessary modifications
(§ 578(2) 1st St.) and, in the same fashion, to lease contracts for non-residential rooms if the
premises are intended for the residence of human beings such as offices or workshops (§ 578
(2) 3rd St.). The provision is mandatory insofar as the lessor may only extraordinarily
terminate the contract without notice if he can claim one of the reasons stated therein
(Sub. 5 2nd St.).
B. Explanation
L Health
The provision reinforces the protection of the lessee as an imperative requirement for 2
social policy reasons. Otherwise, the lessee would be bound by the contractual agreement
under § 536 or also pursuant to § 536b to the lease agreement if he - in a certain social
situation - for example had accepted a potentially health injurious housing as contractually.1
No actual health damage is required. The lessee may also terminate the contract accordingly
if the lessor has not acted negligently or intentionally in that regard. Notwithstanding, the
lessee must set an adequate period for the lessor to remedy the housing that is potentially
significantly harmful to health.2
IL Disturbance
Sub. 2 refers to the lasting disturbance of the domestic peace by either the lessor or the 3
lessee. Any party must have culpably (schuldhaft) violated his obligations in such a way that
the other party, in all fairness, cannot be expected to live up to the contract. A current
example is the permanent odour nuisance by the smell of cigarettes.3
III. Termination
Sub. 2a stipulates that the lessor can terminate the lease agreement without notice, if the 4
lessee - irrespective of the amount of the deposit - is in default with the payment of the
amount due for the first time in accordance with § 551, which amounts to two rents.
1. Default
Sub. 3 No. 1 complements § 543(2) 1st St. No. 3(a) a as regards the extraordinary termina- 5
tion without notice in case of default of the lessee. It clarifies that the amount of default in the
sense of § 543(2) 1st St. No. 3(a) exceeds the amount of one month.
2. Period of grace
However, the satisfaction of the lessor after receipt of the termination shall render the 6
termination null and void under the conditions of Sub. 3 No. 2 1st St. But the subsequent,
two-month period of grace is not applicable if the lessor has already given notice in
accordance with § 543 BGB in the last two years prior to the termination and the termination
has become ineffective by means of subsequent payment or obligation of a public authority
within the period of grace (Sub. 3 No. 2 2nd St.).
1 HK-BGB/Scheuch, § 569 BGB mn. 2.
2 BGH 18.4.2007 - VIII ZR 182/06, NJW 2007, 2177.
3 BGH 18.2.2015 - VIII ZR 186/14, NJW 2015, 1239.
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1009
§ 571 Division 8. Particular types of obligations
3. Rent increase
7 case of a rent increase, the lessee shall not to be subject to a termination risk as long as he
is resists the increase.4 5 He can therefore avoid the termination of the contract even if he pays
the amount of the rent increase within two months after a final judgment (Sub. 3 No. 3).
4. Compelling reason
8 Sub. 4 states that both parties must give a compelling reason for their termination since the
other party shall be enabled to understand the motivation to terminate the contract. If no
reason is given, the termination is void?
§570
Exclusion of the right of retention
The lessee is not entitled to any right of
retention against the claim to return of the
lessor.
§570
Ausschluss des
Zurückbehaltungsrechts
Dem Mieter steht kein Zurückbehaltungs¬
recht gegen den Rückgabeanspruch des Ver¬
mieters zu.
1 The lessor/owner, who regularly provides sufficient security for the lessee’s claims, is not to
suffer a large loss as a result of a right of retention due to relatively minor claims.1 Thus, the
right of retention cannot be exercised against the lessor’s claim for return under § 546(1). It
also applies to lease contracts for land and other rooms (§ 578(1) and (2)).
§571
Further damages for late return
of residential space
(1) ’If the lessee fails to return the leased
residential space upon termination of the
lease, then the lessor may only assert further
damages within the meaning of § 546a(2) if
the return failed to occur for reasons for
which the lessee is responsible. 2Damage is
only to be compensated for to the extent that
equity demands indemnification. This does
not apply if the lessee has given notice of
termination.
(2) If the lessee is granted a period of time
before vacating the premises under § 721 or
§ 794a of the Code of Civil Procedure [Zivil¬
prozessordnung], then he is not liable for
compensation for further damage until the
end of the period of time.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§571
Weiterer Schadensersatz bei
verspäteter Rückgabe von
Wohnraum
(1) ’Gibt der Mieter den gemieteten Wohn¬
raum nach Beendigung des Mietverhältnisses
nicht zurück, so kann der Vermieter einen
weiteren Schaden im Sinne des § 546a Abs. 2
nur geltend machen, wenn die Rückgabe in¬
folge von Umständen unterblieben ist, die der
Mieter zu vertreten hat. 2 3Der Schaden ist nur
insoweit zu ersetzen, als die Billigkeit eine
Schadloshaltung erfordert. Dies gilt nicht,
wenn der Mieter gekündigt hat.
(2) Wird dem Mieter nach § 721 o er
§ 794a der Zivilprozessordnung eine Ran
mungsfrist gewährt, so ist er für die Zeit von
der Beendigung des Mietverhältnisses ,s
zum Ablauf der Räumungsfrist zum Ersa z
eines weiteren Schadens nicht verpflichtet»
(3) Eine zum Nachteil des Mieters a wel
chende Vereinbarung ist unwirksam.
4 Jaunernig BGB/Teichmann, § 569 BGB mn. 5.
5 Palandt BGB/Weidenkaff, § 569 BGB mn. 23.
1 Jauernig BGB/Teichmann, § 570 BGB mn. 1.
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Ordinary termination by the lessor §573
The provision sets a limit to the lessor’s claim for damages under § 546a for the period 1
after the end of the contract until its return in case of a lease contract for residential space.
The non-return is without fault if the return is unbearable for the lessee, e.g. due to illness
which does not allow to move out of the apartment. Granting a period of time before
vacating under the ZPO excludes the lessor’s claim for further damages (Sub. 2). As Sub. 1
2nd St. clarifies, this rule only applies in the event of the termination by the lessor. Finally, the
rule is mandatory insofar as it may not be deviated from to the disadvantage of the lessee.
§572
Agreement on right of revocation;
lease subject to condition
subsequent
(1) The lessor may not invoke an agree¬
ment by which the lessor is intended to be
entitled to revoke the lease agreement after he
has permitted the lessee to use the residential
space.
(2) In addition, the lessor may not invoke
an agreement by which the lease is subject to
a condition subsequent to the disadvantage of
the lessee.
§572
Vereinbartes Rücktrittsrecht;
Mietverhältnis unter auflösender
Bedingung
(1) Auf eine Vereinbarung, nach der der
Vermieter berechtigt sein soll, nach Überlas¬
sung des Wohnraums an den Mieter vom
Vertrag zurückzutreten, kann der Vermieter
sich nicht berufen.
(2) Ferner kann der Vermieter sich nicht
auf eine Vereinbarung berufen, nach der das
Mietverhältnis zum Nachteil des Mieters auf¬
lösend bedingt ist.
The purpose of the provision is to prevent the circumvention of the lessee’s protection by 1
the agreement of a contractual right to rescind the contract (vereinbartes Rücktrittsrecht) or a
condition subsequent (auflösende Bedingung). The lessor shall only be entitled to unilaterally
end the contract if he adheres to the provisions for protection against termination.1
Corresponding contractual clauses do not lead to the ineffectiveness of the entire lease
contract, only these clauses have no effect.2
Subchapter 2
Leases for an indefinite period
of time
Unterkapitel 2
Mietverhältnisse auf
bestimmte Zeit
§573
Ordinary termination by the lessor
(1) ‘The lessor may only give notice if he
has a justified interest in the termination of
the lease. 2Notice of termination for the pur¬
pose of increasing the rent is excluded.
(2) A justified interest of the lessor in the
termination of the lease exists, without lim¬
itation, in cases where
1. the lessee has culpably and non-trivially
violated his contractual duties,
§573
Ordentliche Kündigung des
Vermieters
(1) 'Der Vermieter kann nur kündigen,
wenn er ein berechtigtes Interesse an der
Beendigung des Mietverhältnisses hat. 2Die
Kündigung zum Zwecke der Mieterhöhung
ist ausgeschlossen.
(2) Ein berechtigtes Interesse des Vermie¬
ters an der Beendigung des Mietverhältnisses
liegt insbesondere vor, wenn
1. der Mieter seine vertraglichen Pflichten
schuldhaft nicht unerheblich verletzt hat,
1 BT-Drs. 14/4553 of 9.11.2000, p. 65.
2 Jauernig BGB/Teichmann, § 572 BGB mn. 1.
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1011
§ 573 1-2
Division 8. Particular types of obligations
2. the lessor needs the premises as a dwell¬
ing for himself, members of his family or
members of his household, or
3. the lessor, by continuing the lease, would
be prevented from making appropriate com¬
mercial use of the plot of land and would as a
result suffer substantial disadvantages; the
possibility of attaining a higher rent by leas¬
ing the residential space to others is disre¬
garded; the lessor may likewise not invoke the
fact that he wishes to dispose of the residen¬
tial premises in connection with an intention
to create apartment ownership, or in connec¬
tion with a creation of apartment ownership
that took place after use of the residential
space was granted to the lessee.
(3) lThe reasons for a justified interest of
the lessor must be indicated in the notice of
termination. 2Other reasons are taken into
account only to the extent that they arose
subsequently.
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
2. der Vermieter die Räume als Wohnung
für sich, seine Familienangehörigen oder An¬
gehörige seines Haushalts benötigt oder
3. der Vermieter durch die Fortsetzung des
Mietverhältnisses an einer angemessenen
wirtschaftlichen Verwertung des Grundstücks
gehindert und dadurch erhebliche Nachteile
erleiden würde; die Möglichkeit, durch eine
anderweitige Vermietung als Wohnraum eine
höhere Miete zu erzielen, bleibt außer Be¬
tracht; der Vermieter kann sich auch nicht
darauf berufen, dass er die Mieträume im
Zusammenhang mit einer beabsichtigten
oder nach Überlassung an den Mieter erfolg¬
ten Begründung von Wohnungseigentum
veräußern will.
(3) ‘Die Gründe für ein berechtigtes Inte¬
resse des Vermieters sind in dem Kündi¬
gungsschreiben anzugeben. 2Andere Gründe
werden nur berücksichtigt, soweit sie nach¬
träglich entstanden sind.
(4) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Function
1 This provision is the key provision for the protection of the lessee of residential space.1 It
considerably limits the lessor’s opportunities to terminate the lease contract for residential
space. It, therefore, is mandatory, so any deviation to the disadvantage of the lessee is
ineffective (Sub. 4). It also applies to extraordinary termination with notice period in case of
lease contracts with definite term (§ 573d(l)) and indefinite term (§ 575a( 1)). It establishes
in principle that the lessee can terminate the contract without justification by means of
ordinary termination, whereas the lessor is only entitled to this possibility if he has a
legitimate interest in the termination of the contract. This legitimate interest is the focal
point of this provision defined in Subs 1 and 2. The lessor must also indicate the reasons to
constitute the justified interest (Sub. 3). Any termination for the purpose of increasing the
rent is excluded under Sub. 1 2nd St.
B. Explanation
I. Non-trivial violation
A legitimate interest is the criterion for termination under the generally-applicable Sub. 1
and under the more precise by case groups in Sub. 2. Both apply equally.2 Sub. 2 No. 1
requires a non-trvial violation of contractual duties by the lessee. Take for example constantly
delayed payments of rent without reaching the threshold of § 543(2) No 3? notwithstanding,
by way of exception from the principle one has to pay his dues* (Geld hat man zu haben), the
lessee may be excused if he is unable to pay his debts without fault.4 A warning is no
« 1' 573 BGB mn’1: corners,one of the social law of lease’, cf. BV<r,G
8.1.1985 - 1 BvR 792/83, 1 BvR 501/83, NJW 1985, 2633
2 BGH 9.5.2012 - VIII ZR 238/11, NJW 2012, 2342
3 BGH 10.10.2012 - VIII ZR 107/12, NJW 2013 159
4 BGH 13.4.2016 - VIII ZR 39/15, NJW-RR 2016 849
1012
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Ordinary termination by the lessor 3-6 § 573
generally required under § 573.5 The objective of the warning to avoid the homelessness of
t e lessee is not jeopardised in the same fashion as in case of termination without notice
period as the lessee has three months (termination period) to find a new home.6
IL Personal need
Another highly relevant termination cause is Sub. 2. No. 3: the lessor needs the premises as 3
a dwelling for himself (so-called Eigenbedarf - personal need). This does not only include the
lessor himself but also the privileged relatives of the lessor such as his siblings as well as his
nieces and nephews. This cause generally only applies if the lessor is a natural person. Legal
persons cannot rely on the rented accommodation for themselves or a family member but
their interest may be justified under Sub. I.7 But a partnership (§§ 705 et seq.), which does
not qualify as a legal person, can rely on a shareholder’s or their relatives’ personal needs,
analogous to Sub. 2 2 No. 2.8
1. Requirements
The intention of the lessor to occupy the rented premises himself or to allow them to be 4
inhabited by one of the named persons must have already been sufficiently specified and
must be based on the reasonable and understandable considerations in the case of termina¬
tion.9 Any use which is only vague or intended for a later period is not sufficient.10 Examples
for justified personal use include a shortening of the distance between home and work,
increasing need for space due to newborn children, or the intention to live in his own
apartment instead as a lessee in a foreign apartment.11 Any personal use related to profes¬
sional activity may justify an interest under Sub. 1.
2. Abuse
In the event of a dispute the courts may not scrutinise the housing requirements claimed 5
by the landlord for adequacy, but only for abuse of rights (§ 242). A notice of termination
does not already constitute an abuse of law if it is already declared shortly after the
conclusion of the lease contract, as long as the personal requirements were not foreseeable
at the time of the conclusion of the lease.12 If a comparable apartment is free, especially in the
house or in the same housing estate, the lessor must offer the conclusion of a new lease
contract. Otherwise, the termination is abusive.13 Any conflicting interests of the lessee shall
be taken into account only in accordance with § 574 of the agreement. In case of non¬
justified termination for personal use, the lessee may claim damages according to §§ 280(1),
241(2).14
III. Appropriate commercial use
The landlord is allowed to use the apartment economically and utilise it irrespective of its 6
rental (Sub. 2 No. 3). A legitimate interest in termination is, for example, if the sale of the rented
5 BGH 28.11.2007 - VIII ZR 145/07, NJW 2008, 508.
6 BGH 28.11.2007 - VIII ZR 145/07, NJW 2008, 508.
7 BGH 23.5.2007 - VIII ZR 122/06, NJW-RR 2007, 1460.
8 BGH 14.12.2016 - VIH ZR 232/15, NJW 2017, 547.
9 BVerfG 8.1.1985 - 1 BvR 792/83, 1 BvR 501/83, NJW 1985, 2633; HK-BGB/Scheuch, § 573 BGB
mn. 4.
10 BGH 23.9.2015 - VIII ZR 297/14, NJW 2015, 3368.
11 Staudinger BGB/Rolfs, § 573 BGB mn. 100 et seq.
12 BGH 20.3.2013 - VIII ZR 233/12, NJW 2013, 1596.
13 BGH 21.12.2011 - VIII ZR 166/11, NJW-RR 2012, 341.
14 BGH 18.5.2005 - VIII ZR 368/03, NJW 2005, 2395.
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1013
§ 573b Division 8. Particular types of obligations
is only possible at a reasonable price if the apartment is vacated. For this purpose, a considerable
difference in value between a sale in rented and unoccupied condition may suffice.15
§ 573a
Simplified termination by the
lessor
(1) !The lessor may also terminate a lease
of a dwelling in a building inhabited by the
lessor himself and having no more than two
dwellings without the need for a justified
interest within the meaning of § 573. 2The
notice period is in this case extended by three
months.
(2) Subsection (1) applies with the neces¬
sary modifications to residential space inside
the dwelling inhabited by the lessor himself
to the extent that the residential space is
not exempted from lessee protection under
§ 549(2) No. 2.
(3) In the letter containing notice of
termination it must be stated that the
termination is based on the requirements of
subsection (1) or (2).
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 573a
Erleichterte Kündigung des
Vermieters
(1) 1 Ein Mietverhältnis über eine Wohnung
in einem vom Vermieter selbst bewohnten
Gebäude mit nicht mehr als zwei Wohnungen
kann der Vermieter auch kündigen, ohne dass
es eines berechtigten Interesses im Sinne des
§ 573 bedarf. 2Die Kündigungsfrist verlängert
sich in diesem Fall um drei Monate.
(2) Absatz 1 gilt entsprechend für Wohn¬
raum innerhalb der vom Vermieter selbst
bewohnten Wohnung, sofern der Wohnraum
nicht nach § 549 Abs. 2 Nr. 2 vom Mieter¬
schutz ausgenommen ist.
(3) In dem Kündigungsschreiben ist anzu¬
geben, dass die Kündigung auf die Voraus¬
setzungen des Absatzes 1 oder 2 gestützt
wird.
(4) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
1 Since the risk of personal friction is great because of the spatial proximity between landlord
and tenant (especially in case of a so-called ‘granny flat’), the provision provides that the lessor
may generally terminate the contract without a justified interest, albeit with extended dead¬
lines. The lessor must state the reason for termination in his declaration (Sub. 3). As usual, any
agreement may not waive the lessee’s right under this provision (Sub. 4).
§ 573b
Partial termination by the lessor
(1) The lessor may terminate the lease of
side rooms or parts of a plot of land that are
not intended as residential without a justified
interest within the meaning of § 573 if he
limits the notice of termination to these
rooms or parts of the plot of land and if he
wishes to use them
1. to create residential space for the pur¬
pose of leasing, or
2. to provide the intended or existing resi¬
dential space with side rooms or parts of a
plot of land.
(2) Notice of termination is allowed at the
latest on the third working day of a calendar
month to the end of the second month there¬
after.
§ 573b
Teilkündigung des Vermieters
(1) Der Vermieter kann nicht zum Wohnen
bestimmte Nebenräume oder Teile eines
Grundstücks ohne ein berechtigtes Interesse
im Sinne des § 573 kündigen, wenn er die
Kündigung auf diese Räume oder Grund¬
stücksteile beschränkt und sie dazu verwen¬
den will,
1. Wohnraum zum Zwecke der Vermietung
zu schaffen oder
2. den neu zu schaffenden und den 'or
handenen Wohnraum mit Nebenräunien
oder Grundstücksteilen auszustatten.
(2) Die Kündigung ist spätestens am dn -
ten Werktag eines Kalendermonats zui«
lauf des übernächsten Monats zulässig«
15 BVerfG 12.11.2003 - 1 BvR 1424/02, NJW-RR 2004, 371.
1014
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Termination notice periods
1 § 573c
(3) If commencement of construction work
is delayed, then the lessee may demand an
extension of the lease by an equivalent period
of time.
(4) The lessee may demand an appropriate
reduction of the rent.
(5) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
(3) Verzögert sich der Beginn der Bau¬
arbeiten, so kann der Mieter eine Verlänge¬
rung des Mietverhältnisses um einen entspre¬
chenden Zeitraum verlangen.
(4) Der Mieter kann eine angemessene Sen¬
kung der Miete verlangen.
(5) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
The provision is intended to facilitate the creation of new living space1 including 1
expansion of attics or basements or the development of large properties.2 § 573b does not
apply to fixed-term lease agreements (§§ 575b et seq.) as these agreements are classified into
another subsection. Such lessors can be expected to wait until the end of the lease term before
they begin with their construction works.3 The lessee can claim a proportional reduction of
the rent under Sub. 4.
§ 573c
Termination notice periods
(1) ’Notice of termination is allowed at the
latest on the third working day of a calendar
month to the end of the second month there¬
after. 2The notice period for the lessor is
extended, by three months in each case, five
and eight years after the lessee is permitted to
use the residential space.
(2) For residential space that is only leased
for temporary use, a shorter notice period
may be agreed.
(3) For residential space under § 549(2)
No. 2, notice of termination is allowed at the
latest on the fifteenth day of a month to the
end of that month.
(4) An agreement deviating from
subsections (1) or (3) to the disadvantage of
the lessee is ineffective.
§ 573c
Fristen der ordentlichen
Kündigung
(1) ’Die Kündigung ist spätestens am drit¬
ten Werktag eines Kalendermonats zum Ab¬
lauf des übernächsten Monats zulässig. 2Die
Kündigungsfrist für den Vermieter verlängert
sich nach fünf und acht Jahren seit der Über¬
lassung des Wohnraums um jeweils drei Mo¬
nate.
(2) Bei Wohnraum, der nur zum vorüber¬
gehenden Gebrauch vermietet worden ist,
kann eine kürzere Kündigungsfrist vereinbart
werden.
(3) Bei Wohnraum nach § 549 Abs. 2 Nr. 2
ist die Kündigung spätestens am 15. eines
Monats zum Ablauf dieses Monats zulässig.
(4) Eine zum Nachteil des Mieters von
Absatz 1 oder 3 abweichende Vereinbarung
ist unwirksam.
The different periods of notice for landlords and tenants should, on the one hand, support 1
the tenant in his interest, not to lose his home on short-term, especially in the case of longer-
term tenancy contracts. On the other hand, they shall not be too heavily burdened by the fact
that they are under a contractual commitment for too long a period, for example, when
changing the place of work or when moving into an old-age or nursing home, and might
have to pay double rent.1 Since this is a rule specified by the leases for residential spaces,
other lease contracts follow different notice periods 580a(l)-(3)). The provision is
mandatory in favour of the lessee pursuant to Sub. 4; this does not apply to temporary
lettings (Sub. 2). Despite the explicit wording the BGH has allowed a temporary waiver of the
1 BT-Drs. 12/3254 of 15.9.1992, p. 17.
2 HK-BGB/Scheuch, § 573b BGB mn. 1.
3 BT-Drs. 14/4553 of 9.11.2000, p. 169.
1 BT-Drs. 14/4553 of 9.11.2000, p. 67; BT-Drs. 14/5663 of 27.3.2001, p. 83.
Hübner
1015
§574
Division 8. Particular types of obligations
lessee on his right to terminate.2 This may range from two to four years depending on
whether both parties waived their right or only the lessee.3
§ 573d
Termination for cause with the
statutory notice period
(1) If a lease may be terminated for cause
with the statutory notice period, then §§ 573
and 573a apply with the necessary modifica¬
tions, with the exception of notice of termi¬
nation to the heirs of the lessee under § 564.
(2) Notice of termination is allowed at the
latest on the third working day of a calendar
month to the end of the second month there¬
after, and in the case of residential space
under § 549(2) No. 2 at the latest on the
fifteenth day of the month to the end of that
month (statutory period). § 573a(l) sentence 2
does not apply.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 573d
Außerordentliche Kündigung mit
gesetzlicher Frist
(1) Kann ein Mietverhältnis außerordent¬
lich mit der gesetzlichen Frist gekündigt wer¬
den, so gelten mit Ausnahme der Kündigung
gegenüber Erben des Mieters nach § 564 die
§§ 573 und 573a entsprechend.
(2) Die Kündigung ist spätestens am drit¬
ten Werktag eines Kalendermonats zum Ab¬
lauf des übernächsten Monats zulässig, bei
Wohnraum nach § 549 Abs. 2 Nr. 2 spätes¬
tens am 15. eines Monats zum Ablauf dieses
Monats (gesetzliche Frist). § 573a Abs. 1
Satz 2 findet keine Anwendung.
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
1 Termination for cause with the statutory notice period (§§ 573d, 580a(4)) is conceived as a
subgroup of extraordinary termination rights. It is positioned between the ordinary termina¬
tion and the termination without notice for good cause. It offers a facilitated possibility for
the contract resolution mostly with a change of the actual circumstances, because then
observance of the ordinary notice periods seems unacceptable.1 The provision clarifies that
the lessor may only terminate for cause with the statutory notice period if he obtains a
justified interest.2 The only exception applies to the heir of the lessee under § 564 2nd St.
whose centre of life is not located in the apartment. The provision is mandatory in favour of
the lessee pursuant to Sub. 3.
§574
Objection of lessee to termination
(1) ‘The lessee may object to the notice of
termination of the lessor and demand conti¬
nuation of the lease from the latter if termi¬
nation of the lease would be, for the lessee,
his family or another member of his house¬
hold, a hardship that is not justifiable even
considering the justified interests of the les¬
sor. 2This does not apply if a reason exists
that entitles the lessor to terminate the lease
for cause without notice.
§574
Widerspruch des Mieters gegen die
Kündigung
(1) *Der Mieter kann der Kündigung des
Vermieters widersprechen und von ihm die
Fortsetzung des Mietverhältnisses verlangen,
wenn die Beendigung des Mietverhältnisses
für den Mieter, seine Familie oder einen an¬
deren Angehörigen seines Haushalts eine
Härte bedeuten würde, die auch unter Wür¬
digung der berechtigten Interessen des Ver¬
mieters nicht zu rechtfertigen ist. 2Dies g I
nicht, wenn ein Grund vorliegt, der den Ver¬
mieter zur außerordentlichen fristlosen Kün
digung berechtigt.
2 BGH 20.10.2010 - XII ZR 25/09, NJW 2010, 1442.
3 HK-BGB/Scheuch, § 573c BGB mn. 4.
1 BT-Drs. 14/4553 of 9.11.2000, p. 43.
2 HK-BGB/Scheuch, § 573d BGB mn. 2.
1016
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Objection of lessee to termination
1-4 § 574
(2) Hardship also exists if appropriate sub¬
stitute residential space cannot be procured
on reasonable terms.
(3) When the justified interests of the les¬
sor are considered, only the reasons given in
the letter containing notice of termination
under § 573(3) are taken into account, except
where the reasons arose subsequently.
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
(2) Eine Härte liegt auch vor, wenn ange¬
messener Ersatzwohnraum zu zumutbaren
Bedingungen nicht beschafft werden kann.
(3) Bei der Würdigung der berechtigten
Interessen des Vermieters werden nur die in
dem Kündigungsschreiben nach § 573 Abs. 3
angegebenen Gründe berücksichtigt, außer
wenn die Gründe nachträglich entstanden
sind.
(4) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Function
§ 574 expresses a further core element of the social aspects within tenancy law (soziales 1
Mietrecht) as it into account the lessee’s circumstances. It restricts the lessor’s right to
demand the apartment even though a declared ordinary termination or extraordinary
termination is legally effective. § 574 does not apply in the case of termination without
notice for important reasons pursuant to §§ 543(1), 569 (Sub. 1 2nd St.) but only in case of
ordinary termination or extraordinary termination with statutory notice period. It, therefore,
only applies if the lessor can claim a justified interest.1 It may not be deviated from this
provision to the disadvantage of the lessee (Sub. 4).
B. Explanation
I. Hardship
The lessee’s right to object requires a balancing of interests by which the interest of the 2
lessee or his family or any member of his household prevails against the justified interest of
the lessee (especially § 573). A case of hardship may result from advanced pregnancy, old
age, sickness2, and the lack of bearable alternative accommodation (Sub. 2). The reason¬
ableness is especially determined by the amount of the rent payable for alternative accom¬
modation.3
II. Justified interests
The lessor may claim personal need (Eigenbedarf), lessee’s default in payment of rent, or 3
conflict between the lessor and the lessee or members of his family without the lessor’s fault.4
Pursuant to Sub. 3 only the reasons stated in the notice of termination, as well as those
arising subsequently, must be considered, (cf. § 573(3)).
III. Effect of objection
Having objected to the lessor’s termination the lessee is entitled to a continuation of the 4
lease (cf. § 574a( 1)), which is realised either by agreement or by way of a judgment (§ 574a
(2)). Until then, the lessee has a right to possession, contrary to the claim of the lessor, and is
subject to the same lessee obligations due to the future (retroactive) extension.5
1 MüKo BGB/Häublein, § 574 BGB mn. 8.
2 HK-BGB/Scheuch, §§ 574-574c BGB mn. 6.
3 MüKo BGB/Häublein, § 574 BGB mn. 11.
4 Staudinger BGB/Rolfs, § 574 BGB mn. 62 et seq.
5 Jauernig BGB/Teichmann, § 574 BGB mn. 3.
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1017
§ 574c
Division 8. Particular types of obligations
§ 574a
Continuation of lease after
objection
(1) ’In the case of § 574, the lessee may
demand that the lease is continued as long as
is appropriate if all circumstances are taken
into consideration. 2If the lessor cannot rea¬
sonably be expected to continue the lease
under the previously applicable contract
terms, then the lessee may only demand that
it is continued with an appropriate amend¬
ment of the terms.
(2) ’If no agreement is reached, then the
continuation of the lease, its duration and the
terms under which it is continued are deter¬
mined by judicial decision. 2If it is uncertain
when the circumstances can be expected to
cease on the basis of which termination of the
lease would be a hardship, then it may be
specified that the lease is to be continued for
an indefinite period of time.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 574b
Form and period of objection
(1) ’An objection of the lessee to termina¬
tion must be declared in writing. 2Upon de¬
mand by the lessor, the lessee should without
undue delay provide information on the rea¬
sons for the objection.
(2) lThe lessor may refuse continuation of
the lease if the lessee does not declare the
objection to him at the latest two months
prior to termination of the lease. 2If the lessor
has not referred to the possibility of objection
and to its form and period in good time
before the end of the period for filing an
objection, then the lessee may declare his
objection in the first hearing in the eviction
proceedings.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 574c
Further continuation of lease in
the case of unforeseen
circumstances
(1) If it has been determined on the basis
of §§ 574 to 574b by agreement or judicial
decision that the lease is to be continued for a
§ 574a
Fortsetzung des Mietverhältnisses
nach Widerspruch
(1) Hm Falle des § 574 kann der Mieter
verlangen, dass das Mietverhältnis so lange
fortgesetzt wird, wie dies unter Berücksichti¬
gung aller Umstände angemessen ist. 2Ist dem
Vermieter nicht zuzumuten, das Mietverhält¬
nis zu den bisherigen Vertragsbedingungen
fortzusetzen, so kann der Mieter nur verlan¬
gen, dass es unter einer angemessenen Ände¬
rung der Bedingungen fortgesetzt wird.
(2) ‘Kommt keine Einigung zustande, so
werden die Fortsetzung des Mietverhältnisses,
deren Dauer sowie die Bedingungen, zu de¬
nen es fortgesetzt wird, durch Urteil be¬
stimmt. 2Ist ungewiss, wann voraussichtlich
die Umstände wegfallen, auf Grund derer die
Beendigung des Mietverhältnisses eine Härte
bedeutet, so kann bestimmt werden, dass das
Mietverhältnis auf unbestimmte Zeit fort¬
gesetzt wird.
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 574b
Form und Frist des Widerspruchs
(1) ’Der Widerspruch des Mieters gegen
die Kündigung ist schriftlich zu erklären.
2Auf Verlangen des Vermieters soll der Mie¬
ter über die Gründe des Widerspruchs unver¬
züglich Auskunft erteilen.
(2) ’Der Vermieter kann die Fortsetzung
des Mietverhältnisses ablehnen, wenn der
Mieter ihm den Widerspruch nicht spätestens
zwei Monate vor der Beendigung des Miet¬
verhältnisses erklärt hat. 2Hat der Vermieter
nicht rechtzeitig vor Ablauf der Wider¬
spruchsfrist auf die Möglichkeit des Wider¬
spruchs sowie auf dessen Form und Frist
hingewiesen, so kann der Mieter den Wider¬
spruch noch im ersten Termin des Räu¬
mungsrechtsstreits erklären.
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 574c
Weitere Fortsetzung des
Mietverhältnisses bei
unvorhergesehenen Umständen
(1) Ist auf Grund der §§574 bis
durch Einigung oder Urteil bestimmt W
den, dass das Mietverhältnis auf bestimm
1018
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Continuation of lease in the case of unforeseen circumstances 1-4 § 574c
definite period of time, then the lessee may
only demand its further continuation if this
is justified by a material change in circum¬
stances or if circumstances have not come
about whose foreseen occurrence was decisive
for the period of time the lease was to con¬
tinue.
(2) lIf the lessor terminates a lease whose
continuation for an indefinite period of time
has been established by judicial decision, then
the lessee may object to the termination and
demand from the lessor continuation of the
lease for an indefinite period of time. 2lf the
circumstances that were decisive for conti¬
nuation have changed, then the lessee may
demand continuation of the lease only under
§ 574; trivial changes are disregarded.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
Zeit fortgesetzt wird, so kann der Mieter
dessen weitere Fortsetzung nur verlangen,
wenn dies durch eine wesentliche Änderung
der Umstände gerechtfertigt ist oder wenn
Umstände nicht eingetreten sind, deren vor¬
gesehener Eintritt für die Zeitdauer der Fort¬
setzung bestimmend gewesen war.
(2) ‘Kündigt der Vermieter ein Mietver¬
hältnis, dessen Fortsetzung auf unbestimmte
Zeit durch Urteil bestimmt worden ist, so
kann der Mieter der Kündigung widerspre¬
chen und vom Vermieter verlangen, das Miet¬
verhältnis auf unbestimmte Zeit fortzusetzen.
2Haben sich die Umstände verändert, die für
die Fortsetzung bestimmend gewesen waren,
so kann der Mieter eine Fortsetzung des
Mietverhältnisses nur nach § 574 verlangen;
unerhebliche Veränderungen bleiben außer
Betracht.
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Function
The rules under §§ 574-574c shall put the lessor under the pressure of being unable to 1
unjustifiably enforce the termination of the lease agreement. Contradiction and continuation
requirements, therefore, shall primarily persuade the parties to find a contractual solution
with regard to the terms of the continuation including duration, raising the rent to the local
rate, etc.1 The parties shall only go to court if an agreement cannot be reached autonomously.
B. Explanation
I. Continuation
§ 574a specifies the entitlement of the lessee in accordance with § 574 to the extent that he 2
can demand the continuation of the lease contract only for a reasonable time (§ 574a(l)
1st St.) and possibly only under modified conditions (§ 574a(l) 2nd St.).
II. Objection
If the lessee does not declare his reasons at the request of the lessor (§ 574b( 1) 2nd St.), the 3
objection remains valid; however, the lessee is subject to a cost risk pursuant to § 93b ZPO.2
III. Information
If the lessor has made the lessee aware of his right to object in accordance with § 574, the 4
lessee must object at least two months before the end of the regular rental period (§ 574b( 1)
1st St )* otherwise the lessee has forfeited his right of cancellation.3 If the lessor has not
informed in time, the lessee can still object in the first oral hearing (§ 574b( 1) 2nd St.).
1 Jauernig/Teichmann, § 574a BGB mn. 2.
2 Jauernig BGB/Teichmann, § 574b BGB mn. 1.
3 Jauernig BGB/Teichmann, § 574b BGB mn. 2.
Hübner
1019
§575 1
Division 8. Particular types of obligations
Subchapter 3
Leases for a definite period of time
Unterkapitel 3
Mietverhältnisse auf
bestimmte Zeit
§575
Fixed-term lease
(1) ’A lease may be entered into for a fixed
period of time if the lessor upon termination
of the lease period
1. wishes to use the premises as a dwelling
for himself, members of his family or mem¬
bers of his household) or
2. wishes, admissibly, to eliminate the pre¬
mises or change or repair them so substan¬
tially that the measures would be significantly
more difficult as a result of a continuation of
the lease, or
3. wishes to lease the premises to a person
obliged to perform services
and he notifies the lessee in writing of the
reasons for the fixed term when the agree¬
ment is entered into. 2Otherwise the lease is
deemed to have been entered into for an
indefinite period of time.
(2) ’The lessee may at the earliest four
months prior to expiry of the fixed term
demand of the lessor that the lessor notify
him within one month whether the grounds
for the fixed term still apply. 2If the notifica¬
tion occurs later, then the lessee may demand
an extension of the lease by the period of time
of the delay.
(3) ’If the reason for the fixed term occurs
later, then the lessee may demand an exten¬
sion of the lease by an equivalent period of
time. 2If the reason ceases, then the lessee
may demand an extension for an indefinite
period of time. 3The burden of proof for the
occurrence of a reason for setting a fixed
term and for the duration of the delay is on
the lessor.
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§575
Zeitmietvertrag
(1) ’Ein Mietverhältnis kann auf bestimmte
Zeit eingegangen werden, wenn der Vermie¬
ter nach Ablauf der Mietzeit
1. die Räume als Wohnung für sich, seine
Familienangehörigen oder Angehörige seines
Haushalts nutzen will,
2. in zulässiger Weise die Räume beseitigen
oder so wesentlich verändern oder instand
setzen will, dass die Maßnahmen durch eine
Fortsetzung des Mietverhältnisses erheblich
erschwert würden, oder
3. die Räume an einen zur Dienstleistung
Verpflichteten vermieten will
und er dem Mieter den Grund der Befris¬
tung bei Vertragsschluss schriftlich mitteilt
2Anderenfalls gilt das Mietverhältnis als auf
unbestimmte Zeit abgeschlossen.
(2) ’Der Mieter kann vom Vermieter frü¬
hestens vier Monate vor Ablauf der Befris¬
tung verlangen, dass dieser ihm binnen eines
Monats mitteilt, ob der Befristungsgrund
noch besteht. 2Erfolgt die Mitteilung später,
so kann der Mieter eine Verlängerung des
Mietverhältnisses um den Zeitraum der Ver¬
spätung verlangen.
(3) ’Tritt der Grund der Befristung erst
später ein, so kann der Mieter eine Verlänge¬
rung des Mietverhältnisses um einen entspre¬
chenden Zeitraum verlangen. 2Entfällt der
Grund, so kann der Mieter eine Verlängerung
auf unbestimmte Zeit verlangen. 3Die Beweis¬
last für den Eintritt des Befristungsgrundes
und die Dauer der Verzögerung trifft den
Vermieter.
(4) Eine zum Nachteil des Mieters abwei
chende Vereinbarung ist unwirksam.
A. Explanation
I. Reasons
1 The provision governs only the so-called time lease contracts, whose admissibility ,s
bound to narrow limits. Reasons to fix the term of the lease include and are limited to the
case if the lessor needs the premises as a dwelling for himself (cf. § 573(2)). of the
1020
Hübner
Termination for cause with the statutory notice period 1 § 575a
premises are rebuilt in a manner requiring the lessee to move our, or if the premises are
leased to a person obliged to perform services.
II. Expiration
The lease contract ends when the deadline for the deadline expires, without the tenant 2
even having a right to object according to §§ 574 et seq. - it should allow the landlord to
lease the object for a certain period until he wants to make use of it pursuant to Sub. 1; the
clause aims at preventing vacant properties from remaining empty for too long.1
III. Information
According to Sub. 3 the lessee is entitled to demand the lessor to inform him about the 3
existence of the grounds for fixing the term. The lessee is given sufficient time to dispose.2
§ 575a
Termination for cause with the
statutory notice period
(1) If a lease entered into for a fixed term
may be terminated for cause with the statu¬
tory notice period, then §§ 573 and 573a
apply with the necessary modifications, with
the exception of notice of termination to the
heirs of the lessee under § 564.
(2) §§ 574 to 574c apply with the necessary
modifications subject to the proviso that the
continuation of the lease may be demanded at
most until the contractually specified date of
termination.
(3) Notice of termination is allowed at the
latest on the third working day of a calendar
month to the end of the second month there¬
after, and in the case of residential space
under § 549(2) No. 2 at the latest on the
fifteenth day of the month to the end of the
month (statutory period). § 573a(l) sentence 2
does not apply.
(4) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 575a
Außerordentliche Kündigung mit
gesetzlicher Frist
(1) Kann ein Mietverhältnis, das auf be¬
stimmte Zeit eingegangen ist, außerordent¬
lich mit der gesetzlichen Frist gekündigt wer¬
den, so gelten mit Ausnahme der Kündigung
gegenüber Erben des Mieters nach § 564 die
§§ 573 und 573a entsprechend.
(2) Die §§ 574 bis 574c gelten entsprechend
mit der Maßgabe, dass die Fortsetzung des
Mietverhältnisses höchstens bis zum vertrag¬
lich bestimmten Zeitpunkt der Beendigung
verlangt werden kann.
(3) Die Kündigung ist spätestens am drit¬
ten Werktag eines Kalendermonats zum Ab¬
lauf des übernächsten Monats zulässig, bei
Wohnraum nach § 549 Abs. 2 Nr. 2 spätes¬
tens am 15. eines Monats zum Ablauf dieses
Monats (gesetzliche Frist). § 573a Abs. 1
Satz 2 findet keine Anwendung.
(4) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
The provision regulates for fixed-term leases the extraordinary termination with statutory 1
deadline in accordance with § 573d.1
1 BT-Drs. 14/4553 of 9.11.2000, p. 69.
2 Jauernig BGB/Teichmann, § 575 BGB mn. 5.
1 HK-BGB/Scheuch, § 575a BGB mn. 1.
Hübner
1021
§ 576a
Division 8. Particular types of obligations
Subchapter 4
Tied dwellings
§576
Periods for notice of termination
in the case of tied leased dwellings
(1) If residential space is leased in view of
the existence of a service relationship, then
the lessor may upon termination of the em¬
ployment and notwithstanding § 573c(l) sen¬
tence 2 terminate the lease with the following
notice periods:
1. for residential space the lessee has been
permitted to use for less than ten years, at the
latest on the third working day of a calendar
month to the end of the second month there¬
after if the residential space is needed for
another person obliged to perform services;
2. at the latest on the third working day of
a calendar month to the end of that month if
the service relationship by its nature requires
permission to use residential space that is
located in immediate relation to or in the
immediate vicinity of the place of work and
the residential space is needed for the same
reason for another person obliged to perform
services.
(2) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 576a
Special features of the right of
objection in the case of tied leased
dwellings
(1) When §§ 574 to 574c are applied to tied
leased dwellings, the interests of the person
entitled to services must also be taken into
account.
(2) §§ 574 to 574c do not apply if
1. the lessor has given notice under § 576(1)
No. 2;
2. the lessee has terminated the service
relationship without the person entitled to
service giving him any legally justified reason
for doing so, or the lessee, by his conduct,
provided the person entitled to service with
legally justified grounds for terminating the
service relationship.
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
Unterkapitel 4
Werkwohnungen
§576
Fristen der ordentlichen
Kündigung bei
W erkmietwohn ungen
(1) Ist Wohnraum mit Rücksicht auf das
Bestehen eines Dienstverhältnisses vermietet,
so kann der Vermieter nach Beendigung des
Dienstverhältnisses abweichend von § 573c
Abs. 1 Satz 2 mit folgenden Fristen kündigen:
1. bei Wohnraum, der dem Mieter weniger
als zehn Jahre überlassen war, spätestens am
dritten Werktag eines Kalendermonats zum
Ablauf des übernächsten Monats, wenn der
Wohnraum für einen anderen zur Dienstleis¬
tung Verpflichteten benötigt wird;
2. spätestens am dritten Werktag eines Ka¬
lendermonats zum Ablauf dieses Monats,
wenn das Dienstverhältnis seiner Art nach
die Überlassung von Wohnraum erfordert
hat, der in unmittelbarer Beziehung oder
Nähe zur Arbeitsstätte steht, und der Wohn¬
raum aus dem gleichen Grund für einen an¬
deren zur Dienstleistung Verpflichteten be¬
nötigt wird.
(2) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
§ 576a
Besonderheiten des
Widerspruchsrechts bei
Werkmietwohnungen
(1) Bei der Anwendung der §§ 574 bis 574c
auf Werkmietwohnungen sind auch die Be¬
lange des Dienstberechtigten zu berücksichti¬
gen.
(2) Die §§ 574 bis 574c gelten nicht, wenn
1. der Vermieter nach §576 Abs. 1 Nr. 2
gekündigt hat;
2. der Mieter das Dienstverhältnis gelöst
hat, ohne dass ihm von dem Dienstberechtig¬
ten gesetzlich begründeter Anlass dazu gege¬
ben war, oder der Mieter durch sein Ver¬
halten dem Dienstberechtigten gesetzlic
begründeten Anlass zur Auflösung des
Dienstverhältnisses gegeben hat.
(3) Eine zum Nachteil des Mieters abwei
chende Vereinbarung ist unwirksam.
1022
Hübner
Right of preemption of the lessee
§577
§ 576b
Application of landlord and
tenant law with the necessary
modifications in connection with
tied dwellings
(1) If permission to use residential space has
been given in connection with a service rela¬
tionship, then the termination of the legal re¬
lationship with regard to the residential space is
governed by the provisions on leases with the
necessary modifications if the person obliged to
perform services has predominantly supplied
the residential space with furniture and fixtures
or lives in the residential space with his family
or persons with whom he maintains a joint
household set up permanently.
(2) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§ 576b
Entsprechende Geltung des
Mietrechts bei
Werkdienstwohnungen
(1) Ist Wohnraum im Rahmen eines
Dienstverhältnisses überlassen» so gelten für
die Beendigung des Rechtsverhältnisses hin¬
sichtlich des Wohnraums die Vorschriften
über Mietverhältnisse entsprechend, wenn
der zur Dienstleistung Verpflichtete den
Wohnraum überwiegend mit Einrichtungs¬
gegenständen ausgestattet hat oder in dem
Wohnraum mit seiner Familie oder Personen
lebt, mit denen er einen auf Dauer angelegten
gemeinsamen Haushalt führt.
(2) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
A. Function
These mandatory (§ 576(2), § 576a(3), § 576b(2)) provisions contain specific regulations if 1
the lessee is also party to service agreement with the lessor. The provisions take into account
the interest of the lessor to terminate the lease contract after termination of the employment/
employment relationship. The lessor should be able to make a flat available to a new
employee. In that regard, the lessee’s protection is limited. If these provisions contain no
specific regulation, the general rules apply.1
B. Explanation
These provisions presuppose an employment contract relating to an activity of the lessee 2
that is dependent and instruction-bound.2 Otherwise, the general lease law applies. As
regards timing, §§ 576-576b apply for the time after termination of the service/employment
relationship.
Chapter 6
Special features when creating
apartment ownership of leased
residences
Kapitel 6
Besonderheiten bei der Bildung
von Wohnungseigentum an
vermieteten Wohnungen
§577
Right of preemption of the lessee
(1) ’If leased residential premises, apart¬
ment ownership of which has been estab¬
lished or is to be established after the lessee
§577
Vorkaufsrecht des Mieters
(1) ’Werden vermietete Wohnräume, an
denen nach der Überlassung an den Mieter
Wohnungseigentuni begründet worden ist
1 Jauermg BGB/Teichmann, §§ 576-576b BGB mn. 1.
2 Jauernig BGB/Teichmann, §§ 576-576b BGB mn. 1.
Hübner
1023
Division 8. Particular types of obligations
§ 577a
has been permitted to use it, is sold to a third
party, then the lessee has a right of preemp¬
tion with regard to it. 1 2This does not apply if
the lessor sells the residential premises to a
member of his family or a member of his
household. 3To the extent that the following
subsections do not lead to a different conclu¬
sion, the right of preemption is governed by
the provisions on preemption.
(2) The notification of the seller or of the
third party on the contents of the purchase
agreement is to be supplied together with
information to the lessee on his right of pre¬
emption.
(3) The right of preemption is exercised by
a written declaration of the lessee to the
seller.
(4) If the lessee dies, then the purchase
option passes to the persons who succeed to
the lease under § 563(1) or (2).
(5) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
oder begründet werden soll, an einen Dritten
verkauft, so ist der Mieter zum Vorkauf be¬
rechtigt. 2Dies gilt nicht, wenn der Vermieter
die Wohnräume an einen Familienangehöri¬
gen oder an einen Angehörigen seines Haus¬
halts verkauft. 3Soweit sich nicht aus den
nachfolgenden Absätzen etwas anderes ergibt,
finden auf das Vorkaufsrecht die Vorschrif¬
ten über den Vorkauf Anwendung.
(2) Die Mitteilung des Verkäufers oder des
Dritten über den Inhalt des Kaufvertrags ist
mit einer Unterrichtung des Mieters über sein
Vorkaufsrecht zu verbinden.
(3) Die Ausübung des Vorkaufsrechts er¬
folgt durch schriftliche Erklärung des Mieters
gegenüber dem Verkäufer.
(4) Stirbt der Mieter, so geht das Vorkaufs¬
recht auf diejenigen über, die in das Miet¬
verhältnis nach § 563 Abs. 1 oder 2 eintreten.
(5) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
1 § 577 and § 577a are intended to provide the lessee with a certain degree of protection
against termination by the lessor/landlord in the case of a sale of the apartment by the
landlord.1 In § 577, the granting of a mandatory (Sub. 5) right of first refusal creates the
possibility of acquiring the actually used apartment in the case of conversion into apartment
ownership (Wohnungseigentum).2 However, priority is given to the interest of the landlord if
the apartment is sold to family members or members of his household (Sub. 1 2nd St.).
2 If the lessor does not inform the lessee about the intended sale and about his right of
preemption, the lessee may claim damages pursuant to §§ 280(1), (3), 281.3
§ 577a
Restriction on notice of
termination in connection with
conversion of the dwelling
(1) If apartment ownership of leased resi¬
dential premises has been established in the
residential space after the lessee was per¬
mitted to use it and the apartment ownership
has been disposed of, then an acquirer may
only invoke a justified interest within the
meaning of § 573(2) No. 2 or 3 after the end
of three years after the disposal.
(la) ’The restriction on notice of termina¬
tion in accordance with subsection (1) applies
with the necessary modifications if rented
residential space, after the lessee was per¬
mitted to use it,
§ 577a
Kündigungsbeschränkung bei
Wohnungsumwandlung
(1) Ist an vermieteten Wohnräumen nach
der Überlassung an den Mieter Wohnungs¬
eigentum begründet und das Wohnungs¬
eigentum veräußert worden, so kann sich ein
Erwerber auf berechtigte Interessen im Sinne
des § 573 Abs. 2 Nr. 2 oder 3 erst nach Ablauf
von drei Jahren seit der Veräußerung beru¬
fen.
(la) ’Die Kündigungsbeschränkung nach
Absatz 1 gilt entsprechend» wenn vermieteter
Wohnraum nach der Überlassung an den
Mieter
1 Jauernig BGB/Teichmann, § 577 BGB mn. 1.
2 BT-Drs. 12/3254 of 15.9.1992.
3 BGH 21.1.2015 - VIII ZR 51/14, NJW 2015, 1516; HK-BGB/Scheuch, § 577, BGB mn. 3.
1024
Hübner
Leases of plots of land and premises
1. has been sold to a partnership or to
several purchasers, or
2. has been encumbered in favour of a
partnership or several purchasers with a right
through the exercise of which the lessee is
deprived of use in accordance with the con¬
tract.
2Sentence 1 is not to be applied if the
shareholders or purchasers belong to the
same family or to the same household, or if
apartment ownership had been established
prior to the lessee being permitted to use the
residential space.
(2) ‘The period under subsection (1) or
under subsection (la) is up to ten years if
adequate supply of leased dwellings to the
population on reasonable conditions in a
municipality or part of a municipality is
particularly jeopardised and these areas are
specified under sentence 2. 2The Land gov¬
ernments are authorised to specify these ter¬
ritories and the period of time under sen¬
tence 1 by statutory order for the duration
of ten years at most in each case.
(2a) If apartment ownership has been es¬
tablished subsequent to a sale or encum¬
brance within the meaning of subsection (la),
the period within which termination has been
ruled out in accordance with § 573(2) No. 2
or 3 already begins to run at the time of the
sale or encumbrance in accordance with
subsection (la).
(3) A deviating agreement to the disadvan¬
tage of the lessee is ineffective.
§578
1. an eine Personengesellschaft oder an
mehrere Erwerber veräußert worden ist oder
2. zu Gunsten einer Personengesellschaft
oder mehrerer Erwerber mit einem Recht
belastet worden ist, durch dessen Ausübung
dem Mieter der vertragsgemäße Gebrauch
entzogen wird.
2Satz 1 ist nicht anzuwenden, wenn die
Gesellschafter oder Erwerber derselben Fami¬
lie oder demselben Haushalt angehören oder
vor Überlassung des Wohnraums an den Mie¬
ter Wohnungseigentum begründet worden
ist.
(2) ‘Die Frist nach Absatz 1 oder nach
Absatz la beträgt bis zu zehn Jahre, wenn
die ausreichende Versorgung der Bevölke¬
rung mit Mietwohnungen zu angemessenen
Bedingungen in einer Gemeinde oder einem
Teil einer Gemeinde besonders gefährdet ist
und diese Gebiete nach Satz 2 bestimmt sind.
2Die Landesregierungen werden ermächtigt,
diese Gebiete und die Frist nach Satz 1 durch
Rechtsverordnung für die Dauer von jeweils
höchstens zehn Jahren zu bestimmen.
(2a) Wird nach einer Veräußerung oder
Belastung im Sinne des Absatzes la Woh¬
nungseigentum begründet, so beginnt die
Frist, innerhalb der eine Kündigung nach
§ 573 Absatz 2 Nummer 2 oder 3 ausgeschlos¬
sen ist, bereits mit der Veräußerung oder
Belastung nach Absatz la.
(3) Eine zum Nachteil des Mieters abwei¬
chende Vereinbarung ist unwirksam.
Subtitle 3
Leases of other things
Untertitel 3
Mietverhältnisse über andere
Sachen
§578
Leases of plots of land and
premises
(1) The provisions of §§ 550, 562 to 562d,
566 to 567b as well as 570 are applicable to
leases of plots of land with the necessary
modifications.
(2) 'The provisions cited in subsection (1)
as well as in §552(1), §555a(l) to (3),
§§ 555b and 555c( I) to (4), § 555d(l) to (6),
§ 555e(l) and (2), § 555f and §569(2) are
applicable with the necessary modifications
§578
Mietverhältnisse über
Grundstücke und Räume
(1) Auf Mietverhältnisse über Grundstücke
sind die Vorschriften der §§ 550, 562 bis
562d, 566 bis 567b sowie 570 entsprechend
anzuwenden.
(2) ‘Auf Mietverhältnisse über Räume, die
keine Wohnräume sind, sind die in Absatz 1
genannten Vorschriften sowie § 552 Abs. 1,
§ 555a Absatz 1 bis 3, §§ 555b, 555c Absatz 1
bis 4, § 555d Absatz 1 bis 6, § 555e Absatz 1
Hübner
1025
§ 578a
Division 8. Particular types of obligations
to leases for premises not constituting resi¬
dential premises. 2§ 556c(l) and (2), as well as
the legal ordinance issued on the basis of
§ 556c(3), are to be applied with the necessary
modifications; diverging agreements are per¬
missible. 3If the premises are intended for the
residence of human beings, § 569(1) also ap¬
plies with the necessary modifications.
’(3) lThe provisions set out in
subsections (1) and (2) and §§ 557, 557a(l)
to (3) and (5), § 557b(l) to (3) and (5), the
§§ 558 to 559d, 561, 568(1), 569(3) to (5), the
§§ 573 to 573d, 575, 575a(l), (3) and (4), the
§§577 and 577a apply with the necessary
modifications to contracts for the lease of
premises by a legal person under public law
or a recognised private welfare work organi¬
sation concluded to permit use by persons in
urgent need of accommodation. 2In addition
to the reasons set out in § 575(1) sentence 1,
such contracts may also be concluded for a
specific period if the lessor wishes to use the
premises after expiry of the rental period for
public tasks incumbent upon him or assigned
to him.
und 2, § 555f und § 569 Abs. 2 entsprechend
anzuwenden. 2§ 556c Absatz 1 und 2 sowie
die auf Grund des § 556c Absatz 3 erlassene
Rechtsverordnung sind entsprechend anzu¬
wenden, abweichende Vereinbarungen sind
zulässig. 3Sind die Räume zum Aufenthalt
von Menschen bestimmt, so gilt außerdem
§ 569 Abs. 1 entsprechend.
(3) ‘Auf Verträge über die Anmietung von
Räumen durch eine juristische Person des öf¬
fentlichen Rechts oder einen anerkannten pri¬
vaten Träger der Wohlfahrtspflege, die ge¬
schlossen werden, um die Räume Personen
mit dringendem Wohnungsbedarf zum Woh¬
nen zu überlassen, sind die in den Absätzen 1
und 2 genannten Vorschriften sowie die
§§ 557, 557a Absatz 1 bis 3 und 5, § 557b
Absatz 1 bis 3 und 5, die §§ 558 bis 559d, 561,
568 Absatz 1, § 569 Absatz 3 bis 5, die §§ 573
bis 573d, 575, 575a Absatz 1, 3 und 4, die
§§ 577 und 577a entsprechend anzuwenden.
2Solche Verträge können zusätzlich zu den in
§ 575 Absatz 1 Satz 1 genannten Gründen auch
dann auf bestimmte Zeit geschlossen werden,
wenn der Vermieter die Räume nach Ablauf
der Mietzeit für ihm obliegende oder ihm
übertragene öffentliche Aufgaben nutzen will.
1 This provision extends the special provisions on the leases for residential space to the lease
of land (Sub. 1) and the rental of premises not constituting residential premises (Sub. 2), as
long as there are no special regulations (§§ 579-580a). However, it does not apply to
movables.
§ 578a
Lease of registered ships
(1) The provisions of §§ 566, 566a, 566e to
567d apply with the necessary modifications
in the case of disposal or encumbrance of a
ship registered in the ship register.
(2) *A disposition of the rent made by the
lessor prior to the passing of ownership and
relating to the period of time when the ac¬
quirer is entitled is effective in relation to the
acquirer. 2The same applies to a legal transac¬
tion that is entered into between the lessee
and the lessor on the rent claim, in particular,
without limitation, regarding the payment of
the rent; a legal transaction entered into after
the passing of ownership is, however, ineffec¬
tive if the lessee, when entering into the
transaction, has knowledge of the passing of
ownership. 3§ 566d applies with the necessary
modifications.
§ 578a
Mietverhältnisse über eingetragene
Schiffe
(1) Die Vorschriften der §§ 566, 566a, 566e
bis 567b gelten im Falle der Veräußerung
oder Belastung eines im Schiffsregister einge¬
tragenen Schiffs entsprechend.
(2) ‘Eine Verfügung, die der Vermieter vor
dem Übergang des Eigentums über die Miete
getroffen hat, die auf die Zeit der Berechti¬
gung des Erwerbers entfällt, ist dem Erwerber
gegenüber wirksam. 2Das Gleiche gilt für ein
Rechtsgeschäft, das zwischen dem Mieter und
dem Vermieter über die Mietforderung vor¬
genommen wird, insbesondere die Entrich¬
tung der Miete; ein Rechtsgeschäft, das nac
dem Übergang des Eigentums vorgenommen
wird, ist jedoch unwirksam, wenn der Mieter
bei der Vornahme des Rechtsgeschäfts von
dem Übergang des Eigentums Kenntnis ha •
3§ 566d gilt entsprechend.
‘ § 578(3) entered into force on 1.1.2019.
1026
Hübner
Notice periods
§ 580a
T e purpose of the provision is to adjust the rules governing the letting of ships to the 1
letting of immovable property. It is analogously applicable to aircrafts pursuant to § 98(2)
1 St. LuftFzgG (Gesetz über Rechte an Luftfahrzeugen - Act concerning rights over aircraft).1
§579
Due date of the rent
(1) ’The rent for a plot of land and for
movable things is payable at the end of the
lease period. 2If the rent is assessed according
to time periods, then it is to be paid at the
end of the individual time periods. 3Rent for
a plot of land, unless assessed by shorter time
periods, is in each case to be paid after the
end of a calendar quarter on the first working
day of the next month.
(2) § 566b(l) applies with the necessary
modifications to leases of premises.
§579
Fälligkeit der Miete
(1) ’Die Miete für ein Grundstück und für
bewegliche Sachen ist am Ende der Mietzeit
zu entrichten. 2Ist die Miete nach Zeit¬
abschnitten bemessen, so ist sie nach Ablauf
der einzelnen Zeitabschnitte zu entrichten.
3Die Miete für ein Grundstück ist, sofern sie
nicht nach kürzeren Zeitabschnitten bemes¬
sen ist, jeweils nach Ablauf eines Kalender¬
vierteljahrs am ersten Werktag des folgenden
Monats zu entrichten.
(2) Für Mietverhältnisse über Räume gilt
§ 556b Abs. 1 entsprechend.
This provision covers the due date of the rent for lease contracts for land and movables 1
(Sub. 1). By deviating from § 556b(l) for lease contracts for residential space, it states that the
rent is payable at the end of lease period. However, the parties regularly agree on an advance
payment since the clause is dispensable. In the case of leases of premises, the rent is due in
advance, in the same respect as in cases of leases of residential space.
§580
Notice of termination for cause in
the case of the death of the lessee
If the lessee dies, then both his heir and the
lessor are entitled, within a month of obtain¬
ing knowledge of the death of the lessee, to
terminate the lease for cause with the statu¬
tory notice period.
§580
Außerordentliche Kündigung bei
Tod des Mieters
Stirbt der Mieter, so ist sowohl der Erbe als
auch der Vermieter berechtigt, das Mietver¬
hältnis innerhalb eines Monats, nachdem sie
vom Tod des Mieters Kenntnis erlangt haben,
außerordentlich mit der gesetzlichen Frist zu
kündigen.
§ 580a
Notice periods
(1) In the case of a lease of plots of land, of
premises that are not business premises, no¬
tice of termination is allowed
1. if the rent is assessed by days, on any day
to the end of the following day;
2. if the rent is assessed by weeks, at the
latest on the first working day of a week to
the end of the following Saturday;
3. if the rent is assessed in months or
longer periods of time, at the latest on the
§ 580a
Kündigungsfristen
(1) Bei einem Mietverhältnis über Grund¬
stücke, über Räume, die keine Geschäfts¬
räume sind, ist die ordentliche Kündigung
zulässig,
1. wenn die Miete nach Tagen bemessen ist,
an jedem Tag zum Ablauf des folgenden Ta¬
ges;
2. wenn die Miete nach Wochen bemessen
ist, spätestens am ersten Werktag einer Wo¬
che zum Ablauf des folgenden Sonnabends;
3. wenn die Miete nach Monaten oder län¬
geren Zeitabschnitten bemessen ist, spätes-
1 MüKo BGB/Artz, § 578a BGB mn. 1.
Hübner
1027
§581 1
Division 8. Particular types of obligations
third working day of a calendar month to the
end of the second month thereafter; in the
case of a lease of commercially used undeve¬
loped plots of land, however, only to the end
of a calendar quarter.
(2) In the case of a lease of business pre¬
mises, notice of termination is admissible at
the latest on the third working day of a
calendar quarter to the end of the next calen¬
dar quarter.
(3) In the case of a lease of movable things,
notice of termination is admissible
1. if the rent is assessed by days, on any day
to the end of the following day;
2. if the rent is assessed by longer periods
of time, at the latest on the third day prior to
the day at the end of which the lease is to
terminate.
(4) Subsection (1) No. 3, subsections (2)
and (3) No. 2 are also to be applied if a lease
may be terminated for cause with the statu¬
tory notice period.
tens am dritten Werktag eines Kalender¬
monats zum Ablauf des übernächsten Mo¬
nats, bei einem Mietverhältnis über gewerb¬
lich genutzte unbebaute Grundstücke jedoch
nur zum Ablauf eines Kalendervierteljahrs.
(2) Bei einem Mietverhältnis über Ge¬
schäftsräume ist die ordentliche Kündigung
spätestens am dritten Werktag eines Kalen¬
dervierteljahres zum Ablauf des nächsten Ka¬
lendervierteljahrs zulässig.
(3) Bei einem Mietverhältnis über beweg¬
liche Sachen ist die ordentliche Kündigung
zulässig,
1. wenn die Miete nach Tagen bemessen ist,
an jedem Tag zum Ablauf des folgenden Tages;
2. wenn die Miete nach längeren Zeit¬
abschnitten bemessen ist, spätestens am drit¬
ten Tag vor dem Tag, mit dessen Ablauf das
Mietverhältnis enden soll.
(4) Absatz 1 Nr. 3, Absatz 2 und 3 Nr. 2
sind auch anzuwenden, wenn ein Mietverhält¬
nis außerordentlich mit der gesetzlichen Frist
gekündigt werden kann.
Subtitle 4
Untertitel 4
Usufructuary lease
Pachtvertrag
§581
Typical contractual duties in a
usufructuary lease
(1) lA usufructuary lease imposes on the
lessor the duty to allow the lessee, for the
lease period, the use of the leased object and
the enjoyment of its fruits to the extent that
they are deemed to be income under the rules
of proper management. 2The lessee is obliged
to pay the lessor the agreed rent.
(2) The provisions on leases apply with the
necessary modifications to usufructuary
leases with the exception of farm leases, un¬
less §§ 582 to 584b lead to a different conclu¬
sion.
§581
Vertragstypische Pflichten beim
Pachtvertrag
(1) 1 Durch den Pachtvertrag wird der Ver¬
pächter verpflichtet, dem Pächter den Ge¬
brauch des verpachteten Gegenstands und den
Genuss der Früchte, soweit sie nach den Regeln
einer ordnungsmäßigen Wirtschaft als Ertrag
anzusehen sind, während der Pachtzeit zu ge¬
währen. 2Der Pächter ist verpflichtet, dem Ver¬
pächter die vereinbarte Pacht zu entrichten.
(2) Auf den Pachtvertrag mit Ausnahme
des Landpachtvertrags sind, soweit sich nicht
aus den §§ 582 bis 584b etwas anderes ergibt,
die Vorschriften über den Mietvertrag ent¬
sprechend anzuwenden.
A. Function
I. Purpose
The law distinguishes between the usufructuary lease of objects (§§ 58l-584b) and the
usufructuary lease of agricultural land and businesses (§§ 585-597). This arrangement is
based on the objective of adapting lease rights to agricultural production forms.1
1 Jauernig BGB/Teichmann, § 581 BGB mn. 1.
1028
Hübner
Typical contractual duties in a usufructuary lease
2-8 § 581
IL Scope of application
§ 581 is generally dispensable. The right to enjoy the fruits of the leased objects, however, 2
may not be totally excluded as this right represents the very identity of the contract.
§§ 581 et seq. are not (fully) applicable to the leasing of certain items such as, for example, 3
allotments, hunting land, fish ponds and pharmacies. Specific regulations exist in conjunc¬
tion with the BGB such as the Act concerning the usufructuary lease of allotments
(Bundeskleingartengesetz:, BKleinG).
B. Explanation
I. Usufructuary lease
The contract on usufructuary lease is a mutual, synallagmatic contract being closely related 4
with the lease contract and based on the idea that there is counter performance in return.
The lessor (here: Verpächter) is obliged to permit the lessee (here: Pächter) the use of the
object by way of a continuing obligation (Dauerschuldverhältnis).
1. Distinction from lease
It must be distinguished from the lease contract. The main distinction feature is that the 5
lessee shall be entitled to the fruits according to § 99 - in addition to the benefits of use
which are also attributable to the lessee under a lease contract. Drawing this line is not a
straightforward task. According to the BGH2 it depends on whether the economic success
striven for by the beneficial owner corresponds more closely to his own, original performance
(then lease) or whether the economic success is in accordance with the regulations (§ 99(1)),
i.e. it can be achieved in principle by any suitable person who uses the object according to its
purpose.
2. Object
Another important difference relates to the object of the lease. The usufructuary lease 6
covers not only land, buildings, and rooms that can be leased, but also rights such as patent
rights (by licensing), appropriation rights (e.g. hunting and fishing rights), legal rights,3
company shares and assets (e.g. commercial transactions, companies).
3. Mixed contracts
There is also a widespread use of mixed contracts such as franchise contracts characterised 7
by the usufructuary lease but also by elements of the management service contract4
(Geschäftsbesorgungsvertrag).
II. Formal requirements
If the contract, in the case of contracts for land and premises, is to last more than one year, 8
the contract must be in writing (§ 578(1), (2) in conjunction with § 550); a form-free
agreement is possible(e.g. for the lease of a right).
2 BGH 17.1.1968 - VIII ZR 207/65, NJW 1968, 692.
3 BGH 20.11.1967 - VIII ZR 92/65, WM 1968, 7: beer dispensing in a ballroom, BGH 30.9.2009 - XII
ZR 39/08, NJW-RR 2010, 198: milk quota).
4 MüKo BGB/Harke, § 581 BGB mn. 19.
Hübner
1029
§ 582 1-2
Division 8. Particular types of obligations
IIL Duties
9 The duties of the parties resemble those of parties under a lease contract. The lessor owes
not only the use of the object but also the right to the enjoyment of its fruits as long as they
are deemed to be income under the rules of proper management (Sub. 1 1st St.). The lessee
acquires ownership under §§ 956, 957. In principle the lessee (Sub. 1 2nd St.) is under no
obligation to use the object; however, unlike the lease agreement, the usufructuary lessee may
not be able to assume the custody of the object without any proper management.5
IV. Application of further provisions
10 Sub. 2 leads to a widespread application of the provisions applicable to lease contracts. In
particular, the provisions of the law on the remedy of defects of §§ 536 et seq. and on the
termination of the contract (§§ 542 et seq.) apply. The special rules for residential space rent
apply only insofar as § 581(2) and § 578, for example, are relevant to the security right of the
lessor pursuant to § 562 or §§ 566 et seq. Not applicable are the rules which exclusively
concern the residential lease, such as the protection against termination in accordance with
§§ 569 et seq.6. The latter even applies if residential space belongs to the leased object.7
§582
Maintenance of inventory
(1) If a plot of land together with its in¬
ventory is leased under a usufructuary lease,
then the lessee must maintain the individual
inventory items.
(2) lThe lessor is obliged to replace inven¬
tory items disposed of due to a circumstance
for which the lessee is not responsible. 2How-
ever, the usufructuary lessee must make up
for the routine disposition of animals that are
part of the inventory to the extent that this
complies with proper management.
§582
Erhaltung des Inventars
(1) Wird ein Grundstück mit Inventar ver¬
pachtet, so obliegt dem Pächter die Erhaltung
der einzelnen Inventarstücke.
(2) !Der Verpächter ist verpflichtet, Inven¬
tarstücke zu ersetzen, die infolge eines vom
Pächter nicht zu vertretenden Umstands in
Abgang kommen. 2Der Pächter hat jedoch
den gewöhnlichen Abgang der zum Inventar
gehörenden Tiere insoweit zu ersetzen, als dies
einer ordnungsmäßigen Wirtschaft entspricht.
A. Function
1 This provision describes the distribution of the duties to maintain the inventory if
inventory is part of the usufructuary lease under the contract. § 582 is not mandatory and
therefore fully dispensable.
B. Explanation
2 The notion of inventory is broader than the one of accessory under § 97 and does not depend
on the distribution of ownership of movables determined for the use of the land to the extent it
complies with proper management.1 Deviating from § 535(1) 2nd St., the lessee is obliged to
maintain the inventory, including carrying out the maintenance work or feeding the animals.
5 Jauernig BGB/Teichmann, § 581 BGB mn. 6.
6 HK-BGB/Scheuch, § 581 BGB mn. 15.
7 MüKo BGB/Harke, § 581 BGB mn. 56.
1 Staudinger BGB/Emmerich/Schaub, Vor § 582-583a BGB mn. 5,
2 cf. Staudinger BGB/Emmerich/Schaub, § 582 BGB mn. 7.
1030
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Taking over inventory at its estimated value
1-2 § 582a
§ 582a
Taking over inventory at its
estimated value
(1) lIf the usufructuary lessee of a plot of
land takes over the inventory at its estimated
value with the duty of returning it at its
estimated value upon termination of the
lease, then he bears the risk of accidental loss
and accidental deterioration of such inven¬
tory. 2Within the limits of proper manage¬
ment, the lessee may dispose of the individual
inventory items.
(2) ‘The usufructuary lessee must main¬
tain the inventory in a condition and replace
it to an extent that complies with the rules of
proper management. 2The items purchased
by him become the property of the lessor
when they are incorporated into the inven¬
tory'.
(3) ‘Upon the termination of the usufruc¬
tuary7 lease, the lessee must return the existing
inventory to the lessor. 2The lessor may refuse
to take over those of the inventory items
purchased by the lessee that are superfluous
or too expensive for the plot of land under
the rules of proper management; upon rejec¬
tion, the ownership of the rejected items
passes to the lessee. 3If there is a difference
between the total estimated value of the in¬
ventory taken over and that to be returned,
then this difference is to be compensated for
in money. 4The estimated values are to be
based on the prices valid at the time of
termination of the usufructuary lease.
§ 582a
Inventarübernahme zum
Schätzwert
(1) 'Übernimmt der Pächter eines Grund-
Stücks das Inventar zum Schätzwert mit der
Verpflichtung, es bei Beendigung des Pacht¬
verhältnisses zum Schätzwert zurückzuge¬
währen, so trägt er die Gefahr des zufälligen
Untergangs und der zufälligen Verschlechte¬
rung des Inventars, innerhalb der Grenzen
einer ordnungsmäßigen Wirtschaft kann er
über die einzelnen Inventarstücke verfügen.
(2) ‘Der Pächter hat das Inventar in dem
Zustand zu erhalten und in dem Umfang
laufend zu ersetzen, der den Regeln einer
ordnungsmäßigen Wirtschaft entspricht.
2Die von ihm angeschafften Stücke werden
mit der Einverleibung in das Inventar Eigen¬
tum des Verpächters.
(3) ‘Bei Beendigung des Pachtverhältnisses
hat der Pächter das vorhandene Inventar dem
Verpächter zurückzugewähren. 2Der Verpäch¬
ter kann die Übernahme derjenigen von dem
Pächter angeschafften Inventarstücke ableh¬
nen, welche nach den Regeln einer ordnungs¬
mäßigen Wirtschaft für das Grundstück über¬
flüssig oder zu wertvoll sind; mit der
Ablehnung geht das Eigentum an den abge¬
lehnten Stücken auf den Pächter über. 3Besteht
zwischen dem Gesamtschätzwert des über¬
nommenen und dem des zurückzugewähren¬
den Inventars ein Unterschied, so ist dieser in
Geld auszugleichen. 4Den Schätzwerten sind
die Preise im Zeitpunkt der Beendigung des
Pachtverhältnisses zugrunde zu legen.
A. Function
The objective of this provision is that the lessor regains a fully functional business after the 1
end of the lease.1 It is a default rule and may be dispensed with by the parties.
B. Explanation
The lessee bears the risk of accidental loss and accidental deterioration of the inventory 2
(Sub. 1 1st St.). The lessor remains owner of the existing inventory, whereas the items
purchased by the lessee become the property of the lessor when they are incorporated into
the inventory (Sub. 2 2nd St.). After the lease, the lessee must return the inventory (cf. § 546
for lease contracts). The lessor may object in accordance with Sub. 3 2nd St.; this provision
contains a compensation claim if the value of the inventory taken over and that to be
returned vary.
1 Staudinger BGB/Emmerich/Schaub, § 582a BGB mn. 3.
Hübner
1031
§ 583a 1
Division 8. Particular types of obligations
§583
Security right of usufructuary
lessee over inventory
(1) The usufructuary lessee of a plot of
land has a security right over the inventory
items in his possession for claims on the
lessor that relate to inventory included in the
usufructuary lease.
(2) ’The usufructuary lessor may ward off
the assertion of the security right of the lessee
by provision of security. 2He may release
every single inventory item from the security
right by providing security in the amount of
the value.
§583
Pächterpfandrecht am Inventar
(1) Dem Pächter eines Grundstücks steht
für die Forderungen gegen den Verpächter,
die sich auf das mitgepachtete Inventar bezie¬
hen, ein Pfandrecht an den in seinen Besitz
gelangten Inventarstücken zu.
(2) ’Der Verpächter kann die Geltendma¬
chung des Pfandrechts des Pächters durch
Sicherheitsleistung abwenden. 2Er kann jedes
einzelne Inventarstück dadurch von dem
Pfandrecht befreien, dass er in Höhe des
Wertes Sicherheit leistet.
A. Function
1 This default rule establishes a lessee’s security right over the inventory items. It shall secure
his claims against the lessor due to the inventory. It further aims to protect the lessee against
impairments of his rights of use and disposition as regards the inventory during the lease
concerning claims and attachments of third parties.1
B. Explanation
2 Secured receivables are claims pursuant to § 582(2) 1st St. and, in some cases, repayment
of a deposit agreed and paid for the inventory (§ 551). Objects of the security are all
inventories in possession of the lessor, even if third parties are owners.2
§ 583a
Restrictions on disposition of
inventory
Terms of the contract that oblige the usu¬
fructuary lessee of a business not to dispose
of inventory items or not to dispose of them
without prior consent by the lessor or to
dispose of inventory items to the lessor are
only effective if the lessor agrees to acquire
the inventory at its estimated value upon
termination of the lease.
§ 583a
Verfügungsbeschränkungen bei
Inventar
Vertragsbestimmungen, die den Pächter ei¬
nes Betriebs verpflichten, nicht oder nicht
ohne Einwilligung des Verpächters über In¬
ventarstücke zu verfügen oder Inventar an
den Verpächter zu veräußern, sind nur wirk¬
sam, wenn sich der Verpächter verpflichtet,
das Inventar bei der Beendigung des Pacht¬
verhältnisses zum Schätzwert zu erwerben.
This default rule protects the lessee against the agreement of inappropriate limitation of
dispositions of the inventory items.1 It only covers the lease of businesses including
agricultural businesses (§ 585(2)).2
1 HK-BGB/Scheuch, § 583 BGB mn. 1.
2 BGH 21.12.1960 - VIII ZR 146/59, NJW 1961, 502.
1 MüKo BGB/Harke, § 583a BGB mn. 1.
2 Palandt BGB/Weidenkaff, § 583a BGB mn. 1.
1032
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Late return
§ 584b
§584
Notice period
(1) If, in the usufructuary lease of a plot of
land or of a right, the lease period is not
specified, then notice of termination is only
allowed to the end of a lease year; it must
occur at the latest on the third working day of
the half-year at the end of which the usufruc¬
tuary lease is to end.
(2) This also applies if the usufructuary
lease may be terminated for cause with the
statutory notice period.
§584
Kündigungsfrist
(1) Ist bei dem Pachtverhältnis über ein
Grundstück oder ein Recht die Pachtzeit
nicht bestimmt, so ist die Kündigung nur für
den Schluss eines Pachtjahrs zulässig; sie hat
spätestens am dritten Werktag des halben
Jahres zu erfolgen, mit dessen Ablauf die
Pacht enden soll.
(2) Dies gilt auch, wenn das Pachtverhält¬
nis außerordentlich mit der gesetzlichen Frist
gekündigt werden kann.
§ 584 is a default rule which regulates the notice period for the ordinary (Sub. 1) or 1
extraordinary termination with statutory notice period (Sub. 2) of certain indefinite usufruc¬
tuary lease agreements under derogation from §§ 580a, 573c. In this way it takes account of
the complex measures, which must be carried out by both parties at the end of the
usufructuary’ leasing contract.1 The provision is applicable to usufructuary leasing contracts
on land and premises (§ 580) with and without inventory as well as to rights.2
§ 584a
Exclusion of certain rights of
termination under landlord and
tenant law
(1) The usufructuary lessee is not entitled
to the right of notice of termination deter¬
mined in § 540(1).
(2) The usufructuary lessor is not entitled to
terminate the usufructuary lease under § 580.
§ 584a
Ausschluss bestimmter
mietrechtlicher Kündigungsrechte
(1) Dem Pächter steht das in § 540 Abs. 1
bestimmte Kündigungsrecht nicht zu.
(2) Der Verpächter ist nicht berechtigt, das
Pachtverhältnis nach § 580 zu kündigen.
This default rule excludes the application of certain termination provisions to the 1
usufructuary lease. Because of the interest of the lessor in the person of the lessee who is
involved in the business, the lessee is also to be bound personally for the duration of the
contract. There is no entitlement to sub-letting; the prohibition of a sub-lease cannot give
grounds for termination. The exclusion under Sub. 2 does not influence the termination right
of the heirs.1 Sub. 2 protects the economic interests of the heirs regularly to be considered
with regard to the prolongation of the usufructuary lease.2
§ 584b
Late return
!If the usufructuary lessee fails to return
the leased property upon termination of the
usufructuary lease, then the lessor may, for
the duration of the retention, demand the
§ 584b
Verspätete Rückgabe
!Gibt der Pächter den gepachteten Gegen¬
stand nach der Beendigung des Pachtverhält¬
nisses nicht zurück, so kann der Verpächter für
die Dauer der Vorenthaltung als Entschädigung
1 Staudinger BGB/Sonnenschein/Schaub, § 584 BGB mn. 2.
2 HK-BGB/Scheuch, § 584 BGB mn. 2.
1 Jauernig BGB/Teichmann, § 584a BGB mn. 1.
2 Staudinger BGB/Sonnenschein/Schaub, 584a BGB mn. 17.
Hübner
1033
§ 585 1-2
Division 8. Particular types of obligations
agreed rent as compensation in the ratio of
the emoluments which the lessee took or
could have taken in this period to the emolu¬
ments of the whole lease year. Assertion of
additional damage is not excluded.
die vereinbarte Pacht nach dem Verhältnis ver¬
langen, in dem die Nutzungen, die der Pächter
während dieser Zeit gezogen hat oder hätte
ziehen können, zu den Nutzungen des ganzen
Pachtjahrs stehen. 2Die Geltendmachung eines
weiteren Schadens ist nicht ausgeschlossen.
1 § 584b determines the amount of the indemnity differently than § 546a. The preconditions
and other consequences correspond to those of § 546a. It is a mandatory provision applicable
to all usufructuary leases.
Subtitle 5
Farm lease
Untertitel 5
Landpachtvertrag
§585
Concept of farm lease
(1) !By means of a farm lease, a plot of
land with the residential and utility buildings
(business) that serve its cultivation, or a plot
of land without such buildings, is leased lar¬
gely for agriculture. 2Agriculture means the
cultivation of the soil and the livestock breed¬
ing associated with the use of the soil in order
to produce plant or animal products, and
horticultural production.
(2) §581(1) and §§582 to 583a apply to
farm leases, as do the special provisions be¬
low.
(3) The provisions on farm leases also ap¬
ply to leases relating to forestry properties if
the plots of land are leased for use in a
predominantly agricultural business.
§585
Begriff des Landpachtvertrags
(1) 1 Durch den Landpachtvertrag wird ein
Grundstück mit den seiner Bewirtschaftung
dienenden Wohn- oder Wirtschaftsgebäuden
(Betrieb) oder ein Grundstück ohne solche
Gebäude überwiegend zur Landwirtschaft
verpachtet. 2Landwirtschaft sind die Boden¬
bewirtschaftung und die mit der Bodennut¬
zung verbundene Tierhaltung, um pflanzliche
oder tierische Erzeugnisse zu gewinnen, sowie
die gartenbauliche Erzeugung.
(2) Für Landpachtverträge gelten § 581
Abs. 1 und die §§ 582 bis 583a sowie die
nachfolgenden besonderen Vorschriften.
(3) Die Vorschriften über Landpachtver¬
träge gelten auch für Pachtverhältnisse über
forstwirtschaftliche Grundstücke, wenn die
Grundstücke zur Nutzung in einem überwie¬
gend landwirtschaftlichen Betrieb verpachtet
werden.
A. Function
Given the structural change in agriculture towards larger farms, the (additional) lease of
agricultural land ownership has a very significant importance. The provisions seek to
strengthen the position of the lessee as an independent entrepreneur with his own decision¬
making authority, see in particular §§ 590, 591, 593.1 The rights and duties of the parties
mainly follow from §§ 581(1), 586, 587.
B. Explanation
I. Notification requirement
The authorities must be notified of the contract in accordance with §§ 2 et seq. Landpacht'
VG (Gesetz über die Anzeige und Beanstandung von Landpachtverträgen - Law on the
1 Jauernig BGB/Teichmann, § 585 BGB mn. 1.
1034
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Description of the leased property § 585b
notification and objection of usufructuary leases for farmland); they may possibly object to the
lease agreement (§ 4 LandpachtVG).
IL Cultivation of the soil
The notion of this kind of usufructuary lease is restricted by the requirement of the 3
cultivation of the soil (Sub. 1 2nd St.). This means that any business not having any relation to
the soil cannot fall under these provisions, e.g. the use of the land for wind energy turbines.2
§ 585a
Form of farm lease
If a farm lease is entered into for more than
two years without written form, then it re¬
mains in effect for an indefinite period of time.
§ 585a
Form des Landpachtvertrags
Wird der Landpachtvertrag für längere Zeit
als zwei Jahre nicht in schriftlicher Form
geschlossen, so gilt er für unbestimmte Zeit.
This mandatory provision modifies § 550 with regard to the notice period under § 594a 1
insofar as a farm lease contract with a term of more than two years must be concluded in
written form unless it shall not be in force for an indefinite term. The provision not only
aims to simplify’ issues of proof but also facilitate the opportunities of the acquirer of land to
obtain information about the scope of the existing lease contracts1.
§ 585b
Description of the leased property
(1) ’The lessor and the lessee should at the
beginning of the usufructuary lease jointly
prepare a description of the leased property
in which its extent and the condition in
which it is when surrendered are established.
2This applies with the necessary modifica¬
tions to the termination of the usufructuary
lease. The description should state the date of
its preparation and must be signed by both
parties.
(2) If a party to the lease refuses to partici¬
pate in the preparation of a description or if
differences of opinion as to fact emerge dur¬
ing the preparation, then each party to the
lease may demand that a description is pre¬
pared by an expert, unless more than nine
months have passed since permitting use of
the leased property or more than three
months have passed since termination of
lease; the expert is appointed by the Agricul¬
tural Court [Landwirtschaftsgericht] upon
application. Costs incurred in this connection
are borne by the parties to the lease at the
rate of one-half each.
(3) If a description of this type has been
prepared, then the presumption between the
parties to the contract is that it is correct.
§ 585b
Beschreibung der Pachtsache
(1) ’Der Verpächter und der Pächter sollen
bei Beginn des Pachtverhältnisses gemeinsam
eine Beschreibung der Pachtsache anfertigen,
in der ihr Umfang sowie der Zustand, in dem
sie sich bei der Überlassung befindet, fest¬
gestellt werden. 2Dies gilt für die Beendigung
des Pachtverhältnisses entsprechend. Die Be¬
schreibung soll mit der Angabe des Tages der
Anfertigung versehen werden und ist von
beiden Teilen zu unterschreiben.
(2) Weigert sich ein Vertragsteil, bei der
Anfertigung einer Beschreibung mitzuwir¬
ken, oder ergeben sich bei der Anfertigung
Meinungsverschiedenheiten tatsächlicher Art,
so kann jeder Vertragsteil verlangen, dass
eine Beschreibung durch einen Sachverstän¬
digen angefertigt wird, es sei denn, dass seit
der Überlassung der Pachtsache mehr als
neun Monate oder seit der Beendigung des
Pachtverhältnisses mehr als drei Monate ver¬
strichen sind; der Sachverständige wird auf
Antrag durch das Landwirtschaftsgericht er¬
nannt. Die insoweit entstehenden Kosten
trägt jeder Vertragsteil zur Hälfte.
(3) Ist eine Beschreibung der genannten
Art angefertigt, so wird im Verhältnis der
Vertragsteile zueinander vermutet, dass sie
richtig ist.
2 BGH 24.4.2009 - BLw 21/08, NJW-RR 2009, 1610.
1 Staudinger BGB/Bleckwenn/v. Jeinsen, § 585a BGB mn. 3.
Hübner
1035
§ 586a 1
Division 8. Particular types of obligations
The provision is intended to avoid disputes at the end of the contract, in particular due to
the division of responsibilities according to § 586(1). Sub. 1 (should) is the default rule. If the
parties omit to prepare a description of the leased property, the contract, nonetheless, is valid.
While the parties may deviate from Sub. 2, Sub. 3 is mandatory.1
§586
Typical contractual duties in a
farm lease
(1) ’The usufructuary lessor must surrender
the leased property to the lessee in a condition
suitable for use in conformity with the con¬
tract and must maintain it in this condition
for the lease period. 2However, the lessee must
carry out the customary improvements of
the leased property at his own expense, includ¬
ing without limitation improvements of the
residential and utility buildings, the paths,
ditches, drains and fences. 3He is obliged to
manage the leased property properly.
(2) The provisions of §§ 536(1) to (3) and
of 536a to 536d apply to the liability of the
usufructuary lessor for material and legal
defects in the leased property as well as for
the rights and duties of the lessee in relation
to such defects.
§ 586
Vertrags typische Pflichten beim
Landpachtvertrag
(1) ’Der Verpächter hat die Pachtsache
dem Pächter in einem zu der vertragsmäßi¬
gen Nutzung geeigneten Zustand zu überlas¬
sen und sie während der Pachtzeit in diesem
Zustand zu erhalten. 2Der Pächter hat jedoch
die gewöhnlichen Ausbesserungen der Pacht¬
sache, insbesondere die der Wohn- und Wirt¬
schaftsgebäude, der Wege, Gräben, Dränun¬
gen und Einfriedigungen, auf seine Kosten
durchzuführen. 3Er ist zur ordnungsmäßigen
Bewirtschaftung der Pachtsache verpflichtet.
(2) Für die Haftung des Verpächters für
Sach- und Rechtsmängel der Pachtsache so¬
wie für die Rechte und Pflichten des Pächters
wegen solcher Mängel gelten die Vorschriften
des § 536 Abs. 1 bis 3 und der §§ 536a bis
536d entsprechend.
1 Sub. 1 1st St. repeats the principle of § 535(1) by shifting the repair duties to the lessee. The
usual repairs include eliminating the damage caused by normal use or frequent operational
risks.1 Sub. 2 draws the consequence of the fundamental reference to the lease law under
§§ 535 et seq.
§ 586a
Encumbrances on the leased
property
The usufructuary lessor must bear the en¬
cumbrances imposed on the leased property.
§ 586a
Lasten der Pachtsache
Der Verpächter hat die auf der Pachtsache
ruhenden Lasten zu tragen.
1 The usufructuary lessor must bear the encumbrances on the leased property in the same
fashion as the lessor must bear them under a normal lease contract under § 535(1) 3rd St.
§ 586a provision is dispensable. If requirements under public law are concerned, the parties
may agree on a different solution between them but the lessor will be obliged towards the
authorities.1
1 HK-BGB/Scheuch, § 585b BGB mn. 7.
1 Staudinger BGB/Bleckwenn/v. Jeinsen, § 586 BGB mn. 25 et seq
‘ Staudinger BGB/Bleckwenn/v. Jeinsen, § 586a BGB mn. 11.
1036
Hübner
Measures of maintenance or improvement
§588
§587
Due date of rent; payment of rent
where the usufructuary lessee is
personally prevented
(1) ’The rent is to be paid at the end of the
lease period. 2If the lease period is assessed by
time periods, then it is to be paid on the first
working day after the end of the individual
time periods.
(2) The usufructuary lessee is not released
from payment of the rent due to the fact that
he is unable to exercise the right of use to
which he is entitled for a reason relating to
him personally. § 537(1) sentence 2 and (2)
apply with the necessary modifications.
§587
Fälligkeit der Pacht; Entrichtung
der Pacht bei persönlicher
Verhinderung des Pächters
(1) ’Die Pacht ist am Ende der Pachtzeit zu
entrichten. 2Ist die Pacht nach Zeitabschnit¬
ten bemessen, so ist sie am ersten Werktag
nach dem Ablauf der einzelnen Zeitabschnitte
zu entrichten.
(2) Der Pächter wird von der Entrichtung
der Pacht nicht dadurch befreit, dass er durch
einen in seiner Person liegenden Grund an
der Ausübung des ihm zustehenden Nut¬
zungsrechts verhindert ist. § 537 Abs. 1 Satz 2
und Abs. 2 gilt entsprechend.
§ 587 is the default rule. Sub. 1 regulates the due date of the lease payment; it is based on 1
§ 579a. Sub. 2 regulates the consequences of preventing the farmer from using the property
(cf. § 537). According to Sub. 2 the lessee must pay the rent even in case of impossibility of
use, if the obstacle falls into his sphere of risk, which includes, inter alia, restrictions of use by
weather, improper management, environmental regulations or other governmental prohibi¬
tions.1
§588
Measures of maintenance or
improvement
(1) The usufructuary lessee must acquiesce
in impacts on the leased property necessary
to maintain it.
(2) ’Measures to improve the leased prop¬
erty must be tolerated by the usufructuary
lessee, unless the measure would represent a
hardship for him that is not justified even
when the justified interests of the lessor are
taken into account. 2The usufructuary lessor
must compensate the lessee for expenses in¬
curred and earnings lost as a result of the
measure to an extent appropriate to the cir¬
cumstances. 3On demand, the usufructuary
lessor must make advance payment.
(3) To the extent that the usufructuary
lessee, due to measures under subsection (2)
sentence 1, earns higher income or could earn
it with proper management, the lessor may
demand that the lessee gives prior consent to
a reasonable increase in rent unless the usu¬
fructuary lessee cannot reasonably be ex¬
pected to accept an increase in rent in view
of the circumstances of the business.
§588
Maßnahmen zur Erhaltung oder
Verbesserung
(1) Der Pächter hat Einwirkungen auf die
Pachtsache zu dulden, die zu ihrer Erhaltung
erforderlich sind.
(2) ’Maßnahmen zur Verbesserung der
Pachtsache hat der Pächter zu dulden, es sei
denn, dass die Maßnahme für ihn eine Härte
bedeuten würde, die auch unter Würdigung
der berechtigten Interessen des Verpächters
nicht zu rechtfertigen ist. 2Der Verpächter
hat die dem Pächter durch die Maßnahme
entstandenen Aufwendungen und entgange¬
nen Erträge in einem den Umständen nach
angemessenen Umfang zu ersetzen. 3Auf
Verlangen hat der Verpächter Vorschuss zu
leisten.
(3) Soweit der Pächter infolge von Ma߬
nahmen nach Absatz 2 Satz 1 höhere Erträge
erzielt oder bei ordnungsmäßiger Bewirt¬
schaftung erzielen könnte, kann der Verpäch¬
ter verlangen, dass der Pächter in eine ange¬
messene Erhöhung der Pacht einwilligt, es sei
denn, dass dem Pächter eine Erhöhung der
Pacht nach den Verhältnissen des Betriebs
nicht zugemutet werden kann.
1 cf. Staudinger/Bleckwenn/v. Jeinsen, § 587 mn. 20 et seq.
Hübner
1037
<«•’ 'Vpon applicatio«« th*
Court lUndwirtschalUgerkn I ?|f the
putes under subsections ( ) *’ consent
usufrudnan lessee fails to 8<’«(J((f Agri.
in the cases in MibwUlon *;J’ ’ may
cultural Court |lanJ»irts<h»IJ L |)lc
give substitute consent on application b>
lessor.
. , ™mhlorv environment for maintenance measures w in
1 The provision creates « reg • . ( blcs ,hi|, a specific court shall decide
ment deviatmg « the Agricultural Court.
the claims under bubs l-x UR f b
(4) 'Ober Slrcillgkcilcn nach <|rn
rcn I und 2 entscheidet auf Antr«K (l>s , M’
wlrtsschaftsgericht. 2Verweigert dcr i%| “”<1
den Füllen des Absatzes .5 seine I invvj)| <r
M» kann sie das LandwirtsdiafiSgCr «‘'’’K,
Antrag des Verpachten ersetzen. ’"I
§589
Surrender of use to third parties
(1) Without the permission of the usufruc¬
tuary lessor, the lessee is not entitled to
1. permit use of the leased property to a
third part)’, including without limitation sub¬
letting the property,
2. permit use of the leased property, in
whole or in part, to an agricultural associa¬
tion for the purpose of joint use.
(2) If the usufructuary lessee permits use of
the leased property to a third party, then he is
responsible for any fault of the third party in
its use, even if the lessor has given permission
for this use by the third party.
§589
Nutzungsüberlassung an Dritte
(1) Der Pächter ist ohne Erlaubnis des Ver
Pächters nicht berechtigt, r
1. die Nutzung der Pachtsache einem Drit¬
ten zu überlassen, insbesondere die Sache
weiter zu verpachten,
2. die Pachtsache ganz oder teilweise einem
landwirtschaftlichen Zusammenschluss zum
Zwecke der gemeinsamen Nutzung zu über¬
lassen.
(2) Überlässt der Pächter die Nutzung der
Pachtsache einem Dritten, so hat er ein Ver¬
schulden, das dem Dritten bei der Nutzung
zur Last fällt, zu vertreten, auch wenn der
Verpächter die Erlaubnis zur Überlassung er¬
teilt hat
1 § 589, a default rule, resembles § 540. The person, to whom the lessor has assigned the use
of the leased object, shall not be allowed to hand it over to someone else since both parties to
a usufructuary lease are in a relationship of trust. This even applies if the lessee wants to
contribute the leased object to an agricultural association for the purpose of joint use (Sub. I
No. 2). If the lessor revises the consent to sub-let the leased object, the lessee - contrary to
§ 540(1) 2nd St., can only terminate the contract according to § 594c. Although § 589 does
contain a provision such as § 553, it needs to be examined on a case-by-case basis whether
die lessor has to give his consent to such an operating form in accordance with § 242.1
§590
Change of agricultural purpose or
of previous use
(1) The usufructuary lessee may only
change the agricultural purpose of the leased
property with the prior permission of the
lessor.
(2) 'For a change of the previous use of the
leased property, the prior permission of the
' Jaucrnig BGB/Teichmann, § 589 BGB mn. 1.
§ 590
Änderung der landwirtschaftlichen
Bestimmung oder der bisherigen
Nutzung
(1) Der Pächter darf die landwirtschaftlich1!
Bestimmung der Pachtsachc nur mit vorheri-
ger Erlaubnis des Verpächters ändern.
(2) ’Zur Änderung der bisherigen Nutzung
der Pachtsache ist die vorherige Erlaubnis
Hübner
1038
Change of agricultural purpose or of previous use
1 §590
lessor is only required if the nature of the use
will be influenced by the change after the
lease period. 1 2The usufructuary lessee may
only erect buildings with the prior permis¬
sion of the lessor. 3If the usufructuary lessor
refuses permission, then substitute permis¬
sion may be given by the Agricultural Court
[Landwirtschaftsgericht] upon application by
the lessee to the extent that the change ap¬
pears to be appropriate for the maintenance
or permanent improvement of the profitabil¬
ity of the business and the lessor can reason¬
ably be expected to accept it if his justified
interests are taken into account. 4This does
not apply if the lease has been terminated or
the lease ends in less than three years. 5The
Agricultural Court [Landwirtschaftsgericht]
may give substitute permission subject to
stipulations and conditions, including with¬
out limitation by ordering that security is
provided, and may specify the nature and
extent of the security. 6If the reason for pro¬
viding security has ceased, then the Agricul¬
tural Court [Landwirtschaftsgericht], upon
application, decides with regard to the return
of the security; § 109 of the Code of Civil
Procedure [Zivilprozessordnung] applies
with the necessary modifications.
(3) If, in connection with a change of use of
the leased property, the usufructuary lessee
has substantially reduced the inventory taken
over under § 582a at its estimated value, then
the lessor may demand compensation in
money, applying § 582a(3) with the necessary
modifications, even during the lease period,
unless the proceeds of the inventory items
disposed of have been used for an improve¬
ment of the leased property under § 591 that
is in a reasonable ratio to the amount of the
proceeds.
Verpächters nur dann erforderlich, wenn
durch die Änderung die Art der Nutzung
über die Pachtzeit hinaus beeinflusst wird.
2Der Pächter darf Gebäude nur mit vorheri¬
ger Erlaubnis des Verpächters errichten.
3Verweigert der Verpächter die Erlaubnis, so
kann sie auf Antrag des Pächters durch das
Landwirtschaftsgericht ersetzt werden, soweit
die Änderung zur Erhaltung oder nachhalti¬
gen Verbesserung der Rentabilität des Be¬
triebs geeignet erscheint und dem Verpächter
bei Berücksichtigung seiner berechtigten In¬
teressen zugemutet werden kann. 4Dies gilt
nicht, wenn der Pachtvertrag gekündigt ist
oder das Pachtverhältnis in weniger als drei
Jahren endet. 5Das Landwirtschaftsgericht
kann die Erlaubnis unter Bedingungen und
Auflagen ersetzen, insbesondere eine Sicher¬
heitsleistung anordnen sowie Art und
Umfang der Sicherheit bestimmen. 6Ist die
Veranlassung für die Sicherheitsleistung weg¬
gefallen, so entscheidet auf Antrag das Land¬
wirtschaftsgericht über die Rückgabe der Si¬
cherheit; § 109 der Zivilprozessordnung gilt
entsprechend.
(3) Hat der Pächter das nach § 582a zum
Schätzwert übernommene Inventar im Zu¬
sammenhang mit einer Änderung der Nut¬
zung der Pachtsache wesentlich vermindert,
so kann der Verpächter schon während der
Pachtzeit einen Geldausgleich in entsprechen¬
der Anwendung des § 582a Abs. 3 verlangen,
es sei denn, dass der Erlös der veräußerten
Inventarstücke zu einer zur Höhe des Erlöses
in angemessenem Verhältnis stehenden Ver¬
besserung der Pachtsache nach § 591 verwen¬
det worden ist.
The provision, on the one hand, aims to protect the lessor against risky modifications and 1
gainless investments by the lessee; on the other hand, the lessee shall be empowered to adapt
the farming of the leased object to varying market conditions in a flexible way.1 The interests
of both parties are secured by the optional referral of these matters to the Agricultural Court
under Sub. 2. The provision is dispensable to the extent that a full exclusion of lessee’s rights
under this provision by way of standard contract (Formularvertrag) may violate § 307 and is
therefore void.2
1 cf. BT-Drs. 10/509 of 21.10.1983, p. 20.
2 MüKo BGB/Harke, § 590 BGB mn. 6.
Hübner
1039
§591
Division 8. Particular types of obligations
§ 590a
Use of breach in contract
If the usufructuary lessee makes use of the
leased property in breach of contract» and if
he continues the use in breach of contract
notwithstanding a warning by the lessor,
then the lessor may seek a prohibitory injunc¬
tion.
§ 590a
Vertragswidriger Gebrauch
Macht der Pächter von der Pachtsache ei¬
nen vertragswidrigen Gebrauch und setzt er
den Gebrauch ungeachtet einer Abmahnung
des Verpächters fort, so kann der Verpächter
auf Unterlassung klagen.
1 This default rule grants a special injunctive relief in case the lessee uses the object contrary
to the contract (cf. § 541). In the same way as § 540, such claims require a previous warning
containing a precise description of the wrongdoing.1 The cases of practical importance deal
with the unauthorised use of the leased object by third parties (§ 589) and the unauthorised
change of purpose and use under § 590.2
§ 590b
Necessary outlays
The usufructuary lessor is obliged to com¬
pensate the lessee for necessary outlays on the
leased property.
§ 590b
Notwendige Verwendungen
Der Verpächter ist verpflichtet, dem Päch¬
ter die notwendigen Verwendungen auf die
Pachtsache zu ersetzen.
1 This default rule assigns the duty to compensate the lessee for necessary outlays to the
lessor. Outlays are those expenses on the object that the lessor incurs in order to maintain,
restore, and improve the object.1 The outlays are necessary if they are required for the
ordinary course of business, especially if they shall protect the leased object against any
imminent deterioration.2 However, this does not cover expenses for regular small repair
works being incumbent on the lessee under § 586(1) 2nd St. and expenses to establish the
condition of the object in compliance with the contract.3
§591
Outlays that increase value
(1) The usufructuary lessor must reimburse
the usufructuary lessee on the termination of
the lease for outlays that are not necessary
outlays for which he has given his approval,
to the extent that the outlays increase the
value of the leased property beyond the lease
period (added value).
(2) 1 If the usufructuary lessor refuses to
approve the outlays, then substitute approval
may be given by the Agricultural Court
[Landwirtschaftsgericht] upon application by
the usufructuary lessee to the extent that the
outlays appear to be appropriate for the
§591
Wertverbessernde Verwendungen
(1) Andere als notwendige Verwendungen,
denen der Verpächter zugestimmt hat, hat er
dem Pächter bei Beendigung des Pachtver¬
hältnisses zu ersetzen, soweit die Verwendun¬
gen den Wert der Pachtsache über die Pacht¬
zeit hinaus erhöhen (Mehrwert).
(2) ’Weigert sich der Verpächter, den Ver¬
wendungen zuzustimmen, so kann die Zu
Stimmung auf Antrag des Pächters durch das
Landwirtschaftsgericht ersetzt werden, sowe
die Verwendungen zur Erhaltung oder nach¬
haltigen Verbesserung der Rentabilität
1 Staudinger BGB/Bleckwenn/v. Jeinsen, § 590a BGB mn. 6.
2 MüKo BGB/Harke, § 590a BGB mn. 1.
1 Staudinger BGB/Bleckwenn/v. Jeinsen, § 590b BGB mn. 7.
2 Staudinger BGB/Bleckwenn/v. Jeinsen, § 590b BGB mn. 8.
3 HK-BGB/Scheuch, § 590b BGB mn. 2.
1040
Hübner
Removal of installations
§ 591a
maintenance or permanent improvement of
the profitability of the business and the usu¬
fructuary lessor can reasonably be expected to
accept them when his justified interests are
taken into account. 1 2This does not apply if
the lease has been terminated or the lease
ends in less than three years. 3The Agricul¬
tural Court [Landwirtschaftsgericht] may
give substitute approval subject to stipula¬
tions and conditions.
(3) ’The Agricultural Court [Land-
wirtschaflsgericht] may upon application de¬
cide on provisions relating to the added value
and may assess the latter. 2It may determine
that the usufructuary’ lessor need only reim¬
burse the added value in instalments and may
impose conditions for granting such instal¬
ments. 3If the usufructuary’ lessor cannot rea¬
sonably be expected to accept reimbursement
of the added value upon the termination of
the lease, even in instalments, then the lessee
may only demand that the lease is continued
on the previous conditions until the added
value of the leased property has been paid for.
4If no agreement can be reached, then the
Agricultural Court [Landwirtschaftsgericht]
decides upon application as to the continua¬
tion of the lease.
Betriebs geeignet sind und dem Verpächter
bei Berücksichtigung seiner berechtigten In¬
teressen zugemutet werden können. 2Dies gilt
nicht, wenn der Pachtvertrag gekündigt ist
oder das Pachtverhältnis in weniger als drei
Jahren endet. 3Das Landwirtschaftsgericht
kann die Zustimmung unter Bedingungen
und Auflagen ersetzen.
(3) ’Das Landwirtschaftsgericht kann auf
Antrag auch über den Mehrwert Bestimmun¬
gen treffen und ihn festsetzen. 2Es kann be¬
stimmen, dass der Verpächter den Mehrwert
nur in Teilbeträgen zu ersetzen hat, und kann
Bedingungen für die Bewilligung solcher
Teilzahlungen festsetzen. 3Ist dem Verpächter
ein Ersatz des Mehrwerts bei Beendigung des
Pachtverhältnisses auch in Teilbeträgen nicht
zuzumuten, so kann der Pächter nur verlan¬
gen, dass das Pachtverhältnis zu den bisheri¬
gen Bedingungen so lange fortgesetzt wird,
bis der Mehrwert der Pachtsache abgegolten
ist. 4Kommt keine Einigung zustande, so ent¬
scheidet auf Antrag das Landwirtschafts¬
gericht über eine Fortsetzung des Pachtver¬
hältnisses.
A. Function
This default provision shall improve the position of the usufructuary lessee - compared to 1
the lessee - with regard to the investment in the object; it should therefore enhance the
profitability of the object.1 On the other hand, it should protect the lessor against the
obtrusion of unreasonably risky investment.2
B. Explanation
The added value (Sub. 1) is the difference between the outlays/expenses of the lessee and 2
the earning power of the object after the end of the usufructuary lease.3 In case of a dispute,
the parties may go to the Agricultural Court under Sub. 2. The Court may even assess the
added value pursuant to Sub. 3.
§ 591a
Removal of installations
’The usufructuary lessee is entitled to re¬
move an installation with which he has furn¬
ished the thing. 2The usufructuary lessor may
ward off exercise of the right of removal by
§ 591a
Wegnahme von Einrichtungen
’Der Pächter ist berechtigt, eine Einrich¬
tung, mit der er die Sache versehen hat, weg¬
zunehmen. 2Der Verpächter kann die Aus¬
übung des Wegnahmerechts durch Zahlung
1 MüKo BGB/Harke, § 591 BOB mn. 1.
2 Palandt BGB/Weidenkaff, § 591 BGB mn. 1.
3 HK-BGB/Scheuch, § 591 BGB mn. 4.
Hübner
1041
§ 591b 1
Division 8. Particular types of obligations
paying appropriate compensation, unless the
lessee has a justified interest in removal. 3Any
agreement excluding the right of removal of
the usufructuary lessee is only effective if it
provides for appropriate compensation.
einer angemessenen Entschädigung abwen
den, es sei denn, dass der Pächter ein berech¬
tigtes Interesse an der Wegnahme hat. 3£jn*
Vereinbarung, durch die das Wcgnahmerecht
des Pächters ausgeschlossen wird, ist nur
wirksam, wenn ein angemessener Ausgleich
vorgesehen ist.
A. Function
The provision regulates the usufructuary lessee’s right to remove installations in accor¬
dance with § 539(2). The lessee may remove all installations as long as they do not represent
necessary outlays including repair works according to § 586(1) 2 St. and maintenance
works pursuant to § 590b.1
B. Explanation
2 A justified interest in non-removal can be argued if the lessor relies on the installations for
economic reasons, such as any disparity between the value in use and the compensation.2 3
The provision is dispensable as long as the lessee receives an adequate compensation, i.e. by
reduction of the rent (3rd St.).3
§ 591b
Limitation of compensation claims
(1) The compensation claims of the usu¬
fructuary lessor for change to or deteriora¬
tion of the leased thing as well as the claims
of the lessee for reimbursement of outlays or
for permission to remove an installation are
subject to a six-month limitation period.
(2) lrrhe limitation period for the compen¬
sation claims of the usufructuary lessor com¬
mences on the date when he receives the
returned thing. 2The limitation period for
the usufructuary lessee commences upon ter¬
mination of the lease.
(3) Upon limitation of the claim of the
usufructuary lessor to return of the thing,
the compensation claims of the lessor are
also statute-barred.
§ 591b
Verjährung von Ersatzansprüchen
(1) Die Ersatzansprüche des Verpächters
wegen Veränderung oder Verschlechterung
der verpachteten Sache sowie die Ansprüche
des Pächters auf Ersatz von Verwendungen
oder auf Gestattung der Wegnahme einer
Einrichtung verjähren in sechs Monaten.
(2) ’Die Verjährung der Ersatzansprüche
des Verpächters beginnt mit dem Zeitpunkt,
in welchem er die Sache zurückerhält. 2Die
Verjährung der Ansprüche des Pächters be¬
ginnt mit der Beendigung des Pachtverhält¬
nisses.
(3) Mit der Verjährung des Anspruchs des
Verpächters auf Rückgabe der Sache verjäh-
ren auch die Ersatzansprüche des Verpäc
ters.
In order to ensure a fast clarification of all outstanding contractual claims between the
parties after the end of the contract, this provision is subject to the same limitation rules as
those under a lease contract by § 548. The most important claims falling under this limitation
rule include the lessor’s claim for damages under §§ 280, 590’ and § 586(1) 2nd St. and t e
lessee’s compensation claims pursuant to §§ 590b, 591(1), 591a.2
1 MüKo BGB/Harke, § 591a BGB mn. 1.
2 Staudinger BGB/Bleckwenn/v. Jeinsen, § 591a BGB mn. 14.
3 Palandt BGB/Weidenkaff, § 591a BGB mn. 2.
1 BGH 25.4.1997 - LwZR 4/96, NJW 1997, 2316.
2 HK-BGB/Scheuch, § 591b BGB mn. 2.
1042
Hübner
Amendment of farm leases
§593
§ 592
Security right of the usufructuary
lessor
1F°r his claims under the usufructuary
lease, the lessor has a security right over the
things contributed by the lessee and over the
fruits of the leased property. 1 2The security
right may not be asserted with regard to
future compensation claims. 'With the excep¬
tion of the things cited in § 811(1) No. 4 of
the Code of Civil Procedure [Zivilprozessord¬
nung], the security right does not extend to
things that are not subject to attachment.
4The provisions of §s 562a to 562c apply
with the necessary modifications.
§592
Verpächterpfandrecht
’Der Verpächter hat für seine Forderungen
aus dem Pachtverhältnis ein Pfandrecht an
den eingebrachten Sachen des Pächters sowie
an den Früchten der Pachtsache. 2Für künf¬
tige Entschädigungsforderungen kann das
Pfandrecht nicht geltend gemacht werden.
3Mit Ausnahme der in § 811 Abs. 1 Nr. 4 der
Zivilprozessordnung genannten Sachen er¬
streckt sich das Pfandrecht nicht auf Sachen,
die der Pfändung nicht unterworfen sind.
4Die Vorschriften der §§ 562a bis 562c gelten
entsprechend.
This provision broadens the security right of the lessor pursuant to § 562 in following 1
aspects: first, it is not subject to the time limits of § 562(2) since it covers all claims under
the usufructuary’ lease contract, except future claims under § 562(2). Second, it refers to all
objects owned and contributed by the lessee; although the security right does not extend to
things that might not be attached, it broadens the security right for agricultural inventory
(§811(1) No. 4 ZPO) which is exempted under the security right pursuant to § 562. The
security’ right expires if the things are removed from the leased object, §§ 592a 4th St. in
conjunction with § 562a.
§593
Amendment of farm leases
(1) ’If, after the usufructuary lease is en¬
tered into, the circumstances that were deci¬
sive for the determination of the performance
under the lease change with lasting effect in
such a way that the mutual duties are in a
gross disparity to each other, then each party
to the contract may demand an amendment
of the lease, with the exception of the dura¬
tion of the lease. 2If, as a result of the cultiva¬
tion of the leased property by the lessee, its
income improves or deteriorates, then, to the
extent not otherwise agreed, an amendment
of the lease may not be demanded.
(2) ’An amendment may be demanded at
the earliest two years after the commence¬
ment of the lease or after the most recent
amendment of the performance under the
lease has become effective. 2This does not
apply if devastating natural events against
which insurance coverage is not customary
have fundamentally and permanently chan¬
ged the ratio of the acts of performance
under the lease.
§ 593
Änderung von
Landpachtverträgen
(1) 'Haben sich nach Abschluss des Pacht-
Vertrags die Verhältnisse, die für die Festset¬
zung der Vertragsleistungen maßgebend wa¬
ren, nachhaltig so geändert, dass die
gegenseitigen Verpflichtungen in ein grobes
Missverhältnis zueinander geraten sind, so
kann jeder Vertragsteil eine Änderung des
Vertrags mit Ausnahme der Pachtdauer ver¬
langen. 2Verbessert oder verschlechtert sich
infolge der Bewirtschaftung der Pachtsache
durch den Pächter deren Ertrag, so kann,
soweit nichts anderes vereinbart ist, eine Än¬
derung der Pacht nicht verlangt werden.
(2) ’Eine Änderung kann frühestens zwei
Jahre nach Beginn des Pachtverhältnisses
oder nach dem Wirksamwerden der letzten
Änderung der Vertragsleistungen verlangt
werden. 2Dies gilt nicht, wenn verwüstende
Naturereignisse, gegen die ein Versicherungs¬
schutz nicht üblich ist, das Verhältnis der
Vertragsleistungen grundlegend und nachhal¬
tig verändert haben.
Hübner
1043
Division 8, Particular types of obligations
§ 593a
(3) Amendment may not be demanded for
a period prior to the lease year in which the
demand for amendment is declared.
(4) If one party to the lease refuses to
consent to an amendment of the lease, then
the other party may apply to the Agricultural
Court [Landwirtschaftsgericht] for a decision.
(5) ‘The right to demand an amendment of
the lease under subsections (1) to (4) may not
be waived. 1 2An agreement that one party to
the lease is to enjoy special advantages or
suffer special disadvantages if he exercises
or fails to exercise the rights under
subsections (1) to (4) is ineffective.
(3) Die Änderung kann nicht für eine frü-
here Zeit als für das Pachtjahr verlangt wer¬
den, in dem das Änderungsverlangen erklärt
wird.
(4) Weigert sich ein Vertragsteil, in eine
Änderung des Vertrags einzuwilligen, so
kann der andere Teil die Entscheidung des
Landwirtschaftsgerichts beantragen.
(5) ‘Auf das Recht, eine Änderung des
Vertrags nach den Absätzen 1 bis 4 zu ver¬
langen, kann nicht verzichtet werden. 2Eine
Vereinbarung, dass einem Vertragsteil beson¬
dere Nachteile oder Vorteile erwachsen sol¬
len, wenn er die Rechte nach den Absätzen 1
bis 4 ausübt oder nicht ausübt, ist unwirk¬
sam.
A. Function
1 This provision represents a lex specialis for clausula rebus sic stantibus (§ 313). Any
recourse to §§ 313, 242 is therefore impossible. It shall secure the functionality of agricultural
businesses by facilitating the rapid adoption to changing market circumstances.1
B. Explanation
2 The change in circumstances can be based on general factors of the agricultural sector
(general situation of agriculture, taxes and levies, subsidies, but also changes in the rental
prices) as well as on individual circumstances (deterioration of the property).2 Possible
claims for defect may constitute a factor for the assessment of a gross disparity of the mutual
obligations in the sense of Sub. I.3 Again, the Agricultural Court comes into play if the
parties cannot agree on an amendment of the contract (Sub. 4). The right to amend the
contract may only be facilitated (Sub. 5 1st St.).
§ 593a
Transfer of a business
‘If, on the transfer of a business by way of
a lifetime transfer of property, a plot of land
leased for the business that serves agricultural
purposes is included, then the transferee suc¬
ceeds to the usufructuary lease in place of the
lessee. 2The usufructuary lessor must, how¬
ever, be promptly notified of the transfer of
business. 3If proper management of the
leased property by the transferee is not guar¬
anteed, then the usufructuary lessor is en¬
titled to terminate the lease for cause with
the statutory notice period.
§ 593a
Betriebsübergabe
‘Wird bei der Übergabe eines Betriebs im
Wege der vorweggenommenen Erbfolge em
zugepachtetes Grundstück, das der Landwirt
schäft dient, mit übergeben, so tritt der Uber
nehmer anstelle des Pächters in den PaC
vertrag ein. 2Der Verpächter ist von er
Betriebsübergabe jedoch unverzüglich zu **
nachrichtigen. 3Ist die ordnungsmäßige
wirtschaftung der Pachtsache durch
Übernehmer nicht gewährleistet, so ist•
Verpächter berechtigt, das Pachtverh.
außerordentlich mit der gesetzlichen Fr,s
kündigen.
1 HK-BGB/Scheuch, § 593 BGB mn. 1.
2 BGH 29.11.1996 - BLw 48/95, NJW 1997, 1066.
3 HK-BGB/Scheuch, § 593 BGB mn. 3.
1044
Hübner
Termination and extension of the lease
1 § 594
This default1 provision facilitates the lifetime transfer of property as the property may 1
generally not be let to a third party without the consent of the lessor2. In case of universal
succession under § 1922 the termination right under § 580 is excluded by § 584a(2). If
proper management ot the leased property by the transferee is not guaranteed, then the
usufructuary lessor is entitled to terminate the lease under Sub. 3. Then the lessee may not
claim hardship in order to continue the contract under § 595(3) No. 2.
§ 593b
Disposal or encumbrance of the
leased property
If the leased property is disposed of or
encumbered with a third-party right, then
§§ 566 to 567b apply with the necessary mod¬
ifications.
§ 593b
Veräußerung oder Belastung des
verpachteten Grundstücks
Wird das verpachtete Grundstück ver¬
äußert oder mit dem Recht eines Dritten
belastet, so gelten die §§ 566 bis 567b ent¬
sprechend.
The provision aims to protect the usufructuary lessee in case of change of ownership or in 1
case of encumbrances.1
§594
Termination and extension
of the lease
lrThe usufructuary lease ends at the end of
the period for which the lease has been en¬
tered into. 2In the case of usufructuary leases
entered into for at least three years it is
extended for an indefinite period of time if,
upon the inquiry of one of the parties to the
lease as to whether the other party is willing
to continue the lease, the latter does not
refuse continuation within a period of three
months. 3The enquiry and the refusal must be
in writing. 4The inquiry is without effect if
there is no explicit reference in it to the
consequences of disregarding it and if it is
not made within the third-but-last year of the
lease.
§594
Ende und Verlängerung des
Pachtverhältnisses
’Das Pachtverhältnis endet mit dem Ablauf
der Zeit, für die es eingegangen ist. 2Es ver¬
längert sich bei Pachtverträgen, die auf min¬
destens drei Jahre geschlossen worden sind,
auf unbestimmte Zeit, wenn auf die Anfrage
eines Vertragsteils, ob der andere Teil zur
Fortsetzung des Pachtverhältnisses bereit ist,
dieser nicht binnen einer Frist von drei Mo¬
naten die Fortsetzung ablehnt. 3Die Anfrage
und die Ablehnung bedürfen der schriftlichen
Form. 4Die Anfrage ist ohne Wirkung, wenn
in ihr nicht auf die Folge der Nichtbeachtung
ausdrücklich hingewiesen wird und wenn sie
nicht innerhalb des drittletzten Pachtjahrs
gestellt wird.
The parties should be able to know in good time whether the other party is prepared to 1
conclude a new agreement (on the same terms) or whether a clearance of the site is to be
expected.1 The contract is not extended if one party only wants to prolong the contract under
different conditions.2 The provision is generally dispensable; it is, however, disputed whether
this also applies to 2nd St.3
1 BGH 26.4.2002 - LwZR 10/01, NJW RR 2002, 1205.
2 § 589; MüKo BGB/Harke, § 593a BGB mn. 1.
1 Staudinger BGB/Bleckwenn/v. Jeinsen, § 593a BGB mn. 1.
1 MüKo BGB/Harke, § 594 BGB mn. 1.
2 Jauernig BGB/Teichmann, § 594 BGB mn. 2.
3 Pro: MüKo BGB/Harke, § 594 BGB mn. 4; contra: Palandt BGB/Weidenkaff, § 594 BGB mn. 2.
Hübner
1045
§ 594c
Division 8. Particular types of obligations
§ 594a
Notice periods
(1) * llf the lease period is not fixed, then
each party to the lease may terminate the
lease at the latest on the third working day
of a lease year to the end of the next lease
year. 2In case of doubt, the calendar year is
deemed to be the lease year. 3 Agreement on a
shorter period must be in writing.
(2) In the cases where the lease may be
terminated for cause with the statutory notice
period, termination is only allowed to the end
of a lease year; it must occur at the latest on
the third working day of the half-year at the
end of which the lease is to terminate.
§ 594a
Kündigungsfristen
(1) Hst die Pachtzeit nicht bestimmt, so
kann jeder Vertragsteil das Pachtverhältnis
spätestens am dritten Werktag eines Pacht¬
jahrs für den Schluss des nächsten Pachtjahrs
kündigen. 2Im Zweifel gilt das Kalenderjahr
als Pachtjahr. 3Die Vereinbarung einer kürze¬
ren Frist bedarf der Schriftform.
(2) Für die Fälle, in denen das Pachtver¬
hältnis außerordentlich mit der gesetzlichen
Frist vorzeitig gekündigt werden kann, ist die
Kündigung nur für den Schluss eines Pacht¬
jahrs zulässig; sie hat spätestens am dritten
Werktag des halben Jahres zu erfolgen, mit
dessen Ablauf die Pacht enden soll.
1 The lengthy notice period of § 594a shall protect the lessee from the hasty termination of
the lease contract to avoid inevitable losses.1 § 594a is a default rule but agreements on a
shorter period must be made in written form (Sub. 1 3rd St.).
§ 594b
Lease for more than thirty years
’If a usufructuary lease is entered into for a
period of more than thirty years, then after
thirty years each party to the lease may termi¬
nate the lease at the latest on the third work¬
ing day of a lease year to the end of the next
subsequent lease year, termination is not
allowed if the lease has been entered into for
the lifetime of the lessor or the lessee.
§ 594b
Vertrag über mehr als 30 Jahre
’Wird ein Pachtvertrag für eine längere
Zeit als 30 Jahre geschlossen, so kann nach
30 Jahren jeder Vertragsteil das Pachtverhält¬
nis spätestens am dritten Werktag eines
Pachtjahrs für den Schluss des nächsten
Pachtjahrs kündigen. 2Die Kündigung ist
nicht zulässig, wenn der Vertrag für die Le¬
benszeit des Verpächters oder des Pächters
geschlossen ist.
1 This provision corresponds with § 544 and shall avoid a perpetual usufructuary of the real
estate.1 The provision is mandatory but the notice period may be shortened without haring
to comply with the form requirement pursuant to § 594a(l) 3rd St.2
§ 594c
Termination in the case of
occupational disability of the
usufructuary lessee
’If the usufructuary lessee has become oc¬
cupationally disabled within the meaning of
the provisions of the statutory pension
scheme, then he may terminate the lease for
cause with the statutory notice period if the
§ 594c
Kündigung bei Berufsunfahigkelt
des Pächters
'1st der Pächter berufsuntahig im
Vorschriften der gesetzlichen RenteiiversKn^
rung geworden, so kann er das Pachtvcr^
nis außerordentlich mit der gesetzlichen
kündigen, wenn der Verpächter der c
1 BT-Drs. 10/509 of 21.iO.19H3, p. 14.
1 lirblandpacht-, MuKo BGB/Harke, § 594b BGB mn. 1
1 MüKo BGB/Harke, § 594b BGB mn. 1.
1046
Hübner
Death of the usufructuary lessee
1 § 594d
lessor objects to the transfer of the leased
property for use to a third party who guaran¬
tees proper management. 2 A deviating agree¬
ment is ineffective.
sung der Pachtsache zur Nutzung an einen
Dritten, der eine ordnungsmäßige Bewirt¬
schaftung gewährleistet, widerspricht. 2Eine
abweichende Vereinbarung ist unwirksam.
This mandatory rule provides social protection for the usufructuary lessee being unable to 1
work in accordance with the provisions of the statutory pensions scheme. In that case he may
ordinarily terminate the lease contract if the usufructuary lessor denies the transfer of the
property tor use to a reliable and suitable third party.
§ 594d
Death of the usufructuary lessee
(1) If the usufructuary lessee dies, then
both his heirs and the lessor are entitled
within a month after obtaining knowledge of
the death of the lessee to terminate the lease
with a notice period of six months to the end
of a calendar quarter.
(2) ’The heirs may contest the notice of
termination of the usufructuary lessor and
demand continuation of the lease if proper
management of the leased property appears
to be guaranteed by them or by a co-heir
commissioned by them or by a third party.
2The usufructuary lessor may refuse the con¬
tinuation of the lease if the heirs have not
declared their objection at the latest three
months prior to expiry of the lease and in¬
formed of the circumstances by reason of
which further proper management of the
leased property appears ensured. 3The en¬
quiry and the refusal must occur in writing.
4If no agreement can be reached then the
Agricultural Court [Landwirtschaftsgericht]
decides on application.
(3) In response to notice of termination by
the usufructuary lessor under subsection (1),
a continuation demand by the heir under
§ 595 is excluded.
§ 594d
Tod des Pächters
(1) Stirbt der Pächter, so sind sowohl seine
Erben als auch der Verpächter innerhalb ei¬
nes Monats, nachdem sie vom Tod des Päch¬
ters Kenntnis erlangt haben, berechtigt, das
Pachtverhältnis mit einer Frist von sechs Mo¬
naten zum Ende eines Kalendervierteljahrs zu
kündigen.
(2) ’Die Erben können der Kündigung des
Verpächters widersprechen und die Fortsetzung
des Pachtverhältnisses verlangen, wenn die ord¬
nungsmäßige Bewirtschaftung der Pachtsache
durch sie oder durch einen von ihnen beauf¬
tragten Miterben oder Dritten gewährleistet
erscheint. 2Der Verpächter kann die Fortset¬
zung des Pachtverhältnisses ablehnen, wenn
die Erben den Widerspruch nicht spätestens
drei Monate vor Ablauf des Pachtverhältnisses
erklärt und die Umstände mitgeteilt haben,
nach denen die weitere ordnungsmäßige Be¬
wirtschaftung der Pachtsache gewährleistet er¬
scheint. 5Die Widerspruchserklärung und die
Mitteilung bedürfen der schriftlichen Form.
4Kommt keine Einigung zustande, so entschei¬
det auf Antrag das Landwirtschaftsgericht.
(3) Gegenüber einer Kündigung des Ver¬
pächters nach Absatz 1 ist ein Fortsetzungs¬
verlangen des Erben nach § 595 ausgeschlos¬
sen.
A. Function
§ 594d is the default1 2 rule concerning the death of the usufructuary lessee. It balances the 1
interests of his heirs and the lessor; furthermore it represents a deviation from the general
rules laid down in 563, 564, 580?
1 MüKo BGB/Harke, § 594d BGB mn. 4.
2 HK-BGB/Scheuch, § 594d BGB mn. 1.
Hübner
1047
§ 594f 1
Division 8. Particular types of obligations
B. Explanation
2 If the lessor terminates the contract, the heirs may oppose the termination and demand the
continuation of the contract if they can guarantee the proper management of the leased
property? The heirs must object in writing.
§ 594e
Termination for cause without
notice for a compelling reason
(1) Immediate termination of the lease for
cause is allowed, applying §§ 543, and 569(1)
and (2) with the necessary modifications.
(2) ’Notwithstanding § 543(2) No. 3 letters
a and b, just cause exists in particular, with¬
out limitation, if the usufructuary lessee is in
default for more than three months of pay¬
ment of the rent or of a portion of the rent
that is not insignificant. 2If the lease is as¬
sessed by time periods of less than one year,
then termination is only admissible if the
usufructuary lessee is in default, for two suc¬
cessive dates, of payment of the rent or of a
substantial portion of the rent.
§ 594e
Außerordentliche fristlose
Kündigung aus wichtigem Grund
(1) Die außerordentliche fristlose Kündi¬
gung des Pachtverhältnisses ist in entspre¬
chender Anwendung der §§ 543, 569 Abs. 1
und 2 zulässig.
(2) ’Abweichend von § 543 Abs. 2 Nr. 3
Buchstabe a und b liegt ein wichtiger Grund
insbesondere vor, wenn der Pächter mit der
Entrichtung der Pacht oder eines nicht uner¬
heblichen Teils der Pacht länger als drei Mo¬
nate in Verzug ist. 2Ist die Pacht nach Zeit¬
abschnitten von weniger als einem Jahr
bemessen, so ist die Kündigung erst zulässig,
wenn der Pächter für zwei aufeinander fol¬
gende Termine mit der Entrichtung der Pacht
oder eines nicht unerheblichen Teils der
Pacht in Verzug ist.
1 For the right of extraordinary termination without notice for good cause, Sub. 1 refers to
§§ 543, 569(1) and (2). This encompasses denial of use, danger to health, use in contrary to
agreement? Sub. 2 adapts the provisions made in §§ 543, 569(3) concerning the termination
without notice due to late payment to the generally longer payment intervals for usufructuary
land lease.2 Sub. 1 is mandatory;3 the parties, however, may deviate from Sub. 2.4
§594f
Written form of termination
Notice of termination must be made in
written form.
§ 594f
Schriftform der Kündigung
Die Kündigung bedarf der schriftlichen
Form.
1 This mandatory1 * 2 provision applies to all kinds of termination of contracts on usufructuary
land lease. However, it does not apply to termination agreements (Aufhebungsverträge) or
declarations of avoidance (Anfechtungserklärungen) or declarations of rescission (Rücktritts-
erklärungen)2
3 cf. Staudinger BGB/Bleckwenn/v. Jeinsen § 594d BGB mn. 16 et seq
• MüKo BGB/Harke, § 594d BGB mn. 1.
2 HK-BGB/Scheuch, § 594e BGB mn. 1.
3 BGH 25.6.1992-IX ZR 24/92, NJW 1992, 2629.
4 Palandt BGB/Weidenkaff, § 594e BGB mn. 1.
1 HK-BGB/Scheuch, § 594f BGB mn. 4.
2 Staudinger BGB/Bleckwenn/v. Jeinsen § 594f BGB mn. 6.
1048
Hübner
Continuation of the tease
§595
§595
Continuation of the lease
(1) ’The usufructuary lessee may demand
continuation of the lease from the lessor if
1. in the case of a commercial usufructuary
lease, the business constitutes the economic
basis of his existence,
2. in the case of a usufructuary lease of a
plot of land, the lessee is dependent on this
plot of land to maintain his business, which is
the economic basis of his existence,
and termination of the lease in conformity
with the contract would be a hardship for the
lessee or his family which would not be justi¬
fiable even if the justified interests of the
lessor were taken into account. 2Subject to
these requirements, continuation may be de¬
manded repeatedly.
(2) lIn the case in subsection (1), the usu¬
fructuary lessee may demand that the lease is
continued as long as is appropriate when all
circumstances are taken into consideration.
2If the usufructuary lessor cannot reasonably
be expected to continue the lease under the
previously applicable contract terms, then the
lessee may demand that it be continued with
an appropriate amendment of the terms. 3 4
(3) The usufructuary lessee may not de¬
mand continuation of the lease from the
usufructuary lessor if
1. he has terminated the lease,
2. the usufructuary lessor is entitled to
terminate the lease for cause without notice,
or in the case of § 593a to terminate the lease
for cause with the statutory notice period,
3. the lease period in the case of a usufruc¬
tuary lease of a business, the leasing of addi¬
tional plots of land as a result of which a
business is created, or in the case of the lease
of marshland or wasteland that has been
cultivated by the lessee has been agreed for
at least eighteen years, or in the case of the
lease of other plots of land for at least twelve
years,
4. in the case of property leased only tem¬
porarily under a usufructuary lease, the lessor
wishes to repossess it for his own use or to
use it to perform statutory or other public
tasks.
(4) ’The declaration of the usufructuary
lessee demanding the continuation of the
lease must be in writing. 2Upon demand by
the usufructuary lessor, the lessee should
§595
Fortsetzung des Pachtverhältnisses
(1) ’Der Pächter kann vom Verpächter die
Fortsetzung des Pachtverhältnisses verlangen,
wenn
1. bei einem Betriebspachtverhältnis der
Betrieb seine wirtschaftliche Lebensgrundlage
bildet,
2. bei dem Pachtverhältnis über ein Grund¬
stück der Pächter auf dieses Grundstück zur
Aufrechterhaltung seines Betriebs, der seine
wirtschaftliche Lebensgrundlage bildet, ange¬
wiesen ist
und die vertragsmäßige Beendigung des
Pachtverhältnisses für den Pächter oder seine
Familie eine Härte bedeuten würde, die auch
unter Würdigung der berechtigten Interessen
des Verpächters nicht zu rechtfertigen ist.
2Die Fortsetzung kann unter diesen Voraus¬
setzungen wiederholt verlangt werden.
(2) ’Im Falle des Absatzes 1 kann der Päch¬
ter verlangen, dass das Pachtverhältnis so
lange fortgesetzt wird, wie dies unter Berück¬
sichtigung aller Umstände angemessen ist.
2Ist dem Verpächter nicht zuzumuten, das
Pachtverhältnis nach den bisher geltenden
Vertragsbedingungen fortzusetzen, so kann
der Pächter nur verlangen, dass es unter einer
angemessenen Änderung der Bedingungen
fortgesetzt wird.
(3) Der Pächter kann die Fortsetzung des
Pachtverhältnisses nicht verlangen, wenn
1. er das Pachtverhältnis gekündigt hat,
2. der Verpächter zur außerordentlichen
fristlosen Kündigung oder im Falle des § 593a
zur außerordentlichen Kündigung mit der
gesetzlichen Frist berechtigt ist,
3. die Laufzeit des Vertrags bei einem
Pachtverhältnis über einen Betrieb, der Zu¬
pachtung von Grundstücken, durch die ein
Betrieb entsteht, oder bei einem Pachtverhält¬
nis über Moor- und Ödland, das vom Pächter
kultiviert worden ist, auf mindestens 18 Jah¬
re, bei der Pacht anderer Grundstücke auf
mindestens zwölf Jahre vereinbart ist,
4. der Verpächter die nur vorübergehend
verpachtete Sache in eigene Nutzung nehmen
oder zur Erfüllung gesetzlicher oder sonstiger
öffentlicher Aufgaben verwenden will.
(4) ’Die Erklärung des Pächters, mit der er
die Fortsetzung des Pachtverhältnisses ver¬
langt, bedarf der schriftlichen Form. 2Auf
Verlangen des Verpächters soll der Pächter
Hühner
1049
§595 1
Division 8, Particular types of obligations
without undue delay provide information on
his reasons for demanding continuation.
(5) ’The usufructuary lessor may refuse
continuation of the lease if the usufructuary
lessee did not demand continuation from the
lessor at least one year prior to termination
of the lease or rejected continuation upon
inquiry by the lessor under § 594. 2If a
twelve-month notice period or less has been
agreed, then it suffices if the demand is de¬
clared within a month of receipt of the notice
of termination.
(6) ’If agreement is reached) then the Agri¬
cultural Court [Landwirtschaftsgericht] deci¬
des upon application on a continuation and
on the lease period) and also on the condi¬
tions under which the lease will be continued.
2The court may order continuation of the
lease, but only up to a date that, starting
from the commencement of the current lease,
does not exceed the periods stated in
subsection (3) No. 3. Continuation may be
limited to a part of the leased property.
(7) ’The usufructuary lessee must file the
application for a court decision at the Agri¬
cultural Court [Landwirtschaftsgericht] at the
latest nine months prior to termination of
the lease and, in the case of a twelve-month
notice period or less, two months after re¬
ceipt of notice of termination. 2The court
may admit the application at a later date if it
appears called for to avoid undue hardship
and the lease has not yet expired.
(8) ’The right to demand extension of the
lease under subsections (1) to (7) may only be
waived if the waiver is declared in settlement
of a lease dispute heard in a court of law or
by a professional lease conciliation board.
2An agreement that one party is to have
particular advantages or particular disadvan¬
tages if the party exercises or does not exer¬
cise the rights under subsections (1) to (7) is
ineffective.
über die Gründe des Fortsetzungsverlangens
unverzüglich Auskunft erteilen.
(5) ’Der Verpächter kann die Fortsetzung
des Pachtverhältnisses ablehnen, wenn der
Pächter die Fortsetzung nicht mindestens ein
Jahr vor Beendigung des Pachtverhältnisses
vom Verpächter verlangt oder auf eine An¬
frage des Verpächters nach § 594 die Fortset¬
zung abgelehnt hat. 2Ist eine zwölfmonatige
oder kürzere Kündigungsfrist vereinbart, so
genügt es, wenn das Verlangen innerhalb ei¬
nes Monats nach Zugang der Kündigung er¬
klärt wird.
(6) ’Kommt keine Einigung zustande, so
entscheidet auf Antrag das Landwirtschafts¬
gericht über eine Fortsetzung und über die
Dauer des Pachtverhältnisses sowie über die
Bedingungen, zu denen es fortgesetzt wird.
2Das Gericht kann die Fortsetzung des Pacht¬
verhältnisses jedoch nur bis zu einem Zeit¬
punkt anordnen, der die in Absatz 3 Nr. 3
genannten Fristen, ausgehend vom Beginn
des laufenden Pachtverhältnisses, nicht über¬
steigt. 3Die Fortsetzung kann auch auf einen
Teil der Pachtsache beschränkt werden.
(7) ’Der Pächter hat den Antrag auf ge¬
richtliche Entscheidung spätestens neun Mo¬
nate vor Beendigung des Pachtverhältnisses
und im Falle einer zwölfmonatigen oder kür¬
zeren Kündigungsfrist zwei Monate nach Zu¬
gang der Kündigung bei dem Landwirt¬
schaftsgericht zu stellen. 2Das Gericht kann
den Antrag nachträglich zulassen, wenn es
zur Vermeidung einer unbilligen Härte gebo¬
ten erscheint und der Pachtvertrag noch nicht
abgelaufen ist.
(8) ’Auf das Recht, die Verlängerung eines
Pachtverhältnisses nach den Absätzen 1 bis 7
zu verlangen, kann nur verzichtet werden,
wenn der Verzicht zur Beilegung eines Pacht¬
streits vor Gericht oder vor einer berufsstän¬
dischen Pachtschlichtungsstelle erklärt wird.
Eine Vereinbarung, dass einem Vertragsteil
besondere Nachteile oder besondere Vorteile
erwachsen sollen, wenn er die Rechte nach
den Absätzen 1 bis 7 ausübt oder nicht aus-
ubt, ist unwirksam.
A. Function
I. Purpose
1 § 595 serves to protect the livelihood of lessees of farms and land
property does not constitute the lessee’s sole economic livelihood it*must constitute at least a
• Although the leased
1050
Hübner
Early notice of termination of farm leases 1 § 595a
substantial part of his livelihood.1 § 595 reproduces §§ 574 et seq. § 242 may provide further
protection in exceptional cases.2
IL Scope of application.
The provision applies to the expiration of this period in the case of a lease concluded for a 2
definite term as well as the termination of a lease.3 Agreements deviating from § 595 are only
effective if they facilitate the continuation of the lease.
B. Explanation
Sub. 1 requires balancing the interests of the lessor with the hardship of termination for the 3
lessee and his family. The lessor may claim the farm for own use or future different use of the
farm or sale of the farm, whereas the lessee may argue that he invested a lot into the farm or
may experience dramatic difficulties to find a comparable farm.4 In case of dispute, the parties
have the right to request a decision of the Agricultural Court under Subs 6, 7. Agreements
deviating from § 595 are only effective if they facilitate the continuation of the lease.5
§ 595a
Early notice of termination of
farm leases
(1) To the extent that the parties to the
contract are entitled to terminate a farm lease
for cause with the statutory notice period,
they are entitled to this even after the exten¬
sion of the farm lease or the modification of
the farm lease.
(2) ‘Upon application by one of the parties
to the lease, the Agricultural Court [Land¬
wirtschaftsgericht] may make orders on the
winding up of a farm lease terminated early
or terminated in part. 2lf the extension of a
farm lease is limited to a portion of the leased
property, then the Agricultural Court [Land-
wirtschaftsgericht] may determine the rent
for this portion.
(3) ’The contents of Agricultural Court
[Landwirtschaftsgericht 1 orders are deemed
to be part of the lease agreement as between
the parties to the lease. 2The Agricultural
Court [ Landwirtschaftsgericht J decides upon
application on disputes relating to these con¬
tents of the contract.
§ 595a
Vorzeitige Kündigung von
Landpachtverträgen
(1) Soweit die Vertragsteile zur außer¬
ordentlichen Kündigung eines Landpachtver¬
hältnisses mit der gesetzlichen Frist berech¬
tigt sind, steht ihnen dieses Recht auch nach
Verlängerung des Landpachtverhältnisses
oder Änderung des Landpachtvertrags zu.
(2) ’Auf Antrag eines Vertragsteils kann
das Landwirtschaftsgericht Anordnungen
über die Abwicklung eines vorzeitig beende¬
ten oder eines teilweise beendeten Landpacht¬
vertrags treffen. 2Wird die Verlängerung ei¬
nes Landpachtvertrags auf einen Teil der
Pachtsache beschränkt, kann das Landwirt¬
schaftsgericht die Pacht für diesen Teil fest¬
setzen.
(3) ’Der Inhalt von Anordnungen des
Landwirtschaftsgerichts gilt unter den Ver¬
tragsteilen als Vertragsinhalt. 2Über Streitig¬
keiten, die diesen Vertragsinhalt betreffen,
entscheidet auf Antrag das Landwirtschafts¬
gericht.
§ 595a regulates various parts of the procedure for prematurely or partially terminated 1
leases as well as for court-ordered contractual extensions.1 Subs 2 and 3 are mandatory.
’ Palandt BGB/Weidenkaff, § 595 BGB mn. 5.
2 OLG Köln 28.11.2013 - 23 U 5/13, ZMR 2014, 629.
3 Palandt BGB/Weidenkaff, § 595 BGB mn. 5.
4 HK-BGB/Scheuch, § 595 BGB mn. 3.
5 HK-BGB/Scheuch, § 595 BGB mn. 8.
’ HK-BGB/Scheuch, § 595a BGB mn. 1.
Hübner
1051
§ 596a
Division 8. Particular types of obligations
§596
Return of the leased property
(1) The usufructuary lessee is obliged to
return the leased property upon termination
of the lease in a condition conforming with
proper management continued up to its re¬
turn.
(2) The usufructuary lessee has no right of
retention of the plot of land for his claims on
the lessor.
(3) If the usufructuary lessee has trans¬
ferred use of the leased property to a third
party, the lessor may also demand return of
the leased property from that third party
upon termination of the lease.
§596
Rückgabe der Pachtsache
(1) Der Pächter ist verpflichtet, die Pacht¬
sache nach Beendigung des Pachtverhältnisses
in dem Zustand zurückzugeben, der einer bis
zur Rückgabe fortgesetzten ordnungsmäßi¬
gen Bewirtschaftung entspricht.
(2) Dem Pächter steht wegen seiner An¬
sprüche gegen den Verpächter ein Zurück¬
behaltungsrecht am Grundstück nicht zu.
(3) Hat der Pächter die Nutzung der Pacht¬
sache einem Dritten überlassen, so kann der
Verpächter die Sache nach Beendigung des
Pachtverhältnisses auch von dem Dritten zu-
rückfordern.
1 § 596 is the default rule on the return of leased property.1 The standard goes beyond the
return obligation under § 546 by obliging the lessee to return the object in accordance with
the necessities resulting from meaningful management. This duty to return does not depend
upon the state of the farm at the beginning of the lease; the usufructuary lessee, therefore,
may demand compensation if to hand over the leased property in a better condition than the
one in which he took it over.2 In accordance with §§ 570, 578, the lessee has no right of
retention (Sub. 2). The usufructuary lessor may claim damages pursuant to § 280 if the
usufructuary lessee does not fulfil his obligations.
§ 596a
Duty to compensate for early
termination of lease
(1) ’If the lease terminates in the course of
a lease year, the usufructuary lessor must
compensate the lessee for the value of any
fruits not yet severed but to be severed prior
to the end of the lease year under the rules of
proper management. 2When this is done, the
harvesting risks must be given appropriate
consideration.
(2) If the value referred to in subsection (1)
cannot be determined for seasonal reasons,
then the usufructuary lessor must compen¬
sate the lessee for outlays on these fruits to
the extent that they correspond to proper
management.
(3) ’Subsection (1) also applies to timber
intended for felling but not yet felled. 2If the
usufructuary lessee has felled more timber
than allowed in the case of proper use, then
he must compensate the lessor for the quan¬
tity of timber that exceeds normal use. As¬
sertion of additional damage is not excluded.
§ 596a
Ersatzpflicht bei vorzeitigem
Pachtende
(1) ’Endet das Pachtverhältnis im Laufe
eines Pachtjahrs, so hat der Verpächter dem
Pächter den Wert der noch nicht getrennten,
jedoch nach den Regeln einer ordnungsmäßi¬
gen Bewirtschaftung vor dem Ende des Pacht¬
jahrs zu trennenden Früchte zu ersetzen.
2Dabei ist das Ernterisiko angemessen zu be¬
rücksichtigen.
(2) Lässt sich der in Absatz 1 bezeichnete
Wert aus jahreszeitlich bedingten Gründen
nicht feststellen, so hat der Verpächter dem
Pächter die Aufwendungen auf diese Früchte
insoweit zu ersetzen, als sie einer ordnungs¬
mäßigen Bewirtschaftung entsprechen.
(3) Absatz 1 gilt auch für das zum Einschlag
vorgesehene, aber noch nicht eingeschlagene
Holz. Hat der Pächter mehr Holz eingeschla¬
gen, a s bei ordnungsmäßiger Nutzung zulässig
war, so hat er dem Verpächter den Wert der die
normale Nutzung übersteigenden Holzmenge
zu erse^n* Die Geltendmachung eines wei¬
teren Schadens ist nicht ausgeschlossen.
1 Palandt BGB/Weidenkaff, § 596 BGB mn. 1.
2 MüKo BGB/Harke, § 596 BGB mn. 2.
1052
Hübner
Late return
§597
A. Function
If the usufructuary lease ends, for whatever reason (e.g. agreement, extraordinary termina- 1
tion) betöre the end of the lease year, the lessee must, according to § 596 (cf. § 101), leave the
lessor the fruits even if they are not yet severed. This follows from § 596. § 596a provides him
with compensation; § 596a is mandatory.
B. Explanation
I. Compensation
The amount of compensation for the lessee is basically determined by the value of the 2
fruits not yet harvested at the end of the lease (Sub. 1 1st St.) minus the expenses saved for
harvesting.* 1
II. Expenses
If the value of the fruits not yet severed cannot be determined, the lessee is limited to the 3
reimbursement of expenses (Sub. 2). Sub. 3 holds a special regulation for logging.
§ 596b
Duty to leave behind
(1) The usufructuary lessee of a business
must prior to termination of the lease leave
behind as much of the available agricultural
produce as is needed for continuation of the
farm until the next harvest, even if he did not
take over such produce at commencement of
the lease.
(2) To the extent that the usufructuary
lessee is obliged under subsection (1) to leave
produce behind in a greater quantity or of a
better quality than he took over at com¬
mencement of the lease, then he may demand
compensation of their value from the lessor.
§ 596b
Rücklassungspflicht
(1) Der Pächter eines Betriebs hat von den
bei Beendigung des Pachtverhältnisses vorhan¬
denen landwirtschaftlichen Erzeugnissen so
viel zurückzulassen, wie zur Fortführung der
Wirtschaft bis zur nächsten Ernte nötig ist,
auch wenn er bei Beginn des Pachtverhältnis¬
ses solche Erzeugnisse nicht übernommen hat.
(2) Soweit der Pächter nach Absatz 1 Er¬
zeugnisse in größerer Menge oder besserer
Beschaffenheit zurückzulassen verpflichtet
ist, als er bei Beginn des Pachtverhältnisses
übernommen hat, kann er vom Verpächter
Ersatz des Wertes verlangen.
This provision serves to secure the operation until the next harvest and provides for a 1
potential compensation based on the value to one of the parties.1 § 596b is a default rule.
§597
Late return
’If the usufructuary lessee does not return
the leased property upon termination of the
lease, then the usufructuary lessor may for
the duration of such withholding demand
the agreed rent as compensation. 2 Assert ion
of additional damage is not excluded.
§597
Verspätete Rückgabe
•Gibt der Pächter die Pachtsache nach Been-
digung des Pachtverhältnisses nicht zurück, so
kann der Verpächter für die Dauer der Vorent¬
haltung als Entschädigung die vereinbarte
Pacht verlangen. 2Die Geltendmachung eines
weiteren Schadens ist nicht ausgeschlossen.
’ MüKo BGB/Harke, § 569a BGB mn. 3.
1 Jauernig BGB/Teichmann, § 596b BGB mn. 1.
Hübner
1053
§ 598 1-4 Division 8. Particular types of obligations
1 This provision corresponds with the lessee’s duty to return under § 546a; thus, it deviates
from § 584b. It is the default rule.
Title 6
Gratuitous Ioan
Titel 6
Leihe
§598
§598
Typical contractual duties in the
case of a gratuitous loan
By a gratuitous loan agreement, the lender
of a thing is obliged to permit the borrower
to use the item at no charge.
Vertragstypische Pflichten bei der
Leihe
Durch den Leihvertrag wird der Verleiher
einer Sache verpflichtet, dem Entleiher den
Gebrauch der Sache unentgeltlich zu gestatten.
A. Function
1 The provision defines the contractual duties of the parties to a contract on a gratuitous
loan. It is the agreement to permit the gratuitous use of a chattel or an immovable for a
certain period.
B. Context
I. Historical
2 Originally, legislation only regulated the practically relevant hand lending (Handleihe)
including the actual transfer of possession of the thing, without finally deciding on the legal
validity of the promissory loan (Versprechensleihe). Today, there is no doubt that the
promissory loan is also effective as the parties may freely agree on the terms of their contract.1
IL Legal
3 This kind of contract needs to be distinguished from a lease contract. While § 598 is a
gratuitous contract, the lessor under a lease contract is obliged to pay a rent. The gratuitous¬
ness is the central feature of the gratuitous loan. In contrast to the contract for the loan of a
thing (§ 607), the same thing must be returned under a contract pursuant to § 598. In a
contract for safekeeping under § 688, the depositary may not use the thing, he may and must
only store it. Finally, the most relevant distinction must be made in the context of
accommodation agreements from which no legal obligation follows. The main criterion is
the intention to be legally bound (Rechtsbindungswille).2 This intention is indicated by the
reason for the permission of use and the economic interests of the parties3.
III. Comparative
4 No uniform law on gratuitous loans exists; the DCFR also does not contain any rules on
this.4 Such contract would be covered by a gratuitous bailment under the common law.5
1 MüKo BGB/Häublein, § 598 BGB mn. 1.
2 BGH 4.8.2010 - XII ZR 118/08, NJW 2010, 3087.
3 BGH 22.6.1956 - I ZR 198/54, NJW 1956, 1313.
4 Schmidt-Kessel, HWB EuP (Mohr Siebeck 2009), Leihe.
5 The German Law of Contract, p. 151.
1054
Hübner
Liability of the lender
1-2 § 599
C. Explanation
I. Legal nature
The contract in the case of a gratuitous loan is an incomplete bilateral contract (unvoll- 5
kommen zweiseitiger Vertrag). §§ 320 et seq. are not applicable.6 The contract basically
establishes an indirect possession agreement (§ 868): the borrower becomes the possessor,
the lender the indirect possessor.
IL Content
The assignment of the thing is not necessary for the conclusion of the contract. It suffices 6
if the lender undertakes to hand over the item at a later point in time (promissory loan). The
lender is generally obliged to allow the borrower the use of the thing for the duration of the
contract, in the case of a promissory loan also to previously give him the possibility of use.
He may be subject to further obligations under §§ 599-601(1). After release, the borrower
has obligations from §§ 601 et seq., in particular the obligation to care and return.
III. Thing
The lender does not have to be the owner of the thing.7 A sale of the thing does not 7
influence the loan agreement; § 566 is not applicable.8
IV. Use
The borrower is not obliged to use the thing unless the parties agreed on such duty or it 8
follows from the character of the thing, e.g. riding a horse.9
§599
Liability of the lender
The lender is only responsible for intent
and gross negligence.
§599
Haftung des Verleihers
Der Verleiher hat nur Vorsatz und grobe
Fahrlässigkeit zu vertreten.
A. Function
I. Purpose and underlying principle
The lender is not responsible for minor negligence. This provision is based on the general 1
assumption of the BGB that a party, who performs his obligation gratuitously as an act of
altruism, is exempt from liability for minor negligence.1 It deviates from the general provision
of § 276.
II. Scope of application
This provision applies to the interest in the fulfilment of the contract (Erfüllungsinteresse). 2
It is indispensable. However, any liability for intent may not be waived (§ 276(3)). It must be
noted that § 600 contains an overriding special rule for liability of defects.
6 Jauernig BGB/Mansel, § 598 BGB mn. 1.
7 Palandt BGB/Weidenkaff, § 598 BGB mn. 1.
8 MüKo BGB/Häublein, § 598 BGB mn. 23.
9 Staudinger BGB/Reuter, § 598 BGB mn. 2.
1 Staudinger BGB/Reuter, § 599 BGB mn. 1.
Hübner
1055
§ 600 1-4 Division 8. Particular types of obligations
3 It is disputed whether the liability under § 599 also applies to the violation of other r’ghts.
The BGH affirms this approach if this violation is connected with the t ing. is is ispu e
by academia.2 3 In the same fashion, this mitigation of liability also app ies to c aims o e
borrower (§ 598) in tort.4 This gains practical importance in case of a gratuitous oan o an
unsafe car or a riding horse.5 Notwithstanding, it does not apply to claims arising rom
accommodation agreements.6
B. Explanation
4 The borrower is liable under § 276 for any deterioration of the object as well as pursuant
to §§ 601, 603, 604. In case of a test drive, a silent exclusion of liability may become relevant.7
§600
Liability for defects
If the lender fraudulently conceals a legal
defect or a defect in the thing lent, then he is
liable to compensate the borrower for any
damage arising from this.
§600
Mängelhaftung
Verschweigt der Verleiher arglistig einen
Mangel im Recht oder einen Fehler der ver¬
liehenen Sache, so ist er verpflichtet, dem
Entleiher den daraus entstehenden Schaden
zu ersetzen.
A. Function
1 § 600 concerns the lender’s liability to pay compensation to the borrower where damage
arises as a result of the lender fraudulently concealment of a legal or material detect in the
thing lent The provision is mandatory; any liability for intent may not be waived (§ 276(3)).
B. Explanation
I. Fraudulent concealment
2 The limitation of the lender’s liability to fraudulent concealment of the defect corresponds
with the limitation of the donor’s liability under §§ 523, 524. The relevant point in time
regarding the fraudulent concealment is the conclusion of the contract.1
II. Scope of damages
3 § 600 only covers damages for defects but not for consequential damages. In the latter case,
the usual liability under § 280(1) and/or § 823(1) may occur.2
4 § 600 only includes reliance damages, where the borrower has relied on the validity of the
agreement fVertrauensschuden) but not damages concerning the positive interest, i.e. interest
in the fulfillment of the contract (Erfüllungsinteresse).3
2 BGH 9.6.1992 - VI ZR 49/91, NJW 1992, 2474; Staudinger BGB/Reuter 8 599 BCR m ,
3 Jauernig BGB/Mansel, § 599 BGB mn. 2; MüKo BGB/Häublein 8 598 BCR m"' 2'
4 BGH 9.6.1992 - VI ZR 49/91, NJW 1992, 2474. M4,
5 Palandt BGB/Weidenkaff, § 599 BGB mn. 2.
6 BGH 9.6.1992 - VI ZR 49/91, NJW 1992, 2474.
7 BGH 18.12.1979 - VI ZR 52/78, NJW 1980, 1681.
’ HK-BGB/Scheuch, § 600 BGB mn. 3.
2 Staudinger BGB/Reuter, § 600 BGB mn. 3.
3 Jauernig BGB/Mansel, § 600 BGB mn. 1.
1056
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Wear and tear on the thing
1 §602
§601
Reimbursement of outlays
(1) The borrower must bear the customary
costs of maintaining the thing lent; in the
case of the gratuitous loan of an animal, in
particular, without limitation, the costs of
feeding it.
(2) The duty of the lender to reimburse
other outlays is governed by the provisions
on agency without specific authorisation. The
borrower is entitled to remove an installation
which he attached to the thing.
§601
Verwendungsersatz
(1) Der Entleiher hat die gewöhnlichen
Kosten der Erhaltung der geliehenen Sache,
bei der Leihe eines Tieres insbesondere die
Fütterungskosten, zu tragen.
(2) Die Verpflichtung des Verleihers zum
Ersatz anderer Verwendungen bestimmt sich
nach den Vorschriften über die Geschäftsfüh¬
rung ohne Auftrag. Der Entleiher ist berech¬
tigt, eine Einrichtung, mit der er die Sache
versehen hat, wegzunehmen.
A. Function
§ 601 is a default rule. In contrast to the lessor (§ 535(1) 2nd St.), the lender is under no 1
duty to maintain the thing lent in good condition.1 Thus, it is up to the borrower to pay the
maintenance expenses during the contract term; therefore, this provision allocates these costs
to him. He is obliged to protect and take care of the thing.2
B. Explanation
The term customary' is defined by the generally accepted standards (Verkehrsanschauung).3 2
i.e. the recurrent expenses for protective and control measures. Expenses for the repair of
damages do not fall under § 6014; the borrower must only compensate the lender for them
under the requirements of §§ 280 et seq. as well as §§ 823 et seq. Nevertheless, he is not liable
for damages resulting from the normal use of the thing in accordance with the contract due
to § 602.
§602
Wear and tear on the thing
The borrower is not responsible for
changes to or deterioration of the thing lent
that are caused by use in conformity with the
contract.
§602
Abnutzung der Sache
Veränderungen oder Verschlechterungen
der geliehenen Sache, die durch den vertrags¬
mäßigen Gebrauch herbeigeführt werden, hat
der Entleiher nicht zu vertreten.
A. Function
This default provision corresponds with § 538 regulating the same for the lessee under a 1
lease contract.
1 MüKo BGB/Häublein, § 601 BGB mn. 1.
2 MüKo BGB/Häublein, § 601 BGB mn. 1.
3 Staudinger BGB/Reuter, § 601 BGB mn. 2.
4 HK-BGB/Scheuch, § 601 BGB mn. 5.
Hübner
1057
§ 603 1-2
Division 8. Particular types of obligations
B. Explanation
I. Use in conformity
2 The use in conformity with the contract is defined by the content of the contract, the type
and the intended use of the thing and generally accepted standards (Verkehrsanschauung)}
II. Exclusion
3 § 602 does not apply if the thing becomes fully defunct or is destroyed during the use; the
borrower may be liable for breach of contract under § 280( 1 )1 2. In case of loss, destruction, or
elimination, §§ 275, 281, 283 apply with regard to the duty to return under § 604(l)3.
§ 603 § 603
Use in conformity with the Vertragsmäßiger Gebrauch
contract
lThe borrower may not make any other use
of the thing lent than use in conformity with
the contract. 2He is not entitled without per¬
mission from the lender to transfer the use of
the thing to a third party.
’Der Entleiher darf von der geliehenen Sa¬
che keinen anderen als den vertragsmäßigen
Gebrauch machen. 2Er ist ohne die Erlaubnis
des Verleihers nicht berechtigt, den Gebrauch
der Sache einem Dritten zu überlassen.
A. Explanation
I. Use in conformity
1 The use in conformity with the contract is defined by the content of the contract, the type
and the intended use of the thing and generally accepted standards (Verkehrsanschauung).1
In case the borrower uses the thing contrary to the contract, the lender is entitled to
immediate termination in accordance with § 605 No. 2, action for injunction pursuant to
§ 541 or, in case of negligence (§§ 276, 278), to a claim for compensation for damage under
§§ 280(1), 241(2) or in the event of destruction under §§ 280(1), (3), 283, 604.2
II. Transfer to third party
2 The 2nd St. corresponds with § 540. The transfer to a third person is generally forbidden
without consent of the lender. A negligent or intentional act of the third person in that
regard may be attributed to the borrower on the basis of § 278 (cf. § 540(2)).3 In addition, the
lender may also demand it back from that third party upon termination of the loan between
lender and borrower (§ 604(3)).
1 Palandt BGB/Weidenkaff, § 602 BGB mn. 1.
2 Palandt BGB/Weidenkaff, § 602 BGB mn. 2.
3 RG 11.11.1938 - III 42/38.
1 Palandt BGB/Weidenkaff, § 602 BGB mn. 1.
2 Jauernig BGB/Mansel, § 603 BGB mn. 1.
3 Jauernig BGB/Mansel, § 603 BGB mn. 2.
1058
Hübner
Duty to return
1-2 § 604
§604
Duty to return
(1) The borrower is obliged to return the
thing lent at the end of the period of time
specified for the gratuitous loan.
(2) lIf no period of time is specified, then
the thing must be returned after the borrower
has made use of it as corresponds to the
purpose of the loan. 2The lender may demand
the thing back even earlier if so much time
has passed that the borrower could have
made use of it.
(3) If the duration of the loan neither has
been specified nor is to be inferred from the
purpose of the loan, then the lender may
demand the thing back at any time.
(4) If the borrower transfers the use of the
thing to a third party, the lender may de¬
mand it back from that third party as well,
upon termination of the loan.
(5) Limitation of the claim to return of the
thing commences upon termination of the
loan.
§604
Rückgabepflicht
(1) Der Entleiher ist verpflichtet, die gelie¬
hene Sache nach dem Ablauf der für die Leihe
bestimmten Zeit zurückzugeben.
(2) ‘1st eine Zeit nicht bestimmt, so ist die
Sache zurückzugeben, nachdem der Entleiher
den sich aus dem Zweck der Leihe ergebenden
Gebrauch gemacht hat. 2Der Verleiher kann
die Sache schon vorher zurückfordern, wenn
so viel Zeit verstrichen ist, dass der Entleiher
den Gebrauch hätte machen können.
(3) Ist die Dauer der Leihe weder bestimmt
noch aus dem Zweck zu entnehmen, so kann
der Verleiher die Sache jederzeit zurückfor¬
dern.
(4) Überlässt der Entleiher den Gebrauch
der Sache einem Dritten, so kann der Ver¬
leiher sie nach der Beendigung der Leihe auch
von dem Dritten zurückfordern.
(5) Die Verjährung des Anspruchs auf
Rückgabe der Sache beginnt mit der Beendi¬
gung der Leihe.
A. Explanation
L Duty to return
This provision clarifies that the termination of the loan is a condition of the lender’s 1
return claim. The loan agreement may end in particular by the passage of time, the
agreement of a terminating condition or termination.1 The borrower must bring the lender
into possession of the object according to § 854.2 He must bring the thing to the borrower’s
place at his own expense (Bringschuld).3 The claim falls due at the end of the contract. In
case of permanent loan (Dauerleihgabe) of an artefact for a museum, only termination
pursuant to 605, 314 or by analogous application of § 544 will be possible.4 The
borrower may not argue that the lender is not the owner of the object; the owner’s claim
to return is based on the contract.5 The general rules of §§ 275, 280, 286 apply in case of
impossibility to return or default.6
IL Time
The borrower is entitled to return the thing at any time unless the parties agreed on a duty 2
to use the object, e.g. riding a horse.7 Moreover, he may claim a right of retention with regard
to his expenses under § 601 (2).8
1 MüKo BGB/Häublein, § 604 BGB mn. 1.
2 Palandt BGB/Weidenkaff, § 604 BGB mn. 1.
3 BGH 19.9.2001 - I ZR 343/98, NJW-RR 2002, 1027.
4 Jauernig BGB/Mansel, § 604 BGB mn. 3.
5 BGH 15.7.2011 - V ZR 21/11, NJW 2012,66.
6 MüKo BGB/Häublein, § 604 BGB mn. 5.
7 Jauernig BGB/Mansel, § 604 BGB mn. 4.
8 HK-BGB/Scheuch, § 604 BGB mn. 8.
Hübner
1059
§606
Division 8. Particular types of obligations
III. Claim to return
3
Sub. 4 corresponds with § 540(2). The lender may claim the thing back irresP«^ _ his
agreement to the use by a third party or not.9 He may have para e c aims, e. .
IV. Limitation period
4 By deviating from § 199(1), Sub. 5 states a different commencement of the limitation
period by setting the beginning upon termination of the loan. Claims un er § > none¬
theless, do not fall under Sub. 4 but § 197(1) No. 2.10
§605
Right of termination
The lender may terminate a gratuitous loan:
1. if he requires the thing lent due to an
unforeseen circumstance,
2. if the borrower makes use of the thing in
breach of contract, in particular, without lim¬
itation, by transferring its use to a third party
without authorisation, or jeopardises the
thing by neglecting the care he owes,
3. if the borrower dies.
§605
Kündigungsrecht
Der Verleiher kann die Leihe kündigen:
1. wenn er infolge eines nicht vorhergesehe-
nen Umstandes der verliehenen Sache bedarf,
2. wenn der Entleiher einen vertragswid¬
rigen Gebrauch von der Sache macht, ins¬
besondere unbefugt den Gebrauch einem
Dritten überlässt, oder die Sache durch Ver¬
nachlässigung der ihm obliegenden Sorgfalt
erheblich gefährdet,
3. wenn der Entleiher stirbt.
1 This provision substantiates a non-exhaustive* 1 list of three reasons for extraordinary
termination without notice period by the lender. With regard to No. 1, foreseeability of the
circumstance is not relevant.2 A real need (not necessarily an urgent one) must exist at the
time of termination, but the interests of the borrower must also be considered.3 No. 2 is a
consequence of § 603; a warning is not necessary since the borrower does not require
protection.4 No. 3 is based upon the assumption that the gratuitous loan results from a close
relationship of mutual trust between the parties.5 No. 1 may apply if the lender dies.6
§606
Short limitation period
*The compensation claims of the lender for
changes to or deterioration of the thing lent
as well as the claims of the borrower for
reimbursement of outlays or for permission
to remove an installation are subject to a six-
month limitation period. 2The provisions of
§ 548(1) sentences 2 and 3 and (2) apply with
the necessary modifications.
§606
Kurze Verjährung
‘Die Ersatzansprüche des Verleihers wegen
Veränderungen oder Verschlechterungen der
verliehenen Sache sowie die Ansprüche des
nt ei ers auf Ersatz von Verwendungen oder
auf Gestattung der Wegnahme einer Einrich¬
tung verjähren in sechs Monaten. 2Die Vor-
schnften des § 548 Abs. 1 Satz 2 und 3, Abs. 2
finden entsprechende Anwendung.
9 Palandt BGB/Weidenkaff, § 604 BGB mn. 8.
10 Palandt BGB/Weidenkaff, § 604 BGB mn. 9.
1 BGH 11.12.1981 - V ZR 247/80, NJW 1982, 820.
2 Jauernig BGB/Mansel, § 605 BGB mn. 1.
3 BGH 17.3.1994 - 111 ZR 10/93, NJW 1994, 3156.
4 HK-BGB/Scheuch, § 605 BGB mn. 4.
5 MüKo BGB/Häublein, § 605 BGB mn. 8.
6 Palandt BGB/Weidenkaff, § 605 BGB mn. 5.
1060
Hübner
Typical contractual duties in a contract for the loan of a thing
§607
A. Function
I. Purpose
The provision shall facilitate the fast termination up of the contract by clarifying the 1
situation.1 Therefore, it shall be broadly interpreted.2 It corresponds with § 548(1), (2).
IL Scope of application
§ 606 applies to any claims of lender and borrower arising from §§ 601-603 (§ 280) as well 2
as for all concurring claims resulting from ownership,3 tort,4 and restitution claims under
§§812 et seq.5 It applies by analogy to contracts with transfer of use if claims arise from
damages to the thing lent.6 It does not apply if the thing is lent to an employee for private use
as § 606 is not suitable to the specifics of labour law7 and to pure courtesies.8 It is further
excluded if the thing is totally destroyed and therefore cannot be returned:9 the usual
termination periods under §§ 195, 199 apply. In the practically relevant case of returning a
car being subject to constructive total loss (wirtschaftlicher Totalschaden), the car still has to
be returned; therefore, § 606 applies.10
B. Explanation
The limitation period commences with the return of the object (2nd St.) in conjunction 3
with §§ 548(1) 2nd and 3rd St., (2).
Title 7
Contract for the loan of a thing
Titel 7
Sachdarlehenvertrag
§607
Typical contractual duties in a
contract for the loan of a thing
(1) ’By a contract for the Ioan of a thing,
the lender agrees to hand over to the bor¬
rower an agreed fungible thing. 2The bor¬
rower is obliged to make payment for the
loan and, when the loan falls due, to return
what he has received in things of the same
kind, quality and amount.
(2) The provisions of this title do not apply
when what is handed over is money.
§607
Vertragstypische Pflichten beim
Sachdarlehensvertrag
(1) 'Durch den Sachdarlehensvertrag wird
der Darlehensgeber verpflichtet, dem Darle¬
hensnehmer eine vereinbarte vertretbare Sa¬
che zu überlassen. 2Der Darlehensnehmer ist
zur Zahlung eines Darlehensentgelts und bei
Fälligkeit zur Rückerstattung von Sachen
gleicher Art, Güte und Menge verpflichtet.
(2) Die Vorschriften dieses Titels finden
keine Anwendung auf die Überlassung von
Geld.
1 BGH 31.1.1967 - VI ZR 105/65, NJW 1967, 980.
2 Palandt BGB/Weidenkaff, § 606 BGB mn. 1.
3 BGH 14.7.1970 - VIII ZR 1/69, NJW 1970, 1376.
4 BGH 31.1.1967 - VI ZR 105/65, NJW 1967, 980.
5 Palandt BGB/Weidenkaff, § 606 BGB mn. 3.
6 BGH 21.5.1968 - VI ZR 131/67, NJW 1968, 1472 - ‘test drive.
7 BAG 11,4.1984 - 7 AZR 115/81, NJW 1985, 759.
8 BGH 4 8.2010 - XII ZR 118/08, NJW 2010, 3087.
9 OLG Köln 14.3.1995 - 22 U 202/94, NJW 1997, 1157.
10 BGH 7.2.1968 - VIII ZR 179/65, NJW 1968, 694.
Hübner
1061
§ 607 1-5
Division 8. Particular types of obligations
A. Function
I. Purpose and underlying principle
1 This default provision deals with the contract for the loan of a thing, not money (§§ 488
et seq.). This contract is also a promissory contract (Sub. 1) subject to the law of
obligations. The contract contains mutual obligations between the lender and the borrower
in the sense of §§ 320-326; the duty of the lender to hand over the fungible thing stands in
a relationship of mutuality with the borrower’s duty to make payment for the loan.1 The
specific obligation of the lender is to hand over possession and ownership of the thing to
the borrower.2 This follows from the meaning and purpose of this type of contract. It aims
at providing the borrower with the possibility of free disposal so that he can use the thing
economically.3 It is a contract with continuing obligation (Dauerschuldverhältnis); there¬
fore, § 314 is applicable.4
II. Scope of application
2 In case the securities loan (the case most relevant in practice), the standard terms and
conditions of financial institutions apply.5 Other relevant examples include the handing over
of reusable packaging and raw material.6 The applicability of §§ 607 et seq. depends upon the
relevant agreement.7
B. Explanation
I. Distinction
3 Since the modernisation of the law of obligations in 2002, the regulation on contract for
the loan of a thing (§§ 607-609) must be clearly distinguished from contract for the loan of
money (§§ 488 et seq.). There is no statutory reference between these two sets of rules. The
contract for the loan of a thing is a very rare transaction which does not come to court very
often.8
4 The contract for the loan of a thing must be distinguished from the lease or the gratuitous
loan by which the very same object but not the agreed fungible thing must be returned when
due (Sub. 1 in conjunction with § 6089). In both cases, the lease and the gratuitous loan, the
ownership is not transferred to the other party.10 The duty to return, however, is not a
mutual obligation according to §§ 320 et seq.11
IL Duties
5 The main contractual duty of the lender is to pay a fee for the loan as well as to hand over
the fungible thing, whereas the borrower must return what he has received in things of the
same kind, quality and amount under Sub. 1. 2nd St. in conjunction with § 609.
1 Palandt BGB/Weidenkaff, § 607 BGB mn. 1.
2 BGH 16.3.2009 - II ZR 302/06, NJW 2009, 2379.
3 MüKo BGB/Berger, § 607 BGB mn. 22.
4 Palandt BGB/Weidenkaff, § 607 BGB mn. 4.
5 Palandt BGB/Weidenkaff, § 607 BGB mn. 2.
6 Jauernig BGB/Mansel, 607-609 BGB mn. 2 et seq.
7 BGH 13.11.2009 - V ZR 255/08, NJW-RR 2010, 1432.
8 Palandt BGB/Weidenkaff, Einführung Sachdarlehensvertrag mn. 1.
9 Jauernig BGB/Mansel, §§ 607-609 BGB mn. 2.
10 See for further detail Staudinger BGB/Freitag, §§ 607 BGB mn. 27 et seq
11 Jauernig BGB/Mansel, §§ 607-609 BGB mn. 6.
1062
Hübner
Payment
1 § 609
III. Defects
The rules for the defects of the sold item under §§ 434 et seq. shall apply in the case 6
of defects.12
§608
Termination
(1) If a time for the return of the thing
handed over is not specified, the due date
depends on the termination of the loan by
the lender or the borrower.
(2) To the extent that nothing else has been
agreed, a contract for the loan of a thing
entered into for an indefinite period of time
may be terminated in whole or in part by the
lender or the borrower at any time.
§608
Kündigung
(1) Ist für die Rückerstattung der überlas¬
senen Sache eine Zeit nicht bestimmt, hängt
die Fälligkeit davon ab, dass der Darlehens¬
geber oder der Darlehensnehmer kündigt.
(2) Ein auf unbestimmte Zeit abgeschlosse¬
ner Sachdarlehensvertrag kann, soweit nicht
ein anderes vereinbart ist, jederzeit vom Dar¬
lehensgeber oder Darlehensnehmer ganz oder
teilweise gekündigt werden.
A. Function
It must be ensured that the thing can be immediately returned.* 1 § 608 corresponds with 1
§ 488(3) 1st St. and is fully dispensable with the exception of the termination right under
§314.
B. Explanation
I. Reimbursement
The claim for reimbursement is due either at the end of the period specified for the loan if 2
the parties have agreed on a definite term in advance or, according to Sub. 1, after
termination by either of the parties.
II. Termination
The termination may be implied. Since there is no statutory notice period, the termination 3
has immediate effect upon receipt pursuant to § 130.2
§609
Payment
The borrower must make the payment at
the latest upon return of the thing handed
over.
§609
Entgelt
Ein Entgelt hat der Darlehensnehmer spä¬
testens bei Rückerstattung der überlassenen
Sache zu bezahlen.
This provision is inspired by § 488(2). The latest possible due date for the borrower’s 1
payment shall be the return of the thing. As a consequence, both claims of the lender become
due at the same time. This provision is again dispensable, so the parties may agree on a
12 BGH 27.3.1985 - V1H ZR 75/84, NJW 1985, 2417; MüKo BGB/Berger, § 607 BGB mn. 34.
1 Palandt BGB/Weidenkaff, § 608 BGB mn. 1.
2 Palandt BGB/Weidenkaff, § 608 BGB mn. 3.
Hübner
1063
§611 Division 8. Particular types of obligations
different solution.1 The parties may explicitly agree on a gratuitous contract for the loan of a
thing.2 The classic example is the spontaneous loan of butter or milk between neig ours.
The provision contains a drafting error as the return of the thing handed over must be read
together with § 607(1) 2nd St.
§610
(repealed)
§610
(weggefallen)
Title 8
Titel 8
Service contract and similar
contracts
Dienstvertrag und ähnliche
Verträge
Subtitle 1
Service contract
Untertitel 1
Dienstvertrag
§611
Typical contractual duties in a
service contract
(1) By means of a service contract, a person
who promises service is obliged to perform
the services promised, and the other party is
obliged to grant the agreed remuneration.
(2) Services of any type may be the subject
matter of service contracts.
§611
Vertragstypische Pflichten beim
Dienstvertrag
(1) Durch den Dienstvertrag wird derjeni¬
ge, welcher Dienste zusagt, zur Leistung der
versprochenen Dienste, der andere Teil zur
Gewährung der vereinbarten Vergütung ver¬
pflichtet.
(2) Gegenstand des Dienstvertrags können
Dienste jeder Art sein.
Contents
A. Function
I. Purpose
II. Position within the BGB
III. Scope of application
B. Context
C. Explanation
I. Delimitation to other contract types
II. Services
III. Remuneration
mn.
IV. Collateral obligations
V. Liability
1. Non-performance
a) Default
b) Termination
2. Failure to render performance as owed.
1
1
2
3
4
5
5
9
11
12
14
15
16
17
18
1 Staudinger BGB/Freitag, § 609 BGB mn. 2.
2 Palandt BGB/Weidenkaff, § 609 BGB mn. 1.
3 MüKo BGB/Berger, § 607 BGB mn. 18.
1064
Sagan/Seiwerth
Typical contractual duties in a service contract
1-4 §611
A. Function
I. Purpose
Sub. 1 regulates the primary obligation of the service contract. The service contract is a 1
reciprocal contract within the meaning of §§ 320 et seq. One party to the contract is obliged
to provide services, the other party is in return obliged to pay the agreed remuneration.
According to Sub. 2 the subject of a service contract may be services of any kind.
II. Position within the BGB
The service contract is regulated in Book 2 (Law of Obligations), Division 8 (Particular 2
types of obligations), Title 8 (Service contract and similar Contracts). It is a specific type of
contractual relationship to which the provisions of the General Part of the BGB (§§ 1-240)
and the general provisions of the Law of Obligations (§§ 241-432) apply.
III. Scope of application
Sub. 2 provides that the provisions on the service contract can apply to a variety of 3
different services, such as legal advice provided by a lawyer or tax consultant, conducting a
business as the director of a company, and care services.1 A special type of service contract is
the employment contract (Arbeitsvertrag). Some of the provisions in §§ 611-630 apply only
to employment contracts (§§ 611a; 612a; 613a; 615 3rd St.; 619a; 620(3); 622-623). Another
special type of service contract is the treatment contract (Behandlungsvertrag) between a
patient and a medical treatment provider. The treatment contract is subject to §§ 630a-630h
and, in accordance with § 630b, also the more general provisions on the service contract in
§§611 et seq.
B. Context
§ 611 entered into force on 1 January 1900.2 It overcame the traditional distinction of 4
Roman law between unfree work (operae illiberales) rendered on the basis of a rent
agreement (locatio conductio) on the one hand and free services (operae liberales) performed
on the basis of a mandate (mandatum) and remunerated voluntarily on the other.3 Sub. 2
excludes any distinction according to the type of services. The only provision within
§§ 611-630 which relates to services of a higher nature is § 627. Also, the drafters of § 611
rejected the term labour and instead used the more general term services.4 Thus, over a long
period § 611 was the common legal basis for the employment contract and all other service
contracts (with non-employees; so-called free service contracts). It was not until 1 April 2017
that § 611a entered into force, which contains a special provision for the employment
contract.
1 For an overview see Staudinger BGB/Richardi/Fischinger, § 611 BGB mn. 334 et seq.; Palandt BGB/
Weidenkaff, Einf. v. § 611 BGB mn. 16 et seq.
1 The title of § 611 was added effective as of 1 January 2002.
3 MüKo BGB/Müller-Glöge, § 611 BGB mn. 1 et seq.; for details see Richardi, Der Arbeitsvertrag im
Zivilrechtssystem, ZfA 1988, 221, 222 et seq.
4 Rückert in: Rückert/Schmoeckel/Zimmermann (eds), Historisch-kritischer Kommentar zum BGB,
Vol. 3 (Mohr Siebeck 2013), § 611 BGB mn. 32.
Sagan/Seiwerth
1065
§ 611 5-10
Division 8. Particular types of obligations
C. Explanation
5
6
7
8
I. Delimitation to other contract types
A so-called service procurement contract (Dienstverschaffungsvertrag) concerns the
provision of the services by a third party. The liability is confined to the careful selection of
the service provider; it does not extend to the quality of the performed services.5 6 A main
example of this type of contract is the agreement on the provision of temporary workers.
The service contract differs from the contract to produce a work (§631) in that it is not
aimed at achieving a certain result or success, but solely at an activity as such.7 In contrast,
the entrepreneur of a contract to produce a work is obliged to achieve a certain success. The
delimitation depends on the interpretation of the contract according to §§ 133, 157. The
decisive factor is the burden of the risk that the activity in question will achieve an envisaged
aim, i.e. the performance risk and the risk of remuneration.8
Services of any kind may be the subject of a mandate according to § 662. The mandate
includes the obligation to carry out a transaction gratuitously. If such a transaction consists
of or includes services, the delimitation from a service contract is based on the obligation to
grant the agreed remuneration. The transaction of the mandatary is not reciprocally related
to any remuneration. However, if remunerated services under a service contract deal with the
management of the affairs of another, some of the provisions on the mandate will apply
according to § 675.
Services may be provided on the basis of a partnership agreement. In particular, partners
of a civil law partnership (§ 705), a general partnership (§ 105 HGB) and a partly limited
partnership (§ 161 HGB) may be obliged to provide services on the basis of the articles of
association (§ 706(3)). However, services owed by partners are not provided in exchange for
remuneration and are not received individually, but provided to all partners in order to
further the common purpose of the partnership.9
9
10
IL Services
The main obligation of the party under a duty of service is to provide the agreed services.
Their content is determined in accordance with the principle of private autonomy by the
service contract. Sub. 2 stipulates that services can be of any kind. Limitations result, inter
alia, from the prohibition to violate statutory prohibitions (§ 134) and the prohibition of
immoral contracts (§ 138). If the contract does not describe the owed services precisely, it
must be interpreted in accordance with the rules deriving from §§ 133, 157. In addition, the
interests of the party entitled to services have to be taken into account pursuant § 242. This
party can have a right to specify the services in accordance with § 315.10 In case of a service
contract dealing with the management of the affairs of another, this right follows from
§§ 675(1), 665.
If the party under a duty of service does not provide the owed services, the other party may
sue for performance. If the service can be taken by a third party, the court can authorise the
party entitled to services to have the services performed by a third party at the costs of the
party under a duty of service (§ 887 ZPO). However, if the services cannot be provided by a
third party, so that their provision depends exclusively on the will of the party under a duty
5 BGH 13.5.1975 - VI ZR 247/73, AP AÜG, § 12 Nr. I.
6 ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 106 et seq.
7 BGH 4.6.1970 - VII ZR 187/68, NJW 1970, 1596; BGH 16.7.2002 - X ZR 27/01
a detailed discussion see Staudinger BGB/Richardi/Fischinger, Vorbem vu xx ai i cc 3323; for
> HK-BGB/Schreiber, § 611 BGB mn. 6. ** 611 ff BGB 326 et seq.
9 Jauernig BGB/Mansel, § 611 BGB mn. 12.
10 Oetker/Maultzsch, Vertragliche Schuldverhältnissc (5,h edn, Springer 2018) § 7 m 43
1066
Sagan/Seiwerth
Typical contractual duties in a service contract 11-15 § 611
of service, a sentence to provide the agreed services cannot be enforced (§ 888(3) ZPO). The
party entitled to services may secure the fulfilment of the obligation to provide services
through the agreement of a contractual penalty (§ 339), to which §§ 307, 309 No. 6 can be
applicable.
III. Remuneration
The main obligation of the party entitled to services is to grant the agreed remuneration. 11
The nature and the sum of the remuneration are determined by the service contract. If an
agreement on remuneration is missing or if such agreement is void, § 612 applies. Usually,
remuneration is a pecuniary obligation. However, this is not a requirement of Sub. I.11 For
example, the right to use a company car for private purposes may be part of the remunera¬
tion of a company director for services provided to the company.
IV. Collateral obligations
Both parties to the service contract are subject to collateral obligations mainly deriving 12
from §§ 241(2), 242.12 These duties can oblige the party under a duty of service, inter alia, to
safeguard the interests of the other party, to report and to avoid damage, to refrain from
competition, to secrecy and the non-acceptance of bribes.
Some ot the collateral obligations of the party entitled to services relating in particular to 13
health and safety are specified in §§ 617-619. In addition, this party is also more generally
obliged to take account of the life, health and property of the other contracting party (§ 241
(2)). Within the ambit of § 675 the party entitled to services has to reimburse expenses
according to § 670, provided the costs for the provision of the agreed services are not already
covered by the contractual remuneration.13
V. Liability
Violations of the service obligation may be based on non-performance, default or not 14
performing as owed. In general, §§ 280 et seq. apply, which, however, are subject to
modifications and additions.14 A major difference is that the right to termination (§§314
(2), 626-627) supersedes the right to revocation (§§ 323-324, 326(5)). Termination does not
exclude the right to claim damages (§ 314(4)). A breach of an collateral obligation can lead to
a liability for damages in addition to (§ 280(1)) or in lieu of performance (§§ 280(1), (3),
282). In addition, violations of a collateral obligation may constitute grounds for termination
without notice pursuant to § 626, which in this case supersedes §§ 314(2), 324 as lex
specialis.15
1. Non-performance
The service contract can stipulate that the services have to be rendered at a specific date 15
and time. Thus, timely provision of the services is an integral part of the main obligation. In
this case, it is not possible to make up for these services if they are not rendered in time. The
claim for performance is excluded pursuant to § 275(1). In return, § 326(1) 1st St. excludes
the claim for remuneration. However, the claim for remuneration is not excluded under
§ 326(2), if the party entitled to services is responsible for the non-performance or was in
default in acceptance, unless the other party is at fault (§ 300(1)). This also applies in the
cases of §§ 615-616. Damages can be claimed under the conditions of §§ 280(1), (3), 283.
u See BGH 7.6.1977 - VI ZR 77/76, NJW 1977. 2120.
12 BeckOGK BGB/Maties, § 611 BGB mn. 300 et seq.
13 BeckOGK BGB/Maties, § 611 BGB mn. 313.
14 Jauernig BGB/Mansel, § 611 BGB mn. 12 et seq.
15 Oetker/Maultzsch, Vertragliche Schuldverhältnisse (5,h edn, Springer 2018), § 7 mn. 69.
Sagan/Seiwerth
1067
§ 611 16-19 Division 8. Particular types of obligations
16 a) Default. If the agreed services can be made up for at a later point in time, the party
under a duty of services is liable for default in the event of non-performance un er * e
conditions set forth in §§ 280(1), (2), 286. The remuneration can be wit e accor in® t0
§ 320. Further damages can be claimed under the conditions of §§ 280(1), (3),
17 b) Termination. If the contract is terminated in accordance with §§ 626-627, § 628(2)
provides a claim for damages caused by non-performance.
2. Failure to render performance as owed
18 §§ 611-630 contain no special rules for the failure to render performances as owed. Whether
such a failure is a breach of the main obligation pursuant to Sub. 1 or a violation of a collateral
obligation under § 241(2) is an open and controversial question.16 One view in legal academic
writing considers that the party under the duty of services is merely obliged to perform any
service at all.1' This view argues that the success intended with the services must not be made
the object of the main obligation, particularly since §§ 611-630 do not stipulate any statutory
warranty rights.18 The quality of the services is thus considered to be outside the main
obligation under Sub. 1 and subject to § 241(2).19 Consequently, services, which were not
performed as owed, would have to be remunerated in full.20 However, the part of the
remuneration, which account for the failure to perform, shall be a damage for which compensa¬
tion can be claimed under the conditions set out in §§ 280(1), (3), 281 or §§ 280(1), (3), 283.21
19 The contrary opinion considers the quality of the services to be an integral part of the
main obligation. The party entitled to services is only willing to pay the agreed remuneration
in exchange for services of the contractually agreed quality.22 Thus, the quality of the services
affects the reciprocity of the main obligations regulated in Sub. 1. In addition, the party
entitled to services shall bear the risk that the services fail an intended aim, but not the risk of
carelessly rendered services. If one follows this view, the party entitled to services can, if § 614
applies, withhold remuneration. If the services become impossible due to the passage of time,
the obligation to perform services is excluded under § 275(1). Accordingly, the obligation to
grant the agreed remuneration is excluded pursuant to § 326(1) 1st St. In addition, it is
argued that the agreed remuneration can be reduced with a view to the failure to perform
according to §§ 326(1) 1st St., 441(3) by analogy.23 This reduction would not require fault of
the party under a duty to provide services. However, an automatic reduction of the agreed
remuneration is a concept that is alien to the statutory law of the service contract.24 The
legislator explicitly rejected the introduction of a right to reduce the agreed remuneration to
the service contract.25
16 For a detailed discussion see Oetker/Maultzsch, Vertragliche Schuldverhältnisse (5th edn Springer
2018), § 7 mn. 59 et seq.; differently Canaris, in: Bitter et al. (eds), Festschrift für Kartsten Schmidt (Otto
Schmidt 2009), p. 177 (direct or analogous application of § 628(1), 2nd St.); further Weller Persönliche
Leistungen (Mohr Siebeck 2012), p. 534 et seq.
17 Looschelders, Schuldrecht BT (13th edn, Vahlen 2017), mn. 579.
18 Staudinger BGB/Richardi/Fischinger, §611 BGB mn. 1283 (with regard to the employment con-
19 Oechsler, Vertragliche Schuldverhältnisse (2nd edn, Mohr Siebcck 2017) mn 1074
- See BGH 24.6.2004 - VII ZR 259/02, NJW 2004, 2588; BGH 15.7.2004’- IX ZR 256/03, NJW 2004,
2817. *
21 Jauernig BGB/Mansel, § 611 BGB mn. 12.
22 Erman BGB/Edenfeld, § 611 BGB mn. 408 (with regard to the employment n
23 See Medicus/Lorenz, Schuldrecht II (17th edn, C.H.Beck 2014) mn a tn. r, .■
liehe Schuldverhältnisse (4,h edn, Springer 2013), § 7 mn. 67. e cr^aultzsch, Vertrag-
23 BGH 24.6.2004 - VII ZR 259/02, NJW 2004, 2588; BGH 4.2.2010 - IX 7» >
Staudinger BGB/Richardi/Fischinger, §611 BGB mn. 1285; for a detail 2010, 1364;
Strukturfragen des Dienstvertrages (Mohr Siebeck 2007), p. 383 et seq * ° ,scuss*°n see Tillmanns,
25 BT-Drs. 14/6040 of 14.5.2001, p. 223. 4‘
1068
Sagan/Seiwerth
Employment contract
§611a
§611a
Employment contract
(1) lThe employment contract obliges the
employee to perform, in the service of an¬
other, externally determined work bound by
instructions in a relationship of personal de¬
pendency. 2The right of instruction can con¬
cern content, performance, time and place of
the activity. 3A person who is not essentially
free to determine the activity and working
time is subject to instruction. 4The extent of
the personal dependency depends also on the
characteristics of the respective activity. 5A11
circumstances are to be considered in order
to determine if there is an employment con¬
tract. 6The designation in the contract is
irrelevant if the actual performance of the
contractual relationship shows that there is
an employment relationship.
(2) The employer is obliged to pay the
agreed remuneration.
§611a
Arbeitsvertrag
(1) 1 Durch den Arbeitsvertrag wird der Ar¬
beitnehmer im Dienste eines anderen zur Leis¬
tung weisungsgebundener, fremdbestimmter Ar¬
beit in persönlicher Abhängigkeit verpflichtet.
2Das Weisungsrecht kann Inhalt, Durchführung,
Zeit und Ort der Tätigkeit betreffen. Weisungs¬
gebunden ist, wer nicht im Wesentlichen frei
seine Tätigkeit gestalten und seine Arbeitszeit
bestimmen kann. 4Der Grad der persönlichen
Abhängigkeit hängt dabei auch von der Eigenart
der jeweiligen Tätigkeit ab. 5Für die Feststellung,
ob ein Arbeitsvertrag vorliegt, ist eine Gesamt¬
betrachtung aller Umstände vorzunehmen.
6Zeigt die tatsächliche Durchführung des Ver¬
tragsverhältnisses, dass es sich um ein Arbeits¬
verhältnis handelt, kommt es auf die Bezeich¬
nung im Vertrag nicht an.
(2) Der Arbeitgeber ist zur Zahlung der
vereinbarten Vergütung verpflichtet.
Contents
mn.
A. Function 1
I. Purpose and underlying principles 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
I. Historical 4
II. Legal 8
1. European law 9
2. Constitutional law 10
3. Statute law 11
4. Collective bargaining agreements 12
5. Works Agreement 13
6. Right to issue instructions 14
C. Explanation 15
I. Right of instruction 15
II. Externally determined work 16
III. Personal dependency 17
IV. Factual performance 18
V. Employment contract 19
1. Restrictions 20
2. Avoidance 21
3. Legal review of terms 23
4. Company practice 24
5. Employee’s obligation 25
a) Non-performance 26
b) Collateral obligations 27
6. Employer’s obligations 28
a) Minimum wage 29
b) Benefits in kind 30
c) Right to employment 31
d) Equal treatment 32
e) Collateral obligations 33
Sagan/Seiwerth
1069
§ 611a 1-3
Division 8. Particular types of obligations
A. Function
I. Purpose and underlying principles
1 § 611a regulates the contractual obligations of the employment contract. The employee is
obliged to perform work according to directions and the employer is obliged to pay the
agreed remuneration. Thus, the employment contract is a typical reciprocal contract. § 611a
implicitly regulates the concept of the employee. This term is the key to the application of
labour law.1 2 Its main function is to distinguish the employment contract of an employee
(§ 611a) from the free service contract of an independent contractor (§ 611).
IL Position within the BGB
2 The employment contract is a special form of the service contract (§ 611).3 Thus, the
provisions of the General Part (§§ 1-240) and the General Part of the Law of Obligations
(§§ 241-432) apply. However, in many instances these general provisions are superseded or
modified by more specific provisions and particularities of labour law. The main reason for
this circumstance is that the contract law of the BGB is based on the principle of private
autonomy, i.e. the conclusion of contracts between free and equal persons.4 However, an
appropriate balance between the divergent interests of the contracting parties will only be
achieved if there is a balance of power in the negotiations. In this sense, the BGB tacitly
presumes an equilibrium of bargaining power. With regard to the employment contract, this
equilibrium is structurally disrupted because the employer is the more powerful of the two
contracting parties. The employer is typically economically stronger and the employee (or
jobseeker) is typically dependent on employment in order to secure his economic existence.
Against this background, the employer is de facto in a position to determine the content of
the employment contract unilaterally. This results in a distorted contractual parity.5 A main
purpose of statutory labour law - and this applies also to the labour law provisions in the
BGB - is to compensate for the imbalance between the individual employer and the
individual employee. It follows, that statutory labour law is aimed at protecting the employee
and in view of this objective is usually of mandatory nature. Thus, the provisions of the BGB
on employment contracts differ from the regulation of many other types of contract, which
are often governed by dispositive law. In this regard, the regulations on the employment
contract are most similar to social tenancy law, i.e. the often mandatory regulations on leases
for residential space (§§ 549 et seq.).
III. Scope of application
3 § 611a is a general provision, which applies to all private employment contracts. § 611a
was, however, already outdated when it entered into force in 2017. It does not pay attention
to the concept of the employee in EU law. According to the CJEU ‘the essential feature of an
employment relationship is that, for a certain period of time, a person performs services for
and under the direction of another person, in return for which he receives remuneration 6
This can include inter alia public officials7 (Beamte) and members of the board of directors of
1 See to the restrictions on the principle of reciprocity in the employment contr irt ^11« > fAk a u >
kein Lohn, 167 AcP (1967), 132, 137 et seq. P 7 C°,UraCt Sollner’ Ohnc Arbelt
2 ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 3.
3 BT-Drs. 18/10064 of 19.10.2016, p. 17.
4 Flume, Allgemeiner Teil des Bürgerlichen Rechts 11 (4"'edn, Springer 1992)
5 MüArbR/Fischinger, § 3 mn. 29 et seq.; in more detail Zöllner/I orit./u ’ P',. ■e* SCC*’ ■
edn, C.H.Beck 2015), § 1 mn. 1 et seq. ^IneUUntz/Hergenröder. Arbeitsrecht (7*
6 CJEU C-229/14 Balkaya ECLI:EU:C:20l5:455 mn. 34.
7 CJEU C-187/15 Pöpperl ECLl:EU:C:2016:550 mn. 27-28.
1070
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Employment contract 4-5 § 61 la
a corporation,8 to which, on the other hand, § 611a generally does not apply if read in the
light with previous decisions ot the German courts.9 It is therefore necessary to extend the
traditional German concept ot the employee in line with EU law in particular by means of an
interpretation in conformity with EU directives.10 However, it is questionable whether § 611a
is to be extended in the ambit of EU law or whether the provisions on the concept of the
employee in the specialised acts transposing EU directives into German law are to be read in
line with EU law (e.g. § 6(1) No. 1 AGG).
B. Context
I. Historical
In the first draft ot the BGB of 1888, only eight provisions 559-566 BGB-E) were 4
devoted to the service contract.11 A poignant critique by Menger noted that the draft
regulations, confined to private contract law, were very much in favour of employers.12 The
proposed rules did not take into account the fact that paid work was the economic basis of
the majority ot the population, and workers were often subject to the employer in all their
personality.13 The draft was, as Menger pointed out, a mere restatement of established
structures of social power.14 However, this critique separated the BGB from all surrounding
laws. Indeed, private autonomy is the basic principle of the service contract in the BGB.15 But
the BGB was flanked with numerous special laws that served the social protection of the
employees. This social protection has been implemented in particular in the area of social
security law, trade surveillance law, commercial law, etc. Thus, the provisions on both
individual and collective labour law were and still are scattered across legislation (e.g.
GewO, HGB, KSchG» ArbZG, TVG, BetrVG, AEntG, AGG etc.). The promise of the Reichs¬
tag of 1896 to issue a uniform regulation of (individual) labour law as soon as possible to date
remains unfulfilled.16
When §611 entered into force on 1 January 1900 it had essentially remained unchanged 5
from the first draft and did not distinguish between the employment contract and the (free)
service contract. The delimitation of these two types of service contracts has been delegated
to the judiciary and legal academic writing. A highly influential analysis by von Gierke held
that the service contract had its historical roots in German common law, which preceded the
codifications of the 19th century and provided for a special type of contract for the exchange
of personal self-devotion against permanent protection.17 As a result, the employment
agreement did not form a contractual obligation, but defined personal status.18 Von Gierke
8 CJEU C-232/09 Danosa ECLI:EU:C:2010:674 mn. 56.
9 See BAG 25.2.2004 - 5 AZR 62/03, AP HRG § 36 No. 1; BAG 26.5.1999 - 5 AZR 664/98, NZA 1998,
987.
10 CJEU Joined cases C-397/01-C-403/01 Pfeiffer and others ECLI:EU:C:2004:584 mn. 110-119; further
Junker, Die Einflüsse des europäischen Rechts auf die personelle Reichweite des Arbeitnehmerschutzes,
EuZA 2016, 184; Temming, Systemverschiebungen durch den unionsrechtlichen Arbeitnehmerbegriff -
Entwicklungen, Herausforderungen und Perspektiven, SR 2016, 159.
11 See Entwurf eines bürgerlichen Gesetzbuchs für das Deutsche Reich - Erste Lesung (de Gruyter
1888), p. 122—123.
12 Das Bürgerliche Gesetzbuch und die besitzlosen Volksklassen (de Gruyter 1890), p. 181.
13 Das Bürgerliche Gesetzbuch und die besitzlosen Volksklassen (de Gruyter 1890), p. 152-153 and
156.
14 Das Bürgerliche Gesetzbuch und die besitzlosen Volksklassen (de Gruyter 1890), p. 153.
15 See Rückert, in: Rückert/Schmoeckel/Zimmermann (eds), Historisch-kritischer Kommentar zum
BGB, Vol. 3 (Mohr Siebeck 2013), § 611 BGB mn. 83-84.
16 For the various attempts to codify German labour law see lannone, Die Kodifizierung des
Arbeitsvertragsrechts (Peter Lang 2009).
17 Deutsches Privatrecht III (Duncker & Humblot 1917), p. 593.
18 Deutsches Privatrecht III (Duncker & Humblot 1917), p. 594.
Sagan/Seiwerth
1071
§ 611a 6-7 Division 8. Particular types of obligations
continued this historical model under the application of the BGB and argued that the
employment relationship established a personal relationship of dominance etween master
and servant.19 From the beginning, the concept of employment as persona status was
questionable. It did not consider the demise of the feudal order, but assume ega continuity
between the German common law and the BGB.20 However, it is argued t at t e main
objective of von Gierke was to establish a legal basis for social duties of care and loyalty in
order to counterbalance the principle of private autonomy.21
6 The concept of employment as a personal status laid the groundwork for t e emerging
criterion of personal dependency, which would become the main feature of the concept of
employee and the decisive factor in distinguishing employment contracts from free service
contracts.22 The concept of employment as personal status was misused during the national¬
socialist dictatorship. § 2(2) AOG of 1934 (Gesetz zur Ordnung der nationalen Arbeit - Work
Order Act) stipulated that the employer was under a duty of care vis-a-vis the workforce,
which in return owed loyal services in the community of the business. According to national¬
socialist doctrine, duties to community and loyalty replaced the reciprocal nature of a
contractual relationship.23 In the early years of the Federal Republic of Germany, the notion
of personal or communal employment and the criterion of personal dependency remained to
be the prevailing view in legal academic writing.24 Despite increasing criticism,25 the criterion
of personal dependency has quickly asserted itself in the case law, in which it was used to
define the concept of the employee.26
7 In the recent past, however, it has become generally accepted that the employment
contract does not establish a personal status, but rather is a regular reciprocal contract.27 As
a result, the criterion of personal dependence lost its meaning. Also, the labour courts
equated personal dependency with the dependence of the employee on the instructions of
the employer and the incorporation of the employee into the business of the employer.
According to a common formulation of the BAG, employees are those who, under a private
law service contract, are obliged to perform (i) externally determined work for another
person (ii) bound by instructions (iii) in personal dependency. In this pleonastic formula, the
criterion of personal dependency degenerated into a mere placeholder void of any mean¬
ing.28 Nevertheless, the legislator consciously followed this formula29 and adopted all three
criteria in Sub. 1 1st and 3rd St., which entered into effect on 1 April 2017. This, however, is a
mere codification of the previous court decisions and does not imply a return of the former
19 Deutsches Privatrecht III (Duncker & Humblot 1917), p. 609.
20 MüArbR/Fischinger, § 3 mn. 16-17.
21 Preis, Grundfragen der Vertragsgestaltung im Arbeitsrecht (Luchterhand 1993), p 13-14
22Oertmann, Deutsches Arbeitsvertragsrecht (Heymanns 1923), p. 13 et seq.; Sin’zheimer Grundzüge
des Arbeitsrechts (Fischer 1921), p. 3-4; to the contrary Kaskel, Arbeitsrecht (Springer 1925) ’n 50 et seq;
Lotmar, Der Arbeitsvertrag (Duncker & Humblot 1902/1908 [reprint 2001]) p 1704 5 E
staioe9e35Tpe53?seqrbeltSVerhaltniS Ord"Ung "a“0"’'6" Arb<* <Ha™atische Veriagsan-
24 See Hueck, Der Treuegedanke im modernen Privatrecht (Verlao Ho. u .....
Wissenschaften 1947); Hueck/Nipperdey, Lehrbuch des Arbeitsrechts 1 (7"> edn Vahlen 1963)* n*34 et
25 Wolf, Das Arbeitsverhältnis (Eiwert 1970); farther Ballerstedt, Probleme r. . i j
Arbeitsrechts, RdA 1976, 5, 9-10; Schwerdtner, Fürsorgetheorie und p ,i ,e ner Doßmatl*< des
Arbeitsbedingungen (Recht und Wirtschaft 1970), p. 22 et seq " ttpleor'e *m Recht der
26 BAG 28.2.1962 - 4 AZR 141/61, BAGE 12, 303; BAG 8.6.1967 - 5 A7n .
27.6.2017 - 9 AZR 851/16, NZA 2017, 1463; beforehand RAG 27 193? 170,BAGE l9, 324: BAG
9.5.1934 -16/34, ARS 20, 302; RAG 25.4.1936 -31/36, ARS 27, 7. ' 179/32> ARS 15, 505; RAG
27 See only MüArbR/Fischinger, § 3 mn. 27.
28 Hromadka/Maschmann, Arbeitsrecht I (7,h edn, Springer 2018) 8 i
recht (Mohr Siebeck 2017), mn. 106. * $
29 BT-Drs. 18/9232 of 20.7.2016, p. 31.
1; Kamanabrou, Arbeits-
1072
Sagan/Seiwerth
Employment contract 8-12§611a
concept of employment as a personal status. The criterion of personal dependency has no
useful meaning in the context of Sub. I.30
IL Legal
The employment relationship is subject to a large number of legal sources. 8
L European law
At the top of the legal hierarchy is EU law. The bulk of EU employment law is governed by 9
directives. Directives can have (vertical) direct effect: ‘Whenever the provisions of a directive
appear, so far as their subject-matter is concerned, to be unconditional and precise, they may
be relied upon before the national courts by individuals against the State where the latter has
failed to implement the directive in domestic law by the end of the period prescribed or
where it has failed to implement the directive correctly’.31 This applies to public employers.32
In the case ot private employers, directives can have an indirect effect in that they require an
interpretation of statutory law in accordance with EU directives.
2. Constitutional law
Similar rules apply to the fundamental rights under German constitutional law (Arts 1-19 10
GG). They do not apply directly within contractual relationships of private law. However,
statutory provisions of civil law must be (read) in line with the objective set of values
established by the fundamental rights.33 In particular, the blanket clauses of the BGB, such as
§§ 138, 242 BGB, must be construed in line with the fundamental rights of the GG.34
Consequently, fundamental rights have an indirect effect on private law contracts, including
employment contracts. However, the fundamental rights of the GG themselves have to be
interpreted in accordance with the fundamental rights of the ECHR and the respective
decisions of the ECtHR.35 This follows from the constitutional principle of the GG’s openness
to international law.36
3. Statute law
At the next level is statutory law, which can be divided into mandatory (e.g. § 613a(l) 11
1st St.) and dispositive law (e.g. § 614). Mandatory law may be imperative for both (e.g. § 6
(1) MuSchG) or only one of the parties to the employment contract (usually the employer).
In the latter case, a deviation from statutory law is permissible if it benefits the employee (e.g.
§ 22 TzBfG). Some provisions of dispositive law allow deviation only on the legal basis of a
collective bargaining agreement (e.g. § 622(4) 3rd St.).
4. Collective bargaining agreements
In general, there are two types of collective agreements in German law: first, collective 12
bargaining agreements between trade unions and employers’ organisations (or individual
employers). They are protected by the fundamental right to association under Art. 9(3) GG.37
30 See Richardi, Der Arbeitsvertrag im Licht des neuen § 611a BGB, NZA 2017, 36, 39; MüArbR/
Schneider, § 18 mn. 38; indecisive ErfK Arbeitsrecht/Preis, § 611 BGB mn. 9-10 and 32.
31 CJEU C-282/10 Dominguez ECLI:EU:C:2012:33 mn. 33.
32 CJEU Joined cases C-397/01-403/01 Pfeiffer and Others ECLI:EU:C:2004:584 mn. 103.
33 BVerfG 15.1.1958 - 1 BvR 400/51, BVerfGE 7, 198.
34 See * § 242 mn. 13.
35 BVerfG 4.5.2011 - 2 BvR 2365/09et al., NJW 2011, 1931; to the details see NK-GA/Sagan, Art. 41, 46
EMRK mn. 7 et seq.
36 BVerfG 14.10.2004 - 2 BvR 1481/04, NJW 2004, 3407.
37 BVerfG 11.7.2017 - 1 BvR 1571/15 et al., NJW 2017, 915.
Sagan/Seiwerth
1073
§ 611a 13-15 Division 8. Particular types of obligations
This type of collective agreement is governed by the Tarifvertragsgesetz (TVG» Collective
Bargaining Act) and, according to §§ 3(1), 4(1) TVG applies directly an man a on y o e
employment relationship if both the individual employee and the in ivi ua emp oyer are
members of the parties that have concluded the collective bargaining agreement or t e
individual employer who himself has concluded the collective bargaining agreement), n
addition, the Bundesministerium für Arbeit und Soziales (Federal Ministry o a our an
Social Affairs) may, under the conditions set forth in § 5 TVG, declare a co ective argaining
agreement universally applicable and thus extend its normative force to emp oyment
relationships which were previously not bound to it.
5. Works Agreement
13 The second type of collective agreement is the works agreement which is concluded
between an individual employer and a works council in accordance with the provisions of
the Betriebsverfassungsgesetz (BetrVG; Works Constitution Act38) (§ 77 BetrVG). The
BetrVG applies to private companies, while the corresponding regulations in the field of
public employers are laid down in the Bundespersonalvertretungsgesetz (BPersVG; Federal
Staff Representation Act) for federal staff and the equivalent regulations of the German
Länder for their staff. The works council does not have the status of a trade union, as it is not
formed by free association of employees, but by an election in accordance with the statutory
rules of the BetrVG. Thus, works agreements are not protected under Art. 9(3) GG and the
works council must not initiate or participate in collective action (§ 74(2) BetrVG). Works
agreements are mandatory and directly applicable to all employees of the respective business
(§ 77(4) BetrVG).
6. Right to issue instructions
14 Finally, the employer may issue instructions according to § 106 GewO. Within the
confines of reasonably exercised discretion, an instruction can specify the content, place
and time of performance of the work, to the extent that such working conditions are not
determined by the employment contract, provisions of a works agreement, applicable
collective bargaining agreements or statutory provisions. Also, the order and behaviour of
employees in the workplace may be regulated by instructions of the employer (§ 106 2nd St.).
Instructions that violate § 106 GewO are invalid from the outset.39
C. Explanation
15
I. Right of instruction
Of the material criteria enumerated in Sub. 1 Is’ St. the right of instruction is the central
and indispensable feature of the term employee. The legal basis for the employer’s right to
issue instructions in statutory law is § 106 GewO. Sub. 1 2nd St. repeats this provision by
stating that the right of instruction can relate to the content, time and place of the work
owed. Sub. 1 2nd St. deviates from § 106 GewO insofar as the right of instruction additionally
also extends to the performance of the services owed. Read in line with Sub 1 6th St this
means that an employment contract can be established if the emnlnv« tkii . ‘ •
of the ™ploy„ which ™iate 8 >06 C,«O and ate ,hus
always constitutes an employment relationship if the party under a duty of service essentially
cannot organise its services freely and cannot autonomously determin Ja essentially
(§84(1) 2nd St. HGB e contrario). Employers often have the . . e’tS ?Wn work’ngt,m®
instructions to highly qualified employees (e.g. to a chief physician) 'iTri pr°teSSl°”ha
E^y^ician). in this case, the
38 An English translation of the BetrVG is available under www ceset? ~ "
39 BAG 18.10.2017 - 10 AZR 330/16, NZA 2017, 1452. lze*,ni->>Hernet.de.
1074
Sagan/Seiwerth
Employment contract 16-19 § 611a
obligation to perform services within a specific organisational structure (e.g. specific place,
cooperation with other employees) can constitute an employment relationship.40 Not
suthcient is an instruction tor carrying out the work under a contract to produce a work
(§§ 631, 645(1) 1st St.).41
II. Externally determined work
All in all, an employment contract is deemed to exist if, taking into account the 16
characteristics ot the particular service (Sub. 1 4th St.) and all the facts of the individual case
(Sub. 1 5th St.), the right of instruction is so intense that the party under a duty to perform
services is obliged to perform externally determined work. The criterion of externally
determined work results in qualified requirements for the necessary right of instruction.42
Likewise, the right of instruction is a prerequisite for work being externally determined.
III. Personal dependency
In contrast, the criterion of personal dependency is superfluous. It is not necessary to make 17
clear that economic dependency does not suffice to establish an employment relationship.43
This consequence already follows from the requirement of a sufficiently intensive right of
instruction. Obsolete is the (former) criterion of integration of the employee into the business
of the employer,44 which the legislator has explicitly used in the special area of agency work
(§ 1(1) 2nd St. AÜG), but not in the general provision of § 611a.
IV. Factual performance
Whether there is a sufficiently intense right of instruction depends on what the contracting 18
parties have agreed to in their contract. However, the employer must be prevented from
circumventing the application of labour law by excluding any right to issue instructions in a
written contract. Sub. 1 6th St. reacts to this situation by stipulating that in such cases not a
written contract, but the factual performance of the contractual relationship is decisive for
the question if an employment contract exists.45 However, this does not mean that factual
circumstances would determine the content of the contract. Decisive is always the will of and
the consensus between the parties. If, contrary to a written agreement, the contractual
relationship is factually performed as an employment relationship, this constitutes a tacit
modification of the contract.46
V. Employment contract
The general rules of the BGB apply to the conclusion of the employment contract. It does 19
not require a special form (§ 105, 1st St. GewO). However, the agreement on a temporal
limitation of the employment relationship must be made in writing prior to commencement
of the work (§§ 14(4) TzBfG, 126 BGB).47 If there is no written employment contract, the
employer must inform the employee of the essential working conditions within one month of
the agreed start of the employment relationship in accordance with § 2 NachwG (based on
EU Directive 91/533/EEC). A violation of this obligation is a breach of duty and may oblige
40 CJEU Joined cases C-397/01-403/01 Pfeiffer and Others ECLI:EU:C:2004:584 mn. 110-119.
41 BAG 25.9.2013 - 10 AZR 282/12, NZA 2013, 1348.
42 To the contrary ErfK Arbeitsrecht/Preis, § 611a BGB mn. 10; Staudinger BGB/Richardi/Fischinger,
§ 611 BGB mn. 25.
43 To the contrary ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 10; MüArbR/Schneider, § 18 mn. 19.
44 BAG 27.7.1961 - 2 AZR 255/60, BAGE 11, 225.
45 BAG 24.8.2016 - 7 AZR 625/15, NZA 2017, 244.
46 Similarly ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 44.
47 ArbG Berlin, 2.11.2005 - 30 Ca 12599/05, NZA-RR 2006, 464.
Sagan/Seiwerth
1075
§ 611a 20-21 Division 8. Particular types of obligations
the employer to pay damages according to § 280(1). Changes to the employment contract
generally require no special form. This also applies to clauses, accor mg to w ic c anges to
the employment contract must be made in writing, including the amen men o sai c ause
itself. Such clauses, if contained in general terms and conditions (§ 305(1) ), may vio ate
§§ 305b, 307 and can be therefore invalid.48
1. Restrictions
20 Employment contracts are subject to a variety of recruitment bans, obligations to conclude
contract and approval requirements, all of which limit the freedom of the parties to
conclude contracts.49 Statutory recruitment bans serve to protect certain groups of employ¬
ees. In general, employment contracts with children under the age of 15 are void (§§ 2, 5, 7
JArbSchG, § 134 BGB). Adolescent persons between the age of 15 and 18 may be hired,
provided the prohibitions of §§22 et seq. JArbSchG are observed. The freedom of the
employer to choose an employee is also restricted. According to Art. 9(3) GG, the employer
must not refuse to hire an applicant on the grounds of membership or non-membership in a
trade union. In addition, the employer has to observe the prohibitions of discrimination
under Art. 3(2), (3) GG and the AGG (based on the EU Race Equality Directive, EU
Framework Equality Directive, EU Gender Equality Directive, and the EU Equal Treatment
in Goods and Services Directive). In case of discrimination on grounds specified in § 1 AGG,
the job applicant can claim compensation for material and immaterial damages (§§6(1)
2nd St., 15(1), (2) AGG). However, the job applicant cannot demand the conclusion of an
employment agreement (§ 15(6) AGG). Special statutory provisions apply to the protection
of disabled persons. Employers who have at least 20 positions are obliged to fill at least
5 percent thereof with severely handicapped persons (§§ 2(2), 154 et seq. SGB IX). If this
obligation is violated, the employer must pay a compensation levy for each unduly occupied
position. Consent requirements further limit the freedom of the employer to conclude
employment contracts. In companies regularly employing more than 20 employees the
employer must notify an existing works council in advance of any recruitment and the works
council may refuse to consent, in particular if the respective recruitment is in violation of
statutory law (§ 99(1), (2) BetrVG). However, the employer may apply to the labour court for
a judicial decision in lieu of consent (§ 99(4) BetrVG).
2. Avoidance
21 The employment contract is subject to avoidance in accordance with §§ 119 et seq. Special
aspects of labour law exist primarily with regard to avoidance on the grounds of deception
(§ 123). Deception occurs if the job applicant intentionally violates an obligation to disclose
information or consciously gives a false answer to a permissible question. A further
requirement is that the deception caused the conclusion of the employment contract50 The
scope of the duty of disclosure depends on the nature of the job to be filled in the individual
case. Questions may only be asked to the extent that the employer has a legitimate fair and
worthy interest which outweighs the interests of the job applicant?' Generally inadmissible
are questions that discriminate against on grounds specified in § 1 AGG In particular
questions regarding pregnancy and disability are generally inadmissible« If a job applicant
fS t0 an inadmiSSible queStion> this is not a Option that justifies avoidance
under § 123. '
40 BAG 20.5.2008 - 9 AZR 382/07, NZA 2008, 1233.
49 To the following see HK-BGB/Schreiber, § 61 la BGB mn 7
50 BAG 7.7.2011 - 2 AZR 396/10, NZA 2012, 34.
51 BAG 5.10.1995 - 2 AZR 923/94, NZA 1996, 371.
52 As to the details see ErfK Arbeitsrecht/Preis, § 611a BGB mn 274-77«;
53 MiiArbR/Benecke, § 33 mn. 154. ‘ 51 52 53
1076
Sagan/Seiwerth
Employment contract
22-24 § 611a
According to § 142(1), avoidance has the legal effect that the respective transaction is void 22
from the outset. However, there is a wide-ranging consent that employment agreements
should in general not be nullified retrospectively. It would cause severe practical problems to
reverse already performed work, including paid taxes and social security contributions. If the
employment relationship has already been carried out, i.e. if work has already been
performed, the employment contract should therefore in general not be dissolved retro¬
actively?4 Initially, this was based on the idea that, if the employment contract is legally
ineffective, there nevertheless remains a de facto contract based not on the will of the parties,
but on the mere tactual exchange of work and remuneration.54 55 Today, this is almost
universally accepted, although the terminology has been adapted. Instead of a factual
contract, a legally deficient employment contract is assumed. As before, such contract shall
- despite its legal ineffectiveness - preclude the reversal of past performances according to
§§ 812 et seq., with an exception being made in case of particularly grave deficiencies.56 This
rules not only apply in case of avoidance (§ 143), but generally to all cases in which the
employment contract is legally defective.57 However, the doctrine of the legally deficient
employment contract lacks a sufficient legal basis in the BGB.
3. Legal review of terms
The employment contract is subject to judicial review under the rules on standard business 23
terms set out in §§ 305 et seq. (§ 310(4)). In case a collective bargaining agreement is
applicable, the employment contract may only deviate from its provisions if this is permitted
by the respective collective bargaining agreement or the deviating clause in the employment
contract is more beneficial to the employee than the competing rules in the collective
bargaining agreement (§ 4(3) TVG).
4. Company practice
An obscure legal source is the so-called company practice, to which according a well- 24
established line in BAG case law an employer is legally bound: ‘A company practice is the
regular repetition of certain behaviour of the employer from which employees can
conclude that they should be granted a benefit or allowance on a permanent basis. The
respective behaviour of the employer, which is to be assessed as a contract offer, is tacitly
accepted by the employees if they do not contradict to it. The receipt of the declaration of
acceptance is dispensable in accordance with § 151 1st St. Due to the business practice,
contractual claims accrue on the benefits or allowances that have become customary. A
company practice is conceivable for every issue that can be regulated in a general manner
in the employment contract. Decisive for the emergence of a claim, however, is not the will
of the individual employer, but how the employee had to understand and understood the
declaration or conduct of the employer in good faith taking into account all accompanying
circumstances (§§ 133, 157 BGB)*.58 In addition, for recurring special remuneration the
BAG holds that special bonuses paid without reservation to the entire workforce become
binding after the third payment.59 However, the doctrine of the company practice lacks a
legal basis in statutory law. Furthermore, if such a practice leads to a contractual
obligation of the employer, it cannot be distinguished in a meaningful way from a tacit
amendment to the employment contract. It is therefore convincingly argued that the rules
54 BAG 16.9.1982 - 2 AZR 228/80, BAGE 41, 54.
55 Haupt, Über faktische Vertragsverhältnisse (Weicher 1943), p. 19 et seq.
56 BAG 3.11.2004 - 5 AZR 592/03, NZA 2005, 1409.
57 ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 146.
58 BAG 20.5.2008 - 9 AZR 382/07, NZA 2008, 1233; further Ahrendt, in: Schaub (ed.), Arbeitsrechts-
Handbuch (17lh edn, C.H.Beck 2017), § 110; MüArbR/Fischinger § 10; Staudinger BGB/Richardi/Fischin-
eer, § 611 BGB mn. 969 et seq.
59 BAG 5.8.2009 - 10 AZR 483/08, NZA 2009, 1105.
Sagan/Seiwerth
1077
§ 611a 25-28 Division 8. Particular types of obligations
on the tacit amendment of the employment contract suffice and the doctrine of company
practice should be discontinued.60
5. Employee’s obligation
25 The main obligation of the employee is the obligation to perform work (Sub. 1). It is
reciprocal to the obligation of the employer to grant the agreed remuneration (Sub. 2).
Consequently, § 320 applies. The obligation to perform work is substantiated by numerous
legal sources, in particular by the employment contract and instructions of the employer. In case
of doubt the employee has to perform the work in person (§ 613). In general, the employee is
obliged to use all his mental and physical strength, but only in a manner, which, in case of
permanent employment, does not endanger his health.61 62 The performance of the employee is
thus determined by the individual capacity, not by the objective standard of § 243(1). However,
a specific standard of performance can be agreed to in the employment contract.
26 a) Non-performance. If the owed work has not been performed in time, it can usually not
be made up.63 Timely performance is regularly an integral part of the main obligation of the
employee.64 In this case, the main obligations are excluded according to §§ 275(1), 326(1). In
addition, if the employee refuses to perform the owed work according to § 275(3), the duty of
the employer to grant the agreed remuneration is also excluded according to § 326(1).
However, there are cases in which the employee retains the claim to remuneration even
though no work has been performed; such cases include inter alia paid annual leave (§§ 1, 11
BUrlG), incapacity for work due to illness (§§ 1, 3 EFZG) and business risks for which the
employer is responsible (§ 615 3rd St.). If, on the other hand, the employee is responsible for
the non-performance of the work, the employer can claim damages in accordance with
§§ 280(1), (3), 283 in lieu of performance and according to § 280(1), (2), 286 in case of delay.
However, according to § 61(2) ArbGG the employer can combine the claim to the perfor¬
mance of the agreed work with an application for the award of compensation. If the
employee is responsible for performing work not as owed, the employer can set off (§ 388)
a claim to damages against the claim of the employee to the agreed remuneration.65
27 b) Collateral obligations. The employee is subject to collateral obligations according to
§§ 241(2), 242.66 In the past, due to the understanding of the employment relationship as a
personal status, a far-reaching duty of loyalty of the employee has been assumed. Nowadays,
the BAG is more restrictive.67 It accepts a personal commitment of the parties to the
employment contract, but curtails the collateral obligations of the employee more narrowly
to the aim of facilitating the exchange of the main obligations. The employer is entitled to
determine the collateral obligations of the employee, which are aimed at the fulfilment the
agreed work, by means of an instruction according to § 106 GewO.
6. Employer’s obligations
28 The main obligation of the employer is to pay the agreed remuneration (Sub 2) The
remuneration is to be calculated and paid in euro (§ 107(1) GewO). However statutory law
does not determine the details for the calculation of the remuneration The contracting
parties are therefore free to choose a particular method of calculation. The remuneration can
61 BAG 11.12.2003 - 2 AZR 667/02, NZA 2004, 784.
62 BAG 17.1.2008 - 2 AZR 536/06, NZA 2008, 693.
63 See ►§615 mn. 1.
64 Staudinger BGB/Richardi/Hschinger, § 611 BGB mn 1064
65 BAG 18.7.2007 - 5 AZN 610/07, NZA 2007, 1015; see ► 8 61 ] mn 1« ,n
«•See ►§611mn. 12. * umn. 18-19.
67 BAG 2.11.2016 - 10 AZR 596/15, NZA 2017, 183.
1078
Sagan/Seiwerth
Employment contract 29-32 § 611a
be calculated according to time periods (§ 614), according to a certain work success (e.g.
piecework wage), or can be composed of different components of remuneration, which
combine, tor example, a monthly salary with an annual bonus. According to § 108(1) GewO,
the employee is to be billed in text form (§ 126b) when paying the remuneration; the billing
must at least contain information about the billing period and the composition of the
remuneration.68 The employee may require the employer to explain the calculation and
composition ot his remuneration (§ 82(2) 1st St. BetrVG). The employee has to repay
excessively paid remuneration in accordance with the employment contract or, if the
employment contract does not regulate repayment, in accordance with §§ 812 et seq.69
a) Minimum wage. In addition to the contractually agreed remuneration, the employee is 29
entitled to the statutory minimum wage, which as of 1 January 2019 amounts to 9.19 euro
per working hour (§ 1 MiLoG).70 Payments on the contractual remuneration in general fulfil
the statutory’ entitlement of the employee to the minimum wage.71
b) Benefits in kind. The parties may agree to benefits in kind, provided § 107(2) GewO is 30
observed. Thus, benefits in kind must not exceed the amount of the attachable part of the
remuneration (§§ 107(2) 5th St. GewO, 850 et seq. ZPO). The payment of a regular salary
cannot be excluded on the ground that the employee receives tips from third parties (§107
(3) lsl St.).
c) Right to employment. Contrary to the law on purchase (§ 433(2)) and work contracts 31
(§ 640(1)), the law on service contracts does, according to its wording, not stipulate an
obligation to accept the services offered or to employ the employee. However, the BAG derives
from §§ 611a, 613 and 242 the employee’s right to employment in accordance with the
employment contract, taking into account the protection of his personality as provided for in
Art. 1 and 2 GG.72 The employer can specify the employment by means of instructions
according to § 106 GewO.73 The claim to employment is only excluded if overriding interests
of the employer, which are worthy of protection, are opposed.74 Without a contractual
agreement, the unilateral suspension of the employee is in principle inadmissible. According to
a controversial view, the employment contract may provide for a right to suspend the employee
in the event of dismissal, so that there is no right to employment during the period of notice.75
d) Equal treatment. In accordance with many special provisions, the employer is obliged 32
to treat employees equally and not to discriminate against them (Art. 157 TFEU; §§ 612a;
4 TzBfG; 1, 7 AGG). In addition, a general obligation to treat employees equally is widely
accepted. This general principle of equal treatment under labour law is derived from various
legal sources such as the general principle of equality in Art. 3(1) GG, the employer’s duty of
care, the principle of good faith (§ 242) and the general legal concept of equal treatment.76
According to the judicature of the BAG, the principle of equal treatment requires the
M BAG 7.9.2009 - 3 AZB 19/09, NZA 2010, 61.
69 ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 408 et seq.
70 Since 1.1.2019, see Mindestlohnanpassungsverordnung of 13.11.2018, BGBl 1 2018, p. 1876; from
1.1.2020: 9.35 euro.
71 On the (controversial) details BAG 24.8.2016 — 5 AZR 703/15, NZA 2016, 1539; BAG 17.1.2018 —
5 AZR 69/17, NJW 2018, 2586; Riechert/Nimmerjahn, Mindestlohngesetz (2nd edn, C.H.Beck 2017), § 1
MiLoG mn. 92 et seq.; Sagan, Entgeltfortzahlung im Krankheitsfall, RdA 2017, 264.
72 BAG 9.4.2014 - 10 AZR 637/13, NZA 2014, 719.
73 BAG 12.9.1996 - 5 AZR 30/95, NZA 1997, 381.
74 BAG 27.2.1985 - GS 1/84, NZA 1985, 702.
75 Pro: LAG München 7.5.2003 - 5 Sa 297/03, BeckRS 2009, 66914; Kania, in: Roller (ed.), Küttner
Personalbuch (25,h edn, C.H.Beck 2018), Beschäftigungsanspruch mn. 6; contra: LAG Hessen 14.3.2011 -
16 Sa 1677/10, NZA-RR 2011, 419; Ahrendt, in: Schaub (ed.), Arbeitsrechts-Handbuch (17,h edn, C.H.
Beck 2017), § 109 mn. 17; ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 570.
76 ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 574.
Sagan/Seiwerth
1079
§ 612 1-2 Division 8. Particular types of obligations
employer, who voluntarily grants benefits to parts of his employees on a voluntary basis in
accordance with general rules, to treat groups of employees who are in e same or in a
comparable situation in the same way.77 Accordingly, the employer is pro i 1 e rom
arbitrarily treating individual employees within a group less favourably and, in addition,
from arbitrarily forming groups of employees.78 So only decisions of the emp oyer with a
collective character are affected. With respect to individually negotiated sa anes, t e principle
of contractual freedom in general takes precedence over the principle of equal treatment.
However, if remuneration is paid according to a particular recognisable and generalising rule,
the principle of equal treatment also applies to remuneration.79 If an employee has not been
granted a benefit in breach of the principle of equal treatment, he can, at least for the past,
demand to receive the same benefit as his colleagues.80 Legal acts of the employer that violate
the general principle of equal treatment are void.81
33 e) Collateral obligations. Finally, the employer is subject to collateral obligations resulting
from §§ 241(2), 242 BGB, which in particular oblige the employer to take account of the
employee’s health, personal data, and property.82
§§ 611b
(repealed)
§611b
(aufgehoben)
§612
Remuneration
(1) Remuneration is deemed to have been
tacitly agreed if in the circumstances it is to
be expected that the services are rendered
only for remuneration.
(2) If the amount of remuneration is not
specified, then if a tariff exists, the tariff
remuneration is deemed to be agreed; if no
tariff exists, the usual remuneration is
deemed to be agreed.
§612
Vergütung
(1) Eine Vergütung gilt als stillschweigend
vereinbart, wenn die Dienstleistung den Um¬
ständen nach nur gegen eine Vergütung zu
erwarten ist.
(2) Ist die Höhe der Vergütung nicht be¬
stimmt, so ist bei dem Bestehen einer Taxe
die taxmäßige Vergütung, in Ermangelung
einer Taxe die übliche Vergütung als verein¬
bart anzusehen.
A. Function
I. Purpose
1 Sub. 1 applies if the parties to the service contract have not reached an agreement on
remuneration. According to general principles, the lack of such an agreement would prevent
the conclusion of a contract. However, Sub. 1 provides the assumption that the parties
reached an agreement on remuneration. Sub. 2 applies if the amount of remuneration has
not been specified.
IL Scope of application
2 Despite its title. § 612 does not regulate remuneration for service contracts in general It is
only applicable m the absence of an agreement on remuneration. The claim to remunera-
77 BAG 21.5.2014 - 4 AZR 50/13, NZA 2015, 115. '
78 BAG 6.7.2011 - 4 AZR 596/09, NZA 2011, 1426.
79 BAG 25.1.2012 - 4 AZR 147/10, NZA-RR 2012, 530.
80 ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 606 et seq.
81 HK-BGB/Schreiber, § 61 la BGB mn. 13.
82 ErfK Arbeitsrecht/Preis, § 61 la BGB mn. 618 et seq.
1080
Sagan/Seiwerth
Remuneration
3-4 §612
tion follows from the individual contract, which has its legal basis either in case of a service
contract in § 611(1) or in case of an employment contract in § 611a(2). The amount of the
remuneration results from the individual contract and if applicable Sub. 2. If the parties have
agreed explicitly or implicitly that the services are to be rendered gratuitously, this
constitutes an agreement on remuneration agreement and renders § 612 BGB inapplicable.1
In this case, the party under a duty to provide services is not entitled to the usual
remuneration.2 However, § 612 applies if services are rendered in addition to the initial
agreement (e.g. overtime) and the remuneration is regulated neither by the individual service
or employment contract nor by collective agreements.3 § 612 is applicable to internships
within the meaning of §§ 26, 17 BBiG and § 22 MiLoG.4 According to the BAG the
agreement of a remuneration in an individual employment contract is deemed to be wage
exploitation contrary to public policy within the meaning of § 138 if it is below two-thirds of
the standard wage according to collective bargaining agreements usually paid in the industry
and region concerned.5 In this case the owed remuneration is subject to Sub. 2. Sub. 2 also
applies if the individual agreement on remuneration is void for other reasons.6
The statutory minimum wage7 according to the Mindestlohngesetz (MiLoG; Minimum 3
Wage Act8) is a claim of employees which follows directly from statutory law. It applies
independently and cumulatively to the contractual remuneration. However, payments by the
employer in general fulfil the both of the two competing claims.9 Hence, the statutory
minimum wage in principle does not affect the contractual remuneration. In this sense, the
statutory’ minimum wage act is not a statutory prohibition within the meaning of § 134.10
The agreement of a remuneration below the statutory minimum wage is not null and void.
However, the employment contract must not restrict or rule out the assertion of the
employee's claim to the minimum wage (§ 3 1st St. MiLoG).
B. Context
German labour law does not entail a general principle of equal pay for equal work11 (see 4
further § 4 TzBfG regarding part-time employees and § 8 AÜG regarding temporary agency
workers).12 Differences in pay on grounds of gender are covered by the European funda¬
mental principle of equal pay according to Art. 157 TFEU. As of 1975 this principle has been
substantiated by EU Directive 75/117/EEC.13 Part of the implementation of this Directive was
the former § 612(3), which introduced the principle of equal pay for men and women into
German law.14 More recently, equal treatment is regulated by the EU Race Equality Directive,
1 BeckOK BGB/Fuchs/Baumgärtner, § 612 BGB mn. 1; HK-BGB/Schreiber, § 612 BGB mn. 1.
2 BAG 20.9.1978 - 5 AZR 365/77, DB 1979, 409.
3 BAG 25.3.2015 - 5 AZR 602/13, NZA 2015, 1002 mn. 17; BAG 24.8.2016 - 5 AZR 129/16, NZA 2017,
58 (mn. 43).
4 BAG 10.2.2015 - 9 AZR 289/13, AP BGB § 612 No. 77; LAG Köln 13.10.2017 - 4 Sa 930/16, BeckRS
2017, 140507.
5 BAG 22.4.2009 - 5 AZR 436/08, NZA 2009. 837 (mn. 13); see further BAG 10.3.1960 - 5 AZR 426/58,
AP BGB § 138 No. 2; BAG 16.5.2012 - 5 AZR 268/11, NZA 2012, 974.
6 Staudinger BGB/Richardi/Fischinger, §612 BGB mn. 18; contrary to §612(1) and (2), BAG
24.11.1993 - 5 AZR 153/93, NZA 1994, 759; BAG 20.4.2011 - 5 AZR 171/10, NZA 2011, 1173.
7 See -* § 611a mn. 29.
8 An English translation of the MiLoG is available under www.gesetze-im-internet.de.
9 BAG 25.5.2016 - 5 AZR 135/16, NZA 2016, 1327; for details see BeckOK Arbeitsrecht/Greiner, § 1
MiLoG mn. 22 et seq.
10 See Riechert/Nimmerjahn, Mindestlohngesetz (2nd edn, 2017), § 1 MiLoG mn. 5, § 3 MiLoG mn. 1.
11 See § 611a mn. 32.
12 BAG 21.6.2000 - 5 AZR 806/98. NZA 2000, 1050.
13 CJEU C-43/75 Defrenne II ECLI:EU:C: 1976:56 mn. 55.
14 See BAG 23.8.1995 - 5 AZR 942/93, NZA 1996, 579, 580.
Sagan/Seiwerth
1081
§612 5-7 Division 8. Particular types of obligations
the EU Framework Equality Directive, the EU Gender Equality Directive, a. Equal
Treatment in Goods and Services Directive. These Directives were ■mp‘ement^ by the
enactment of Allgemeines Gleichbehandlungsgesetz (AGG; Genera c
ment15), which entered into force in 2006 and prohibits discrimination on e groun so
race or ethnic origin, gender, religion or belief, disability, age or sexua orien a ion (§ 1
AGG). In turn, § 612(3) was repealed.16 However, the AGG does not provi e an exp lclt^c8a^
basis for a claim of employees to equal pay (regarding service contracts see $ G).
According to the BAG, 2(1) No. 2, 8(2) AGG give rise to a claim of the employees to equal
pay for equal work within the framework of the AGG.17 As of 2017, § ntg ranspG
reiterates the principle of equal pay for men and women. This claim is comp emente by an
entitlement of the individual employee to disclose information on the criteria an practices
used to establish the level of remuneration (§§ 10 et seq. EntgTranspG).
C. Explanation
I. Agreement on remuneration
5 The application of Sub. 1 requires that the parties have agreed to the provision of (free)
services, but did not explicitly agree on the remuneration of the owed services. Furthermore,
according to the circumstances of the individual case, it must be expected that the services
would only be provided against payment (expectancy of remuneration). This depends on
customary practice, the nature, extent and duration of the services as well as the relationship
between the parties, but not on the personal opinion of the parties.19 In general, remunera¬
tion is to be expected if the services are part of the main professional occupation of the
service provider.20 The fact that the owed services are to be provided to a relative or a
personal friend is a weighty reason against an expectancy of remuneration.21 According to
the BAG, Sub. 1 applies if the services are provided in the unfulfilled expectation of a later
marriage or inheritance.22
6 a) Overtime. Sub. 1 applies if the parties agree on overtime without explicitly agreeing on
its remuneration. In this case, overtime pay requires an expectancy of remuneration; there is
no legal rule according to which overtime must be remunerated additionally.23 In general, an
additional remuneration cannot be claimed under Sub. 1 in case of services of a higher
nature;24 the payment of a fixed salary and additional commissions;25 or a particularly high
remuneration26.
7 b) Tacit agreement. Sub. 1 provides a non-rebuttable assumption of a tacit agreement on
remuneration. The due date of such remuneration follows general rules (§ 614)
15 An English translation of the AGG is available under www.gesetze-im-internet d?
16 BGBl. I 2006, p. 1897. ’
17 BAG 11.12.2007 - 3 AZR 249/06, NZA 2008, 532 (mn. 45).
18 Gesetz zur Forderung der Entgelttransparenz zwischen Frauen und Männern - Transoarencv in
Wage Structures Act. An English translation of the EntgTransnG is avaikkin -i
internet de '“fciranspvr is available under www.gesetze-im-
■’ BGH 17.8.2011 - 5 AZR 406/10, NJW 2012, 552; BAG 25.3.2015 - 5 AZR 602/13 NZA 7015 1002
20 BAG 3.9.1997 - 5 AZR 428/96, NJW 1998, 1581. W2/13, NZA 2015, 1002.
21 BAG 19.7.1973 - 5 AZR 46/73, NJW 1974, 380.
22 BAG 24.6.1965 - 5 AZR 443/64, DB 1965, 1562; BAG 28 9 1977 q avd
S mnbeXhrreiS’ * 6,2 BGB mn' 21 et Seq,i Xe fUr,her S,aUdinBCr
21 BAG 21.9.2011 - 5 AZR 629/10, NJW 2012, 1387,
24 BAG 17.8.2011 - 5 AZR 406/10, NJW 2012, 552.
25 BAG 27.6.2012 - 5 AZR 530/11, NZA 2012 1147.
26 BAG 22.2.2012 - 5 AZR 765/10, NZA 2012, 861.
1082
Sagan/Seiwerth
Prohibition of victimisation
1-2 § 612a
IL Amount of remuneration
In the absence of a legally valid agreement on the amount of the remuneration Sub. 2 8
applies. In this case, remuneration is determined by tariffs issued by the State. Such tariffs are,
for example, the RVG regarding lawyers and the GoA for medical practitioners. It is open to
debate if minimum wages enacted by the State are tariffs within the meaning of Sub. 2.27
In the absence of a tariff the amount of the owed remuneration is determined by the usual 9
remuneration. The usual remuneration is the remuneration that is regularly paid at the same
place in similar trades or occupations for corresponding services on average.28 The circum¬
stances of the individual case, in particular work experience, are to be taken into account.29
According to the BAG, the basis for determining the usual remuneration is the remuneration
specified in pertinent collective bargaining agreements, unless there are indications that the
usual remuneration is to be set lower or higher.30 If the usual remuneration cannot be
determined by recourse to collective bargaining agreements, it is to be determined at the
reasonable discretion of the service provider in accordance with §§ 315(1),(3), 316.31 Such
determination is subject to judicial review (§ 315(3)).32
§ 612a
Prohibition of victimisation
The employer may not disadvantage an
employee in an agreement or a measure be¬
cause that employee exercises his rights in a
permissible way.
§ 612a
Maßregelungsverbot
Der Arbeitgeber darf einen Arbeitnehmer
bei einer Vereinbarung oder einer Maßnahme
nicht benachteiligen, weil der Arbeitnehmer
in zulässiger Weise seine Rechte ausübt.
A. Function
I. Purpose
§ 612a regulates a special case of public policy (§ 138).1 It is aimed at protecting the 1
freedom of will of the employee who decides to assert his rights against the employer in a
permissible manner. Employees shall not be deterred from exercising their right vis-ä-vis
their employer because of possible retaliatory measures. § 612a offsets the structurally
disrupted equilibrium of bargaining power in the individual employment relationship.2
Therefore it cannot be waived in the employment contract.
II. Position within the BGB
§ 6I2a does not affect the special provisions in §§ 16 AGG, 5 TzBfG, and 84(3) BetrVG. A 2
much-disputed issue, namely the reduction of attendance premiums for illness-related
absences, is subject to § 4a EFZG.
27 $ee bag 24.2.2011 - 6 AZR 634/09, AP BGB § 611 Kirchendienst No. 57 mn. 35; BAG 18.11.2015 -
5 AZR 814/14, NJW 2016, 2359; MüArbR/Krause, §60 mn. 103; Sagan, TV Mindcstlohn als übliche
Vergütung bei faktischem Arbeitsverhältnis, BB 2011, 572, 574.
28 BGH 4.4.2006 - X ZR 122/05, NJW 2006, 2472; BGH 4.4.2006 - X ZR 80/05, NJW-RR 2007, 56.
29 BGH 24.10.1989 - X ZR 58/88, NJW-RR 1990, 349.
30 See BAG 14.6.1994 - 9 AZR 89/93, NZA 1995, 178, 179; BAG 21.1.1998 - 5 AZR 50/97, NZA 1998,
594.
31 BAG 21.11.2001 - 5 AZR 87/00, NZA 2002, 624.
32 BAG 21.4.2010 - 10 AZR 163/09, NZA 2010, 808.
1 BAG 21.9.2011 - 7 AZR 150/10, NZA 2012, 317 (mn. 31).
2 BeckOK BGB/Fuchs/Baumgärtner, § 612a BGB mn. 2; see -* § 61 la mn. 2.
Sagan/Seiwerth
1083
§ 612a 3-5
Division 8. Particular types of obligations
III. Scope of application
3 The application of § 612a is limited to employment relationships. In this sense, employer
is not only the contractual partner of the employee, but also anyone w o ng t u y exercises
employer functions, in particular the user undertaking in case of temporary agency wor
The character of the owed services is not decisive. § 612a applies to apprentices, vo unteers,
and trainees. Furthermore, it is not relevant whether the employment is u time or part
time. Service providers, who are not employees,3 4 5 and job applicants cannot re y on § 12a,
but on § 138?
B. Context
4 § 612a was introduced in 1980 in order to implement European directives.6 At that time,
Art. 5 EU Directive 75/117/EEC and Art. 7 EU Directive 76/207/EEC required Member
States to ensure that employees do not suffer any legal disadvantage if they defend
themselves against unequal treatment on grounds of gender (now Art. 24 EU Equal
Treatment Directive). However, the scope of § 612a is not limited to discrimination (on
grounds of gender).7
C. Explanation
I. Agreement
5 Agreement within the meaning of § 612 is any contract (§§ 145 et seq.), in particular the
initial employment contract (§61 la) as well as any subsequent amendment. The term
measure must be constructed broadly and covers any measure of the employer relating to
the employment relationship, in particular instructions (§106 GewO) and dismissals (§§ 620
(2), 626).8 The term disadvantage implies that the employer chose between different
measures.9 Withholding an advantage can constitute a disadvantage,10 if it is not justified by
objective reasons or legal rules. Executing a binding provision of statutory law or a collective
bargaining agreement does not amount to a disadvantage within the meaning of § 612a.11
Examples for a disadvantage covered by § 612a are dismissal after a request for parental
leave12 or rejecting the prolongation of a fixed-term contract.13 § 612a requires that the
employee has exercised his rights. This refers to the assertion of claims and the exercise of
other rights under the employment contract as well as the exercise of fundamental rights
towards to the employer.14 Examples are the participation in an organised strike,15 legal
3 See BeckOGK BGB/Benecke, § 612a BGB mn. 11.
4 See - §61 la mn. 15-17.
5 BAG 15.11.2012 - 6 AZR 339/11, NZA 2013, 429.
6 BGBl. I 1980, p. 1308.
7 BT-Drs. 8/3317 of 6.11.1979, p. 10.
* BAG 22.9.2005 - 6 AZR 607/04, NJW 2006, 1612 (mn. 25).
9 BAG 21.9.2011 - 5 AZR 520/10, NJW 2012, 699 (mn. 19 et seq )
10 BAG 14.2.2007 - 7 AZR 95/06, NZA 2007, 803 (mn. 21); BAG 21 9 7m i t *
317 (mn. 34). 2011 ~ 7 AZR 150/10, NZA 2012,
" BAG 26.10.1994 - 10 AZR 482/93, NZA 1995, 266, 267.
12 LAG Niedersachsen 12.9.2005 - 5 Sa 396/05, NZA-RR 2006. 346
13 BAG 21.9.2011 - 7 AZR 150/10, NZA 2012, 317, (mn. 42). ’
14 BAG 21.9.2011 - 7 AZR 150/10, NZA 2012, 317 (mn. 33).
15 BAG 11.8.1992 - 1 AZR 103/92, NJW 1993, 218, 220.
1084
Sagan/Seiwerth
Non-transferability 1-2 § 613
action for continued pay in the case of illness16 and the refusal of overtime work.17 Finally,
the exercise of a right must have caused the disadvantage. It must be an essential motive of
the employer, not merely an external coincidence.
II. Legal consequence
§ 612a renders any retaliatory measure or agreement null and void (§ 134), without 6
affecting the existence of the employment relationship. A measure, especially in the form of
an instruction, which is prohibited by § 612a, is not legally binding.18 Without prejudice to
the contractual arrangements of third parties, the employee can claim any advantage with¬
held contrary to § 612a, including promotion, which is not excluded by § 15(6) AGG.19 In
addition, the employee may be entitled to damages according to §§ 280 et seq. and § 823(2)
in connection with § 612a.20
§613
Non-transferability
'The party under a duty of service must in
case of doubt render the services in person.
2The claim to services is, in case of doubt, not
transferable.
§613
Unübertragbarkeit
'Der zur Dienstleistung Verpflichtete hat
die Dienste im Zweifel in Person zu leisten.
2Der Anspruch auf die Dienste ist im Zweifel
nicht übertragbar.
A. Function
I. Purpose and underlying principles
§ 613 contains two rules of doubt for the interpretation of service contracts. Unless 1
otherwise agreed, the party under a duty to provide services shall be obliged to provide such
services in person (1st St.). On the other hand, the party entitled to the services is not
permitted to transfer the claim to services to a third party (2nd St.). The sole aim of this
deviation from the general rule of § 398 is to protect the interests of the party under an
obligation to provide services. It ensures the fundamental freedom of the service providing
party to render personal services only to the contractual partner chosen by him. This choice
shall not be subject to the decision of the creditors of the party entitled to services.1 It follows
from §613, that the service contract is generally of a strictly personal (höchstpersönlich)
nature.
IL Scope of application
§ 613 applies to all service contracts, including employment contracts. § 613 is a rule of 2
interpretation which can be explicitly or implicitly abandoned by the parties. With regard to
the arrangements of job-sharing, § 613 is superseded by the more specific regulation in § 13
TzBfG.2 In case of a transfer of business, § 613a( 1) 1st St. supersedes § 613, 2nd St. as lex
specialis.
16 BAG 9.2.1995 - 2 AZR 389/94, NJW 1996, 1299, 1301.
17 BAG 12.6.2002 - 10 AZR 340/01, NJW 2003, 772.
18 BeckOGK BGB/Benecke, § 612a BGB mn. 60; ErfK Arbeitsrecht/Preis, § 612a BGB mn. 23.
19 Partially different BAG 21.9.2011 - 7 AZR 150/10, NZA 2012, 317 (mn. 44 et seq.).
20 BAG 21.9.2011 - 7 AZR 150/10, NZA 2012, 317.
1 BGH 11.12.2003 - IX ZR 336/01, NJW-RR 2004, 696, 697.
2 ErfK Arbeitsrecht/Preis, §613 BGB mn. 4; HWK Arbeitsrecht/Thüsing, §613 BGB mn. 8; to the
contrary Staudinger BGB/Richardi/Fischinger, § 613 BGB mn. 12.
Sagan/Seiwerth
1085
§ 613 3-7
Division 8. Particular types of obligations
B. Explanation
I. Service obligation
3 According to the 1st St., owed services are in doubt to be provided in Person. As a
consequence, the service providing party is not obliged to engage a third party i e is unable
to provide the owed services? The service obligation is not heritable, although the heir may
be liable for non-personal claims such as the return of working equipment (§ 1967).
4 Whether the owed service is to be rendered in person, depends on the content of the
service contract. In the absence of any explicit agreement on this issue, the contract has to be
interpreted according to the principles set forth in §§ 133, 157. Since the 1st St. is a rule of
doubt, it does not preclude the conclusion that the parties have (implicitly) agreed that the
services do not have be rendered in person. However, under usual circumstances the party
entitled to services has an obvious interest in obliging the other party to perform the services
in person. Thus, an implicit deviation from the 1st St. can only be assumed if this is
customary in the respective profession.3 4 5 In general, employees are obliged to render their
services in person and are not allowed to delegate their duties to third parties.6 On the other
hand, services provides who are not employees may in general deploy auxiliary staff in order
to fulfil secondary duties or to prepare the provision of the services (e.g. medical assistants,
legal clerks).7 When appointing a lawyer he is usually entitled to engage other lawyers
belonging to the same law firm.8
5 If services are owed in person, the provision of services by a third party does not fulfil
(§ 362) the contractual obligation of the party under a duty to provide services. In addition,
the breach of the contractual obligation to provide services in person can lead to liability
according to the §§ 280 et seq. and termination of the contract according to § 626. The
liability of the service provider for auxiliary staff is governed by § 278.
IL Service claim
6 In case of doubt, the claim to the services cannot be transferred (2nd St.) and is therefore
neither assignable nor attachable (§§ 399, 400; § 851 ZPO).9 The 2nd St. does not preclude the
parties from agreeing explicitly or implicitly that the claim to services may be assigned to a
third party. The party under a duty to provide services may be obliged to render the owed
services to the benefit of a third party (see § 328). This applies in particular in the area of
temporary agency work.10
7 The claim to the services can in principle be inherited (§ 1922). When the party entitled to
services dies, the service contract is passed to the heir(s). An exception applies if the owed
services are inextricably linked to the person entitled to the owed services (e g home nurse,
private secretary). An employment contract may, in this case, be dissolved because the sole
purpose of employment ceased (§§ 15(2), 21 TzBfG).11
3 ErfK Arbeitsrecht/Preis, § 613 BGB mn. 2.
4 Further ErfK Arbeitsrecht/Preis, § 613 BGB mn. 5 et seq.
5 BeckOK Arbeitsrecht/Joussen, § 613 BGB mn. 3.
\ MüKo BGB/Mul)er-G)oge, § 613 BGB mn. 6; ErfK Arbeitsrecht/Preis 8 61 3 Hr u ,
7 Jauernig BGB/Mansel, § 611 BGB mn. 6. “ " & ^GB mn. 2.
“ BGH 29.4.1963 - III ZR 211/61, NJW 1963, 1301; MüKo BGB/M..II r.
’ BGH 11.12.2003 - IX ZR 336/01, NJW-RR 2004, 696 697 !) 613 BGB mn. 4.
10 BGH 11.12.2003 - IX ZR 336/01, NJW-RR 2004, 696, 697.
11 APS Kündigungsrecht/Backhaus, § 15 TzBIG mn. 3.
1086
Sagan/Seiwerth
Rights in the case of transfer of business
§ 613a
§ 613a
Rights and duties in the case of
transfer of business
(1) ‘If a business or part of a business
passes to another owner by legal transaction,
then the latter succeeds to the rights and
duties under the employment relationships
existing at the time of transfer. 2If these
rights and duties are governed by the legal
provisions of a collective agreement or by a
works agreement, then they become part of
the employment relationship between the
new owner and the employee and may not
be changed to the disadvantage of the em¬
ployee before the end of the year after the
date of transfer. -'Sentence 2 does not apply if
the rights and duties with the new owner are
governed by the legal provisions of another
collective agreement or by another works
agreement. 3 4 5Prior to expiry of the period of
time under sentence 2, the rights and duties
may be changed if the collective agreement or
the works agreement no longer applies or,
where it is not the case that both parties are
bound by a collective agreement in the scope
of applicability of another collective agree¬
ment, the application of that collective agree¬
ment is agreed between the new owner and
the employee.
(2) ‘The previous employer is jointly and
severally liable with the new owner for duties
under subsection (1) to the extent that they
arose prior to the date of transfer and are due
before the end of one year after that date. 2If
such duties are due after the date of transfer,
however, the previous employer is only liable
for them to the extent that corresponds to the
part of their assessment period that ended on
the date of transfer.
(3) Subsection (2) does not apply if a legal
person or a commercial partnership ceases to
exist through conversion.
(4) ‘The termination of the employment
relationship of an employee by the previous
employer or by the new owner due to transfer
of a business or a part of a business is in¬
effective. 2The right to terminate the employ¬
ment relationship for other reasons is unaf¬
fected.
(5) The previous employer or the new
owner must notify employees affected by a
transfer in text form prior to transfer of:
§ 613a
Rechte und Pflichten bei
Betriebsübergang
(1) ‘Geht ein Betrieb oder Betriebsteil
durch Rechtsgeschäft auf einen anderen In¬
haber über, so tritt dieser in die Rechte und
Pflichten aus den im Zeitpunkt des Über¬
gangs bestehenden Arbeitsverhältnissen ein.
2Sind diese Rechte und Pflichten durch
Rechtsnormen eines Tarifvertrags oder durch
eine Betriebsvereinbarung geregelt, so werden
sie Inhalt des Arbeitsverhältnisses zwischen
dem neuen Inhaber und dem Arbeitnehmer
und dürfen nicht vor Ablauf eines Jahres
nach dem Zeitpunkt des Übergangs zum
Nachteil des Arbeitnehmers geändert werden.
3Satz 2 gilt nicht, wenn die Rechte und Pflich¬
ten bei dem neuen Inhaber durch Rechtsnor¬
men eines anderen Tarifvertrags oder durch
eine andere Betriebsvereinbarung geregelt
werden. 4Vor Ablauf der Frist nach Satz 2
können die Rechte und Pflichten geändert
werden, wenn der Tarifvertrag oder die Be¬
triebsvereinbarung nicht mehr gilt oder bei
fehlender beiderseitiger Tarifgebundenheit
im Geltungsbereich eines anderen Tarifver¬
trags dessen Anwendung zwischen dem neuen
Inhaber und dem Arbeitnehmer vereinbart
wird.
(2) ‘Der bisherige Arbeitgeber haftet neben
dem neuen Inhaber für Verpflichtungen nach
Absatz 1, soweit sie vor dem Zeitpunkt des
Übergangs entstanden sind und vor Ablauf
von einem Jahr nach diesem Zeitpunkt fällig
werden, als Gesamtschuldner. 2Werden solche
Verpflichtungen nach dem Zeitpunkt des
Übergangs fällig, so haftet der bisherige Ar¬
beitgeber für sie jedoch nur in dem Umfang,
der dem im Zeitpunkt des Übergangs abge¬
laufenen Teil ihres Bemessungszeitraums ent¬
spricht.
(3) Absatz 2 gilt nicht, wenn eine juristi¬
sche Person oder eine Personenhandelsgesell¬
schaft durch Umwandlung erlischt.
(4) ‘Die Kündigung des Arbeitsverhältnis¬
ses eines Arbeitnehmers durch den bisherigen
Arbeitgeber oder durch den neuen Inhaber
wegen des Übergangs eines Betriebs oder ei¬
nes Betriebsteils ist unwirksam. 2Das Recht
zur Kündigung des Arbeitsverhältnisses aus
anderen Gründen bleibt unberührt.
(5) Der bisherige Arbeitgeber oder der
neue Inhaber hat die von einem Übergang
betroffenen Arbeitnehmer vor dem Übergang
in Textform zu unterrichten über:
Sagan/Sciwerth
1087
Division 8. Particular types of obligations
§ 613a 1
1. the date or proposed date of the transfer,
2. the reason for the transfer,
3. the legal, economic and social implica¬
tions of the transfer for the employees, and
4. measures envisaged in relation to the
employees.
(6) ’The employee may object in writing to
the transfer of the employment relationship
within one month of receipt of notification
under subsection (5). 2The objection may be
addressed to the previous employer or to the
new owner.
1. den Zeitpunkt oder den geplanten Zeit¬
punkt des Übergangs,
2. den Grund für den Übergang,
3 die rechtlichen, wirtschaftlichen und so¬
zialen Folgen des Übergangs fiir die Arbeit¬
nehmer und
4. die hinsichtlich der Arbeitnehmer in
Aussicht genommenen Maßnahmen.
(6) 'Der Arbeitnehmer kann dem Über¬
gang des Arbeitsverhältnisses innerhalb eines
Monats nach Zugang der Unterrichtung nach
Absatz 5 schriftlich widersprechen. 2Der Wi¬
derspruch kann gegenüber dem bisherigen
Arbeitgeber oder dem neuen Inhaber erklärt
werden.
Contents
mn.
A. Function 1
I. Purpose 1
IL Scope of application 2
B. Context 4
I. Historical 4
IL European 5
C. Explanation 6
I. Transfer 6
1. Functional autonomy 7
2. Identity 8
II. Public sector 10
III. Legal transaction
IV. Employment contract
1. Content
2. Dynamic reference clause
V. Collective Agreements
1. Effect of transfer
2. Exclusion
3. Continued application
VI. Dismissal protection
VII. Information
1. Content
2. Violation
VIII. Right to object
1. Exercise
2. Effect
IX. Liability
X. Insolvency proceedings
11
12
13
14
15
16
17
18
19
21
22
23
24
25
26
27
29
A. Function
I. Purpose
secures the
1 § 613a is supposed to achieve three aims: it (i) protecti; «icr . ,
continuity of an established works council and (iii) coordiminc ti'n*r ? |S> scu,rcs l,,‘
new employer.1 However, as far as the law of traosf r „f ± V »
K 7 ot undertakings is regulated by the EU
1 BAG 3.5.1983 - 3 AZR 1263/79, NJW 2013, 2540; Staudinuer Rciua Z """
“ HGB/Annuß, § 613a BGB inn. 9 et seq.
1088
Sagan/Seiwerth
Rights in the case of transfer of business 2-4 § 613a
Transfer of Undertakings Directive, the main and primary purpose is the proper imple¬
mentation of said Directive. The purpose of the Directive is to protect the rights of the
employees in the event of a change of employer2 and - according to the CJEU - to ensure a
fair balance between the interests of employees on the one hand, and the interests of the
transferee on the other hand.3
IL Scope of application
§ 613a is applicable to all employment contracts within the meaning of § 611a, but 2
neither to (free) service contracts within the meaning of §611 nor to public officials
(Beamte).4 Thus, the provision is not applicable to members of the board of directors of a
corporation.5 Moreover, § 613a applies to temporary agency workers if the temporary-work
agency is transferred.6 In contrast and according to the current understanding of § 613a, it
does not affect the employment relationship of temporary agency workers in the event of a
transfer of the user undertaking.7 8 However, the BAG left open to question if this holds true in
the wake of the decision of the CJEU in Albron Catering?
The transformation of a legal entity pursuant to the Umwandlungsgesetz (UmwG; 3
Transformation Act9), in particular the merger of two companies, the division of a company
into several enterprises or an asset transfer (§ 1 UmwG), can constitute the transfer of (a part
of) an undertaking within the meaning of § 613a. According to § 324 UmwG, the registration
of such a transfer shall be without prejudice to Subs 1, 4-6. In the event of a merger, the legal
person to be acquired and its liabilities will devolve to the acquiring legal person upon the
entry of the merger in the register (§20(1) No. 1 UmwG). Where such merger constitutes the
transfer of (a part of) an undertaking, it is disputed whether the employment and collective
contracts are transferred in accordance with the UmwG10 or § 613a.11 It is convincing to
apply § 613a because it is more specific than the universal succession under the UmwG and
this way all transfers of undertakings covered by the EU Transfer of Undertakings Directive
will have uniform legal consequences.12
B. Context
I. Historical
Sub. 1 1st St., Subs 2 and 3 were issued in 197213 in order to transpose EU Directive 77/ 4
187/EEC into German law. Sub. 1 1st to 4th St. and Sub. 4 were added in 1980.14 Finally,
Subs 5 and 6 were enacted in 2002.15
2 Recital 3 EU Transfer of Undertakings Directive.
3 CJEU C-426/11 Alemo-Herron ECLI:EU:C:2013:521; CJEU C-336/15 Unionen ECLI:EU:C:2017:276.
4 ErfK Arbeitsrecht/Preis, § 613a BGB mn. 67.
5 BAG 13.2.2003 - 8 AZR 654/01, NJW 2003, 2473; see -> § 611a mn. 3.
6 BAG 12.12.2013 - 8 AZR 1023/12; see further CJEU C-548/05 Jouini ECLI:EU:C:2007:512.
7 HWK Arbeitsrecht/Willemsen/Müller-Bonanni, § 613a BGB mn. 225.
8 BAG 15.5.2013 - 7 AZR 525/11, NJW 2013, 3465, referring to CJEU C-242/09 Albron Catering ECLI:
EU:C:2010:625; see further e.g. Willemsen, Erosion des Arbeitgeberbegriffs nach der Albron-Entschei-
dung des EuGH?, NJW 2011, 1546.
9 An English translation of the UmwG is available under www.gesetze-im-internet.de.
10 Regarding collective agreements: BAG 24.6.1998 - 4 AZR 208/97, NJW 1999, 812; BAG 15.6.2016 -
4 AZR 805/14, NZA 2017, 326.
11 Regarding employment contracts: Moll, in: Henssler/Strohn (eds), Gesellschaftsrecht (4,h edn, C.H.
Beck 2019), § 324 UmwG mn. 7 et seq.; Simon, in: Semler/Stengel (eds), Umwandlungsgesetz (4,h edn,
C.H. Beck 2017), § 324 mn. 15.
12 Sagan, in: Bepler et al. (eds), Arbeitsrecht bei Änderung der Unternehmensstruktur (C.H.Beck 2018),
p. 417.
13 BGBl. I 1972, p. 13.
14 BGBl. I 1980, p. 1308.
15 BGBl. 1 2002, p. 1163.
Sagan/Seiwerth
1089
§ 613a 5-8
Division 8. Particular types of obligations
IL European
5 Subs 1 and 2 correspond to Art. 3(1), (3) EU Transfer of Undertakings Directive, Sub. 4
implements Art. 4(1) of the Directive into German law. The German egis ator too a vantage
of the exemption clause in Art. 7(3) of the Directive. Thus, § 613a oes not reguate t e
information and consultation of employee representatives pursuant to Art. 7( ), ( ). owever,
Sub. 5 provides for the information of the individual employees which correspon s wit rt. 7
(6). According to said provision of the Directive, individual employees have to be informed
only if there are no employee representatives through no fault of their own. The German
counterpart in Sub. 5 goes far beyond this requirement and prescribes that all employees
affected by any transfer of (a part of) an undertaking must be informed.16 The right to object to
the change of employer pursuant to Sub. 6 has no legal basis or equivalent in the EU Transfer
of Undertakings Directive, but is, nonetheless, in line with EU law.17
C. Explanation
I. Transfer
6 According to Art. 2(1 )(b) EU Transfer of Undertakings Directive, a transfer within the
meaning of the Directive is the ‘transfer of an economic entity which retains its identity,
meaning an organised grouping of resources which has the objective of pursuing an economic
activity, whether or not that activity is central or ancillary’. Regarding the corresponding
requirement in § 613a, the BAG in general follows the case law of the CJEU closely.
1. Functional autonomy
7 A (part of a) business is any economic entity that has a sufficient degree of functional
autonomy. The concept of autonomy refers to the powers granted to those in charge of the
group of workers concerned, to organise, relatively freely and independently, the work within
that group and, more particularly, to give instructions and allocate tasks to subordinates
within the group, without direct intervention from other organisational structures of the
employer.18
2. Identity
8 In order to determine whether an economic entity retains its identity after a transfer, all
the facts characterising the transaction in question must be taken into account, including (i)
the type of undertaking or business; (ii) the possible transfer of tangible assets (buildings and
movable property); (iii) the value of intangible assets at the time of the transfer; (iv) the
possible takeover of the main workforce by the new employer; (v) the possible transfer of
customers; (vi) the degree of similarity between the activities carried on before and after the
transaction; and (vii) the period, if any, for which those activities were suspended However,
16 Extensively Franzen, Informationspflichten und Widerspruchsrecht n » u i u
§ 631a Abs. 5 und 6 BGB, RdA 2002, 258; Riesenhuber, Inio^aZnSpfl±'Cn "ach
RdA 2004, 340. ’^aiionsptlichtcn beim Betriebsubergang,
17CJEU Joined cases C-132/91, C-138/91-138/91 Katsikas ECI IEUC>l99?-<ti7 r-n i. . j r'
171/94-172/94 Merckx ECLI:EU:C: 1996:87; CJEU C-5J/00 Temco E(j| EEU-C-Ün !rU »v* £
25.1.2011 - 1 BvR 1741/09, NZA 2011, 400; BAG 18.12.2008 - 8 AZR wn/n/f“.?."0 “S° BV °
detail Grau/Hartmann, in: Prcis/Sagan (eds), Europäisches Arbeilsrecht (2'“'edn‘ o cT'
§ 15 mn. 97 et seq. Z dn’ Olto Schmidt 2019),
18 BAG 20.3.2014 - 8 AZR 1/13, NJW 2014, 2604; CJEU C-458/17 /1...,
Arbeitsrecht/Preis, §613a BGB mn. 8; further Bieder, Bctriebsübcnnn *‘rl^
unselbständiger wirtschaftlicher Einheiten innerhalb eines Konzerns EuZA 20)4 49 ^ra^Un^ t^nLtionai
1090
Sagan/Seiwerlh
Rights in the case of transfer of business 9-11 § 613a
these circumstances are only partial aspects of the overall assessment to be carried out and
must therefore not be considered in isolation.19
The importance of each criterion varies according to the activity carried on or the 9
production or operating methods employed in the relevant undertaking or business.20 If it
essentially depends on the workforce, an organised group of employees can constitute an
economic entity despite the lack of significant material or immaterial assets. If an entity
operates without significant assets, the preservation of its identity after its acquisition cannot
depend on the acquisition of such assets. In this case, the identity of the economic unit is
preserved if the new employer takes over an essential part of the staff in terms of number and
expertise and continues the previous economic activity.21 However, the mere fact that the
activities carried out by the old and the new employer are similar or even identical does in
and of itself not lead to the conclusion that an economic entity has retained its identity.22 If
the equipment, such as the inventory, is essential for the business or undertaking in question,
there may be a transfer of an economic unit that retains its identity even without taking over
personnel and irrespective of whether legal ownership of the equipment used has been
transferred.23 Without a counterpart in the case law of the CJEU, the BAG decided that both
the workforce and the equipment can be essential to a business.24 In addition, the economic
unit retains its identity where the functional link between the various elements of production
is preserved, and that that link enables the transferee to use those elements to pursue an
identical or analogous economic activity.25
IL Public sector
§ 613a can apply to entities organised under public law fulfilling public tasks. However, read 10
in conjunction with Art. l(l)(b) EU Transfer of Undertakings Directive, § 613a applies in
principle to the transfer of economic activities in the public sector, but not to activities in the
exercise of public powers.26 Services which, without falling within the exercise of public powers,
are carried out in the public interest and without a profit motive and are in competition with
those offered by operators pursuing a profit motive are classified as economic activities.27 On
the other hand, public powers are exercised if special rights, privileges of sovereignty or
coercive powers are exercised in a sufficiently qualified manner.28
III. Legal transaction
The term by legal transaction in § 613a is to be interpreted broadly according to the term 11
by contractual transfer in Art. 1 (1 )(a) EU Transfer of Undertakings Directive.29 Thus, it is not
necessary that a direct contractual relationship exists between the old and the new employer.
The transfer may also take place with the involvement of a third party, e.g. the owner of real
19 BAG 22.4.2014 - 8 AZR 1069/12, NZA 2014, 1335; 25.8.2016 - 8 AZR 53/15, NZA-RR 2017, 123;
CJEU C-24/85 Spykers ECLI:EU:C: 1986:127; CJEU C-463/09 CLECE ECLI:EU:C:2011:24.
20 BAG 22.8.2013 - 8 AZR 521/12, AP BGB § 613a mn. 444; CJEU Joined cases C-232/04-233/04
Guney-Görres ECLI:EU:C:2005:778.
21 BAG 22.8.2013 - 8 AZR 521/12, AP BGB (j 613a BGB mn. 444; CJEU C-108/10 Scattolon ECLLEU:
C-.2011:542.
22 BAG 23.9.2010 - 8 AZR 567/09, NZA 2011, 197; CJEU C-463/09 Cl.F.CE ECLI:EU:C:2011:24.
23 BAG 11.12.1997 - 8 AZR 426/94, NJW 1998, 2549; CJEU C-340/01 Abler and Others ECLI:EU:
02003:629.
24 BAG 25.8.2016 - 8 AZR 53/15, NZA-RR 2017, 123.
25 BAG 21.8.2014 - 8 AZR 648/13, NZA 2015, 167; CJEU C-466/07 Klarenberg EC1.I:F.U:C:2009:85.
26 BAG 22.5.2014 - 8 AZR 1069/12, NZA 2014, 1335; CJEU C-108/10 Scattolon ECI.I:EU:C:20l 1:542.
27 BAG 26.3.2015 - 2 AZR 783/13, NZA 2015, 866; CJF.U C-108/10 Scattolon ECLI:EU:C:2011:542.
28 BAG 10.5.2012 - 8 AZR 434/11, NZA 2012, 1161; see CJEU C-160/08 Commission/Gennany ECU:
EU:C:2010:230.
29 BAG 21.8.2014 - 8 AZR 648/13, NZA 2015, 167; see CJEU Joined cases C-171/94-172/94 Merckx
ECLI:EU:C: 1996:87 and C-108/10 Scattolon ECU:EU:C:2011:542.
Sagan/Seiwerth
1091
§ 613a 12-14 Division 8. Particular types of obligations
estate or the landlord.30 Irrespective of a universal legal succession mandated by statutory
law, it follows from § 324 UmwG that the transformation of an undertaking unde «>mpany
law can constitute the transfer of an economic unit through a lega transac ion wi in t e
meaning of § 613a. However, universal legal succession according to § 1 oes no qua ify
as a legal transaction.31 If the transfer is based on statutory law, it is not su ject to § 613a
while the EU Transfer of Undertakings Directive applies.32
IV. Employment contract
12 According to Sub. 1 1st St., implementing Art. 3(1) EU Transfer of Undertakings Directive
into German law, in the event of a transfer of (a part of) a business the employment contracts
are transferred from the old employer to the new one. This applies to the employees who are,
at the date and time of the transfer, employed in the transferred (part of the) business.33 In
this regard, the date on which the legal transaction is concluded or becomes effective is not
decisive. The decisive factor is the point in time at which the new employer actually takes
over the management of the (part of the) business in question.34
1. Content
13 The content of the employment contract does not change as a result of the change of
employer. The length of service is not a right of the employee which in and of itself could be
transferred according to Sub. 1 1st St. Nonetheless, with regard to the rights of the employee,
which depend on the duration of the employment relationship, the new employer must
recognise the period of employment with the old employer.35 This applies in particular to the
calculation of the notice periods according to § 622(1) and the applicability of the general
dismissal protection according to § 1(1) KSchG.36
2. Dynamic reference clause
14 A salient issue is the continuity of clauses in the individual employment contract which
refer to future collective agreements (so-called dynamic reference clauses). According to the
BAG, such clauses are binding for the new employer without further ado. However, the CJEU
stated in Alemo-Herron that Art. 3 EU Transfer of Undertakings Directive precludes the
Member States ‘from providing (...) that dynamic clauses referring to collective agreements
negotiated and adopted after the date of transfer are enforceable against the transferee, where
that transferee does not have the possibility of participating in the negotiation process of such
collective agreements concluded after the date of the transfer’.37 This decision of the CJEU
has been rejected almost generally in Germany,38 has not been complied with by many higher
" BAG 6.10.2005 - 2 AZR 316/04, NZA 2006, 990; see further ErfK Arbeitsrecht/Oetker § 324 UmwG
mn. 1. 3
31 ErfK Arbeitsrecht/Preis, § 613a BGB mn. 58.
’AZR 12M,S'NZA 2"“' “ ” C|EU c'3“98 «»» "“I
” BAG 2.3.2006 - 8 AZR 124/05, NZA 2006, 848; see CJEU C-343/O» r or
02000:441. 3/98 Co,l,n° and Chiappero ECLI:EU:
34 BAG 26.3.1996 - 3 AZR 965/94, NJW 1997, 1027; HWK ArK„;. . „ ,.
mn 76 Z Arbcitsrecht/Willeniscn, § 613a BGB
« BAG 15.2.2007 - 8 AZR 397/06, NZA 2007, 739; more restrained CJEU C 33a/!. r, i pit-
02017:276 (financial rights). 1 U C’336/l5 Unionen ECLEEU.
36 For further details see ErfK Arbeitsrecht/Preis, § 613a BGB mn 76
37 CJEU C-426/11 Alemo-Herron and Others ECLl:EU:C:2013:521
38 For example Jacobs/Frieling, Keine dynamische Wcitergcltuno von Id »•
meklauseln nach Betriebsübergängen EuZW 2013, 737, 738 et sei* eincn dynamischen Bezugnah-
Asklepios, ZESAR 2016, 116; further Prassl, Freedom of contract * a8an’ Vorlage des BAG in
Transfers of Undertakings and the Protection of Employer Rights ii 'pn ^enera' Periple of EU Law?
Journal (2013), 434, 439 et seq.; Weatherill, Use and Abuse of thp rir ‘^our Law, 42 Industrial Law
LU s barter of Fundamental Rights:
1092
Sagan/Seiwerth
Rights in the case of transfer of business 15-16 § 613a
labour courts* 39 and, finally, led to the request of the BAG for a preliminary ruling in
Asklepios40 The CJEU answered that under Art. 3 EU Transfer of Undertakings Directive
the new employer may be bound by a dynamic reference clause if national law provides for
the possibility tor the transferee to make adjustments both consensually and unilaterally.41
The BAG then decided that German law fulfils these requirements because the new employer
could unilaterally change the working conditions set forth in the employment contract by
way of a dismissal with the option of altered conditions of employment (see § 2 KSchG).
Therefore, dynamic reference clauses should continue to bind the new employer42 This
decision received criticism because of the high requirements for a dismissal with the option
of altered conditions of employment. Its use in order to amend a dynamic reference clause
might remain a purely theoretical case. In addition, the clause will only be amended if the
employee agrees (at least with the reservation set out in § 2 KSchG). Thus, unlike the CJEU
demands and the BAG claims, the new employer has no possibility of modifying the
employment contract or the reference clause unilaterally.43
V. Collective Agreements
Collective bargaining agreements (§ 1 TVG) and works agreements (§ 77 BetrVG) con- 15
tinue to apply to the new employer in accordance with Sub. 1 2nd to 4th St. Any collective
agreement only applies statically to the new employer, i.e. in the version that it had at the
time of the transfer of the (part of the) business. The new employer is not bound by
subsequent amendments to the collective agreement (Sub. 1 2nd St.).44 The continuation of
collective bargaining agreements presupposes that before the transfer both the old employer
and the employee were bound by the collective bargaining agreement, so that it was directly
binding for the employment relationship (§4(1) TVG).45 A rescinded collective bargaining
agreement, which remains directly applicable to the employment relationship (§ 4(5) TVG),
is also transferred to the new employer in accordance with Sub. 1 2nd to 4th St.46
1. Effect of transfer
According to older decisions of the BAG and a still widespread opinion in legal academic 16
writing, Sub. 1 2nd St. transforms the legal nature of collective agreements into provisions of
the individual employment contract.47 On this basis, the more far-reaching and commonly
shared thesis was developed that Sub. 1 2nd St. was only of a subsidiary nature. It shall not
apply if other provisions of statutory law transfer a collective agreement to the new
employer without amending its legal nature.48 * * Thus, for example, universal succession under
on the improper veneration of freedom contract, ERCL 2014, 167; more approvingly e.g. Lobinger, EuGH
zur dynamischen Bezugnahme von Tarifverträgen beim Betriebsübergang, NZA 2013, 945.
39 Detailed discussion by LAG Berlin-Brandenburg 3.12.2014 - 24 Sa 1126/14, BB 2015, 1600; further
LAG Hessen 10.12.2013 - 8 Sa 537/13, BeckRS 2014, 68584; LAG Hamm 18.12.2014 - 17 Sa 1102/14,
BeckRS 2015, 66143; LAG Bremen 12.8.2015 - 3 Sa 16/15.
40 BAG 17.6.2015 - 4 AZR 61/14 (A), NZA 2016, 373.
41 CJEU Joined cases C-680/15-681/15 Asklepios Kliniken Langen-Seligcnstadt ECLI:EU:C:2017:317.
42 BAG 30.8.2017 - 4 AZR 61/14, BeckRS 2017, 140697.
43 Sagan, Die Vorlage des BAG in Asklepios, ZESAR 2016, 116, 121; Willemsen/Krois/Mehrens,
Entdynamisierung von Tarifverträgen nach einem Betriebsübergang, Rd A 2018, 151, 162 et seq.
44 BAG 13.11.1985 - 4 AZR 309/84, NZA 1986, 422; BAG 5.5.2015 - 1 AZR 763/13, NZA 2015, 1331;
Staudinger BGB/Annuß, § 613a BGB mn. 213.
45 BAG 4.8.1999 - 5 AZR 642/98, NZA 2000, 154; 26.8.2009 - 4 AZR 280/08, NZA 2010, 238.
46 BAG 27.11.1991 - 4 AZR 211/91, NZA 1992, 800; see CJEU C-328/13 ÖGB ECLI:EU:C:2014:2197.
47 BAG 18.11.2003 - 1 AZR 604/02, NZA 2004, 803; Franzen, Gesetzesbindung im l’arifverlragsrccht,
NZA-Beil. 2011, 108, 114 et seq.; Sicg/Maschmann, Unternehmensumstrukturierung (2nd edn, C.H.Beck
2010), mn. 283.
48 BAG 26.8.2009 - 4 AZR 280/08, NZA 2010, 238; founded by Hanau/Vossen, in: Dieterich (ed.),
Festschrift für Marie Luise Hilger und Hermann Stumpf (C.H.Beck 1983), p. 271; further Staudinger
BGB/Annuß, § 613a BGB mn. 199; MüKo BGB/Müller-Glögc, § 613a BGB mn. 129.
Sagan/Seiwerth
1093
§ 613a 17 Division 8. Particular types of obligations
§20(1) No. 1 UmwG shall take precedence over Sub. 1 2"d St.49 In
agreements shall remain binding for the new employer accor ing o u , P es
of works constitution law if the transferred business retains its struc ura > is
case, Sub. 1 2nd St. shall not apply.50 However, if the provisions of a collective bargaining
agreement are converted into the employment contract, they may come in o con ic wit
pre-existing provisions in the employment contract. Such conf icts etween a co ective
agreement and an employment contract generally lead to the application o t e provision
which is more advantageous for the employee (§ 4(3) 1VG). But this conf1C* ru e cann°t e
applied (directly) if the collective bargaining agreement is converted into t e emp oyment
contract.51 In addition, after such conversion the collective bargaining agreement would
have to be subject to judicial review according to §§ 305 et seq., which in effect would be
contrary to § 310(4) 1st St.52 More recently, however, the BAG has abandoned its previous
position. With a view to the wording of Sub. 1 2nd St. the Court now holds that collective
agreements are transferred into the employment relationship whilst retaining their collec¬
tive legal nature.53 On this basis, the Court maintains the view that Sub. 1 2nd St. is of a
subsidiary nature.54 However, this combination of collective and individual contracts leads
to a third category of terms and conditions of employment whose legal basis and legal
consequences remain vague and unclear. According to a new and preferable view, Sub. 1
2nd St. transfers collective agreements to the new employer without changing their legal
nature. The new employer enters into the old employer’s collective commitments as they
stand at the time of the transfer of the (part of the) business. As a consequence, Sub. 1 2nd St.
is not only subsidiarily applicable. It stipulates a collective succession which applies without
restriction to any transfer of a (part of a) business?5 As a consequence, in case of a company
collective agreement (Firmentarifvertrag) not only its prescriptive part, but also its contrac¬
tual part, which entails the contractual obligations of the contracting parties, is transferred
from the old to the new employer.56
2. Exclusion
17 According to Sub. 1 3rd St., the transfer of a collective bargaining agreement or a works
agreement is excluded if and to the extent that the terms and conditions of employment at
the new employer are regulated by another collective bargaining agreement or another
works agreement. This applies both to collective agreements which are already in force at the
time of the transfer of business and those which are only concluded at a later date.57 The
discontinuation of the collective agreements applicable at the old employer does not require
that the conditions of employment set out in the collective agreement applicable at the new
employer are more favourable to the employees. The respective collective agreements are not
subject to any comparison of their merits.58 * However, in Scattolon the CJEU stated that the
” BAG 15.6.2016 - 4 AZR 805/14, NZA 2017, 326; ErfK Arbeitsrecht/Oetker, § 324 UmwG mn 4
S Ztf ,27'h”4 ' 7 T NZA *i*T in: W»l™‘«"'H»he„il.„,5ch«efcrV
Seibt Umstrukturierung und Übertragung von Unternehmen (5,h edn, CH Beck Mim c o
ErfK Arbeitsrecht/Preis, § 613a BGB mn. 112.
52 ErfK Arbeitsrecht/Preis, § 613a BGB mn. 112.
53 BAG 22.4.2009 - 4 AZR 100/08, NZA 2010, 41; approvindv Hänfne T-, tu . 4 .
hältnis (Nomos 2015), p. 426 et seq. °pfnCr’ Tan‘gel‘ung >m Arbeitsver-
34 BAG 15.6.2016 - 4 AZR 805/14, NZA 2017, 326.
55 Sagan, Die kollektive Fortgeltung von Tarifverträgen und Betri<-hcv-r„;„i . . .
Sätze 2-4 BGB, RdA 2011, 163. ' ercinl,arungen nach § 613a Abs. 1
56 Sagan, Die kollektive Fortgeltung von Tarifverträgen und Betnphc«. • i
Sätze 2-4 BGB, RdA 2011, 163, 170 et seq.; to the contrary BAG 26 8 nach § 6L’a Abs' 1
238. 26.8.2009 - 4 AZR 280/08, NZ/\ 2010,
57 BAG 19.3.1986 - 4 AZR 640/84, NZA 1986, 687; Beoler T irif., .
2009, 65, 70. P ’ ‘ ar,*ver,raße im Betriebsubergang, RdA
5” BAG 11.5.2005 - 4 AZR 315/04, NZA 2005, 1362; BAG 7 7 2(> i <> a * •
30; MüKo BGB/Muller-Gloge, § 613a BGB mn. 139. 4 AZR l()23/08, NZA-RR 2011,
1094
Sagan/Seiwerth
Rights in the case of transfer of business 18 § 613a
implementation ‘of the option to replace, with immediate effect, the conditions which the
transferred workers enjoy under the collective agreement (...) cannot (...) have the aim or
effect of imposing on those workers conditions which are, overall, less favourable than those
applicable before the transfer.’59 Whether EU law therefore sets substantive limits for the
replacement ot collective agreements in the event of a transfer of (a part of a) business is a
highly controversial matter.60 This would be a serious and unjustified encroachment on the
freedom of collective bargaining (Art. 28 EU Charter of Fundamental Rights).61 It also
follows from Art. 4(2) EU Transfer of Undertakings Directive that working conditions may
deteriorate to the detriment of employees in the event of a transfer of (a part of a) business.
With regard to collective bargaining agreements, Sub. 1 3rd St. applies only if both the
employee and the new employer are bound by another collective agreement (i) as a party to
the respective agreement (§ 3(1) TVG); (ii) on the basis of membership in the employer’s
association or trade union (§3(1) TVG); or (iii) on the basis of a State order (e.g. §§ 5 TVG,
8 AEntG).62 Sub. 1 3rd St. does not apply to reference clauses in the employment contract or
in the event that only the new employer, not the employee is bound by a collective bargaining
agreement. As a result of Sub. 1, several collective bargaining agreements may apply
simultaneously to the new employer. Even if such a collision occurs within one business of
the new employer, it is not resolved in accordance with § 4(2a) TVG, which does not
mention § 613a.63
3. Continued application
If a collective agreement continues to apply at the new employer, its provisions may be 18
replaced by an individual employment agreement with the employee in accordance with
Sub. 1 2nd St. However, a change to the disadvantage of the employee is only permissible after
one year has elapsed since the transfer of the (part of the) business. Sub. 1 4th St. provides for
two exceptions to this rule. First, early replacement of the working conditions set out in the
collective agreement is permissible if the collective agreement no longer applies. This means
that the collective agreement may be replaced by another agreement, in particular after the
date of its termination or its expiry (cf. Art. 3(2) EU Transfer of Undertakings Directive).
Secondly, the new employer and a transferred employee may agree to the application of a
another collective agreement provided that (i) the employment relationship falls within the
scope of the collective agreement to be referred to; (ii) the entire collective agreement to be
referred to shall apply; and (iii) the parties are not already bound by collective bargaining
agreement on the collective plane (§§ 3(1), 5 TVG, 8 AEntG etc.).64 Neither party to the
employment contract is, however, obliged to agree to the addition of a reference clause to the
employment contract.65
39 CJEU C-108/10 Scattolon ECLI:EU:C:2011:542; see further CJEU C-336/15 Unionen ECLEEU:
C:2017:276.
See BAG 12.9.2013 - 6 AZR 512/12, NZA-RR 2014, 154; Mückl, Der Betriebsübergang nach § 613a
in der Insolvenz - jetzt erst recht ein Sanierungshindernis?, ZIP 2012, 2373; Sittard/Flockenhaus,
‘Scattolon’ und die Folgen für die Ablösung von Tarifverträgen und Betriebsvereinbarungen nach einem
Betriebsübergang, NZA 2013, 652; Winter, Betriebsübergang und Tarifvertragsersetzung - was ergibt sich
aus dem Urteil Scattolon?, RdA 2013, 36; Witschen, Ablösung von Kollektivverträgen nach einem
Betriebsübergang - Die Befristung des Verschlechterungsvcrbots, EuZA 2017, 534.
61 Sagan, Das Verschlechterungsvcrbot bei der Ablösung von Kollektivverträgen nach einem Betriebs¬
übergang, EuZA 2012, 247, 254.
62 BAG 29.8.2007 - 4 AZR 767/06. NZA 2008, 364; BAG 9.4.2008 - 4 AZR 164/07, NZA 2008, 1432;
ErfK Arbeitsrecht/Preis, §613a BGB mn. 123; to the contrary Hcnssler, in: Schlachter et al. (eds),
Tarifautonomie für ein neues Jahrhundert (C.H Beck 1998), p. 311, 319 et seq.
63 See further e.g. Oräf, Tarifpluralitat und Tarifeinheit nach Betriebs(teilJübergang, NZA 2016, 327.
64 ErfK Arbeitsrecht/Preis, § 613a BGB mn. 122.
65 MuKo BGB/Muller-Glöge, § 613a BGB mn. 138.
Sagan/Seiwerth
1095
§ 613a 19-22
Division 8. Particular types of obligations
VI. Dismissal protection
19 The termination of an employment contract by the transferor or the transferee due to the
transfer of a (part of a) business is null and void (Sub. 4 1st St., § 134). is a so app les in
the event of the transferor’s insolvency.66 The prohibition of termination presupposes t at
the transfer of the (part of the) business is not only the external cause, but ten amental
reason for the dismissal.67 If the employee is to be employed by the transferee, the conclusion
of a termination agreement with the transferor and the conclusion of a new emp oyment
contract with the transferee are null and void due to an objective circumvention of § 613a.68
20 Sub. 4 2nd St. clarifies that the right of the employers to terminate the employment
relationship for other reasons remains unaffected. Thus, the transfer of the (part of the)
business is irrelevant if, in addition to the transfer of business, there is a material reason
which in and of itself justifies the dismissal.69 If the business concept of the transferee
provides for a smaller number of employees than currently employed in the (part of the)
business concerned, dismissals by the transferor can be justified by pressing operational
requirements within the meaning of § 1(2) KSchG. Sub. 4 does not preclude the transferor
form dismissals due to the operational concept of the transferee, if such concept has already
taken tangible form at the time of the dismissal.70
VII. Information
21 According to Art. 7(5) EU Transfer of Undertakings Directive, the employees affected by
the transfer of a (part of a) business are to be informed about the transfer ‘where there are no
representatives of the employees in an undertaking or business through no fault of their
own’. The personal scope of application of the duty to inform in Sub. 5 goes far beyond this
requirement. According to Sub. 5, in the event of a transfer of a (part of a) business, each
employee concerned must be informed irrespective of whether a works council was estab¬
lished in the business in question or could have been established at the request of the
employees.
1. Content
22 The BAG has set extremely high requirements with regard to the content of the informa¬
tion. According to the BAG, the employee should be provided with sufficient knowledge for
deciding on whether to object to the transfer of the employment relationship (Sub. 6).71 This
does not limit the obligation to inform in a meaningful way, because the employee does not
have to justify an objection, but can take any circumstance as a ground to object to the
transfer of the employment relationship.72 A limiting factor is, however, that the informa¬
tion owed is limited to the subjective level of knowledge of the transferor and the transferee
at the time of information.73 Standardised information is permissible, but must point out any
66
67
68
69
70
BAG 20.3.2003 - 8 AZR 97/02, NJW 2003, 3506; Jauernig BGB/Mansel 8 613a BCR mn 7
BAG 20.9.2006 - 6 AZR 249/05, NZA 2007, 387. ’ B mn’71
BAG 27.10.2005 - 8 AZR 568/04, NZA 2006, 668.
BAG 24.5.2005 - 8 AZR 333/04, NZA 2006, 31.
BAG 20.3.2003 - 8 AZR 97/02, NJW 2003, 3506; Staudinaer rcr/a « .
seq.; ErfK Arbeitsrecht/Preis, § 613a BGB mn. 169; to the contrarvRich”"1!- tv6' ^ mn. 380 et
§ 613a bei Betriebserrb und Neugründung von Unternehmen in d™ n arin'’ , Anwendbarkeit des
289, 292. Ucn Bundesländern, NZA 1991,
71 BAG 14.11.2013-8 AZR 824/12, NZA 2014, 610; BAG 19.11.2015 _ n a-7„
Ahrendt, in: Schaub (ed.), Arbeitsrechts-Handbuch (17lh edn, C H B> k 7ni • NZA 2016, 647;
72 Sagan, Unterrichtung und Widerspruch beim Betricbsübereuw ai 1 ,Bmn’32>
Sicht, ZIP 2011, 1641, 1644; see BAG 30.9.2004 - 8 AZR 462/03 NIW dcu,schcr «nd europäischer
73 BAG 13.7.2006 - 8 AZR 305/05, NJW 2007, 246. ’ 2 5‘ 775'
1096
Sagan/Seiwerth
Rights in the case of transfer of business 23-24 § 613a
special features of the individual employment relationship.74 Restrictions on the obligation to
inform shall apply in the event of several consecutive transfers of a (part of a) business.75
According to the BAG, for example, information must be provided on:76 the legal grounds
and the economic reasons for the transfer of the (part of the) business;77 the identity of the
transferee*/8 the liability of the transferor and the transferee according to sub. 2;79 the right to
object to the transfer according to Sub. 6;80 a foreseeable insolvency of the transferee;81 and
the fact that essential business assets, such as the premises of the business, will not be
transferred.82
2. Violation
If the information is incorrect or incomplete, the employee retains the right to be 23
informed.83 In addition, the employee may be entitled to claim damages according to § 280
(§ 311(2)); but the employee will hardly ever be able to prove that the error in information
resulted in a pecuniary loss.84 The most important legal consequence of a violation of Sub. 5
is that the time limit for the right to object according to Sub. 6 1st St. is not triggered.85 In this
case, the right to object is not subject to a rigid time limit, but only to abandonment as a
special form of abuse of rights.86 However, according to the BAG the abandonment of the
right to object requires special behaviour on the part of the employee, generally a disposition
affecting the existence of the employment relationship.87 The mere continuation of the
employment relationship with the transferee is only sufficient if the employee has been
informed of the transfer of the employment relationship, the (planned) date, the object of the
transfer of business, the identity of the transferee, and has been informed of his right of
objection pursuant to Sub. 6.88
VIII. Right to object
Already in its early decisions on § 613a, the BAG took the view that the employee had the 24
right to object to the transfer of the employment relationship to the transferee. This right to
object wras primarily derived from the fundamental rights of the employee to freedom of
occupation (Art. 12 GG) and the general right of personality (Art. 1(1), 2(1) GG).89
Although there is no express equivalent in EU law, the CJEU has accepted the right to object
as initially formed in the judicature of the BAG. As of 2002, the employee’s right to object to
the change of his employer is regulated in Sub. 6.
74 BAG 13.7.2006 - 8 AZR 305/05, NJW 2007, 246.
75 BAG 24.4.2014 - 8 AZR 369/13, NZA 2014, 1074; 19.11.2015-8 AZR 773/14, NZA 2016, 647.
76 Summarising Grau/Schaut, Neuere Entwicklungen bei den Anforderungen an § 613a BGB-Unter-
nchtungsschreiben, NZA 2018, 216.
77 BAG 13.7.2006 - 8 AZR 305/05, NJW 2007, 246; BAG 23.7.2009 - 8 AZR 538/08, NZA 2010, 89.
78 BAG 21.8.2008 - 8 AZR 407/07, NZA-RR 2009, 62.
79 BAG 26.5.2011 - 8 AZR 18/10, NZA 2011, 1448.
W) BAG 20.3.2008 - 8 AZR 1016/06, NZA 2008, 1354.
81 BAG 15.12.2016 - 8 AZR 612/15, NZA 2017, 783.
82 BAG 31.1.2008 - 8 AZR 1116/06, NZA 2008, 642.
83 HWK Arbeitsrecht/Willemsen/Müller-Bonanni, § 613a BGB mn. 336.
84 See Sagan, Unterrichtung und Widerspruch beim Betriebsübergang aus deutscher und europäischer
Sicht, ZIP 2011, 1641, 1645 et seq.
85 BAG 13.7.2006 - 8 AZR 305/05, NJW 2007, 246; ErfK Arbeitsrecht/Preis, § 613a BGB mn. 93.
86 BAG 2.4.2009 - 8 AZR 318/07, AP BGB § 613a Widerspruch No. 8; BAG 24.8.2017 - 8 AZR 265/16,
NJW 2018, 647; see * § 242 mn. 27.
87 BAG 9.12.2010 - 8 AZR 614/08, AP BGB § 613a No. 394; BAG 17.10.2013 - 8 AZR 974/12, NJW
2014, 2461.
88 BAG 21.12.2017 - 8 AZR 99/17, BeckRS 2017, 146233.
89 BAG 2.10.1974 - 5 AZR 504/73, NJW 1975, 1378.
Sagan/Seiwerth
1097
§ 613a 25-28 Division 8. Particular types of obligations
1. Exercise
25 In principle, the right to object exists at every transfer of a (part of a) business An
exception applies in the event that the transferor ceases to exist as a legal entity in t e wa e o
the transfer; if an objection is declared nevertheless, it will in general not be interpreted
(§§ 133, 157) as an extraordinary termination (§ 626).90 Pursuant to Sub. 6 1st St. the time
period for exercising the right to object is one month. The period begins with the fulfilment
of the duty to inform the employee in accordance with Sub. 5. The period is calculated
according to §§ 187 et seq. Both the information and the expiry of the objection period may
occur after the transfer of the (part of the) business.91 The objection must be in writing
(§ 126) and can be declared to the transferor or the transferee (§ 613a(6) 2nd St.).
2. Effect
26 If the right to object is exercised, the employment relationship is not transferred to the
transferee. It remains with the transferor. According to the BAG, the objection has retro¬
active effect if it is declared after the transfer of the (part of the) business; in this case, it shall
be effective as of the date of the transfer.92 The employment relationship then existed with
the transferor with effect for the past. The rules of a legally deficient employment contract are
applied to the services already rendered towards the transferee.93 An objection may result in
the transferor being entitled to give notice of termination for operational reasons (§ 1(2)
KSchG). In the context of social selection (§ 1(3) KSchG), the reasons which prompted the
employee to object are not to be taken into account.94 If a large number of employees exercise
their right to object in order to prevent the transfer of the (part of the) business, this can
constitute an abuse of rights (§ 242).95
IX. Liability
27 With the takeover of the (part of the) business, the transferee fully enters into the rights
and obligations of the transferor and is liable for all claims of the affected employees arising
from the employment relationship, irrespective of whether if they arose and became due
before or after the transfer.
28 With regard to the transferred employment contracts, the transferor and the transferee are
jointly and severally liable for the fulfilment of claims that arose before the transfer of
business and become due one year after this date (Sub. 2 1st St.; §§ 421 et seq.). Contrary to
the unclear wording of Sub. 2, this also applies to claims that have become due before the
transfer of the (part of the) business.96 The full joint and several liability of the transferor
shall only apply to claims that arose and were due prior to the transfer of the (part of the)
business.97 If they arose at this time, but became due only after the transfer of the (part of
the) business, the transferor is liable pro rata temporis, i.e. for the relevant fraction of the
applicable assessment period. The transferor shall not be liable for claims for which he
receives no consideration.98
90 BAG 21.2.2008 - 8 AZR 157/07, NZA 2008, 815.
KLEr?r RArbe'TACht/PrCiS- §6'3a BGB n’n l00; HWK Arbci,Sfccht/Willeniscn/Muller-Bonanm,
§ 613a BGB mn. 345.
« BAG 11.12.2014 - 8 AZR 943/13, NJW 2015, 1262; 13.7.2006 - 8 AZR 305/05, NJW 2007 246' to the
contrary Rieble, Widerspruch nach § 613a VI BGB - die (ungeregelte) Rechtsfolge NZA 2004 1 ’
93 LAG Berlin-Brandenburg 20.11.2013 - 21 Sa 866/13, BeckRS 2014 68419 HWk' a i \ • ht/
Willemsen/Müller-Bonanni, § 613a BGB mn. 355; see ► tj 61 la mn 22 ’ Arbe.tsrecht/
94 BAG 31.5.2007 - 2 AZR 276/06, NZA 2008, 33.
95 BAG 30.9.2004 - 8 AZR 462/03, NJW 2005, 775.
96 See BAG 22.6.1978 - 3 AZR 832/76, VersR 1978, 1127.
97 MüKo BGB/Müller-Glöge, § 613a BGB mn. 165.
” ErfK Arbeitsrecht/Preis, (j 613a BGB mn. 136.
1098
Sagan/Seiwerth
Due date of remuneration
1-3 §614
X. Insolvency proceedings
Special rules apply if insolvency proceedings have been instituted against the transferor on 29
the date ot the transfer of the (part of the) business. In this case, the employees affected by
the transter must not receive a second debtor for their existing claims. Otherwise, they would
receive preterential treatment in comparison to other creditors of the transferor; this would
violate the principles of insolvency law (par conditio creditorum). Thus, the transferee is liable
only tor debts incumbent on the estate within the meaning of § 55 InsO, not for insolvency
claims within the meaning of § 38 InsO."
§614
Due date of remuneration
'Remuneration is to be paid after perfor-
mance of the services. 2If remuneration is
assessed by time periods, then it is to be paid
at the end of the individual time periods.
§614
Fälligkeit der Vergütung
!Die Vergütung ist nach der Leistung der
Dienste zu entrichten. 2Ist die Vergütung
nach Zeitabschnitten bemessen, so ist sie
nach dem Ablauf der einzelnen Zeitabschnitte
zu entrichten.
A. Function
I. Purpose
§ 614 regulates the due date of remuneration which the service provider or employee can 1
claim according to § 611(1) or § 61 la(2). According to the 1st St., service providers, including
employees, have to render the services owed prior to the due date of their claim to
remuneration. However, the service or employment contract may deviate from the 1st St.* 1
II. Position within the BGB
According to the general rule in § 271, the obligee may demand performance immediately 2
if no time for performance has been specified or is evident from the circumstances. § 614 is
an exception to this general rule. Contrary to § 271, service providers, including employees,
in general have to perform services in advance of payment. This applies also if remuneration
is assessed by time periods (§ 614, 2nd St.).
III. Scope of application
The scope of § 614 is considerably limited by more specific rules of statutory law (e.g. 3
§§ 64, 87c HGB, 18(2) BBiG, 37-40 SeeArbG, 24 BinSchG, 11(2) BUrlG etc.), collective
agreements (see § 87(1) No. 4 BetrVG) and individual service or employment contracts. The
obligation of service providers to provide services in advance burdens them with the risk of
not receiving remuneration for a period during which their contractual partner becomes
insolvent. With regard to employees this risk is partly mitigated with a social security claim
to insolvency benefits (§§ 165 SGB III et seq. implementing EU Directive 2008/94/EC).2
99 BAG 30.10.2008 - 8 AZR 54/07, NZA 2009, 432; BAG 22.10.2009 - 8 AZR 766/08, NZA-RR 2010,
660; MuKo BGB/Müller-Gloge, § 613a BGB mn. 177.
1 Jauernig BGB/Mansel, § 614 BGB mn. 1.
2 Mutschler, in: Kmckrehm et al (eds), Kommentar zum Sozialrecht (5,h edn, C.H.Beck 2017), § 165
SGB HI mn. 2.
Sagan/Seiwerth
1099
§615
Division 8. Particular types of obligations
B. Explanation
I. Remuneration in advance
4 A claim for remuneration in advance of the date specified in § 614 requires an explicit or
tacit agreement. Exceptionally, the employer’s duty of care shall result in an entitlement to
an advance in special situations.3 An agreement on an advance may provide that the party
entitled to senices may deduct the advance from the remuneration of the current assessment
period without a declaration of set-off (§ 389).4
IL Performance
5 A service provider who is obliged to perform in advance may not withhold the services
owed under either § 320(1) or § 273. However, in case of remuneration arrears the service
provider can have a right to refuse performance according to § 320,5 provided the arrears are
not relatively trivial (§ 320(2)), i.e. the total amount of the arrears is not negligible and the
delay is not merely short-term. For example, wage arrears of 1.5 months’ earnings are not
relatively trivial.6 With regard to employment contracts, the BAG does not apply § 320, but
§ 273 because it holds only performances within one assessment period to be reciprocal in
the sense of § 320.7 However, this leads to a lacuna which the BAG then has to fill by
applying § 320(2) by analogy.8
IIL Assessment period
6 The assessment period specified in § 614, 2nd St. is tantamount to a period of time
according to the calendar within the meaning of § 286(2) No. 1. As a consequence, the party
entitled to services is automatically in default, i.e. without the need for a warning notice, if
the remuneration claim is not fulfilled at the end of the assessment period specified in the
2nd St.9 In addition, arrears over a long period of time or to a considerable amount can
constitute a compelling reason for an extraordinary termination (§ 626).10 The end of the
service relationship within an assessment period does not affect the due date of the respective
claim for remuneration.11
§615
Remuneration in the case of
default in acceptance and business
risk
*If the person entitled to services is in
default in accepting the services, then the
party owing the services may demand the
agreed remuneration for the services not ren-
§615
Vergütung bei Annahmeverzug
und bei Betriebsrisiko
Kommt der Dienstberechtigte mit der An¬
nahme der Dienste in Verzug, so kann der
Verpflichtete für die infolge des Verzugs nicht
geleisteten Dienste die vereinbarte Vergütung
3 Staudinger BGB/Richardi/Fischinger, § 614 BGB mn. 28.
mn30 ErfK AfbeitSreCh,/PreiS’ §614 BGB mn 2,; s,aud*n8er BGB/Richardi/Fischinger, §614 BGB
5 MüKo BGB/Emmerich, § 320 BGB mn. 12.
6 See MüKo BGB/Muller-Glöge, § 611 BGB mn. 9.
7 BAG 20.12.1963 - 1 AZR 42«/62, NJW 1964, «83. 884; ErlK Arbeitsrecht/Pmi.
8 BAG 25.10.1984 - 2 AZR 417/83, NZA 1985, 355, 356. '
§ 614 BGB mn. 17.
9 ErfK Arbeitsrecht/Preis, § 614 BGB mn. 15.
10 BAG 26.7.2001 - 8 AZR 739/00, NZA 2002, 325, 327.
11 BAG 12.10.1972 - 5 AZR 227/72, BB 1973, 144.
1100
Sagan/Seiwerth
Default in acceptance
1-2 §615
dered as the result of the default without
being obliged to provide cure. 1 2However, he
must allow to be credited against him what he
saves as a result of not performing the ser¬
vices or acquires or wilfully fails to acquire
through use of his services elsewhere. Sen¬
tences 1 and 2 apply with the necessary mod¬
ifications in cases in which the employer
bears the risk of loss of working hours.
verlangen, ohne zur Nachleistung verpflichtet
zu sein. 2Er muss sich jedoch den Wert desje¬
nigen anrechnen lassen, was er infolge des
Unterbleibens der Dienstleistung erspart oder
durch anderweitige Verwendung seiner
Dienste erwirbt oder zu erwerben böswillig
unterlässt. 3Die Sätze 1 und 2 gelten entspre¬
chend in den Fällen, in denen der Arbeitgeber
das Risiko des Arbeitsausfalls trägt.
Contents
mn.
A. Function 1
I. Purpose 1
II. Position within the BGB 2
III. Scope of application 4
B. Explanation 6
I. Default in acceptance 6
1. Claim 7
2. Offer of performance 8
3. Termination 11
4. Preclusion 12
5. Non-acceptance 13
II. Legal consequences 14
III. Operational risk 15
A. Function
I. Purpose
The time at which services are provided is often of critical importance. Labour cannot be 1
saved up for a later time and usually cannot be redirected within short notice. In general,
untimely work is worthless for employers. On the other hand, employment is the most
important source of income for employees. Against this background, §615 regulates and
distributes the cost risks in the event the party entitled to services is in default in accepting
offered services.1 In this case, the 1st St. maintains the initial claim of the service provider to
remuneration (§§ 611(1); 61 la(2)); the provision does not constitute a new claim.2 However,
the service provider shall not profit from the default of the party entitled to services. Thus,
the claim is reduced in accordance to the 2nd St. This is a case of an offset of advantages
pertaining to a main obligation.3 The 3rd St. concerns the special case that the employer is
unable to accept an employee’s services for operational reasons.
II. Position within the BGB
If the services are due at a specified time, their provision will be impossible if they are not 2
provided on time. In this case, services provided at a later point in time, are not identical to
the services which were owed.4 Delayed provision will not fulfil the claim of the party entitled
to services. Rather, the claim for performance will be excluded pursuant to § 275(1). In turn,
the entitlement to consideration, i.e. the claim for remuneration (§§ 611(1); 61 la(2)), will be
1 See Jauernig BGB/Mansel, § 615 BGB mn. 1; ErfK Arbeitsrecht/Preis, § 615 BGB mn. 1; Palandt BGB/
Weidenkaff, § 615 BGB mn. 1.
2 BAG 24.9.2014 - 5 AZR 593/12, NZA 2015, 35.
3 BeckOK BGB/Fuchs/Baumgärtner, § 615 BGB mn. 35.
4 Staudinger BGB/Richardi/Fischinger, § 615 BGB mn. 1.
Sagan/Seiwerth
1101
§ 615 3-6 Division 8. Particular types of obligations
excluded according to § 326(1) 1st St. The principle which follows is. no work, p' y § 615
establishes two exceptions to this general rule: first, the default in accep ance o services
(1st St.); and secondly, business risks of employers (3rd St.). In both cases, t le service provi er
or employee retains the claim to remuneration without being oblige to ma e up or not
performing the owed services.5 . r
3 According to the BAG, § 615 and § 326 do not contradict, but complement one other.
§ 615 shall apply if performance of the service as owed has become irnP08S1^ ue tle
passage of time. If, however, the requirements for default in acceptance (§§ 2 et seq.) are
not satisfied and, as a consequence, the claim for remuneration is not maintaine accor ing
to § 615, § 326(2) may, according to the BAG, still apply.7
III. Scope of application
4 The 1st and 2nd St. apply to all service contracts, including employment contracts (§ 611),
also legally deficient employment contracts.8 The application of the 3rd St., however, is
restricted to employment contracts (§ 611a). The main area of application of the 1st and 2nd St.
is the termination of an employment relationship by the employer. First, the requirements of
the 1st St. may be fulfilled if the employer refuses to employ the employee during the period of
notice.9 Secondly, the 1st St. can apply if an employee files an action for protection against
dismissal (§ 4 KSchG) and the court finds the termination to be null and void. In this case, the
employee will usually be entitled to remuneration in accordance with § 615, 1st St.
5 It follows from § 619, in which § 615 is not mentioned, that individual service or employ¬
ment contracts10 and collective agreements11 may deviate from § 615. The respective provi¬
sion in individual contract can be subject to the test of reasonableness of contents according
to §§ 307 et seq.12 Thus, the provision in an individual contract must be clear and
comprehensible.13 The employer must not generally pass on the risk of pay to the
employee.14 A provision is also inadmissible if it excludes the employer’s obligation to pay
any remuneration in the event of an ineffective termination without notice (§ 626).15
B. Explanation
I. Default in acceptance
6 The application of the 1st St. requires default in acceptance by the party entitled to services
pursuant to 293 et seq.
5 BAG 24.2.2016 - 5 AZR 425/15, NZA 2016, 687 (mn. 11).
6 BAG 23.9.2015 - 5 AZR 146/14, NZA 2016, 293 (mn. 25 et seq.); BAG 28.9.2016 - 5 AZR 224/16,
NZA 2017, 124 (mn. 33); this was seen differently by BAG 18.8.1961 - 4 AZR 132/60 AP BGB 615
mn. 20. For details of the controversy see ErfK Arbeitsrecht/Preis, § 615 BGB mn 4 et’ «-n • HK-RGR/
Schreiber, § 615 BGB mn. 3 et seq.; MüArbR/Tillmanns § 76 mn 1 et seq
7 BAG 23.9.2015 - 5 AZR 146/14, NZA 2016, 293 (mn. 25 et’seq.); BAG 28 9 2016 - 5 AZR 224/16
NZA 2017, 124 (mn. 33). ^.y.zuiö - 5 AZR 224/16,
8 BAG 29.8.1984 - 7 AZR 34/83, NZA 1985, 58; Staudineer BGR/RirknM/c c
mn. 47. For specific questions arising with a retroactive origin of an emnlovmr t ,8ch,n^r; § 6 5 BGB
for continued employment, see BAG 19.8.2015 - 5 AZR 975/13 NZA re at,ons^’P and tdaiins
15, NZA 2016, 691; BeckOK BGB/Fuchs/Baumgärtner, § 615 BGB mn R* p tv 1,2016 " 5 AZR 9/
BGB mn. 10. For questions arising when flexible working hours h ivp hJ ’ r Arbeitsrecht/Preis, § 615
Krause, § 615 BGB mn. 13; see > § 61 la mn. 22. a*recd w »«WK Arbeitsrecht/
9 HK-BGB/Schreibcr, § 615 BGB mn. 1.
10 BAG 10.1.2007 - 5 AZR 84/06, NZA 2007, 384 mn. 28.
" BAG 22.4.2009 - 5 AZR 310/08, NZA 2009, 913 mn. 22.
12 For details see ErfK Arbeitsrecht/Preis, 305-310 BGB mn 82
” BAG 22.4.2009 - 5 AZR 310/08, NZA 2009, 913 (mn. 19 et seq ) St‘1'
14 ErfK Arbeitsrecht/Preis, § 615 BGB mn. 8; Staudinger B< JB/Rich- d/u-
15 ErfK Arbeitsrecht/Preis, § 615 BGB mn. 8; Staudinger BGB/Ri -| i—lsc'linRer. § 615 BGB mn. 11.
>■ Wdi/l tschinger, § 615 BGB mn. 15.
1102
Sagan/Seiwerth
Default in acceptance
7-9 §615
1. Claim
Default in acceptance presupposes a valid, fulfillable claim to the provision of services or 7
work. A claim to the provision of services or work is fulfillable if the service provider or
employee is under a duty to provide services or work and the other party to the contract is
entitled to accept it.16 If the time for the performance of services or work is neither specified
nor exadent from the circumstances, the party entitled to services may demand performance
immediately, the senice provider may effect it immediately (§ 271(1)). If the main obliga¬
tions of an employment relationship are suspended (e.g. in the event of strike action17),
default in acceptance due to the absence of a fulfillable duty to provide work cannot occur.18
In the case ot transfer of a (part of a) business (§ 613a), default of acceptance of the
transferor continues after the transfer.19
2. Offer of performance
In general, default in the acceptance of services or work usually requires an unsuccessful 8
actual offer within the meaning of § 294. This applies to all service agreements which have not
been terminated.20 The senice provider or employee must offer the services as owed, i.e. (i) in
person (§ 613 1st St.); (ii) at the right time; (iii) at the right place; and (iv) in the right way.21
The owed performance is inter alia determined by the exercise of the employer’s right to issue
instructions (§160 GewO);22 this can require the employee to make an actual offer which is in
accordance with the clothing standards issued by the employer.23 The employer is not in
default of acceptance if the actual offer to work is premature or at a wrong time; e.g. during the
hours of a company outing.24 The right place for an actual offer is regularly the business in
which the employee’s workplace is located.25 Consequently, the employee bears the so-called
travel risk, i.e. the risk of reaching the workplace from his place of residence in good time.26
If the party entitled to services has declared not to accept the performance27 or if effecting 9
the performance requires an act by the party entitled to service, a verbal offer of the service
provider is sufficient (§ 295). The verbal offer must offer performing the services or work as
owed.28 An action for a declaration of invalidity of a termination of the service contract29 or
for payment of the agreed remuneration30 may qualify as a verbal offer. In the case of a
continuing obligation, default in acceptance continues for as long as the verbal offer
continues to exist.31 A verbal offer, and thus default in acceptance, will cease to apply if the
16 BAG 12.9.1985 - 2 AZR 324/84, NZA 1986, 424.
r BAG 21.4.1971 - GS 1/68, NJW 1971, 1668.
18 BAG 19.3.2002 - 9 AZR 16/01, NZA 2002, 1055.
19 BAG 21.3.1991 - 2 AZR 577/90, NZA 1991, 726; BAG 22.10.2009 - 8 AZR 766/08, NZA-RR 2010,
660.
20 BAG 18.11.2015 - 5 AZR 814/14, NZA 2016, 494 (mn. 50); BAG 28.6.2017 - 5 AZR 263/16, NZA
2017, 1528 (mn. 21).
21 BAG 26.4.1956 - GS 1/56, NJW 1956, 1454; BAG 28.6.2017 - 5 AZR 263/16, NZA 2017, 1528
(mn. 21).
22 BAG 19.5.2010 - 5 AZR 162/09, NZA 2010, 1119; BAG 28.6.2017 - 5 AZR 263/16, NZA 2017, 1528
(mn. 28); see ► § 61 la mn. 14-15.
23 BAG 24.9.2014 - 5 AZR 611/12, NZA 2014, 1407 (mn. 37 et seq.).
24 LAG Köln 12.4.2002 - 11 Sa 1327/01, NZA-RR 2003, 128.
25 ErfK Arbeitsrecht/Preis, § 615 BGB mn. 20.
26 This risk is insured by the statutory accident insurance (§8 SGB VII); see Krämer/Seiwerth, Der
Arbeitsunfall, JuS 2013, 203.
27 See BAG 21.10.2015 - 5 AZR 843/14, NZA 2016, 688 (mn. 19).
28 BAG 24.9.2014 - 5 AZR 611/12, NZA 2014, 1407 (mn. 37).
29 BAG 27.1.1975 - 5 AZR 404/74, NJW 1975, 1335, 1336.
30 BGH 28.10.1996 - II ZR 14/96, NJW-RR 1997, 537.
31 BAG 18.8.1961 - 4 AZR 132/60, AP §615 BCiB No. 20; see ErfK Arbcilsrccht/Preis, §615 BGB
mn. 25.
Sagan/Seiwerth
1103
§ 615 10-13 Division 8. Particular types of obligations
service provider becomes unable to perform the services as owed (e.g. in case of illness). In
this case, a further (verbal) offer is required once the service provider has regaine t e a i ity
to perform. On the other hand, the service provider does not have to repeat t e ver a o fer
constantly and for no reason.
10 § 296 1st St. presupposes that effecting the performance requires an act y t e party
entitled to services and, in addition, that for this act a period of time has been specified
according to the calendar. In this case, an offer is only necessary if the required act is not
performed in good time. In the absence of such act, no offer, neither an actual nor a verbal
offer, is required for default of acceptance to ensue.
3. Termination
11 As long as the service or employment contract has not been terminated, usually an actual
offer is required to effect default in acceptance.33 The termination of a service contract (§ 611)
by the party entitled to sendees includes the declaration to not accept further services. In this
case, a verbal offer by the service provider is sufficient, but also necessary; § 296 does not
apply 34 The legal situation is different with regard to employment contracts. If the employer
declares extraordinary termination without notice (§ 626) and refuses further employment, the
BAG does not apply § 295 but § 296 if the termination turns out to be null and void at a later
point in time.35 The Court argues that providing the employee with a functioning working place
and the assignment of work are acts within the meaning of § 296 1st St.36 These are continuous
tasks, which arise anew every day and can thus be calculated according to the calendar. This
relates for example to the provision of a workspace, raw materials, energy, tools and other
equipment.37 The same rules shall apply in the case of an ordinary dismissal, provided the
employer does not request the employee to work after the expiry of the period of notice.38
4. Preclusion
12 Default in acceptance presupposes that the service provider or employee is constantly in a
position to render the owed services effectively and in accordance with the law39 at the time
specified in the respective offer and during the default period (§ 297) 40 Both impossibility
and unwillingness to perform the owed services preclude default in acceptance. A prime
example of unwillingness to perform is the employees’ participation in strike action.41
5. Non-acceptance
13 According to § 293 default in acceptance requires that the party entitled to services has not
accepted the services offered. The ‘bare fact of non-acceptance’42 is sufficient.43 This require-
32 BAG 18.8.1961 - 4 AZR 132/60, AP § 615 BGB No. 20.
33 BGH 20.1.1988 - IVa ZR 128/86, NJW 1988, 1201; BAG 15.5.2013 - 5 AZR 130/12 NZA 2013
1076, (mn. 22).
34 BGH 13.3.1986 - IX ZR 65/85, NJW-RR 1986, 794.
35 BAG 15.5.2013 - 5 AZR 130/12, NZA 2013, 1076 (mn. 22); BAG 25.2.2015 - 5 AZR 886/12, NZA
2015, 494 (mn. 41); this is partially disputed, see MüKo BGB/Henssler § 615 BGB mn 27
36 BAG 9.8.1984 - 2 AZR 374/83, NZA 1985, 119; BAG 19.1.1999 - 9 AZR 679/97, NZA 1999, 925; see
for an overview over the judicature ErfK Arbeitsrecht/Preis, § 615 BGB mn 41
37 BAG 7.6.1973 - 5 AZR 563/72, AP § 615 BGB No. 28. '
” BAG 21.3.1985 - 2 AZR 201/84, NJW 1985, 2662; BAG 22.2.2012 - 5 AZR 249/11, NJW 2012 2605
(mn. 14). ' ’ ’
” BAG 28.9.2016 - 5 AZR 224/16, NZA 2017, 124 (mn. 22 et seq )
•“® ’- 5 AZR NZA 2"15'1053 »«: !86.2(,,7. s AZR M;I61 nza
ZU 1 /, i 2)Zo.
41 BAG 17.7.2012 -1 AZR 563/11, NZA 2012, 1432.
42 Mugdan, Die gesammten Materialien zum Bürgerlichen Gccoi/k.. -k j „ . ,
(v. Decker 1899), Vol. 2. p. 38. * Gesetzbuch für das Deutsche Retch
43 BAG 10.5.1973 - 5 AZR 493/72, NJW 1973, 1949.
1104
Sagan/Seiwerth
Default in acceptance 14-16 § 615
ment is fulfilled if the employer gives the employee unilateral leave of absence without being
entitled to it.44 Special rules apply if the party entitled to services is only temporarily
prevented to accept the offered services (see § 299).
IL Legal consequences
In the event of default of acceptance, remuneration is owed as if the services had been 14
rendered. In case of a service contract (§ 611)» from the agreed amount of remuneration will
be deducted: (i) savings resulting from the non-performance the owed services; (ii) income
acquired from other services made possible by the non-performance of the owed services;
and (iii) hypothetical income which the service provider could have acquired as a result of
the non-performance of the owed services, but wilfully failed to acquire. The deduction does
not require a declaration, but takes effect by operation of law (2nd St.). If an employee files an
action for protection against dismissal, the 2nd St. is superseded by § 11 KSchG. This special
rule provides for the deduction of: (i) income from other work; (ii) hypothetical income the
employee could have acquired from acceptable work, but wilfully failed to acquire; and (iii)
certain social security benefits, in particular received unemployment benefits.45 In this case,
contrary to the 2nd St. the deduction does not extend to the savings resulting from the non¬
performance the owed work.46 The prerequisite of acceptable work must be interpreted in the
light of the fundamental right to occupational freedom (Art. 12 GG).47 The employer’s offer
to continue employment at the previous conditions for the duration of the dismissal
protection proceedings is always acceptable.48
III. Operational risk
The 3rd St. is concerned with the remuneration of the employee in case of operational 15
risks.49 This refers to the risk incumbent on the employer that the work owed cannot be
performed for operational reasons.50 This includes for example natural disasters (earth¬
quakes, fires, floods etc.); general catastrophes; power outages; interruption of gas supply;
lack of raw materials; and loss of working hours due to severe weather conditions?1 In these
cases, the employee retains the claim to remuneration (§ 61 la(2)) in accordance with the
rules applicable to the employer’s default in acceptance (1st and 2nd St.).
The operational risk must be distinguished from three other areas of risk, (i) Not the 16
employer, but the employee bears the risk of reaching the workplace in time (so-called
travel risk). If the employer’s business is operational, but the employee cannot reach it (in
time) due - for example - to a natural disaster, the employer does not owe the agreed
remuneration according to the 3rd St. (ii) The employer bears the so-called economic risk
This refers to the event that the employee’s work performance is technically possible but
economically worthless for the employer, for example due to a collapse in orders or sales.52
This is not a case of the 3rd St. According to general rules of exchange contracts, the risk of
being able to use the received performance is incumbent on the creditor, (iii) The so-called
industrial dispute risk concerns the case that owed work is not performed due to collective
action. In this case, the 3rd St. does not apply. Rather, the question of remuneration in the
44 BAG 6.9.2006 - 5 AZR 703/05, NZA 2007, 36; BAG 26.1.2011 - 5 AZR 819/09, NZA 2011, 640.
45 See BAG 19.3.2008 - 5 AZR 429/07, NZA 2008, 758.
46 See BVerfG 24.6.2010 - 1 BvL 5/10, NZA 2010, 1004.
47 BAG 16.6.2004 - 5 AZR 508/03, NJW 2005, 1068, 1069.
48 BAG 16.6.2004 - 5 AZR 508/03, NJW 2005, 1068.
49 On the history of development see Staudinger BGB/Richardi/Pischinger, § 615 BGB mn. 196 et seq.
50 BAG 23.9.2015 - 5 AZR 146/14, NZA 2016, 293 (mn. 22).
51 ErfK Arbeitsrecht/Preis, § 615 BGB mn. 120; sec BAG 9.7.2008 - 5 AZR 810/07, NZA 2008, 1407.
52 Staudinger BGB/Richardi/Fischinger, § 615 BGB mn. 197.
Sagan/Seiwerth
1105
§ 616 1-3 Division 8. Particular types of obligations
event of a (partial) shutdown due to industrial action is the subject of special rules under
industrial action law.53
§616
Temporary hindrance from
performing services
’The person obliged to perform services is
not deprived of his claim to remuneration by
the fact that he is prevented from performing
services for a relatively trivial period of time
for a reason in his person without fault on his
part. 2However, he must allow to be credited
against him the amount he receives for the
period when he is prevented under a health
or accident insurance policy that exists on the
basis of a statutory duty.
§616
Vorübergehende Verhinderung
'Der zur Dienstleistung Verpflichtete wird
des Anspruchs auf die Vergütung nicht da¬
durch verlustig, dass er für eine verhältnis¬
mäßig nicht erhebliche Zeit durch einen in
seiner Person liegenden Grund ohne sein
Verschulden an der Dienstleistung verhindert
wird. 2Er muss sich jedoch den Betrag anrech¬
nen lassen, welcher ihm für die Zeit der Ver¬
hinderung aus einer auf Grund gesetzlicher
Verpflichtung bestehenden Kranken- oder
Unfallversicherung zukommt.
A. Function
I. Purpose and underlying principle
1 § 616 is concerned with the remuneration for the period during which the provision of
services is temporarily hindered. Under the conditions set out in the 1st St., the service
provider will retain the claim to remuneration (§§611(1); 611a(2)). The provision thus
constitutes an exception to the general rule ‘no work, no pay’.1 It also serves a counterweight
to the legal authority of the employer to determine working hours unilaterally in accordance
with § 106 1st St. GewO.2
II. Position within the BGB
2 § 616 often applies if a service provider is entitled to refuse performance for personal
reasons in accordance with § 275(3). The 1st St. requires that the service provider is not
responsible for the personal impediment. If, on the other hand, the service provider is
responsible for the hindrance, the claim to remuneration is generally excluded according to
§§ 275, 326? It follows from § 619, which refers only to §§ 617, 618, that the service contract
may deviate from § 616? Several provisions (e.g. sick leave: § 3 EFZG; paid annual leave: § 9
BUrlG; maternity leave: § 11(1) MuSchG; trainees: § 19(1) No. 2(b) BBiG etc.) apply to the
employment contract independently of § 616?
III. Scope of application
3 §616 applies to service and employment contracts (§§611, 611a). According to its
wording, § 616 applies to all service contracts. However, it is contested whether the personal
53 See Staudinger BGB/Richardi/Fischinger, §615 RGB
und Schlichtungsrecht (C.H.Beck 2006), §§ 14 et seq.
mn. 242 et seq.; further Otto, Arbeitskampf-
1 BAG 22.1.2009 - 6 AZR 78/08, NZA 2009, 735 mn. 22; see > § 615 mn 2
2 BAG 22.1.2009 - 6 AZR 78/08, NZA 2009, 735 mn. 22.
3 Richardi, Leistungsstörungen und Haftung im Arbeitsverhältnis nach dem
rungsgesetz, NZA 2002, 1004, 1007.
4 BAG 18.1.2001 - 6 AZR 492/99, NZA 2002, 47, 48.
Schuldrechtsmodcrnisie-
5 Palandt BGB/Weidenkaff, § 616 BGB mn. 4.
1106
Sagan/Seiwerth
Temporary hindrance from performing services 4-6 § 616
scope of the provision includes free-lance professionals (e.g. physicians, lawyers, architects
etc.). However, the consequences of the opposing views are mitigated by three aspects:
(i) State-specified fee regulations for free-lance professions (e.g. GOÄ, RVG, HOAI etc.)
regularly require that the agreed services have actually been provided in order for the
remuneration claim to arise, (ii) The 1st St. presupposes that the service provider is only
prevented from performing services for a relatively short period of time. Consequently, in the
case of a one-off or short-term service, the period during which the remuneration is to be
continued in accordance with the 1st St. is shortened.6 7 (iii) The application of § 616 may be
tacitly excluded by the parties to the service contract.8 With regard to employment contracts,
§616 is not applicable if flexible working hours have been agreed and the employee can
essentially determine the working time himself.9
B. Context
§ 616 was among the most controversial provisions in the discussion on the initial version 4
of the BGB in the 19th century7. It sparked a dispute about how much social policy the BGB
should contain.10 The consultations lead to a compromise. On the one hand, a claim for
remuneration should exist in the event of prevention on personal grounds. On the other
hand, the risk of sickness or accidents should not be imposed on the party entitled to services
or employer (see § 615 2nd St.). This risk was to be borne by the social security system. The
present wording of § 615 corresponds to the original version of 1896/1900. Former amend¬
ments have been incorporated into the Entgeltfortzahlungsgesetz (EFZG; Continued Remu¬
neration Act).11
C. Explanation
I. Personal reason
The 1st St. presupposes that the service provider is prevented from performing services by 5
a personal reason. Thus, the 1st St. does not apply to objective obstacles to the provision of
the agreed services. Personal reasons arise from the individual sphere of the employee (e.g.
illness; medical appointment; death of a family member; wedding).12 Objective obstacles are
e.g. road closures, failure of public transport, severe weather conditions.13 The decisive
difference is that objective obstacles also prevent other service providers from performing
the agreed services, whereas personal reasons only affect a single service provider.14
II. Relatively trivial period of time
The criterion of a relatively trivial period of time refers to the ratio between the agreed 6
period during which services are to be provided and the period of personal hindrance. Past
periods during which the service provider was already prevented from delivering services and
6 In the affirmative: Staudinger BGB/Oetker, §616 BGB mn. 30; ErfK Arbeitsrecht/Preis §616 BGB
mn. 2; Palandt BGB/Weidenkaff, §616 BGB mn. 1; to the contrary: Esser/Weycrs, Schuldrecht Beson¬
derer Teil, Band I (8th edn, C.F. Müller 1998), § 29(2) mn. 3; BeckOK BGB/Fuchs/Baumgärtner, § 616
BGB mn. 2.
7 Medicus/Lorenz, Schuldrecht II (17th edn, C.H.Beck 2014), mn. 643.
8 BGH 6.4.1995 - VII ZR 36/94, NJW 1995, 2629.
9 See BAG 22.1.2009 - 6 AZR 78/08, NZA 2009, 735 mn. 23.
10 See Fuchs, Zivilrecht und Sozialrecht (C.H.Beck 1992), p. 52 et seq.
11 Staudinger BGB/Oetker, § 616 BGB mn. 170 et seq.
12 MuKo BGB/Henssler, § 616 BGB mn. 20 et seq.
13 BAG 8.12.1982 - 4 AZR 134/80, AP § 616 BGB No. 58.
14 ErfK Arbeitsrecht/Preis, § 616 BGB mn. 3, for more examples.
Sagan/Seiwerth
1107
§617 Division 8. Particular types of obligations
expected periods of future services must be considered. In addition, all circumstances of the
individual case must be taken into account.15 In the case o a permanen emp oyment
contract, five days during which the employee cares for a sick cii are a re a ivey nvia
period.16 * For service providers who are not employees, six weeks shou e e u imaie in31^
of a relatively trivial period in case of sickness (§ 3(1) Is1 St. EFZG e contrario).^ If the
hindrance lasts for longer than a relatively trivial period, the 1st St. does not app y, not even
to a part of the hindrance which would be relatively trivial.18 19 To successive, re ative y trivial
periods, the 1st St. can apply repeatedly, even if the total duration is not trivial in sum.
III. Fault
7 The 1st St. requires that the personal obstacle occurred without fault of the service
provider. However, causing a personal impediment is not a breach of obligations arising
from the service contract (in the sense of § 280(1) 1st St.). Thus, § 276 is not applicable.20
Rather, it must be asked whether the service provider unreasonably neglected his own
interests in the given situation.21 In this sense, traffic accidents and accidents at work are
caused with fault if objective obligations were breached in a grossly negligent manner (e.g.
red light violation; driving without a seatbelt etc.).22 Sport accidents are caused with fault
only if the sport practised is particularly dangerous (dangerous: motocross;23 hang gliding, if
practiced without exercise or adequate equipment;24 not dangerous: soccer25).26
IV. Legal consequences
8 Pursuant to the 1st St., the senice provider retains the claim to remuneration as if the
services had been rendered. The benefits paid by the statutory health or accident insurance
are deducted from this amount (2nd St.). However, the deduction is only of minor importance
in the area of labour law. Regularly, employees are not entitled to insurance benefits if they
are prevented from work for a relatively trivial period.27
§617
Duty of medical care
(1) 1 If, in a permanent service relationship
that completely or mainly takes up the eco¬
nomic activity of the person obliged to per¬
form services, the person obliged is inte¬
grated into the joint household, then the
person entitled to services must, in the event
of illness, grant him the necessary food and
§617
Pflicht zur Kranken Fürsorge
(1) ‘1st bei einem dauernden Dienstverhält-
nis, welches die Erwerbstätigkeit des Ver¬
pflichteten vollständig oder hauptsächlich in
Anspruch nimmt, der Verpflichtete in die
häusliche Gemeinschaft aufgenommen, so
hat der Dienstberechtigte ihm im Falle der
Erkrankung die erforderliche Verpflegung
15 See MüKo BGB/Henssler, § 616 BGB mn. 32, 59 et seq.
16 BAG 19.4.1978 - 5 AZR 834/76, NJW 1978, 2316.
•’ Disputed, see HWK Arbeitsrecht/Krause, § 616 BGB mn. 40-41; ErfK Arbeitsrecht/Preis. § 616 BGB
,H BAG 18.12.1959 - GS 8/58, AP § 616 BGB No. 22; Staudinopr Rrn/r> ,i ,
critical Greiner, Familienfreundliches Arbeitsrecht?, NZA 2007, 490 492 ' e cr’ BGB mn. 96,
19 MüKo BGB/Henssler, § 6)6 BGB mn. 60.
20 HK-BGB/Schreiber, § 616 BGB mn. 6.
21 BAG 19.10.1983 - 5 AZR 195/81, NJW 1984, 1706, 1707.
22 BAG 7.10.1981 - 5 AZR 1113/79, NJW 1982, 1013. For more Hm,;i
§ 3 EFZG mn. 25 et seq. ' dc,;"ls w ErtK Ärbeitsrecht/Reinhard.
21 BAG 25.2.1972 - 5 AZR 471/71, NJW 1972, 1215.
24 BAG 7.10.1981 - 5 AZR 338/79, NJW 1982, 1014.
25 BAG 21.1.1976 - 5 AZR 593/74, NJW 1976, 1367.
26 Jauernig BGB/Mansel, § 616 BGB mn. 9.
27 ErfK Arbeitsrecht/Preis, § 616 BGB mn. 12; HK-BGB/Schreiber § f>
mn. 7,
1108
Sagan/Seiwerth
Duty of medical care
1-2 §617
medical treatment up to a duration of six
weeks, but not beyond termination of his
service relationship, unless the illness was
caused by the person obliged by intent or
gross negligence. 2The provision of food and
medical treatment may be granted by the
admission of the person obliged to a hospital.
3The costs may be credited against the remu¬
neration owed for the period of illness. 4lf the
service relationship is terminated by the per¬
son entitled to services under § 626 on the
grounds of illness, then termination of the
employment caused by this is not taken into
account.
(2) The duty of the person entitled to
services does not arise if provision has been
made for the food and medical treatment by
an insurance company or a public health
institution.
und ärztliche Behandlung bis zur Dauer von
sechs Wochen, jedoch nicht über die Beendi¬
gung des Dienstverhältnisses hinaus, zu ge¬
währen, sofern nicht die Erkrankung von
dem Verpflichteten vorsätzlich oder durch
grobe Fahrlässigkeit herbeigeführt worden
ist. 2Die Verpflegung und ärztliche Behand¬
lung kann durch Aufnahme des Verpflichte¬
ten in eine Krankenanstalt gewährt werden.
3Die Kosten können auf die für die Zeit der
Erkrankung geschuldete Vergütung angerech¬
net werden. 4Wird das Dienstverhältnis we¬
gen der Erkrankung von dem Dienstberech¬
tigten nach § 626 gekündigt, so bleibt die
dadurch herbeigeführte Beendigung des
Dienstverhältnisses außer Betracht.
(2) Die Verpflichtung des Dienstberechtig¬
ten tritt nicht ein, wenn für die Verpflegung
und ärztliche Behandlung durch eine Versiche¬
rung oder durch eine Einrichtung der öffentli¬
chen Krankenpflege Vorsorge getroffen ist.
A. Function
§ 617 specifies the duty of care which applies to all permanent service relationships.1 Its 1
main field of application were employment contracts. § 617 is one of the few provisions in
the BGB addressing social aspects of labour. However, the significance of § 617 was severely
limited after laws on social security protection were extended beyond and independent of the
BGB.* 2 Nowadays, private or statutory health insurance is mandatory for all employees (see
§5(1) No. 13 SGB V). Thus, there is no longer a pressing social need for the - rather limited
- duty stipulated in § 617, which only applies if the service provider or employee is integrated
into the joint household (Sub. 1 1st St.). Even in this case, the duty of medical care will
normally be excluded according to Sub. 2.
B. Explanation
A service relationship is permanent if (i) a long-term relationship has been agreed (§ 620 2
(1)) or (ii) a long-term relationship is intended or achieved in case the contract was
concluded for an indefinite period.3 The criterion of a joint household is not limited to the
household of the party entitled to services; it can also exist within a nursing home.4 The
illness must have occurred after starting work and being integrated into the joint house¬
hold. Intent and gross negligence with regard to of one’s own interests5 precludes the claim
(Sub. 1 1st St.).
‘See * § 611 mn. 12-13.
2 See BeckOGK BGB/Witschcn, § 617 BGB mn. 40 et seq.
3 See ► § 627 mn. 3.
4 See BAG 8.6.1955 - 2 AZR 200/54, MDR 1955, 648.
5 See * § 616 mn. 7.
Sagan/Seiwerth
1109
§ 618 1-2
Division 8. Particular types of obligations
§618
Duty to undertake protective
measures
(1) The person entitled to services must
furnish and maintain premises, devices and
equipment that he must provide for perfor¬
mance of the senices in such a way and must
arrange services that must be undertaken on
his order or under his supervision in such a
way that the person obliged to perform ser¬
vices is protected against danger to life and
health to the extent that the nature of the
senices permits.
(2) If the person obliged has been inte¬
grated into the common household, then the
person entitled to senices must provide the
installations and make the arrangements,
with regard to the living and sleeping space,
the provision of food and work and leisure
time, that are required with a view to the
health, morality' and religion of the person
obliged.
(3) If the person entitled to services fails to
fulfil the duties it has with regard to the life
and the health of the person obliged, then the
provisions of §§ 842 to 846 governing torts
apply with the necessary modifications to his
duty to provide damages.
§«18
Pflicht zu Schutzmaßnahmen
(1) Der Dienstbercchtigte hat Räume, Vor¬
richtungen oder Gerätschaften, die er zur
Verrichtung der Dienste zu beschaffen hat,
so einzurichten und zu unterhalten und
Dienstleistungen, die unter seiner Anord¬
nung oder seiner Leitung vorzunehmen sind,
so zu regeln, dass der Verpflichtete gegen
Gefahr für Leben und Gesundheit soweit ge¬
schützt ist, als die Natur der Dienstleistung es
gestattet.
(2) Ist der Verpflichtete in die häusliche
Gemeinschaft aufgenommen, so hat der
Dienstberechtigte in Ansehung des Wohn-
und Schlafraums, der Verpflegung sowie der
Arbeits- und Erholungszeit diejenigen Ein¬
richtungen und Anordnungen zu treffen, wel¬
che mit Rücksicht auf die Gesundheit, die
Sittlichkeit und die Religion des Verpflichte¬
ten erforderlich sind.
(3) Erfüllt der Dienstberechtigte die ihm in
Ansehung des Lebens und der Gesundheit des
Verpflichteten obliegenden Verpflichtungen
nicht, so finden auf seine Verpflichtung zum
Schadensersatz die für unerlaubte Handlun¬
gen geltenden Vorschriften der §§ 842 bis 846
entsprechende Anwendung.
A. Function
I. Purpose
1 §618 expresses a collateral obligation of the party entitled to services or employer.1
It exclusively protects the life and health of the service provider or employee. The
regulation contains neither a claim to averting danger to property nor to compensation
of damages.
II. Scope of application
2 § 618 applies to all service and employment relationships (§§ 611, 61 la) irrespective of
their duration and including temporary agency workers? Although this provision does not
apply to public officials(Bearnte), the duty of care in public law places no lesser demands on
the pubhc employer? In addition, the BGH applies § 618 to contracts to produce a work
(§§ 631 et seq.)? Similar to § 618 are §tj 62 HGB; 14 SeeArbG; 12 HGB P
1 BAG 10.3.1976 - 5 AZR 34/75: DB 1976, «27. '
2 BeckOGK BGB/Witschen, § 618 BGB mn. 69.
3 BVerwG 13.9.1984 - 2 C 33/82, NJW 1985, 876, 877,
4 BGH 15.6.1971 - Vi ZR 262/69, NJW 1971, 1931; for a critical 1C-
Werkbestellers nach Dienstleistungsrecht gem den 61«, 619 B( B * *|7<iumiSCC cwcr’ 1>lc Haltung des
• l ^o3, 336.
1110
Sagan/Seiwerth
Duty to undertake protective measures
3-6 §618
B. Context
I. Historical
According to the understanding of the historical legislator of 1896, § 242 establishes a 3
collateral duty of protection. This duty would oblige the party entitled to services, for
example, to provide equipment in a proper and safe condition. However, the historical
legislator considered it necessary to explicitly regulate the collateral obligation to protect
health and safety with regard to the sendee contract.3
II. Legal
§ 618 is a provision of private law, which, however, is closely linked to the public laws on 4
health and safety at work.5 6 In contrast to the public laws on health and safety, which are
monitored and enforced by State authorities, the service provider - or more frequently the
employee - must enforce compliance with § 618.7 However, public health and safety
regulations indirectly determine the collateral duties (duty of care) of the party entitled to
sendees in private law.8 The public rules thus have a double effect. On the one hand, they
apply to the relationship between the State and individual. On the other hand, they
determine, if appropriate, the content of the collateral obligations of private parties to a
sendee or employment contract.9 Against this background, § 618 is a link between public law
and private contractual duties.
Regarding employment relations, the most important public regulations on health and 5
safety are the Arbeitsschutzgesetz (ArbSchG; Work Safety Act10) and several directives like
the Arbeitsstättenverordnung (ArbStättV; Workplace Ordinance11), which are inherent ele¬
ments of the collateral duties specified in § 618.12 For example, § 5(1) ArbStättV obliges the
employer to take measures to protect non-smoking employees from the health risks of
tobacco smoke (e.g. ventilation; smoking ban). This obligation is monitored by public
authorities. In addition, according to § 618, employees can require their employer to comply
with the public law obligations under § 5(1) ArbStättV and enforce measures to protect
against tobacco smoke.13
C. Explanation
I. Definitions
Sub. 1 is concerned with premises, devices and equipment. The respective duty to undertake 6
protective measures is not limited to the workspace in a narrow sense, but extends to the
entire premises in which the service provider or employee performs the agreed services (e.g.
5 BeckOK BGB/Fuchs/Baumgartner, § 618 BGB mn. 1.
6 For a comprehensive list of regulations of public health and safety at work see BeckOGK BGB/
Witschen, § 618 BGB mn. 34 et seq.
7 See for the system of health and safety at work legislation Staudinger BGB/Oetker, § 618 BGB mn. 21
et seq.; ErfK Arbeitsrecht/Wank § 618 BGB mn. 3 et seq.
8 See BAG 10.3.1976 - 5 AZR 34/75: DB 1976, 827; BeckOK BGB/Fuchs/Baumgartner, §618 BGB
mn. 5; ErfK Arbeitsrecht/Wank, § 618 BGB mn. 4; foundational Nipperdey, in: Die Reichsgerichts-Praxis
im Deutschen Rechtsleben, Vol. 4 (De Gruyter 1929), p. 203 et seq.
9 MuKo BGB/Henssler, §618 BGB mn. 9; Wlotzke, in: Dieterich (cd.), Festschrift für Marie Luise
Hilger und Hermann Stumpf (C.H.Beck 1983), p. 723, 742.
10 An English translation of the ArbSchG is available under www.gesctze-im-intcrnct.de.
11 An English translation of the ArbStättV is available under www.gcsclze-im-internct.de.
12 BAG 10.3.1976 - 5 AZR 34/75: VersR 1977, 147; F.rfK Arbeitsrccht/Wank, § 618 BGB mn. 4 et seq.
13 BAG 19.5.2009 - 9 AZR 241/08, NJW 2009, 2698.
Sagan/Seiwerth 1111
§ 619 1 Division 8. Particular types of obligations
asbestos risk in an office building).14 The duty also applies to services or work performed
outdoors (e.g. construction site, garden).15 Devices and equipment means, for example,
machinery, tools, motor vehicles, and working materials, including the corresponding health
and safety risks due to temperature, light, noise and vibrations.16 The duty to arrange
services requires compliance with (public) accident prevention regulations and, for example,
the provision of protective clothing.17 It continues to apply if the service provider or
employee performs the agreed services or work on the premises of a third party.18 The
requirement of integration into a common household laid down in Sub. 2 has the same
meaning as the term joint household in § 617(2).19 In this case, the ArbSchG does not apply
(§ 1(2) ArbSchG). Sub. 2 establishes a duty of care which extends beyond the provision of
services, but applies only to the legal interests listed therein, namely health, morality and
religion.20
IL Consequences of breach
7 In the event of a breach of an obligation specified in § 618, the service provider or
employee is entitled to the following claims: (i) a right to fulfil the obligations provided for in
§ 618; (ii) a right to refuse performance pursuant to § 273, which may lead to a default in
acceptance of the employer or the party entitled to services (§§615 1st and 2nd St., 293 et
seq.);21 (iii) damages pursuant to §§ 280(1 )(3), 282, if the party entitled to services or
employer is at fault (§§ 276, 278). The amount of the compensation is determined according
to §§ 618(3), 842-846, 253(2). In the case of an accident at work, liability may be excluded
according to §§ 104 et seq. SGB VII.22 In addition, the service provider or employee may
have a right to extraordinary termination (§ 626).
§619
Indispensability of welfare duties
The duties incumbent upon the person
entitled to services under §§ 617 and 618
may not be cancelled or restricted in advance
by contract.
§619
Unabdingbarkeit der
Fürsorgepflichten
Die dem Dienstberechtigten nach den
§§ 617, 618 obliegenden Verpflichtungen
können nicht im Voraus durch Vertrag auf¬
gehoben oder beschränkt werden.
1 §§617-618 regulate the duty of care of the party entitled to services. The legal interest in
health and safety is of course of utmost importance. The parties to the service or employment
contract may therefore neither rescind nor restrict the statutory obligations stipulated in
§§ 617-618. This is expressly regulated in § 619, which, however, does not apply to other
duties of care.1 § 618,2 but not § 6193 can apply to contracts to produce a work (§ 631). After
14 BAG 19.2.1997 - 5 AZR 982/94, NZA 1997, 821.
15 BGH 20.2.1958 - VII ZR 76/57, NJW 1958, 710.
16 Palandt BGB/Weidenkaff, § 618 BGB mn. 3.
17 BAG 19.5.1998 - 9 AZR 307/96, NZA 1999, 38.
18 Palandt BGB/Weidenkaff, § 618 BGB mn. 4.
19 See-► § 617 mn. 2.
20 See BeckOGK BGB/Witschen, § 618 BGB mn. 135 et seq.
21 See -*■ § 615 mn. 6 et seq.
22 See -► § 619a mn. 19.
1 BAG 5.3.1959 - 2 AZR 268/58, NJW 1959, 1555.
2 § 618 mn. 2.
3 BGH 15.6.1971 - VI ZR 262/69, NJW 1971, 1931; see further BeckOGK BGB/Witschen, § 618 BGB
mn. 6.
1112
Sagan/Seiwerth
Burden of proof when the employee is liable 1 § 619a
a breach of a duty of care, the service provider or employee may, within the confines of
public policy (§ 138), waive the claims to fulfilment and to damages (§ 397).4
§ 619a
Burden of proof when the
employee is liable
Contrary to § 280(1), the employee must
only provide the employer with compensa¬
tion for damage arising from the breach of a
duty under the employment relationship if he
is responsible for the breach of duty.
§ 619a
Beweislast bei Haftung des
Arbeitnehmers
Abweichend von § 280 Abs. 1 hat der Ar¬
beitnehmer dem Arbeitgeber Ersatz für den
aus der Verletzung einer Pflicht aus dem
Arbeitsverhältnis entstehenden Schaden nur
zu leisten, wenn er die Pflichtverletzung zu
vertreten hat.
Contents
mn.
A. Function 1
I. Purpose and underlying principle 1
IL Scope of application 2
B. Context 3
C. Explanation 7
I. Principles of inner-business damage distribution 7
II. Employee’s liability for damage to the employer 8
1. Fault 9
a) Intent 10
b) Gross negligence 11
c) Simple negligence 13
d) Slight negligence 14
III. Employee’s liability for damage to third parties 15
IV. Self-inflicted damage 17
V. Employer’s liability for damage to employee 19
VI. Employee’s liability for damage to other employees 20
A. Function
L Purpose and underlying principle
To date, the liability of the employee in the event of damage to the employer is not 1
regulated by statutory law. It is undisputed that in the employment relationship the principle
of restitutio in integrum (§ 249) is no adequate regulation for each minor negligent breach of
duty (§ 280). § 619a regulates only a minor aspect of employee liability, in particular the
distribution of the burden of proof. The material limitation of employee liability, on the other
hand, is based on judge-made principles of the so-called ‘inner-business damage distribution’
(innerbetrieblicher Schadensausgleich).* 1
4 BeckOK BGB/Fuchs/Baumgärtner, § 619 BGB mn. 5; ErfK Arbeitsrecht/Wank, § 619 BGB mn. 2;
Palandt BGB/Weidenkaff, § 619 BGB mn. 1.
1 See BAG 27.9.1994 - GS 1/89, NZA 1994, 1083; BAG 18.1.2007 - 8 AZR 250/06, NZA 2007, 1230;
BAG 28.10.2010 - 8 AZR 418/09, NZA 2011, 345; Otto/Schwarze/Krause, Die Haftung des Arbeitneh¬
mers (DeGruyter 2014).
Sagan/Seiwerth
1113
§ 619a 2-5
Division 8. Particular types of obligations
IL Scope of application
2 § 619a applies to all employment contracts,2 but not to service contracts. The provision is
not a legal basis for claims of the employee or the employer. Rather, within the emp oyment
contract, claims to damages have their legal basis in general in §§ 280 et seq. (contractual
damage liability) and §§ 823 et seq. (tort law). § 619a is a mere deviation from § 280(1)
2nd St. in the event the employer demands compensation from the employee for the breach of
obligations arising from the employment relationship. According to § 619a and contrary to
§ 280(1) 2nd St., the employer bears the burden of proof for the employee s fault. This applies
only to the contractual liability of the employee, because in tort law there is no presumption
comparable to § 280(1) 2nd St.3 § 619a does not apply to the liability of the employer; in this
regard § 280(1) 2nd St. remains applicable.
B. Context
3 When it came into force, the BGB did not contain any explicit liability rules for the
employment relationship. In the course of the discussion about the creation of the BGB, the
Reichstag, however, had already called for a special regulation of the employment relation¬
ship, including the question of liability.4 To date, the German legislator did not answer this
call.
4 The RAG recognised a limitation of liability for employees at the end of the 1930s.5 The
Court limited the employee’s liability in the case of slight negligence and sought to distribute
damages between the employer and the employee appropriately. It also acknowledged the
employee’s claim to indemnity against the employer in case of damage to third parties.
However, the legal basis for these results varied. At first, the RAG referred to an implicit
exclusion of liability in the employment contract.6 In later decisions, it accepted the plea of
an abuse of rights (§ 242);7 referred to collateral duties to care and loyalty;8 and asserted a
(collective) working community formed between the employer and the entire workforce.9 The
reasoning reflects the idea of the employment relationship as a personal status.10 After World
War II, some labour courts11 and the BGH12 continued to adhere to this idea.
5 In 1957, the Grand Panel of the BAG formulated the first concept of inner-business
damage distribution.13 Again, it was founded on the idea of mutual loyalty and the duty of
care, but also considered the operational risk of the employer. However, the Grand Panel
only restricted the liability of employees carrying out perilous work, at which even minor
2 Regarding the disputed application to executive employees (see § 5(3) 2nd St. BetrVG) and employee¬
like persons (see § 12a TVG) BGH 7.10.1969 - VI ZR 223/67, NJW 1970, 34, 34 f.; BGH 25.6.2001 - II ZR
38/99, NJW 2001, 3123, 3124; OSK Haftung des Arbeitnehmers/Schwarze, § 7 Trainees are included
BAG 18.4.2002 - 8 AZR 348/01, NZA 2003, 37, 38 et seq.
3 Oetker, Neues zur Arbeitnehmerhaftung durch § 619a BGB?, BB 2002, 43 44
4 RT-Sten. Ber., 9. Legislaturperiode, IV. Session 1895/97 (5th Vol.), p. 3846; farther 45. Deutscher
Juristentag 1964 and 56. Deutscher Juristentag 1986.
5 At first: RAG 12.6.1937 - RAG 297/36: ARS 30, 1; foundational ArbG Plauen 4 11 1936 ARS 29 62*
see Richardi, Ist es erforderlich, die Verteilung des Schadensrisikos bei unselbständiger Arbeit neu zu
ordnen?, JZ 1986, 796, 797. 6
6 RAG 12.6.1937 - RAG 297/36: ARS 30, 1.
7 RAG 23.11.1938, ARS 34, 357.
8 RAG 18.12.1940, ARS 41, 55.
9 RAG 14.1.1941, ARS 41, 259.
10 See ► § 61 la mn. 5-6.
DB 19e54,L5AMHambUrg 26'4'194? ’ Düsscldorf 7.4.1954 - 4 Sa 5/54:
12 BGH 10.1.1955 - III ZR 153/55, BGHZ 16, 111, 116 et seq.
13 BAG 25.9.1957 - GS 4/56, BAGE 5, 1, 7 et seq.
1114
Sagan/Seiwerth
Burden of proof when the employee is liable 6-7 § 619a
negligence could lead to disproportionate high damage. Subsequent judicature was clearly
marked by the difficult distinction between regular work and work that was prone to
danger. 4 A rational demarcation was hardly possible. The problematic distinction was
abandoned by a ground-breaking decision of the Grand Panel of the BAG in 1994, which
established a firm and partly renewed concept of inner-business damage distribution.14 15
The modernisation of the Law of Obligations16 has not changed the legal situation. The
explanation to the draft bill considered § 276(1) 1st St. as a possible legal basis for the concept
of inner-business damage distribution (‘lower degree of liability ... to be inferred from the
other subject matter ot the obligation’).17 However, both the BAG and large parts of legal
academic writing rightly rejected to this idea.18 § 276 is only concerned with the fault giving
rise to liability, thus with establishing liability, not with the legal consequences of liability;
§ 276 does not permit any distribution of damages between the employer and the employee.
It this provision were the sole basis for the limitation of the liability of the employee, liability
in each individual case would be either totally unrestricted or fully excluded; § 276 would
lead to this overly simplifying dichotomy and rule out any balanced solution of the case at
hand.19 The Modernisation of the Law of Obligations introduced § 619a, which, however,
merely regulates the distribution of the burden of proof, not the distribution of damages.
However, § 619a perpetuated the notion that the BGB is the legal basis applicable to the
liability and compensation of damages between employers and employees.20 As it still does
not contain any explicit rules on this matter, the BGB remains obviously fragmented.21
6
C. Explanation
I. Principles of inner-business damage distribution
The limited liability of employees is based in particular on the following reasons: (i) An 7
unlimited liability of the employee for any negligent violation of a contractual obligation
under the employment contract is unacceptable and incompatible with the fundamental right
to freedom of occupation (Art. 12 GG).22 The legal system must provide laws on the
employment contract, which enable employees to secure their own subsistence; welfare state
benefits are only a subsidiary aid. However, employees cannot reasonably secure their
subsistence if any negligence threatens to destroy their economic existence due to unlimited
liability, (ii) The legislator has not regulated the liability of employees. The law is therefore
incomplete and must be supplemented by the judicature in the light of the general principles
inherent in the legal system.23 (iii) The employer controls the liability risks of the employee
by virtue of organisational authority and the right to issue directives (§ 106 GewO).24 In this
respect, the employment contract differs significantly from other contracts, including other
continuing obligations. Also, the employee’s liability risk is usually disproportionate to the
agreed remuneration. The employment contract cannot prevent the inappropriate distribu¬
tion of risks because the individual employees, as the structurally weaker party to the
14 See BAG 12.2.1985 - 3 AZR 487/80, NZA 1986, 91; Dieterich, Ein Richterleben (BWV 2016), p. 154
et seq. MüArbR/Reichold, § 57 mn. 26.
15 BAG 27.9.1994 - GS 1/89, NZA 1994, 1083.
16 BGBl. I 2001, p. 3883; see BT-Drs. 14/7052 of 9.10.2001, p. 204; Löwisch, Zweifelhafte Folgen des
geplanten Leistungsstörungsrechts für das Arbeitsvertragsrecht, NZA 2001, 465, 466.
17 BT-Drs. 14/6857 of 31.8.2001, p. 48.
18 See MüArbR/Reichold, § 57 mn. 30.
19 Henssler, Arbeitsrecht und Schuldrechtsreform, RdA 2002, 129, 133.
20 BT-Drs. 14/7052 of 9.10.2001, p. 204.
21 ErfK Arbeitsrecht/Preis, § 619a BGB mn. 1.
22 BAG GS 27.9.1994 - GS 1/89, NZA 1994, 1083, 1085 et seq.; see MüArbR/Reichold, § 57 mn. 29.
23 BAG GS 27.9.1994 - GS 1/89, NZA 1994, 1083, 1084; see MüArbR/Reichold, § 57 mn. 27.
24 BAG GS 27^9.1994 - GS 1/89, NZA 1994, 1083, 1085.
Sagan/Seiwerth
1115
§ 619a 8-10 Division 8. Particular types of obligations
contract,25 generally cannot effectively enforce their interests in the negotiations with the
employer, (iv) In the case of the employee’s liability, the employer s abstract usmess ns
must therefore be taken into account in analogous application of § 254 to mitigate t e
employee’s liability.26 According to the controversial opinion of the BAG, t e imite ia i ity
of the employee according to the principles of inner-business damage distribution is of a
mandatory nature.27 In principle, the employee’s liability must not be increased either by an
individual employment contract or a collective agreement.
IL Employee’s liability for damage to the employer
8 The liability of the employee for damages to the employer is limited if the damage
occurred at an operationally induced activity, in contrast to a purely private activity which
is not related to the employment relationship. The employer shall not be burdened with the
general risks of life of the employee. An activity is operationally induced (i) if it is carried out
in the performance of an obligation stipulated in the employment contract, including
complying the directives of the employer (§ 106 GewO); or (ii) if it objectively serves the
interests of the employer.28 In the latter case, the respective activity does not have to be part
of the prime obligations and responsibilities of the employee; the performance of collateral
duties, such as the obligation to avert damage from the employer, is an operationally induced
action.29 The operational induction of an activity does not lapse if the employee carries it out
in breach of duty; otherwise the limitation of the employee’s liability had no scope.30 The
limitation of liability according to the principles of inner-business damage distribution
applies to both contractual and tortious liability of the employee.31
1. Fault
9 The limitation of liability depends on the degree of fault with which the employee has
caused damage to the employer. The degree of fault refers - as is otherwise the case with civil
liability for damages - to the fault in the breach of duty. However, according to the BAG not
the fault in the breach of duty, but the fault of the employee in the resulting damage should
be decisive.32 This eases the liability of the employee more than necessary and is at odds with
general principles of civil liability for damages (see § 280(1) 2nd St.: responsible for the breach
of duty.\ § 823(1): intentionally or negligently ... injures).33
10 a) Intent. In the case of an intentional34 breach of duties, the employee is liable in full.35
The employee may not be released in advance from liability for intention (§ 276(3)).
According to a controversial decision of the BAG, this shall not apply if the intent does not
enclose the caused damage, but only the breach of duties.36 These cases are then to be
handled according to the rules for negligence.
25 -* § 611a mn. 3.
26 BAG GS 27.9.1994 - GS 1/89, NZA 1994, 1083, 1085; see e.g MüArbR/Reirk„w « c no
22 BAG 17.9.1998 - 8 AZR 175/97, NZA 1999, 141, 144; BAG 5.2.2004 - 8 AZR 91/03§ NZA2004 649
650 et seq.; to the contrary (in some cases) ErfK Arbeitsrecht/Preis 6 619a BCR m 11 ’ oa
“BAG 28.10.2010 - 8 AZR 418/08, NZA 2011, 345 (mn. 15). ’ ' U, 94.
29 BAG 28.10.2010 - 8 AZR 418/09, NZA 2011, 345 (mn 15V MiiArkn/o • l i . o
30 BAG 18.4.2002 - 8 AZR 348/01, NZA 2003, 37?Er»AAei tbwph°ld? 57 .
MüArbR/Reichold, § 57 mn. 32. Arbe.tsrecht/Prets, § 619a BGB mn. 12;
31 BAG 12.5.1960 - 2 AZR 78/58, AP BGB § 611 Haftung de« Ark •» l.
Henssler, § 619a BGB mn. 21. 6 Arbelt"ehmers No. 16; MüKo BGB/
32 BAG 18.4.2002 - 8 AZR 348/01, NZA 2003, 37, 40 et sea • RAC no
2011, 345; approvingly e.g. MüKo BGB/Henssler, § 619a BGB mn. 38 °’2°10 " 8 AZR 418/09’ NZA
33 Krause, Geklärte und ungeklärte Probleme der Arbeitnehmerhnfi,.„„ x,r,A ,
MüArbR/Reichold, § 57 mn. 36. 8’ NZA 2003, 577, 582 et seq.;
34 § 276 mn. 8.
35 MüKo BGB/Henssler, § 619a BGB mn. 38; MüArbR/Reichold 8 V7
36 BAG 18.4.2002 - 8 AZR 348/01, NZA 2003, 37, 40 et seq. ’ 8 ' mn’ 36‘
1116
Sagan/Seiwerth
Burden of proof when the employee is liable 11—14 § 619a
b) Gross negligence. An employee acts with gross negligence if he fails to exercise 11
reasonable care to a particularly serious extent and disregards rules of conduct, which must
have been clear to everyone in the present case.37 In this event, the liability of the employee is
generally not limited.38 In exceptional cases, the damage shall to be distributed between the
employee and the employer if the employee’s remuneration is clearly disproportionate to the
risk of damages associated with the employee’s operational activity.39 The BAG has consis¬
tently refused to limit the liability of the employee to a specified amount; in the opinion of
the BAG, the right to stipulate a maximum liability amount remains reserved to the
legislator.40 In practice, however, the BAG has never exceeded the amount of one gross
annual salary.41
The BAG has temporarily acknowledged a counter-exemption from the limitation of 12
liability in cases of gross negligence. If the employee has repeatedly or subjectively inexcu¬
sably violated safety regulations intended to counteract lethal dangers, any alleviation of
liability should be exclude due to this ‘grossest negligence’.42 In a more recent decision, the
BAG accepted that a limitation of the liability of the employee is possible even in the case of
grossest negligence; it was therefore not necessary to distinguish it from gross negligence.43
Thus, the curious case of grossest negligence has become obsolete.44
c) Simple negligence. Simple negligence (einfache Fahrlässigkeit) is deemed to exist if the 13
employee has failed to exercise reasonable care (§ 276(2)) without having committed a
particularly grave failure.45 In this case, the damage is shared between the employee and the
employer. The share is depending of an overall assessment of all circumstances of the case at
hand,46 including (i) the degree of fault; (ii) the risk of damages associated with the
employee's operational activity; (iii) the amount of damage; (iv) the calculated risk and
insurability of the risk; (v) the position of the employee within the business; (vi) the amount
of remuneration, including risk premiums; (vii) the personal circumstances of the em¬
ployee,47 including length of service, age, family circumstances (maintenance obligations),
and (viii) the previous behaviour of the employee.48 Private liability insurance voluntarily
taken out by the employee can only be taken into account if the employer has demanded its
conclusion before hiring.49
d) Slight negligence. In case of slight negligence (leichte Fahrlässigkeit), the employer shall 14
bear the full amount of the damage.50 Minor errors are not significant in comparison to the
operational risks, which shall be borne by the employer.51
37 BGH 11.5.1953 - IV ZR 170/52, NJW 1953, 1139.
38 BAG 23.3.1983 - 7 AZR 391/79, NJW 1983, 1693, 1694.
39 BAG 12.11.1998 - 8 AZR 221/97, NZA 1999, 263, 264 et seq.; BAG 15.11.2001 - 8 AZR 95/01, NZA
2002, 612; see MüArbR/Reichold, § 57 mn. 58.
40 BAG 28.10.2010 - 8 AZR 418/09, NZA 2011, 345 (mn. 25); BAG 15.11.2012 - 8 AZR 705/11, NZA
2013, 640.
41 ErfK Arbeitsrecht/Preis, § 619a BGB mn. 18; e.g. BAG 28.10.2010 - 8 AZR 418/09, NZA 2011, 345
mn. 9 et seq.
42 BAG 25.9.1997 - 8 AZR 288/96, NZA 1998, 310, 312.
43 BAG 28.10.2010 - 8 AZR 418/09, NZA 2011, 345 (mn. 23).
44 See OSK Haftung des Arbeitnehmers/Schwarze, § 9 mn. 16.
45 See MüKo BGB/Henssler, § 619a BGB mn. 37; ErfK Arbeitsrecht/Preis, § 619a BGB mn. 16.
46 See OSK Haftung des Arbeitnehmers/Schwarze, § 9 mn. 27 et seq.
47 BAG 18.4.2002 - 8 AZR 348/01, NZA 2003, 37, 38 et seq.; see (especially for the justified criticism of
the criterion of the personal circumstances) e.g. HWK Arbeitsrecht/Krause mn. 36; MüArbR/Reichold
§ 57 mn. 50; Staudinger BGB/Richardi/Fischinger, § 619a BGB mn. 84.
48 BAG 12.10.1989 - 8 AZR 276/88, NZA 1990, 97, 99 et seq.; BAG 28.10.2010 - 8 AZR 418/09, NZA
2011, 345 mn. 18.
49 BAG 28.10.2010 - 8 AZR 418/09, NZA 2011, 345 mn. 29.
50 MüKo BGB/Henssler, § 619a BGB mn. 35.
51 BAG 8.12.1971 - IV ZR 102/70, NJW 1972, 440, 441.
Sagan/Seiwerth
1117
§ 619a 15-16
Division 8. Particular types of obligations
III. Employee’s liability for damage to third parties
15 A distinction is to be drawn if an employee harms a third party. In the first case, the third
party is entitled to its own claims against the employer (§§ 280, 278; 831). If the employer is
held liable by the third party, he will then regular seek redress against the employee (§ 280
(1); possibly §§ 426 and 840(1)). The principles of inner-business damage distribution apply
here if the employee has injured the third party in an operationally-induced activity.52
Within the internal relationship between the employee and the employer, the employer
must bear the part of the damage he would have suffered if the damage caused by the
employee had been caused not to the third party but to the employer. Consequently, for
example, the employer is not entitled to redress against the employee if the employee has
acted with slight negligence.
16 In the second case, the third party asserts claims against the employee. Regularly, the
third party is entitled to claims for damages against the employee under tort law (in
particular § 823(1)) and in exceptional cases also arising from a contract (§§ 280 et seq.).
With regard to claims of the third party, the employee cannot invoke a limitation of
liability; it applies exclusively in the contractual relationship between the employee and the
employer?3 This follows from the general principle that the debtor cannot raise objections
against the creditor arising from a contract with a third party (in this case the employer).54
Even if the employer is insolvent and, as a result, the employee cannot assert an appropriate
recourse against the employer, the principles of inner-business damage distribution do not
affect the claims of the third party against the employee. The insolvency of the employer
does not alter the decisive circumstance that only the employer, not the injured third party,
has the right to issue directives to the employee (§ 106 GewO).55 This justifies the limited
liability of the employee only in relation to the employer. Nonetheless, the principles of
inner-business damage distribution must also be applied to the second case in order to be
effective. The employee’s unlimited liability in the (external) relationship with the injured
third party must be compensated by an (internal) compensation claim of the employee
against the employer. In detail, the employee is entitled to an indemnity claim against the
employer, which does not result from the employer’s duty of care,56 but from an analogous
application of § 670 BGB in connection with § 257.57 The employee may require the
employer to indemnify him from the share of the damage the employer would have borne
if the damage caused by the employee would not have harmed the third party, but by the
employer.58 For example, the employer would have to indemnify the employee in full from
liability vis-a-vis the third party if the employee caused damage to the third party with
slight negligence. If the employee assigns the claim for indemnification against the
employer to the injured third party, the claim converts into a claim for payment in the
corresponding amount.59 This also applies if the third party carries out compulsory
52 OSK Haftung des Arbeitnehmers/Schwarze, § 16 mn. 24 et seq.; see BAG 10 4 1985 - 8 Sa 105/84
NZA 1989, 181.
53 BGH 19.9.1989 - VI ZR 349/88, NJW 1989, 3273; BGH 21.12.1993 - VI ZR 103/93, NJW 1994, 852;
see OSK Haftung des Arbeitnehmers/Schwarze, § 16 mn. 20.
54 BGH 19.9.1989 - VI ZR 349/88, NJW 1989, 3273, 3274.
«BGH 21.12.1993 - VI ZR 103/93, NJW 1994, 852, 854 et seq. See further OSK Haftung des
Arbeitnehmers/Schwarze, § 16 mn. 20, § 17 mn. 2.
56 To the contrary BAG 23.6.1988 - 8 AZR 300/85, NJW 1989, 854, 854.
57 ErfK Arbeitsrecht/Preis § 619a BGB mn. 26; OSK Haftung des Arbeitnehmers/Schwarze S 16
mn. 25; see BAG 28.10.2010 - 8 AZR 647/09, NZA 2011, 406 (mn. 25 et seq.). Hcrb,öcnwdrze’ 9
58 ErfK Arbeitsrecht/Preis, § 619a BGB mn. 26; see BAG 18.1.1966 - 1 AZR 247/61 NTW iQ67 71«.
BAG 10.4.1985 - 8 Sa 105/84, NZA 1989, 181. ’ "JVV iy0/’
59 BAG 18.1.1966 - 1 AZR 247/63, NJW 1967, 238; BGH 24.11.1975 - II ZR 53/74 NIW 1976 1402-
OSK Haftung des Arbeitnehmers/Schwarze, § 16 mn. 40. ’ ,W 1976> 1402,
1118
Sagan/Seiwerth
Burden of proof when the employee is liable 17-19 § 619a
enforcement into the employee’s assets and the claim for indemnification is attached and
transferred to the third party for collection (§§ 829, 835 ZPO).60
IV. Self-inflicted damage
If the employee causes damage to himself while performing work owed under the 17
employment contract, he may be entitled to compensation from the employer. A typical
situation is that the employee’s vehicle is damaged while it is used to fulfil contractual
obligations ot the employee.61 If the employer is at fault in the damage, he is liable
according to §§ 280 et seq. However, the law is incomplete because it does not provide for
rules in the event that the employer is not at fault. § 670 is not (directly) applicable,
because it requires a gratuitous mandate (§ 662). In addition, according to its wording
§ 670 regulates the reimbursement of (voluntary) expenses, not the compensation of
(involuntary) damages. Nonetheless, in analogous application of § 670, the employee is
granted, within narrow limits, a claim for compensation against the employer in the event
ot self-inflicted damage.62
The claim only applies to property damage, not to personal injury.63 The damage must 18
have arisen from the employer’s operational risk, not the general life risk of the employee.64
According to the Grand Panel of the BAG, the damage must not have been expected
according to the type of business or the work owed.65 A further exception applies, if the
risk is borne by the employee according to the contractual distribution of risk, i.e. the
employee receives a special remuneration in consideration of the respective risk (e.g. dirty-
work bonus).66 If the employee is at fault for the damage, this must be set off from the claim
(§ 254 by analogy).67 However, the principles of internal damage compensation also apply in
this respect.68 Thus, no setoff applies if the employee acted only with slight negligence.
V. Employer’s liability for damage to employee
The employer is generally liable to the employee in the event of culpable breach of 19
collateral obligations (§§ 280(1), 241(2), 611a).69 In the case of personal injuries, however,
this liability is almost completely replaced by provisions of the law on statutory accident
insurance (SGB VII). In general, the civil liability of the employer for occupational accidents
is excluded (§ 104(1) SGB VII). In turn, the employee has claims to medical treatment and
rehabilitation and, in certain circumstances, to cash benefits against the appropriate profes¬
sional association (Berufsgenossenschaft), the body responsible for statutory accident insur¬
ance (§§ 26 et seq. SGB VII). These benefits are financed exclusively by the employers’
compulsory contributions to the statutory accident insurance (§ 150 SGB VII). Although the
statutory accident insurance does not pay compensation for pain and suffering, the employ-
60 BGH 24.11.1975 - II ZR 53/74, NJW 1976, 1402; ErfK Arbeitsrecht/Preis, § 619a BGB mn. 26; OSK
Haftung des Arbeitnehmers/Schwarze, § 16 mn. 40.
61 BAG 22.6.2011 - 8 AZR 102/10, NZA 2012, 91.
62 BAG 28.10.2010 - 8 AZR 647/09, NZA 2011, 406 (mn. 25 et seq.).
63 Personal injuries at work are in general even if self-inflicted covered by the statutory accident
insurance (§§ 2(1) mn. 1; 8; 26 et seq. SGB VII); see Krämer/Seiwerth, Der Arbeitsunfall, JuS 2013, 203.
64 BAG 22.3.2018 - 8 AZR 779/16 NZA 2018, 1216 (mn. 60 et seq.); OSK Haftung des Arbeitnehmers/
Schwarze, § 27 mn. 18 et seq.
65 BAG 10.11.1961 - GS 1/60, NJW 1962, 411; critical OSK Haftung des Arbeitnehmers/Schwarze § 27
mn. 16 et seq.
66 See BAG 20.4.1989 - 8 AZR 632/87, NZA 1990, 27; ErfK Arbeitsrecht/Preis, § 619a BGB mn. 88 et
seq.; OSK Haftung des Arbeitnehmers/Schwarze, § 27 mn. 30 et seq.
67 BAG 23.11.2006 - 8 AZR 701/05, NZA 2007, 870 mn. 18; see BAG 8.5.1980 - 3 AZR 82/79, NJW
1981, 702, 702 et seq.
68 BAG 22.6.2011 - 8 AZR 102/10, NZA 2012, 91 (mn. 35-36).
69 The respective intent must relate to the cause of damage: BAG 21.12.2017 - 8 AZR 853/16, NJW
2018, 1835.
Sagan/Seiwerth
1119
§ 620 1-2 Division 8, Particular types of obligations
i pr remains liable if (i) he has
er’s liability according to § 253 is also excluded.70 The emp oy , on tfoe employee’s
caused the work accident intentionally71 or (ii) if the acciden
way to work according to § 8(2) Nos 1-4 SGB VII (§ 104(1) S
VI. Employee’s liability for damage to other employees
20 If an employee harms another employee of the same business, claims
primarily from tort liability (in particular § 823(1)). But the liability for persona‘ in)U1? 1S
also superseded by the law on statutory accident insurance (SGB V ). ccor m •
SGB VII, the exclusion of civil liability in § 104 SGB VII applies to t e c aims e een
employees of the same business and employees of different employers worang a a join site
(§ 106(3) SGB VII; e.g. joint construction site). However, liability for infringement of
property rights remains unaffected.
§620
Termination of services
relationship
(1) The service relationship ends at the end
of the period of time for which it has been
entered into.
(2) If the duration of the service relation¬
ship neither is specified nor may be inferred
from the nature or the purpose of the ser¬
vices, then either party may terminate the
service relationship under the provisions of
§§ 621 to 623.
(3) The Part-Time Work and Fixed-Term
Employment Act governs employment con¬
tracts entered into for a specified period of
time.
§620
Beendigung des
Dienstverhältnisses
(1) Das Dienstverhältnis endigt mit dem
Ablauf der Zeit, für die es eingegangen ist.
(2) Ist die Dauer des Dienstverhältnisses
weder bestimmt noch aus der Beschaffenheit
oder dem Zwecke der Dienste zu entnehmen,
so kann jeder Teil das Dienstverhältnis nach
Maßgabe der §§ 621 bis 623 kündigen.
(3) Für Arbeitsverträge, die auf bestimmte
Zeit abgeschlossen werden, gilt das Teilzeit-
und Befristungsgesetz.
A. Function
I. Purpose
1 In general, a continuing obligation ends at the end of the period for which it was entered
into. Sub. 1 expresses this general principle for the service contract (§611). It is for the
contracting parties to decide whether and for what time period the service contract is limited.
In the absence of an agreement on the time limit, the service contract is subject to the right of
ordinary termination in accordance with Sub. 2; for the conditions of ordinary termination
the provision refers to §§ 621-623. However, if a fixed-term contract is an employment
contract (§ 611a), the Teilzeit- und Befristungsgesetz (TzBfG; Part-Time Work and Fixed-
Term Employment Act) applies pursuant to Sub. 3.
II. Scope of application
2 Subs 2 and 3 apply to all service contracts, Sub. 3 to all employment contracts. Therefore,
in general, service contracts with board members of a corporation' or with employee-like
70 BGH 4.6.2009 - III ZR 229/07, NJW 2009, 2956 (mn. 13 et seq )
71 BGH 11.2.2003 - VI ZR 34/02, NJW 2003, 1605, 1606 et seq.
1 APS Kiindigungsrecht/Backhaus, § 620 BGB mn. 2.
1120
Sagan/Seiwerth
Termination of services relationship 3-5 § 620
persons2 (§ 12a TVG) may be limited in time without preconditions. The TzBfG however
implements EU Directive 1999/70/EC. Thus, the personal scope of both Sub. 3 and the
TzBfG is governed by the concept of the employee in European law on fixed-term contracts.3
In the opinion ot the CJEU, the relevant rules may apply to public officials4 and, in certain
circumstances, to board members of a corporation.5
B. Context
Initially, § 620 consisted only of the first two paragraphs. In 1951 the Kündigungsschutz- 3
gesetz (KSchG; Dismissal Protection Act) came into force, which introduced general protec¬
tion against dismissal for all employees after an occupational period of six months (§ 1(1)
KSchG). It would be a circumvention of this protection against dismissal if the employer
could conclude successive fixed-term employment contracts without any restriction. This
created a tension between the protection against dismissal and Sub. 1 since the latter does not
impose any legal requirements regarding the time limit of an employment contract. Against
this background, the Grand Panel of the BAG decided in 1960 that the limitation of the
employment contract requires an objective reason; only under this condition circumvention
of the general protection against dismissal is excluded.6 In the subsequent years, the BAG
developed a rather sophisticated jurisprudence on the reasons which could justify the
conclusion of a fixed-term employment contract.
During the period of incipient mass unemployment in the 1980s, the legislator reduced the 4
requirements for fixed-term employment contracts. In order to promote the conclusion of
employment contracts, the Beschäftigungsförderungsgesetz7 (Employment Promotion Act)
made it possible to conclude fixed-term employment contracts without an objective reason.
This measure was the legislator’s response to the criticism that general protection against
dismissal discouraged employers from concluding (permanent) employment contracts and
thus constituted an obstacle to employment.8 However, the main contradiction between
Sub. 1 on the one hand and the KSchG on the other had not been eliminated, but rather
exacerbated.9
With the enactment of the TzBfG10 in 2001 the law on fixed-term employment contracts 5
was uniformly regulated by statute. The TzBfG in essence codified the former case law of the
BAG on fixed-term contract for an objective reason (§ 14(1) TzBfG) and the previous rules
on fixed term contracts without objective reasons (§ 14(2) TzBfG). At the same time, Sub. 3
was inserted in § 620. For employment contracts, it refers to the TzBfG and thus resolved the
contradiction between Sub. 1 and the KSchG. In addition to § 14(1), (2) there are further
special regulations for the limitation of employment contracts (e.g. §§ 14(2a), (3) TzBfG; 2 et
seq. WissZeitVG).11
2 BAG 15.11.2005 - 9 AZR 626/04, AP BGB §611 Arbeitnehmerähnlichkeit No. 12; MüKo BGB/
Müller-Glöge, § 620 BGB mn. 4.
3 For a detailed account see Brose, in: Preis/Sagan (eds), Europäisches Arbeitsrecht (2nd edn, Otto
Schmidt 2019), § 13 mn. 17 et seq.; see —► § 611 a mn. 3.
4 CJEU C-307/05 Del Cerro Alonso ECLI:EU:C:2007:509; CJEU C-444/09 Gavieiro Gavieiro and Others
ECLI:EU:C:2010:819.
5 See CJEU C-232/09 Danosa ECLI:EU:C:2010:674; CJEU C-229/14 Balkaya ECLI:EU:C:2015:455.
6 BAG 12.10.1960 - GS 1/59, BAGE 10, 65.
7 BGBl. I 1985, p. 710; subsequently replaced by BGBl. I 1996, p. 1461.
8 See Rüthers, Mehr Beschäftigung durch Entrümpelung des Arbeitsrechts?, NJW 2003, 546.
9 Staudinger BGB/Preis, § 620 BGB mn. 12.
10 BGBl. 1 2000, p. 1966.
11 For a detailed account see Kania in: Roller (ed.), Küttner Personalbuch (C.H.Beck 2018), Befristetes
Arbeitsverhältnis; Koch, in: Schaub (ed.), Arbeitsrechts-Handbuch (17,h edn, C.H.Beck 2017), §§ 39-40.
Sagan/Seiwerth
1121
§ 620 6-8
Division 8. Particular types of obligations
C. Explanation
I. Fixed-term employment with objective reason
6 According to § 14(1) TzBfG objective reasons for the conclusion of a fixed-term employ¬
ment contract are in particular, but not limited to: only temporary operational need for work
(No. I);12 employment following occupational training or studies in order to facilitate the
transition into subsequent employment (No. 2);13 substitution of another employee (No. 3);14
nature of the work; e.g. editorial staff in the press and radio, professional sportsmen
(No. 4);15 probation of the employee (No. 5);16 reasons in the person of the employee; e.g.
request of the employee, eligibility for a pension (No. 6);17 employee is remunerated from
budget funds intended for temporary employment (No. 7);18 19 20 and court settlement
(No. 8).19,20
7 The legal review of the objective reason takes the circumstances on the date into account,
on which the fixed-term employment contract was concluded.21 At this point in time, facts
must justify the projection that the need for employment is only of a temporary nature.22 If
this is the case, the agreement on the temporal limitation of the employment contract
remains effective even if the objective reason ceases to apply at a later date.23 In general, the
duration of the fixed-term employment contract does not have to correspond to the
projected duration of the temporary employment need.24
8 If an employee wishes to assert that the temporal limitation of an employment contract is
legally invalid, he must bring legal action before the labour court within three weeks of the
agreed end of the fixed-term employment contract (§ 17 1st St. TzBfG). Thus, in the case of
successive fixed-term employment contracts in general only the last one is subject to judicial
review.25 This raises the question whether and to what extent previous fixed-term employ¬
ment contracts are to be taken into account. According to the CJEU, the national courts have
‘to consider in each case all the circumstances at issue, taking account, in particular, of the
number of successive contracts concluded with the same person or for the purposes of
performing the same work, in order to ensure that fixed-term employment contracts or
relationships, even those ostensibly concluded to meet a need for replacement staff, are not
12 BAG 14.12.2016 - 7 AZR 688/14, NZA 2017, 711.
13 BAG 10.10.2007 - 7 AZR 795/06, NZA 2008, 295; 21.9.2011 - 7 AZR 375/10, NZA 2012, 255.
14 BAG 21.2.2018 - 7 AZR 765/16, NZA 2018, 858.
15 BAG 13.12.2017 - 7 AZR 69/16, AP TzBfG § 14 No. 164; BAG 16.1.2018 - 7 AZR 312/16, NZA
2018,703.
16 BAG 25.10.2017 - 7 AZR 712/15, NZA-RR 2018, 180.
17 BAG 11.2.2015 - 7 AZR 17/13, NZA 2015, 1066; BAG 18.1.2017 - 7 AZR 236/15, NZA 2017, 849.
18 Incompatible with EU law; see CJEU joined cases C-22/13, C-61/13-C-63/13 and C-418/13 Mascolo
ECLI:EU:C:2014:2401 mn. 110; CJEU C-614/15 Popescu ECLI:EU:C:2016:726 mn 62 et sea* BAG
27.10.2010 - 7 AZR 485/09 (A), NZA-RR 2011,272. ’
19 BAG 21.3.2017 - 7 AZR 369/15, NZA 2017, 706.
20 For a full account see e.g. MüKo BGB/Hesse, § 14 TzBfG mn. 20 et seq.; Staudineer BGB/Preis § 620
BGB mn. 92 et seq. 5
2‘ BAG 24.9.2014 - 7 AZR 987/12, NZA 2015, 301 (mn. 22); ErfK Arbeitsrecht/MüUer-Glöße, § 14
TzBfG mn. 16. ‘
- Staudinger BGB/Preis § 620 BGB mn_ 40 et seq.; see further Loth, Prognoseprinzip und Vertrags-
Kontrolle im befristeten Arbeitsverhaitms (Duncker & Humblot 2015) n 123 et
'346
24 BAG 21.1.2009 - 7 AZR 630/07, NZA 2007, 727 (mn. 10).
25 BAG 18.7.2012 - 7 AZR 443/09, NZA 2012, 1351, 1352 et seq.
1122
Sagan/Seiwerth
Termination of services relationship 9-11 § 620
abused by employers .26 Thus, successive fixed-term employment contracts pertaining to the
same individual workplace must arguably be taken into account even if the employer has
concluded them with different employees. As a consequence, the BAG no longer restricts the
judicial review to the objective reason of the last fixed-term employment contract. It also
examines whether there has been an institutional abuse of rights (§ 242).27 According to the
BAG, such a misuse shall be presumed if the thresholds specified in § 14(2) TzBfG (three
extensions; total duration of two years) are exceeded extensively; abuse is indicated if the total
duration of the employment relationship exceeds 10 years or more than 15 contract exten¬
sions have been agreed.28 However, the CJEU held, that the provision of services over an
uninterrupted period of six years and seven months indicate a permanent staffing need.29
II. Fixed-term employment without objective reason
According to § 14(2) 1st St. TzBfG, an employment contract may be limited to a period of up 9
to two years without an objective reason. Within the total period of two years, the fixed-term
employment contract can be extended up to three times. According to the BAG, an extension is
strictly limited to the prolongation of the existing contract; thus, if any terms and conditions of
employment are altered in the wake of the extension a new employment contract is concluded.30
Due to § 14(2) 2nd St. TzBfG, the term of this contract cannot be fixed without reason on the
grounds of § 14(2) 1st St. TzBfG. According to § 14(2) 2nd St. TzBfG, a temporal limitation
without objective reason is not permissible if a prior employment relationship existed between
the same parties. With regard to the fundamental right of job-seekers to freedom of occupation
(Art. 12 GG), the BVerfG has established that pre-employment is negligible if it was a very long
time ago, of a completely different nature or of very short duration.31
There is no pre-employment if an employment contract is concluded for the first time with 10
an employee who previously worked as a temporary agency worker for the same employer.
However, if several legally and effectively affiliated employers deliberately cooperate in order to
conclude successive fixed-term employment contracts with the same employee in order to
extend the fixed-term relationship beyond the confines of § 14(2) 1st St. TzBfG, this can
constitute an abuse of rights (§ 242). Whether this also applies in case an employer employs on
the legal basis of § 14(2) TzBfG different employees with successive fixed-term employment
contracts at the same workplace is a question, which yet remains to be discussed.
III. Overview: ordinary termination
The right to terminate a service contract, including an employment contract, follows from 11
Sub. 2. The general requirements for the effectiveness of an ordinary termination are in
particular a declaration of termination by the employer or a legal representative; the receipt
of this declaration by the employee (§ 130); compliance with any applicable rules on special
protection against dismissal,32 including the consultation of a works council (§ 102
BetrVG);33 and, in case of a mass redundancy, information and consultation according to
26 CJEU C-586/10 Kücük ECLI:EU:C:2012:39 mn. 40; CJEU C-362/13 Fiamingo and Others ECLEEU:
C:2014:2044 mn. 72; CJEU C-22/13 C-22/13, C-61 /13-C-63/13 and C-418/13 Mascolo ECLI:EU:
C:2014:2401 mn. 102; CJEU C-614/15 Popescu ECLI:EU:C:2016:726 mn. 66.
27 BAG 18.7.2012 - 7 AZR 443/09, NZA 2012, 1351, 1356 et seq.
28 BAG 26.10.2016 - 7 AZR 135/15, NZA 2017, 382 (mn. 28).
29 CJEU C-614/15 Popescu ECLI:EU:C:2016:726 mn. 61; see Sagan, Aktuelle Entwicklungen der
Rechtsprechung im europäischen Arbeits- und Sozialrecht, NZA-Beilage 2018, 47, 51 et seq.
30 BAG 4.12.2013 - 7 AZR 468/12, NZA 2014, 623 (mn. 14); to the contrary Preis, Flexibilität und
Rigorismus im Befristungsrecht, NZA 2005, 714, 716.
31 BVerfG 6.6.2018 - 1 BvL 7/14 a.O., NZA 2018, 774 (mn. 63) effectively overturning BAG 6.4.2011 -
7 AZR 716/09, NZA 2011, 905 (§ 195 by analogy: pre-employment in the last three years); now BAG
23.1.2019 - 7 AZR 733/16, NZA 2019, 700.
32 See -► § 626 mn. 6.
33 See ► § 626 mn. 7.
Sagan/Seiwerth
1123
§ 621 Division 8. Particular types of obligations
§§17 et seq. (implementing EU Directive 98/59/EC). If a notice Per^0^ *s incorrectty
calculated too short, this usually does not render the termination ineffective.
12 According to Sub. 2, termination does not require a specific reason. owever, t e
fundamental right to occupational freedom (Art. 12 GG) requires a minimum egree o
protection of employees from arbitrary dismissals and dismissals based on inappropriate
motives; § 242 has to be interpreted accordingly.35 In addition, within the personal an
operational scope of the KSchG (§1(1) KSchG: length of service of more than six months;
§23(1) KSchG: in principle, business employing regularly more than 10 employees), the
ordinary termination of an employment contract by the employer requires social justifica¬
tion; a socially unjustified termination is ineffective (§ 1(1) KSchG). The grounds for social
justification are limited to the behaviour of the employee, the personal properties of the
employee and pressing operational reasons with regard to the employers business (§ 1(2)
KSchG). These grounds for social justification are interpreted and applied with regard to a
projection of the future development of the employment relationship and to the principle
that termination of the employment contract is the ultimate reaction to the expectation of
future disruptions in the exchange of performances.36
§621
Notice periods for service
relationships
In the case of a service relationship that is
not an employment relationship within the
meaning of § 622, termination is allowed
1. if the remuneration is assessed by days,
on any day to the end of the following day;
2. if the remuneration is assessed by weeks,
at the latest on the first working day of a
week to the end of the following Saturday;
3. if the remuneration is assessed by
months, at the latest by the fifteenth of one
month to the end of the calendar month;
4. if the remuneration is assessed by quar¬
ters or longer periods of time, observing a
notice period of six weeks, to the end of a
calendar quarter;
5. if the remuneration is not assessed by
time periods, at any time; in the case of a
service relationship that completely or mainly
takes up the economic activity of the person
obliged; however, a notice period of two
weeks must be observed.
§621
Kündigungsfristen bei
Dienstverhältnissen
Bei einem Dienstverhältnis, das kein Ar¬
beitsverhältnis im Sinne des § 622 ist, ist die
Kündigung zulässig,
1. wenn die Vergütung nach Tagen bemes¬
sen ist, an jedem Tag für den Ablauf des
folgenden Tages;
2. wenn die Vergütung nach Wochen be¬
messen ist, spätestens am ersten Werktag ei¬
ner Woche für den Ablauf des folgenden
Sonnabends;
3. wenn die Vergütung nach Monaten be¬
messen ist, spätestens am 15. eines Monats
für den Schluss des Kalendermonats;
4. wenn die Vergütung nach Vierteljahren
oder längeren Zeitabschnitten bemessen ist,
unter Einhaltung einer Kündigungsfrist von
sechs Wochen für den Schluss eines Kalender¬
vierteljahrs;
5. wenn die Vergütung nicht nach Zeit¬
abschnitten bemessen ist, jederzeit; bei einem
die Erwerbstätigkeit des Verpflichteten voll¬
ständig oder hauptsächlich in Anspruch neh¬
menden Dienstverhältnis ist jedoch eine Kün¬
digungsfrist von zwei Wochen einzuhalten.
34 See -► § 622 mn. 6.
35 BVerfG 27.1.1998 - 1 BvL 15/87, NZA 1998, 470, 472; BAG 23.4.2009 - 6 AZR 533/08 NZA 2009
1260, 1261; BAG 21.2.2001 - 2 AZR 15/00, NZA 2001, 833; further e e Preis D^k- j 7.7’
Kündigungsschutzgesetzes, NZA 1997, 1256. 8’ Pre'S 34’ Der ^"^ngsschutz des
36 MüKo BGB/Hergen röder, § 1 KSchG mn. 113 et seq.; ErfK Arbeitsrccht/Oetker 6 1 KSchC mn 74
et seq.; Preis, Prinzipien des Kündigungsrechts bei Arbeitsverhältnissen (C H Beck 19871 n i £ •
see -> § 626 mn. 10. ’ 1VÖ/h P’ et secl-’
1124
Sagan/Seiwerth
Notice periods in the case of employment relationships
§622
A. Function
I. Purpose
In principle, the termination of a service contract does not require a reason for termination 1
(§ 620(2)). § 621 merely prescribes periods of notice which are intended to enable the contract¬
ing parties to prepare for the end of their service contract. In addition, the service provider shall
be protected against the immediate cessation of the claim to remuneration (§ 611(1)).1
IL Scope of application
§ 621 stipulates notice periods for the ordinary termination of a service contract (§ 611). It 2
does not apply to employment contracts. In addition, it follows from § 620(2) that § 621 is
only applicable if the duration of the service relationship is not specified and cannot be
inferred from the nature or the purpose of the services.2 Within the confines of § 624, § 621
is mandatory; provisions for the term of the contract may be subject to a legal review
according to § 309 No. 9a.3
B. Explanation
The notice periods set forth in § 621 commence upon receipt of the termination (§ 130). 3
This also applies if the termination is declared prior to the provision of the agreed services.4
The length of the period of notice depends on the period for the assessment of remuneration
(§ 611(1)). §§ 186 et seq. apply to the calculation of the notice periods. However, the notice
period is not a period within which a declaration of intent is to be made or an act of
performance is to be done; thus, § 193 does not apply.5
§622
Notice periods in the case of
employment relationships
(1) The employment relationship of a
wage-earner or a salary-earner (employee)
may be terminated with a notice period of
four weeks to the fifteenth or to the end of a
calendar month.
(2) For notice of termination by the em¬
ployer, the notice period is as follows if the
employment relationship in the business or
the enterprise
1. has lasted for two years, one month to
the end of a calendar month,
2. has lasted for five years, two months to
the end of a calendar month,
§622
Kündigungsfristen bei
Arbeitsverhältnissen
(1) Das Arbeitsverhältnis eines Arbeiters
oder eines Angestellten (Arbeitnehmers)
kann mit einer Frist von vier Wochen zum
Fünfzehnten oder zum Ende eines Kalender¬
monats gekündigt werden.
(2) Für eine Kündigung durch den Arbeit¬
geber beträgt die Kündigungsfrist, wenn das
Arbeitsverhältnis in dem Betrieb oder Unter¬
nehmen
1. zwei Jahre bestanden hat, einen Monat
zum Ende eines Kalendermonats,
2. fünf Jahre bestanden hat, zwei Monate
zum Ende eines Kalendermonats,
’BeckOK BGB/Fuchs/Baumgärtner §621 BGB mn. 1; ErfK Arbeitsrecht/Müller-Glöge, §621 BGB
mn. 1.
2 BGH 4.11.1992 - VIII ZR 235/91, NJW 1993, 326.
3 See BGH 12.2.2009 - III ZR 179/08, NJW 2009, 1334.
4 BAG 25.3.2004 - 2 AZR 324/03, NJW 2004, 3444.
5 ErfK Arbeitsrecht/Müller-Glöge, § 621 BGB mn. 12; see further BGH 17.2.2005 - III ZR 172/04, NJW
2005, 1354; BAG 5.3.1970 - 2 AZR 112/69, NJW 1970, 1470; partially different MüKo BGB/Hesse, § 621
BGB mn. 16; Staudinger BGB/Preis, § 621 BGB mn. 19 et seq.
Sagan/Seiwerth
1125
Division 8. Particular types of obligations
§622 1
3. has lasted for eight years, three months
to the end of a calendar month,
4. has lasted for ten years, four months to
the end of a calendar month,
5. has lasted for twelve years, five months
to the end of a calendar month,
6. has lasted for fifteen years, six months to
the end of a calendar month,
7. has lasted for twenty years, seven months
to the end of a calendar month.
(3) During an agreed probationary period,
at most for the duration of six months, the
employment relationship may be terminated
with a notice period of two weeks.
(4) 'Provisions differing from subsec¬
tions (1) to (3) may be agreed in collective
agreements. 2Within the scope of applicability
of such a collective agreement, the different
collective agreement provisions between em¬
ployers and employees who are not subject to
collective agreements apply if the application
of collective agreements has been agreed be¬
tween them.
(5) 'In an individual contract, shorter no¬
tice periods than those cited in subsection (1)
may be agreed only
1. if an employee is employed to help out
on a temporary basis; this does not apply if
the employment relationship is extended be¬
yond a period of three months;
2. if the employer as a rule employs not
more than 20 employees with the exception of
those employed for their own training and
the notice period does not fall short of four
weeks.
2When the number of employees employed
is determined, part-time employees with reg¬
ular weekly working hours of not more than
20 hours are counted as 0.5 employees and
those working not more than 30 hours are
counted as 0.75 employees. 3The agreement
in an individual contract of longer notice
periods than those stated in subsections (1)
to (3) is unaffected by this.
(6) For notice of termination of employ¬
ment by the employee, no longer notice per¬
iod may be agreed than for notice of termina¬
tion by the employer.
3. adit Jahre bestanden hat, drei Monate
zum Ende eines Kalendermonats,
4. zehn Jahre bestanden hat, vier Monate
zum Ende eines Kalendermonats,
5. zwölf Jahre bestanden hat, fünf Monate
zum Ende eines Kalendermonats,
6. 15 Jahre bestanden hat, sechs Monate
zum Ende eines Kalendermonats,
7. 20 Jahre bestanden hat, sieben Monate
zum Ende eines Kalendermonats.
(3) Während einer vereinbarten Probezeit,
längstens für die Dauer von sechs Monaten,
kann das Arbeitsverhältnis mit einer Frist
von zwei Wochen gekündigt werden.
(4) ‘Von den Absätzen 1 bis 3 abweichende
Regelungen können durch Tarifvertrag ver¬
einbart werden. 2Im Geltungsbereich eines
solchen Tarifvertrags gelten die abweichen¬
den tarifvertraglichen Bestimmungen zwi¬
schen nicht tarifgebundenen Arbeitgebern
und Arbeitnehmern, wenn ihre Anwendung
zwischen ihnen vereinbart ist.
(5) ‘Einzelvertraglich kann eine kürzere als
die in Absatz 1 genannte Kündigungsfrist nur
vereinbart werden,
1. wenn ein Arbeitnehmer zur vorüberge¬
henden Aushilfe eingestellt ist; dies gilt nicht,
wenn das Arbeitsverhältnis über die Zeit von
drei Monaten hinaus fortgesetzt wird;
2. wenn der Arbeitgeber in der Regel nicht
mehr als 20 Arbeitnehmer ausschließlich der
zu ihrer Berufsbildung Beschäftigten beschäf¬
tigt und die Kündigungsfrist vier Wochen
nicht unterschreitet.
2Bei der Feststellung der Zahl der beschäf¬
tigten Arbeitnehmer sind teilzeitbeschäftigte
Arbeitnehmer mit einer regelmäßigen wö¬
chentlichen Arbeitszeit von nicht mehr als
20 Stunden mit 0,5 und nicht mehr als
30 Stunden mit 0,75 zu berücksichtigen. 3Die
einzelvertragliche Vereinbarung längerer als
der in den Absätzen 1 bis 3 genannten Kün¬
digungsfristen bleibt hiervon unberührt.
(6) Für die Kündigung des Arbeitsverhält¬
nisses durch den Arbeitnehmer darf keine
längere Frist vereinbart werden als für die
Kündigung durch den Arbeitgeber.
A. Function
I. Purpose
1 § 622 governs periods of notice for the ordinary termination of employment contracts
(§ 611a) The provision aims to strike a balance between the protection of employees on the
one hand and the interest of employers in flexible employment on the other The legislator
intended to set brief notice periods in the first years of employment in order to promote
1126
Sagan/Seiwerth
Notice periods in the case of employment relationships 2-5 § 622
employment.1 In a similar fashion, the probationary period in Sub. 3 is intended to facilitate
employment.2 The opening clause for collective agreements in Sub. 4 shall accommodate
special circumstances of individual sectors or groups of employees.3
II. Scope of application
In addition to the notice periods specified in § 622, termination of an employment 2
contract by the employer is subject to dismissal protection rules outside the BGB (in
particular the KSchG).4 Special notice periods are regulated in § 29 HAG for homeworkers
and in § 22 BBiG for trainees (see further §§ 169 SGB IX; 19 BEEG; 66 SeeArbG, 113 InsO).
§ 621 applies to service contracts which are not employment contracts.
B. Context
I. Historical
A previous version of § 622 set different periods of notice for ‘blue collar workers 3
(Arbeiter) and ‘white collar’ employees (Angestellte). This distinction was declared uncon¬
stitutional by the BVerfG because of a violation of the general principle of equality (Art. 3(1)
GG).5 In the following, § 622 was reformed in 1993 so that it-in a material sense-no longer
distinguishes between workers and employees.6
IL European
Until it was repealed with effect as of 1 January 2019, the former Sub. 2 2nd St. stated that 4
periods prior to completion of the 25th year of life of the employee were not taken into
account when calculating the duration of notice periods. This was, according to the decision
of the CJEU in Kücükdeveci, an unjustifiable discrimination on grounds of age.7 Subse¬
quently, the BAG decided that Sub. 2 2nd St. was inapplicable as of the expiry of the
implementation period of the EU Framework Equality Directive, i.e. 2 December 2006.8
The BAG expressly rejected a limitation of the retroactive effect on the grounds of legitimate
expectation.9
C. Explanation
I. Notice periods
Sub. 1 stipulates a basic statutory notice period of four weeks, i. e. 28 calendar days. This 5
is the mandatory statutory minimum period of notice, which in general cannot be
abridged.10 If the basic notice period applies, the employment contract can only be
1 BeckOK BGB/Fuchs/Baumgärtner, § 622 BGB mn. 2.
2 BT-Drs. 12/4902 of 11.5.1993, p. 7.
3 BT-Drs. 12/4902 of 11.5.1993, p. 7, 9.
4 See § 620 mn. 10-11.
5 BVerfG 30.5.1990 - 1 BvL 2/83, NZA 1990, 721.
6BGBI. I 1993, p. 1668.
7 CJEU 19.1.2010 - C-555/07 Kücükdevech see Franzen, RIW 2010, 577; Preis/Temming, NZA 2010,
185.
8 BAG 1.9.2010 - 5 AZR 700/09, NZA 2010, 1409. 1410; BAG 9.9.2010 - 2 AZR 714/08, NZA 2011,
343, 345; see also LAG Düsseldorf 17.2.2010 - 12 Sa 131/07, NZA-RR 2010, 240; to the contrary:
Wackerbarth/Kreße, Das Verwerfungsmonopol des BVerfG EuZW 2010, 252.
9 On this point in general: Rosenkranz, ZfPW 2016, 351; Sagan in Preis/Sagan (eds), Europäisches
Arbeitsrecht (2nd edn, Otto Schmidt 2019), § 1 mn. 155 et seq.
10 Jauernig BGB/Mansel, § 622 BGB mn. 2.
Sagan/Seiwerth
1127
§ 623 Division 8. Particular types of obligations
terminated to the 15th or to the end of a calendar month (Sub. 1). However, if a
probationary period has been agreed, the employment contract can e termina e wit a
notice period of two weeks without observing a termination date (Su . pro ationary
period can be agreed in the case of a fixed-term employment contract. or ismissa s o
the employer, the notice period increases depending on the length of service o t e emp oyee
and up to a maximum seven months (Sub. 2). In these cases, the only admissible termina¬
tion date is the end of a calendar month. Notice periods may be abridged or extended by
collective bargaining agreements, including reference clauses* 12 to collective bargaining
contracts, in accordance with Sub. 4. In individual employment contracts, notice periods
may be abridged for employees who are employed temporarily or in a small business
(Sub. 5). In contrast, an extension of the notice period is in general admissible without
restriction (Sub. 5 3rd St.). However, the notice period for termination by the employee must
not exceed the period applicable to the termination by the employer (Sub. 6). This
requirement applies both to deviations in collective and individual contracts.13 If the notice
periods under statutory law, collective agreements and employment contracts differ from
one another, normally the period which is most favourable to the employee shall apply. In
this case, the different regulations are to be compared in the abstract and taking into
account both the duration of the notice period and the permissible termination date.14 To
the calculation of the notice periods §§ 186 et seq. apply, excluding § 193.15
IL Date
6 The effectiveness of an ordinary termination does not require that the date on which the
notice period ends is stated. The indication of an invalidly short notice period can
regularly be interpreted in such a way that the legally correct termination date is meant
(§§ 133, 157). An exception applies in the event that the indicated termination date
according to the discernible will of the party declaring termination is an integral part of
the declaration of termination.16 In this rare case, re-interpretation (§ 140) is inconceiva¬
ble.17 § 4 KSchG does not apply to the employee’s action for failure to comply with the
notice period.18
§623
Written form of termination
Termination of employment by notice of
termination or separation agreement requires
written form to be effective; electronic form
is excluded.
§623
Schriftform der Kündigung
Die Beendigung von Arbeitsverhältnissen
durch Kündigung oder Auflösungsvertrag be¬
dürfen zu ihrer Wirksamkeit der Schriftform;
die elektronische Form ist ausgeschlossen.
12
13
14
BAG 24.1.2008 - 6 AZR 519/07, NZA 2008, 521.
§ 613a mn. 14.
ErfK Arbeitsrecht/Müller-Glöge, § 622 BGB mn. 43.
As to the details see BAG 4.7.2001 - 2 AZR 469/00, NJW 2002, 1363; BAG 29 1 2015 NZA 2015
SSBmn^PS ^“^^5622 BGB mn. 119 et’
§ ozz dGd mn. od et seq. 1 &
15 See -► § 621 mn. 3.
16 BAG 15.12.2005 - 2 AZR 148/05, NJW 2006, 2284 (mn. 27 et seq )
17 BAG 15.12.2005 - 2 AZR 148/05, NJW 2006, 2284 (mn 21 et sea)
” BAG 15.12.2005 - 2 AZR 148/05, NJW 2006, 2284 (mn. 13 et seq.) - BAG 9 9 20in 2 a7R 714/08
NZA 2011, 343 (mn. 12); see however BAG 1.9.2010 - 5 AZR 700/09 N7A tnm ’^1° ~ 2 A^R 7 ’
the former § 622(2), 2^ St.). °/09, NZA 201°- 1409> >410 (regarding
1128
Sagan/Seiwerth
Written form of termination
1-5 § 623
A. Function
I. Purpose
The requirement of written form (§ 126) in § 623 is supposed to serve three functions.1 It 1
esta ishes an unambiguous connection between the declaration and the issuer (function of
i entity). This connection ensures that the content of the termination originates from the
signatory (function of authenticity). Finally, the recipient is able to control who issued the
declaration and whether it is genuine (function of verification).
IL Scope of application
§ 623 applies to the termination of employment contracts (§ 611a) both by the employer 2
and the employee, be it by notice or separation contract. It is not applicable to service
contracts (§ 611). § 623 is mandatory and cannot be set aside by individually or collectively
agreed contracts.2 § 623 applies to the termination of fixed-term employment contracts (see
also § 15(3) TzBiG). No written form is required in case of avoidance of an employment
contract (§§ 119 et seq.)3
B. Explanation
I. Formal requirements
The termination or separation agreement must be signed in accordance with § 126(1).4 If 3
the employer is a GbR (§ 705), in general all partners have to sign the termination or
cancellation agreement. However, it may suffice that the respective document indicates that
the signatory represents the other partners.5
In the case of termination by a representative, the authorisation does not require written 4
form (§ 167(2)). However, the recipient may reject the termination if the authorised
representative does not present a letter of authorisation (§ 174).6 This rule does not apply
to corporate representatives (Organvertreter)-, statutory representatives (Vertreter kraft Ge¬
setzes)-, and authorised signatories within in the meaning of § 49 HGB7 (due to § 15(2) HGB).
In addition, § 174 2nd St. applies to staff managers who are appointed by the employer to a
position that is regularly concerned with giving notice of termination.8
IL Reason
In principle, the declaration does not have to indicate a reason for the termination of the 5
employment contract. However, a requirement to indicate the grounds for the termination
may arise from special provisions (e.g. §§ 22(3); 26 BBiG; 9(3) MuSchG; provision in a
collective or individual agreement).
1 BAG 17.12.2015 - 6 AZR 709/14, NZA 2016, 361 (mn. 27). For the legislation process see BT-Drs. 14/
626 of 23.3.1999, p. 11 and 14.
2 BAG 17.12.2015 - 6 AZR 709/14, NZA 2016, 361 (mn. 28).
3 See Preis/Gotthardt, Schriftformerfordernis für Kündigungen, Aufhebungsverträge und Befristungen
nach § 623 BGB, NZA 2000, 348, 350.
4 See BAG 20.9.2006 - 6 AZR 82/06, NZA 2007, 377 (mn. 72); BAG 24.1.2008 - 6 AZR 519/07, NZA
2008, 521 (mn. 11).
5 BAG 28.11.2007 - 6 AZR 1108/06, NZA 2008, 348 (mn. 18 et seq.).
6 As to the details see: Preis/Lukes, Die Zurückweisung nach § 174 BGB, JA 2015, 900.
7 BAG 11.7.1991 - 2 AZR 107/91, NZA 1992, 449, 450.
8 BAG 25.9.2014 - 2 AZR 567/13, NJW 2014, 3595.
Sagan/Seiwerth
1129
§ 624 1-2
Division 8. Particular types of obligations
III. Effect of breach
6 If the written form is not complied with, the termination or separation *s nu“
and void - without the possibility of curation (§ 125 1st St.). However, §4 c oes not
apply because it requires written termination. The employee can be preclu e rom invo mg
the lack of written form according to the prohibition of abuse of rights (§ 242) i e
discontinues his work after receiving an oral termination.9
§624
Notice period in the case of
contracts lasting more than five
years
’If the service relationship is entered into
for the lifetime of a person or for a longer
period of time than five years, then it may be
terminated by the person obliged at the end
of five years. 2The notice period is six
months.
§624
Kündigungsfrist bei Verträgen
über mehr als fünf Jahre
’Ist das Dienstverhältnis für die Lebenszeit
einer Person oder für längere Zeit als fünf
Jahre eingegangen, so kann es von dem Ver¬
pflichteten nach dem Ablauf von fünf Jahren
gekündigt werden. 2Die Kündigungsfrist be¬
trägt sechs Monate.
A. Function
1 § 624 serves to prevent an excessively long service relationship in order to protect the
personal liberty of the service provider.* 1 It applies to all service contracts (§ 611), excluding
employment contracts (§ 611a), to which the special provision in § 15(4) TzBfG applies.2
§ 624 also covers mixed contracts provided the contractual relationship is primarily con¬
cerned with personal activity? The 15‘ St. is mandatory; the period stipulated in the 2nd St.
may be abridged, but not extended.4
B. Explanation
2 If the service relationship is entered into for the lifetime of a person or for more than five
years, it may be terminated according to § 624 at the end of five years with a notice period of
six months. § 624 is applicable to a fixed-term service agreement if its expiry is depending on
a condition (§158) or purpose and the agreement will extend to a period of five or more
years? However, § 624 does not apply if the contract is limited to five years and shall
continue for another five years if the service provider does not give notice of termination
prior to the expiry date.6 Notice of termination may be given at any time, provided the notice
period is observed? In this case, § 621 does not apply. The party entitled to services may only
terminate for a compelling reason in accordance with § 626.
’ BAG 4.12.1997 - 2 AZR 799/96, NZA 1998, 420.
1 BAG 24.10.1996 - 2 AZR 845/95, NZA 1997, 597, 600.
‘ BeckOK BGB/Fuchs/Baumgärtner, § 624 BGB mn. 2; ErfK Arbeilsrecht/Müller-Glöge, § 626 BGB
3 BGH 25.5.1993 - X ZR 79/92, NJW-RR 1993, 1460.
4 Jauernig BGB/Mansel, § 624 BGB mn. 3; HK-BGB/Schreiber, § 624 BGB mn 1
5 Staudinger BGB/Preis, § 624 BGB mn. 18.
6 BAG 19.12.1991-2 AZR 363/91, NZA 1992, 543.
7 BAG 24.10.1996 - 2 AZR 845/95, NZA 1997, 597, 599.
1130
Sagan/Seiwerth
Tacit extension
1-3 § 625
§625
Tacit extension
If the service relationship is continued
after the end of the service period by the
person obliged with the knowledge of the
other party, then it is deemed to be extended
for an indefinite period of time unless the
other party objects to it without undue delay.
§625
Stillschweigende Verlängerung
Wird das Dienstverhältnis nach dem Ab¬
lauf der Dienstzeit von dem Verpflichteten
mit Wissen des anderen Teiles fortgesetzt, so
gilt es als auf unbestimmte Zeit verlängert,
sofern nicht der andere Teil unverzüglich
widerspricht.
A. Function
I. Purpose
§ 625 seeks to create legal certainty about the existence of the service relationship.1 The 1
parties may deviate from § 625 and agree on differing rules in the event of continued
provision of services.2
IL Scope of application
§ 625 applies to service contracts (§ 611), including employment contracts (§ 611a). The 2
main area of application is the continuation of an employment relationship, including a
fixed-term employment contract, after its termination, mutual cancellation or avoidance
119 et seq.).3 If a fixed-term employment relationship is continued after the end of a
limitation period, the special rule of § 15(5) TzBfG applies; this case is excluded from the
ambit of § 625.4 § 625 does not apply to public officials whose employment is governed by
public law.5 § 24 BBiG contains a special regulation for the case of continuous work after the
completion of vocational training. The service contract between an Aktiengesellschaft and the
members of its executive board is only prolonged according to § 625 if the appointment to
the executive board is extended; otherwise the supervisory board would be bound in its
decision contrary to § 84 AktG.6
B. Explanation
I. Requirements
§ 625 requires that the contractual relationship, not merely one condition of the service 3
contract has ended.7 In addition, the service provider or employee must actually continue the
performance of services or work immediately after the end of the (initially) agreed service
period with the knowledge of the other party.8 The respective knowledge must cover both
the end of the service period and the continued rendition of services or work. Decisive is the
1 BeckOK BGB/Fuchs/Baumgärtner, § 625 BGB mn. 1; ErfK Arbeitsrecht/Müller-Glöge, § 625 BGB
mn. 1.
2 BGH 25.11.1963 - VII ZR 29/62, NJW 1964, 350; Kramer, Die arbeitsvertragliche Abdingbarkeit des
§ 625 BGB NZA 1993, 1115, 1117.
3 MüKo BGB/Henssler, § 625 BGB mn. 3.
4 BAG 3 9 2003 - 7 AZR 106/03, NZA 2004, 255, 256.
5 BAG 15.2.2017 - 7 AZR 143/15, NZA 2017, 125« (mn. 50).
6 OLG Koblenz 13.10.1995 - 10 U 51/95, WM 1996, 161; BeckOK BGB/Fuchs/Baumgiirtner, § 625
BGB mn 1; Jauernig BGB/Mansel, § 625 BGB mn. 2; ErfK Arbeitsrechl/Müllcr-Glöge, § 625 BGB
mn 1
7 bag 3 9 2003 - 7 AZR 106/03, NZA 2004, 255.
« BAG 2.12.1998 - 7 AZR 508/97, NJW 1999, 1654.
Sagan/Seiwerth
1131
§ 626 Division 8. Particular types of obligations
knowledge of the party entitled to services or any representative who could b’ p ty y
concluding a corresponding service contract.’ In contrast it .s not su“
colleagues of the service provider or employee or a member of the wor s
of the continuation of the contractual relationship.10
IL Objection
4 The legal consequences of § 625 can be prevented by an immediate, explicit or implicit
objection.11 The latter case occurs, if the party entitled to services or the emp oyer o ers t e
conclusion of a successive contract.12 § 625 cannot apply, once the parties agree to t e
extension of the service or employment agreement.13
III. Legal consequences
5 If a contract is extended in accordance with § 625, the previous rights and obligations shall
continue to apply by operation of law. The content of the contract remains unchanged,
including the claim to remuneration (§§ 611(1); 61 la(2)).14 § 625 establishes a non-rebutta-
ble presumption; thus» avoidance for mistake (§ 119) is excluded.15 In case the party entitled
to services or employer objects in due time, the contractual relationship does not extend to
the date of the objection, but expires at the designated end of the service period.16
§626
Termination without notice for a
compelling reason
(1) The service relationship may be termi¬
nated by either party to the contract for a
compelling reason without complying with a
notice period if facts are present on the basis
of which the party giving notice cannot rea¬
sonably be expected to continue the service
relationship to the end of the notice period or
to the agreed end of the service relationship,
taking all circumstances of the individual case
into account and weighing the interests of
both parties to the contract.
(2) 1 Notice of termination may only be given
within two weeks. 2The notice period com¬
mences with the date on which the person
entitled to give notice obtains knowledge of
facts conclusive for the notice of termination.
3The party giving notice must notify the other
party, on demand, of the reason for notice of
termination without undue delay in writing.
§626
Fristlose Kündigung aus
wichtigem Grund
(1) Das Dienstverhältnis kann von jedem
Vertragsteil aus wichtigem Grund ohne Ein¬
haltung einer Kündigungsfrist gekündigt wer¬
den, wenn Tatsachen vorliegen, aut Grund de¬
rer dem Kündigenden unter Berücksichtigung
aller Umstände des Einzelfalles und unter Ab¬
wägung der Interessen beider Vertragsteile die
Fortsetzung des Dienstverhältnisses bis zum
Ablauf der Kündigungsfrist oder bis zu der
vereinbarten Beendigung des Dienstverhältnis¬
ses nicht zugemutet werden kann.
(2) *Die Kündigung kann nur innerhalb
von zwei Wochen erfolgen. 2Die Frist beginnt
mit dem Zeitpunkt, in dem der Kündigungs¬
berechtigte von den für die Kündigung ma߬
gebenden Tatsachen Kenntnis erlangt. 3Der
Kündigende muss dem anderen Teil auf Ver¬
langen den Kündigungsgrund unverzüglich
schriftlich mitteilen.
9 ErfK Arbeitsrecht/Müller-Glöge, § 625 BGB mn. 5.
10 LAG Köln 27.6.2001 - 3 Sa 220/01, BeckRS 2001, 30791911.
11 BAG 3.12.1997 - 7 AZR 651/96, NZA 1998, 1000, 1001.
12 BAG 8.3.1962 - 2 AZR 497/61, AP BGB § 620 Befristeter Arbeitsvertrae Nn 97
7 AZR 629/03, NZA 2004, 1346, 1350. *
BAG 5.5.2004 -
13 BAG 21.11.2013 - 6 AZR 664/12, NZA 2014, 362 (mn. 64).
14 Staudinger BGB/Preis, § 625 BGB mn. 29.
15 BeckOK BGB/Fuchs/Baumgärtner, § 625 BGB mn. 6; ErfK
16 BAG 7.10.2015 - 7 AZR 40/14, NZA 2016, 358 (mn. 25
Arbeitsrecht/Müller-Glöge, § 625 BGB mn. 4.
■ regarding § 15(4) Tz.BfG).
1132
Sagan/Seiwerth
Termination without notice for a compelling reason 1-3 § 626
Contents
mn.
A. Function 1
I. Purpose 1
II. Position within the BGB 2
III. Scope of application 3
B. Context 4
C. Explanation 5
I. General requirements 5
1. Special prohibition of termination 6
2. Works council 7
3. Timely action for protection against dismissal 8
II. Compelling reason 9
1. Overarching principles 10
2. Categories 11
a) Behaviour of the employee 12
b) Personal characteristics of the employee 14
c) Operation of the business 15
d) Special case: dismissal of church employees 16
III. Declaration period and notification 18
A. Function
I. Purpose
§ 626 entitles both parties to a sendee or employment contract to terminate the contract 1
with immediate effect for a compelling reason. It guarantees an indispensable right of
freedom for both parties to dissociate themselves from the contractual relationship in the
event of extreme burdens.1 It is argued, that § 626 deviates from the principle pacta sunt
servanda and therefore has to be interpreted narrowly.2
II. Position within the BGB
§ 626 is lex specialis to § 314(1) and (3),3 but does not supersede § 314(2).4 § 626 is not a 2
special case of interference with the basis of the transaction (§ 313).5 The right of avoidance
(§§ 119 et seq.) is not affected by § 626.6 Special regulations apply to apprentices (§ 22
BBiG); seafarers (§§ 67-69 SeeArbG); and commercial agents (§ 89a HGB). § 627 reduces
the requirements for the extraordinary termination of a service contract (§ 611) if the service
provider is obliged to perform services of a higher nature. § 628 contains provisions on
remuneration and damages in the event of extraordinary termination.
III. Scope of application
§ 626 applies to all service contracts (§ 611) and employment contracts (§ 611a), irrespec- 3
tive of whether they are limited in time or not.7 § 626 is mandatory; any exclusion or
1 MüKo BGB/Henssler, § 626 BGB mn. 1.
2 Staudinger BGB/Preis, § 626 BGB mn. 5; APS Kündigungsrecht/Vossen, § 626 BGB mn. 24; to the
contrary MüKo BGB/Henssler, § 626 BGB mn. 1.
3 Jauernig BGB/Mansel, § 626 BGB mn. 1; APS Kündigungsrecht/Vossen, § 626 BGB mn. 5c.
4 Gotthardt, Arbeitsrecht nach der Schuldrechtsreform (Duncker & Humblot 2003) mn. 224 et seq.
5 MüKo BGB/Henssler, § 626 BGB mn. 1; to the contrary Staudinger BGB/Preis, § 626 BGB mn. 5; see
further Oetker, Das Dauerschuldverhältnis und seine Beendigung (Mohr Siebeck 1994), p. 418 et seq.
6 BAG 16.12.2004 - 2 AZR 148/04, AP BG § 123 No. 64; BAG 6.9.2012 - 2 AZR 270/11, NJW 2013,
1115 (mn. 46).
7 MüKo BGB/Henssler, § 626 BGB mn. 6.
Sagan/Seiwerth
1133
§ 626 4-6 Division 8. Particular types of obligations
• • r dinl and collective agreements is
limitation of the right of extraordinary termination in indivi ins possible even if
null and void pursuant to § 134.8 Thus, extraordinary termina
ordinary termination is excluded by a collective or individual agreem
4
B. Context
The provisions of the Kündigungsschutzgesetz (KSchG; Dismissal Protection V°
the extraordinary termination of an employment contract only insoar as or
bringing an action at the labour court is concerned (§§ 13(1); 4-7 KSc )• en7? ‘ C k
does not apply to the extraordinary termination of an employment contrac . owever, e
extraordinary termination is in a gradual relationship to the right to or inary termination
(§ 620(2)), which terminates the contractual relationship only after t e ^xPirV ° *
period (§§ 621-622). Consequently, an extraordinary termination is nu an vol i t e
present circumstances of the case at hand would not justify an ordinary termination
according to § 1 KSchG.9 In this sense, § 1 KSchG has indirect repercussions on the
interpretation and application of § 626 BGB.
C. Explanation
L General requirements
5 The notice of termination must be sufficiently clear; the recipient must be able to
understand it as termination-at least according to an interpretation in accordance with
§§ 133, 157.10 The declaration of an extraordinary termination must usually indicate that the
service relationship is terminated for a compelling reason or without notice.11 Extraordinary
termination must be in written form (§ 623).12
1. Special prohibition of termination
6 The extraordinary termination is ineffective if it infringes a special prohibition of termination
(e.g. §§ 138,13 612a, 613a(4)). In particular, an extraordinary termination which discriminates
on one of the grounds enumerated in § 1 AGG is ineffective (race; ethnic origin; sex; religion;
belief; disability; age; sexual identity). This result is not controversial, but different reasons are
given since § 2(4) AGG excludes the application of the AGG to terminations. On the one hand,
it is argued that the requirement of a compelling reason in § 626 includes the prohibition of
discrimination; discriminatory termination is therefore ineffective due to the lack of a compel¬
ling reason within the meaning of § 626.14 On the other hand, it is argued that § 2(4) AGG is in
breach of Art. 21(1) EU Charter of Fundamental Rights and is therefore universally inapplicable
(including horizontal relationships between private individuals); consequently, a discriminatory
8 BAG 8.8.1963 - 5 AZR 395/62, AP BGB § 626 Kündigungserschwerune No 2* BAG 19 12 1974 -
2 AZR 565/73, NJW 1975, 1531, 1532; BGH 3.7.2000 - II ZR 282/98, NJW 2000 2983 APS Kün-
digungsrecht/Vossen, § 626 BGB mn. 7; for details, including contractual specifications on the require¬
ment of a compelling reason: Staudinger BGB/Preis, § 626 BGB mn. 41 et seq
’ Herschel, Unmöglichkeit der Dienstleistung und Kündigung, BB 1982 254- Preis Prinrinien des
Kündigungsrechts bei Arbeitsverhältnissen (C.H.Beck 1987), p. 483. ’ ’ "
10 BAG 15.3.1991 - 2 AZR 516/90, NZA 1992, 452, 453.
11 BAG 13.1.1982 - 7 AZR 757/79, NJW 1983, 303.
12 See -» § 623 mn. 3 et seq.
” BAG 16.2.1989 - 2 AZR 347/88, NZA 1989, 962.
14 ErfK Arbeitsrecht/Schlachter, §2 AGG mn. 18; KR/Treber 6 2 ACC ,, . . , ,
ordinary termination and § 1 KSchG: BAG 6.11.2008 - 2 AZR 523/07, NZA 2009 36 PB AG 26^2015 -
2 AZR 237/14, NZA 2015, 734 (mn. 32); see further von Medern . ’ ,
Gleichbehandlungsgesetz (Duncker & Humblot 2008), p. 153 et seq n8ssc utz und Allgemeines
1134
Sagan/Seiwerth
Termination without notice for a compelling reason 7-9 §626
termination is invalid according to §§7(1) AGG, 134 BGB.15 Severely disabled employees (§ 174
SGB IX), expectant and nursing mothers (§ 9 MuSchG); employees on parental leave (§ 18
BEEG) or nursing leave (§ 5 PflegeZG) enjoy special protection against dismissal. Some function
holders in the works constitution, in particular members of the works council, have special
protection against dismissal in accordance with § 15 KSchG, which, however, does not preclude
extraordinary termination. According to § 103(1) BetrVG the extraordinary termination of the
employment contract of a member of (i) the works council; (ii) the youth and trainee delegation
(§ 60 BetrVG et seq.); (iii) the ship’s committee (§ 115 BetrVG); (iv) the fleet works council
(§ 116 BetrVG); (v) the electoral board (§ 16 BetrVG et seq.); and (vi) of candidates for election
by the employer requires the consent of the works council. If the works council refuses its
consent, the employer may apply to the labour court for a judicial decision in lieu of consent if
extraordinary termination is justified, all circumstances being taken into account (§ 103(2)
2nd St. BetrVG).
2. Works council
If a works council exists, it shall be consulted before every dismissal, including any 7
extraordinary termination (§ 102(1) 1st St. BetrVG).16 An extraordinary termination without
prior consultation of the works council is null and void (§ 102(1) 3rd St. BetrVG). The
purpose ot the consultation is to give the works council the opportunity to influence the
employer’s dismissal decision; the employer must therefore inform the works council before
declaring the termination in a manner that it can comment on the intended termination.17 If
the works council has objections against an extraordinary termination, it shall notify the
employer in writing immediately and at any rate not later than within three days, giving its
reasons (§ 103(2) 3nd St. BetrVG). If it does not report its objections within the said time
limit, the works council shall be deemed to have given its consent to the dismissal (§ 103(2)
2nd St. BetrVG). However, the objection of the works council does not preclude the employer
from terminating the employment contract. If the works council objects and if the employee
has filed an action for dismissal protection, he is entitled to continued employment not only
until the end of the notice period but until the final decision on the action for dismissal
protection has been reached (§ 103(5) lsl St. BetrVG); the Arbeitsgericht (Labour Court) may
grant an exception (§ 103(5) 2nd St. BetrVG).
3. Timely action for protection against dismissal
§ 4 1st St. and §§ 5-7 KSchG apply to the extraordinary termination of an employment 8
contract (§ 13(1) 2nd St. KSchG). Thus, the termination is deemed as valid from the outset if
the employee does not bring an action for protection against dismissal in due time, i.e.
regularly within three weeks after receipt of the termination.18
IL Compelling reason
According to the BAG, the requirement of a compelling reason must be examined in two 9
successive steps: first, it must be examined whether the facts of the case are in themselves,
i.e. typically, suitable to form a compelling reason without taking into account the particular
circumstances of the individual case.19 Secondly, it must be examined whether the party
declaring termination can reasonably be expected to continue the contract until the end of
15 Sagan, Die Sanktion diskriminierender Kündigungen nach dem Allgemeinen Gleichbehandlungsge¬
setz, NZA 2006, 1257, 1259.
16 With regard to employees in the civil service see § 79 PersVG.
17 BAG 15.12.1994 - 2 AZR 327/94, NZA 1995, 523.
18 See BAG 6.9.2012 - 2 AZR 858/11, NZA 2013, 524 (mn. 13).
19 See BAG 19.4.2012 - 2 AZR 258/11, NZA-RR 2012, 567 (mn. 13); rightly criticised by Preis,
Prinzipien des Kündigungsrechts bei Arbeitsverhältnissen (C.H.Beck 1987), p. 479 et seq.
Sagan/Seiwerth
1135
§ 626 10-11 Division 8. Particular types of obligations
the applicable notice period, taking all circumstances of the individual case into account, to
this end, the interests of both parties must be weighed against each ot er. must e
determined whose interests prevail in the case at hand. In case the employer terminates an
employment contract for a compelling reason, the following circumstances are regu ar y to e
taken into account: the weight and the effects of a breach of contract, inclu ing t e extent o
a loss of confidence and the respective economic consequences, the degree of t e emp oyee s
fault, a possible risk of repetition, the duration of the employment relations ip an its
undisturbed course.21
1. Overarching principles
10 The overarching principles and rules for the application of the requirement of a compelling
reason are: (i) There is no absolute ground for extraordinary termination.22 An extraordinary
termination cannot be justified solely by a single circumstance which would make the
consideration of all other circumstances superfluous. For example, even a serious breach of
contractual obligations would not allow to disregard all other circumstances of the individual
case, (ii) An extraordinary termination is not a punishment.23 It is not intended to punish past
conduct, but terminate a contract immediately because of the expectation of future disruptions
to the contractual exchange of performances.24 Thus, extraordinary termination requires a
negative prognosis of future disruptions to the contractual relationship.25 The relevant point
in time for this prognosis is the receipt of the termination declaration (§ 130).26 (iii) Extra¬
ordinary termination can only be the ultimate reaction to expected disruptions of the
contractual relationship; i.e. ultima ratio.27 This means that extraordinary termination is only
permissible if no milder measures are available which would lead to an undisturbed exchange
of performances in the future. In this sense milder means are for example a warning (§ 314(2));
a relocation of the employee; a dismissal with the option of altered conditions of employment
(§ 2 KSchG);28 and an ordinary termination (§ 620(2)). It follows, that an extraordinary
termination is null and void if the circumstances of the individual case would not justify
ordinary termination, (iv) The vague legal term compelling reason has to be interpreted in
consideration of the fundamental rights of the contracting parties under the GG.29
2. Categories
11 As in the case of § 1 KSchG, the reasons for the termination of an employment contract by
the employer can be categorised into three groups: The employer can terminate the contract
20 BAG 9.6.2011 - 2 AZR 323/1001, NZA 2011, 1342 (mn. 14).
21 BAG 9.6.2011 - 2 AZR 381/10, NZA 2011, 1027 (mn. 22); see also BAG 17 3 1988 - 2 AZR 576/87
NZA 1989, 261; BAG 2.3.1989 - 2 AZR 280/88, NZA 1989, 755.
22 BAG 10.6.2010 - 2 AZR 541/09, NZA 2010, 1227 (mn. 16); Etzel/Bader Kündigungschutzgesetz/
Fischermeier, § 626 BGB mn. 88, restrictive Willemsen, Verhaltensbedingte Kündigung, RdA 2017 115
124 et seq.; see however §§ 67(1), 68(1) SeeArbG. 5 ’ ’
23 MüKo BGB/Henssler, § 626 BGB mn. 72; APS Kündigungsrecht/Vossen 6 626 BCR
M See BAG 26.11.2009 - 2 AZR 751/08, NZA 2010, 823 (mn 10) ’ mn' &’
« BAG 10.6.2010 - 2 AZR 541/09, NZA 2010, 1227 (mn. 35); Staudinger BGB/Preis BCR 8 676 RCR
mn. 89 et seq.; APS Kündigungsrecht/Vossen, §626 BGB mn. 26- deviouclv r.i, j i? n - u B
Arbeitsrecht und ideologische Kontinuitäten, NJW 1998, 1433, 143’5 et sen / *5lse^ by Rüthers,
Arbeitsrecht und „unbegrenzte Auslegung“, NJW 1998, 1889. See 1 e reP ^y Preis,
26 BAG 10.6.2010 - 2 AZR 541/09, NZA 2010, 1227 (mn. 52); ErfK Arbeitet/ni-
mn 54 Arbeitsrecht/Niemann, § 626 BGB
27 BAG 30.5.1978 - 2 AZR 630/76, NJW 1979, 332; BAG 19.4.2007 - 2 A7D io
571 (mn. 45); for details see MüKo BGB/Henssler, § 626 BGB mn. 87 et se ^A-RR 2007,
28 See Preis, Unbillige Weisungsrechte und überflüssige Anderungskündo
seq.; Reuter/Sagan/Witschen, Die überflüssige Anderungskündigung NZA 201T NZA 2015’ 7 et
29 See for example BAG 9.12.1982 - 2 AZR 620/80, NJW 1984, 1142 (r , d ’ r 936’
(Art. 5(1) GG)); see -♦ § 61 la mn. 10. ekar ln8 freedom of expression
1136
Sagan/Seiwerth
Termination without notice for a compelling reason 12—13 § 626
extraordinarily for reasons related to the behaviour of the employee; the personal properties
of the employee; or the operation of the business.
a) Behaviour of the employee. The culpable breach of a contractual obligation may 12
constitute a compelling reason for the extraordinary termination of the employment
contract. Possible breaches of contract include, for example:30 (i) acceptance of bribes (see
§ 299 StGB);31 (ii) assault at the workplace;32 (iii) commission of criminal offences in the
workplace;33 (iv) economic competition with the employer;34 (v) consumption of alcohol or
drugs at work;35 (vi) filing of a criminal complaint against the employer;36 (vii) fraudulent
misrepresentation of working time;37 (viii) participation in unlawful industrial action;38
(ix) persistent refusal to work;39 (x) pretence of incapacity for work;40 (xi) repeated
unpunctuality;41 (xii) sexual harassment;42 (xiii) unauthorised leave of absence;43 and
(xiv) unauthorised use of technical equipment for private purposes.44 Off-duty conduct can
constitute a compelling reason only if it has a negative effect on the conduct of the
employment relationship 45
An extraordinary dismissal due to the employee’s behaviour generally requires prior 13
warning (§ 314(2)).46 47 It is in line with the ultima ratio-principle to inform the employee of
the consequences of further breaches of contract before declaring extraordinary termina¬
tion.4, Also, the breach of contract after a prior warning justifies the prognosis that further
breaches of contract are to be expected in the future.48 A proper warning presupposes that
the employee is reprimanded for a precisely described misconduct and is informed that the
existence or the content of the employment relationship is endangered in the case of a
recurrence.49 50 A warning is not required if a change in behaviour is not to be expected in the
future even after a warning or if the breach of duty is so severe that acceptance by the
employer is obviously excluded?0
30 For further details see iMüKo BGB/Henssler, § 626 BGB mn. 128 et seq.; ErfK Arbeitsrecht/Müller-
Glöge, § 626 BGB mn. 60 et seq.; Staudinger BGB/Preis, § 626 BGB mn. 93 et seq.; regarding the service
contract (§ 611) of a member of the board of directors of a corporation see BGH 28.10.2002 - II ZR 353/
00, NJW 2003, 431; BGH 12.5.2011 - III ZR 107/10, NJW-RR 2011, 1426 (mn. 35).
31 BAG 21.6.2001 - 2 AZR 30/00: ZTR 2002, 45.
32 BAG 12.3.1987 - 2 AZR 176/86, NZA 1988, 137.
33 BAG 2.6.1960 - 2 AZR 91/58: DB 1960, 1011; BAG 10.6.2010 - 2 AZR 541/09, NZA 2010, 1227.
34 BAG 23.10.2014 - 2 AZR 644/13, NZA 2015, 429.
35 BAG 30.5.1978 - 2 AZR 630/76, NJW 1979, 332; for drug-use see BAG 20.10.2016 - 6 AZR 471/15,
NZA 2016, 1527.
36 BAG 27.9.2012 - 2 AZR 646/11, NZA 2013, 808; see in addition ECtHR 21.7.2011 - 2874/08
Heinisch-, Schmidt, Whistleblowing revisited - Anpassungs- und Regelungsbedarf im deutschen Recht,
RdA 2017, 365.
37 BAG 26.9.2013 - 2 AZR 682/12, NZA 2014, 443.
38 BAG 21.10.1969 - 1 AZR 93/68: BAGE 22, 162; BAG 29.11.1983 - 1 AZR 469/82, NZA 1984, 34.
39 BAG 21.11.1996 - 2 AZR 357/95, NZA 1997, 487.
40 BAG 12.8.1976 - 2 AZR 237/75, NJW 1977, 167.
41 BAG 27.2.1997 - 2 AZR 302/96, NZA 1997, 761.
42 BAG 9.6.2011 - 2 AZR 323/10, NZA 2011, 1342.
43 BAG 16.3.2000 - 2 AZR 75/99, NZA 2000, 1332.
44 BAG 31.5.2007 - 2 AZR 200/06, NZA 2007, 922.
45 BAG 16.12.2010 - 2 AZR 485/08, NZA 2011, 571 (mn. 22); Staudinger BGB/Preis, § 626 BGB
mn. 159; see for example LAG Sachsen 17.12.1997 - 2 Sa 648/97: LAGE KSchG § 1 Verhaltensbedingte
Kündigung No. 61 (intimate relationship between probation officer and fugitive convict).
46 BAG 24.3.2011 - 2 AZR 282/10, NZA 2011, 1029 (mn. 15); Staudinger BGB/Preis, § 626 BGB
mn. 105.
47 See BAG 12.7.1984 - 2 AZR 320/83, NZA 1985, 96.
48 BAG 10.6.2010 - 2 AZR 541/09, NZA 2010, 1227 (mn. 36).
49 BAG 17.2.1994 - 2 AZR 616/93, NZA 1994, 656.
50 BAG 23.6.2009 - 2 AZR 103/08, NZA 2009, 1198 (mn. 33).
Sagan/Seiwerth
1137
§ 626 14-15 Division 8. Particular types of obligations
14 b) Personal characteristics of the employee. Extraordinary dismissal may be based on the
fact that the employee is missing the personal characteristics necessary or t e^per ormance o
the agreed work.51 * A typical case is, for example, an employee s i ness. is type o
termination differs from a dismissal on the grounds of the employee s e saviour in t at
employees can control their behaviour, while they have no controlling influence on t e oss of
personal characteristics. In contrast to a dismissal on the grounds of an employee s behaviour,
a dismissal due to personal characteristics does not require a warning. In genera, personal
characteristics of the employee will only justify an ordinary termination in terms of § 1 KSchG,
not an extraordinary termination. An exception is considered if the right to ordinary termina¬
tion has been excluded in the employment contract or an applicable collective agreement.53
A special case of an extraordinary termination on the grounds of personal characteristics is
the suspicion of a criminal offence or a severe breach of contract. This requires a strong
suspicion based on objective facts, which destroys the employer s trust in the employee and
thus renders the continuation of the employment relationship inacceptable to the employer.54
The reason for termination in this case is not a proven breach of a contractual obligation, but
the loss of trust which in general cannot be controlled by the employee. An extraordinary
termination on grounds of suspicion presupposes that the employer would be entitled to
terminate the employment contract for a compelling reason with immediate effect if the
suspicion was confirmed.55 In addition, the employer is required to investigate and clarify the
facts which give cause for the suspicion, including hearing the employee on the allegations
against him; this hearing of the employee is a prerequisite for the effectiveness of an
extraordinary termination on grounds of suspicion.56 The assessment of the case under
criminal law, in particular the cessation of criminal proceedings, is not legally binding for the
application of § 626.57 The judicial confirmation of a termination on grounds of suspicion is
not a violation of the presumption of innocence under Art. 6(2) ECHR.58 This is, however,
rather doubtful in view of the positive duties of the State arising from Art. 6(2) ECHR.59
Nonetheless, the judicial confirmation of an extraordinary termination on grounds of
suspicion is neither de iure a verdict of guilty nor de facto a pre-conviction.60
15 c) Operation of the business. An extraordinary termination by the employer can be based
on grounds of the operation of the business. This, however, only applies in exceptional cases. In
principle, the employer can usually be expected to continue the employment relationship until
the expiry of the notice period if a job is eliminated for operational reasons. An exception may
occur if the right to ordinary termination has been excluded in the employment contract or a
collective bargaining agreement. In this case, the employer is not obliged to continue a
meaningless employment relationship in which the payment of the agreed remuneration over
a period of several years is not matched by any work performed by the employee.61 However,
52
53
51 Staudinger BGB/Preis, § 626 BGB mn. 207 et seq.
'' As to the details see APS Kiindigungsrecht/Vossen, § 626 BGB mn 308
BAG 20.12.2012 - 2 AZR 32/11, NZA-RR 2013, 627 (mn. 14).
BAG 24.5.2012 - 2 AZR 206/11, NZA 2013, 137 (mn. 16 and 20); BAG 21 6 2012 - 2 AZR 694/11
NZA 2013, 199; BAG 18.6.2015 - 2 AZR 256/14, NZA 2016 287
* BAG 21.11.2013 - 2 AZR 797/11, NZA 2014, 243; BAG 18.6.2015 - 2 AZR 256/14, NZA 2016, 287
(mn. 22).
56 BAG 6.9.2007 - 2 AZR 264/06, NJW 2008, 1097 (mn. 30); BAG 20.3.2014 - 2 AZR 1037/12 NZA
2014, 105 (mn. 14 and 23). Z AZK 1037/121 NZA
57 BAG 24.5.2012 - 2 AZR 206/11, NZA 2013, 137 (mn. 25 et seq )
58 BAG 14.9.1994 - 2 AZR 164/94, NZA 1995, 269. M' ’
59 See ECtHR 5.12.2002 - 34896/97 Craxi mn. 98 et seq.- diffcrm.lv t
Entlastungstatsachen?, NZA 2015,460,464. ’ oma/Reiter, Präklusion
60 NK-GA/Sagan, Art. 1 EMRK mn. 18; sec further Deinen Din V«. i u. ■ . ■.
einem alten Thema?, AuR 2005, 285. ’ * Vcrda‘-hlSkundigung - Neues zu
61 BAG 8.4.2003 - 2 AZR 355/02, NZA 2003, 856, 858; BAG 18 3 201 n ■> * ,
18 (mn. J7). 1 » 3-2010 - 2 AZR 337/07, NZA-RR 2011,
von
1138
Sagan/Seiwerth
Termination without notice for a compelling reason 16-18 § 626
in the event of extraordinary termination, the employer must observe the period of notice that
would apply if he were entitled to ordinary termination.62 Within narrow limits, the BAG
permits extraordinary termination if a third party (e.g. supplier; customer; trade union; other
employee; etc.) demands such termination under threat of disadvantages (e.g. termination of
business relations).63
d) Special case: dismissal of church employees. The extraordinary dismissal of employees 16
of church employers because of a violation of loyalty obligations is especially controversial.
Recent cases are concerned with dismissals for adultery of an employee in a leading
position64 and of a church choir leader;65 for the second marriage of a divorced head
physician ot a church-run hospital;66 and the dismissal of a social education worker because
ot leaving the church.6' The BVerfG emphasises the right of the churches to self-determina¬
tion resulting trom Art. 140 GG in conjunction with Art. 137 WRV.68 In the view of the
BVertG, church employers may autonomously determine what degree of loyalty they expect
from their employees; the labour courts are not entitled to examine the proximity of the
individual employee to the churches’ task of promulgation. According to the BVerfG, the
labour courts must follow the standards prescribed by the church when weighing conflicting
interests in case of an extraordinary termination.
This ruling of the BVerfG is incompatible with European law. First, with regard to the 17
employee’s right to private life (Art. 8 ECHR) the ECtHR stated that in striking a fair balance
between the competing rights and interests of the church and its employees ‘the nature of the
post occupied by those persons is an important element to be taken into account when
assessing the proportionality of a restrictive measure taken by the State or the religious
organisation concerned’.69 Secondly, regarding EU law, in particular the EU Framework
Equality Directive, the CJEU decided that ‘a difference of treatment on grounds of religion or
belief depends on the objectively verifiable existence of a direct link between the occupational
requirement imposed by the employer and the activity concerned’.70 Both the ECHR and EU
law thus require to take the nature of the post occupied into consideration.
III. Declaration period and notification
Sub. 2 1st and 2nd St. stipulate that extraordinary termination can only be declared within a 18
period of two weeks after obtaining the knowledge of the facts conclusive for the termina¬
tion. The date on which the person entitled to give notice (Sub. 2 2nd St.) becomes aware of the
facts which constitute the compelling reason (Sub. 1) shall be decisive for the commencement
of the period. Even grossly negligent ignorance of the facts concerned does not trigger the
time period.71 The relevant group of persons include the employer, the legal representatives
62 BAG 11.3.1999 - 2 AZR 427/98, NZA 1999, 818, 823; BAG 13.4.2000 - 2 AZR 259/99, NZA, 2001,
277, 281.
63 BAG 18.7.2013 - 6 AZR 420/12, NZA 2014, 109 (mn. 46); further MüKo BGB/Henssler, § 626 BGB
mn. 255.
m BAG 24 4.1997 - 2 AZR 268/96, NZA 1998, 145.
65 BAG 16 9 1999 - 2 AZR 712/98, NZA 2000, 208.
66 BAG 8 9 2011 - 2 AZR 543/10, NJW 2012, 1099; BAG 20.2.2019 - 2 AZR 746/14.
67 BAG 25 4 2013 - 2 AZR 579/12, NZA 2013, 1131.
** BVerfG 22 10.2014 - 2 BvR 661/12, NZA 2014, 1387; further BVerfG 4.6.1985 - 2 BvR 1703/83,
NJW 1986, 367.
69 ECtHR (Grand Chamber) 12.6.2014 - 56030/07 Fernandez Martinez mn. 131; further ECtHR,
23 9 2010 - 425/03 Obst mn. 50 et seq.; ECtHR 23.9.2010 - 1620/03 Schiith mn. 69; see further
Edenharter Loyalitätsobliegenheiten in kirchlichen Arbeitsverhältnissen - Eingeschränkte gerichtliche
Überprüfbarkeit, NZA 2014, 1378; Joussen, Kündigung wegen Kirchenaustritts, jM 2014, 109; NK-GAZ
Sasan Art 8 EMRK mn. 10 et seq.
5 C 414/16 Egenberger ECLI:EU:C:2018:257 mn. 63; see further Junker, Gleichbehandlung und
kirchliches Arbe.tsrecht - Ein dcm EuGH> N,W 2°18> 185°-
7i BAG 15.11.1995 - 2 AZR 974/94, NZA 1996, 419, 423.
Sagan/Seiwerth
1139
§ 627 Division 8. Particular types of obligations
of the employer and persons who hold a position similar to a legal representative. In case of
joint representation, the knowledge of one ot the representatives is suf n * even*
of termination on suspicion of a criminal offence, the period may be suspen e or as ong as
the employer investigates the facts of the case;72 73 74 the employer may even wait or t e outcome
of criminal proceedings.75 The procedure of consulting the works council (§ 102 BetrVG)
does not extend the duration of the period stipulated in Sub. 2.76 The period is only observed
if the declaration of termination is received (§ 130) within the two-week period. If thtime
limit is missed, the extraordinary termination is deemed as invalid; however, §§13(1)2 St.,
(4) 1st St., (7) KSchG apply.77 In exceptional cases, recourse to the period set out in Sub. 2
may be abusive (§ 242); this applies in particular if the party receiving the termination has
caused the terminating party not to comply with the period/8 The parties to the employment
contract may neither waive nor amend the exclusion period.79
19 It follows from Sub. 2 3rd St. that the validity of an extraordinary termination does not
depend on a statement of the reasons for which it is declared.80 However, in the case of Sub. 2
3rd St. the party declaring termination is obliged to notify the other party of the reason(s) for
notice of termination without undue delay (§ 121). Violations of this obligation may result in
an obligation to pay damages.81
§627
Termination without notice in the
case of a position of trust
(1) In a service relationship that is not an
employment relationship within the meaning
of § 622, notice of termination is allowed, even
without the requirement specified in § 626, if
the person obliged to perform services, with¬
out being in a permanent service relationship
with fixed earnings, must perform services of a
higher nature with which people are customa¬
rily entrusted on the basis of special trust.
(2) ’The person obliged to perform services
may only give notice in such a manner that
the person entitled to services can obtain the
services elsewhere, unless there is a compel¬
ling reason for untimely notice of termina¬
tion. 2If he should give notice in untimely
fashion without such cause, then he must
compensate the person entitled to services
for damage arising from this.
§627
Fristlose Kündigung bei
Vertrauensstellung
(1) Bei einem Dienstverhältnis, das kein
Arbeitsverhältnis im Sinne des § 622 ist, ist
die Kündigung auch ohne die in § 626 be¬
zeichnete Voraussetzung zulässig, wenn der
zur Dienstleistung Verpflichtete, ohne in ei¬
nem dauernden Dienstverhältnis mit festen
Bezügen zu stehen, Dienste höherer Art zu
leisten hat, die auf Grund besonderen Ver¬
trauens übertragen zu werden pflegen.
(2) ’Der Verpflichtete darf nur in der
Art kündigen, dass sich der Dienstberechtigte
die Dienste anderweit beschaffen kann, es sei
denn, dass ein wichtiger Grund für die unzei¬
tige Kündigung vorliegt, kündigt er ohne
solchen Grund zur Unzeit, so hat er dem
Dienstberechtigten den daraus entstehenden
Schaden zu ersetzen.
72 BAG 28.10.1971 - 2 AZR 32/71, NJW 1972, 463.
73 MüKo BGB/Henssler, § 626 BGB mn. 291.
74 BAG 29.7.1993 - 2 AZR 90/93, NZA 1994, 171, 173.
75 BAG 22.1.2012 - 2 AZR 732/11, NZA 2013, 665.
76 BAG 18.8.1977 - 2 ABR 19/77, NJW 1978, 661.
77 Staudinger BGB/Preis, § 626 BGB mn. 311.
BGH 3.6.1973 - 11 ZK ,3,773. N)W ,973. 169», BAG 28.10,1971 - 2 AZR ,2m_ „„ ,,72.
79 BAG 12.2.1973 - 2 AZR 116/72, AP BGB § 626 AusschlnRfrkt m r n
gungsschutzgesetz/Fischermcier, § 626 BGB mn. 335. °‘ ’ ,zel/Bader Kündi-
*" See however §§ 22(3) BBiG; 17(2), 2nd St. MuSchG.
»' BAG 17.8.1972 - 2 AZR 415/71, NJW 1973, 553.
1140
Sagan/Seiwerth
Termination without notice in the case of a position of trust 1-3 § 627
A. Function
I. Purpose
§ 627 concerns the extraordinary termination of service contracts (§611) in case of a 1
position of trust (e.g. sendee contracts with a physician; lawyer; private teacher etc.). In this
case, Sub. 1 allows extraordinary termination without a notice period and - in contrast to
§ 626 - without the requirement of a compelling reason. The right of termination of the
service provider is limited in accordance with Sub. 2 1st St. A breach of this provision may
result in an obligation to pay damages pursuant to Sub. 2 2nd St.
IL Scope of application
§ 627 applies to non-permanent sendee contracts which oblige the service provider to 2
perform sendees of a higher nature without establishing a fixed remuneration.1 Employment
contracts are expressly excluded from the scope of § 627. Although § 627 is not mandatory,
an exclusion in standard business terms (§ 305) is generally invalid.2 3 4 5 Once the service
contract is put into effect, i.e. upon the performance of a main obligation, § 627 supersedes
the right to revocation (§ 323)? The claims for damages according to §§ 280-283 remain
unaffected?
B. Explanation
I. Permanent service relationship
For a sendee relationship to be permanent, it must be economically relevant to the service 3
provider and require a certain degree of personal commitment; however, it is not necessary
for the contract to make full or predominant use if the service providers professional
activity? neither does the requirement of a permanent contractual relationship presuppose
social or economic dependency.6 A long lasting (at least a year) service contract with a fixed
ending can be permanent within the meaning of § 627.7 8 Remuneration is fixed if the service
provider can be sure that in the long term he will receive certain amounts fixed in advance as
remuneration. In contrast, fees that depend on non-contractual developments and therefore
fluctuate in amount are not fixed. They are, however, fixed salaries insofar as the service
provider is promised a certain minimum income? Services of higher nature require above-
average knowledge or skills or have an effect on the personal sphere of life.9 They must be
transferred typically for reasons of personal trust.10 Examples are services provided by
1 BGH 22.9.2011 - III ZR 95/11, NJW 2011, 3575 (mn. 11).
2 BGH 9.6.2005 - III Z 436/04, NZBau 2005, 509, 511; BAG 11.2.2010 - IX ZR 114/09, NJW 2010, 1520
(mn. 25 et seq.).
3 BGH 29.3.2011 - VI ZR 133/10, NJW 2011, 1674 (mn. 15).
4 MüKo BGB/Henssler § 627 BGB mn. 5.
5 BGH 22.9.2011 - III ZR 95/11, NJW 2011, 3575 (mn. 13); BGH 18.2.2016 - III ZR 126/15, NJW 2016,
1578 (mn. 27).
6 BGH 8.3.1984 - IX ZR 144/83, NJW 1984, 1531, 1532; BAG 12.7.2006 - 5 AZR 277/06, NJW 2006,
3453 (mn. 16 et seq.).
7 BGH 8.3.1984 - IX ZR 144/83, NJW 1984, 1531.
8 BGH 23.2.1995 - IX ZR 29/94, NJW 1995, 1425, 1430; further BGH 13.1.1993, NJW-RR 93, 505, 506;
BGH 22.9.2011 - III ZR 95/11, NJW 2011, 3575 (mn. 13); BAG 18.2.2016 - III ZR 126/15, NJW 2016,
1578 (mn. 27 et seq.).
9 BGH 13 11.2014 - III ZR 101/14, NJW-RR 2015, 686.
10 BGH 18 10 1984 - IX ZR 14/84, NJW 86, 373; BGH 22.9.2011 - III ZR 95/11, NJW 2011, 3575.
Sagan/Seiwerth
1141
§ 628 Division 8. Particular types of obligations
physicians;11 auditors;12 and lawyers.13 Legal entities may also be entiusted with services of a
higher nature.14
IL Untimely termination
4 If the service provider terminates the service contract at an inopportune time,
termination is in general effective, but may give rise to a claim for damages (Su . 2, §§ 249
et seq.).15 In extreme situations the termination may be abusive (§ 242).16 The requirement o
a compelling reason in Sub. 2 1st St. is not identical with the requirement of a compelling
reason in the sense of § 626(1); in the context of § 627, the compelling reason does not have
to justify the termination of the service contract, but only termination without notice at an
undue point in time.17 The claim for damages is aimed at compensating the interest resulting
from reliance (Vertrauensschaden); the party entitled to services is not to be placed as if the
service contract had not been terminated, but as if it had been not terminated at an undue
point in time.18
§628
Partial remuneration and damages
in case of termination without
notice
(1) ’If after commencement of perfor¬
mance of the service, the service relationship
is terminated on the ground of § 626 or
§ 627, then the person obliged to perform
services may demand a part of his remunera¬
tion corresponding to his services performed
thus far. 2If he gives notice without being
prompted to do so by action of the other
party in breach of contract, or if he should
prompt termination by the other party by his
own action in breach of contract, then he has
no claim to the remuneration to the extent
that his previous services are of no interest to
the other party as a result of the notice of
termination. 3If remuneration is paid in ad¬
vance for a later period of time, then the
person obliged must reimburse it under the
provisions of § 346 or, if notice of termina¬
tion is given by reason of a circumstance for
which he is not responsible, under the provi¬
sions on the return of unjust enrichment.
(2) If notice of termination is prompted by
the conduct of the other party in breach of
contract, then the other party is obliged to
compensate the damage arising from the dis¬
solution of the service relationship.
§628
Teilvergütung und Schadensersatz
bei fristloser Kündigung
(1) ’Wird nach dem Beginn der Dienstleis¬
tung das Dienstverhältnis auf Grund des
§ 626 oder des § 627 gekündigt, so kann der
Verpflichtete einen seinen bisherigen Leistun¬
gen entsprechenden Teil der Vergütung ver¬
langen. 2Kündigt er, ohne durch vertragswid¬
riges Verhalten des anderen Teiles dazu
veranlasst zu sein, oder veranlasst er durch
sein vertragswidriges Verhalten die Kündi¬
gung des anderen Teiles, so steht ihm ein
Anspruch auf die Vergütung insoweit nicht
zu, als seine bisherigen Leistungen infolge der
Kündigung für den anderen Teil kein Inte¬
resse haben. 3Ist die Vergütung für eine spä¬
tere Zeit im Voraus entrichtet, so hat der
Verpflichtete sie nach Maßgabe des § 346
oder, wenn die Kündigung wegen eines Um¬
stands erfolgt, den er nicht zu vertreten hat,
nach den Vorschriften über die Herausgabe
einer ungerechtfertigten Bereicherung zu¬
rückzuerstatten.
(2) Wird die Kündigung durch vertrags¬
widriges Verhalten des anderen Teiles ver¬
anlasst, so ist dieser zum Ersatz des durch
die Aufhebung des Dienstverhältnisses entste¬
henden Schadens verpflichtet.
11 BGH 29.3.2011 - VI ZR 133/10, NJW 2011, 1674.
12 BGH 22.9.2011 - III ZR 95/11, NJW 2011, 3575.
13 BGH 4.7.2002 - IX ZR 153/01, NJW 2002, 2774.
14 BGH 8.10.2009 - III ZR 93/09, NJW 2010, 150 (mn. 19).
15 BGH 24.6.1987 - IVa ZR 99/86, NJW 1987, 2808.
16 MüKo BGB/Henssler § 627 BGB mn. 39.
17 MüKo BGB/Henssler § 627 BGB mn. 36.
18 Staudinger BGB/Preis, § 627 BGB mn. 30.
1142
Sagan/Seiwerth
Partial remuneration and damages if termination without notice 1-5 § 628
A. Function
I. Purpose
§ 628 governs the legal consequences of extraordinary termination without notice accord- 1
ing to §§ 626, 627 with regard to remuneration and damages. It regards the terminated
senice relationship as a pure settlement relationship, which no longer has personal perfor¬
mance obligations as its object, but is only intended to balance out mutual financial claims.1
II. Scope of application
§ 628 applies to the extraordinary termination of service and employment contracts 2
(§§ 611, 61 la) according to §§ 626, 627. Sub. 1 shall only apply in the event of extraordinary
termination.2 Neither the RVG nor the StBVV preclude the application of Sub. 1 to service
contracts with lawyers or tax advisors; however, the special regulations in § 15(4) RVG and
§ 12(4) StBVV must be observed when applying § 628(1). In this case, Sub. 1 2nd St. remains
applicable.3 Sub. 1 applies in full if the parties agree on a lump sum remuneration.4 For
seafarers, §68 SeeArbG supersedes § 628(1); for commercial agents §§87 et seq. take
precedence over Sub. 1?
Sub. 2 is applied beyond its wording to all cases in which one contracting party culpably 3
gave the other party cause for the extraordinary termination of the service or employment
contract, i.e. in the case of an extraordinary termination with an expiry period, an ordinary
termination, a termination agreement or a termination of the other party.6 However, it is a
matter of interpretation (§§ 133, 157) whether a termination agreement excludes any claims
under Sub. 2.7 Special rules apply to commercial agents (§ 89a(2) HGB); seafarers (§ 70
SeeArbG); and trainees (§ 23 BBiG).8 The BGH applies Sub. 2 to other contracts on
continuing obligations, e.g. to loan contracts (§ 488).9
B. Explanation
I. Remuneration
If a service or employment contract terminated extraordinarily (§§ 626, 627) after its com- 4
mencement, Sub. 1 1st St. provides for a right to partial remuneration. The amount of this claim
depends on which part of the agreed services has already been provided (pro rata temporis).
1. Reduction
According to Sub. 1 2nd St., the remuneration claim is reduced by operation of law10 if (i) the 5
service provider terminates the contract without the other party having caused the termination
1 Staudinger BGB/Preis, § 628 BGB mn. 1; further BGH 25.5.1983 - IVa ZR 182/81, NJW 1983, 2817,
2819.
2 BGH 26.1.1994 - VIII ZR 39/93, NJW 1994, 1069, 1070.
3 BGH 29 9.2011 - IX ZR 170/10, NJW-RR 2012, 294 (mn. 13).
4 BGH 27.2.1978 - AnwSt (R) 9/77, NJW 1978, 2304, 2305; BGH 22.5.2014 - IX ZR 147/12, NJW 2014,
2715.
5 MuKo BGB/Henssler, § 628 BGB mn. 4.
6 BAG 10.5.1971 - 3 AZR 126/70, NJW 1971, 2092; ErfK Arbeitsrecht/Müller-Glöge, § 628 BGB mn. 6
and 14; Staudinger BGB/Preis, § 628 BGB mn. 41.
7 BAG 10.5.1971 - 3 AZR 126/70, NJW 1971, 2092.
8 BAG 8.5.2007 - 9 AZR 527/06, NJW 2007, 3594.
9 BGH 28.4.1988 - III ZR 57/87, NJW 1988, 1967, 1968; see further Staudinger BGB/Preis, § 628 BGB
mn. 3.
10 BGH 7.6.1984 - II ZR 37/83, NJW 1985, 41.
Sagan/Seiwerth
1143
§ 628 6-8 Division 8. Particular types of obligations
by a breach of contract; or (ii) the service provider has broken the contract and caused the
other party to terminate it. In both cases, the causation ot a termination presupposes a cu pa e
breach of contract (§§ 278, 276).11 The respective breach of contract does not have to meet the
requirement of a compelling reason within the meaning of § 626(1).12 According to t e BGH,
however, the application of Sub. 1 1st St. is restricted by the principle of proportiona ity (§ 42)
because the right to termination replaces the right to revoke the contract and revocation is
excluded if the breach of duty is trivial (§ 323(5) 2nd St.).13 If Sub. 1 2nd St. applies, the service
provider cannot claim remuneration for services that are of no interest to the other party, i.e.
they are useless to the party entitled to services.14 Overpaid remuneration for past periods can
be reclaimed according to the rules of unjust enrichment (§§ 812 et seq.); Sub. 1 3rd St. does not
apply.15 However, periods for which remuneration is fully settled shall not be reversed due to
loss of interest.16
2. Advance remuneration
6 Sub. 1 3rd St. concerns the reimbursement of remuneration paid in advance. The provision
applies to remuneration paid prior to the termination of the contract in advance for future
services, which are no longer owed due to the termination.17 In general, reimbursement is
owed according to the rules on the legal effects of revocation (§ 346). However, if the service
provider is not responsible for the termination of the contract (within the sense of §§ 276,
278), the provisions on the return of unjust enrichment apply, including the exclusion on
grounds that the service provider is no longer enriched (§ 818(3)).
II. Damages
7 The claim to damages stipulated in Sub. 2 presupposes a culpable18 breach of contract
(§§ 276, 278) which causes the (extraordinary) termination of the service or employment
contract. The breach of the contract must be so significant that it meets the requirements of a
compelling reason (§ 626(1)).19 Either party to the contract may be entitled to damages
according to Sub. 2. However, if both parties are entitled to terminate the contract for a
compelling reason, for which the other party is responsible, Sub. 2 does not apply.20
8 The content of the claim for damages is governed by §§ 249 et seq. The respective
claimant is to be placed as if the service relationship had been continued (interest in
performance).21 The party entitled to services or employer may claim e.g. the costs of
replacing the service provider or employee (minus saved remuneration); a job advertisement;
11 BGH 30.3.1995 - IX ZR 182/94, NJW 1995, 1954, 1955; BGH 26.9.2013 - IX ZR 51/13, NJW 2014,
317 (mn. 12); MüKo BGB/Henssler, § 628 BGB mn. 17 and 19.
12 BGH 29.3.2011 - VI ZR 133/10, NJW 2011, 1674 (mn. 13-15).; Staudinger BGB/Preis, § 628 BGB
mn. 25; for a detailed discussion see Canaris, in: Bitter et al. (eds), Festschrift für Karsten Schmidt (Otto
Schmidt 2009), p. 177, 181 et seq.
13 BGH 29.3.2011 - VI ZR 133/10, NJW 2011, 1674 (mn. 15); criticised by MüKo BGB/Henssler, § 628
BGB mn. 21; Preis/Sagan, Zum Verlust des Vergütungsanspruchs eines (Zahn-)Arztes bei einem Behand¬
lungsfehler, MedR 2012, 40, 41.
N BGH 7.6.1984 - II ZR 37/83, NJW 1985, 41.
15 OLG Oldenburg 5.9.1995 - 5 U 75/95, NJW-RR 1996, 1267; Preis/Sagan, Zum Verlust des
Vergütungsanspruchs eines (Zahn-)Arztes bei einem Behandlungsfehler, MedR 2012 40 41- to the
contrary BGH 29.3.2011 - VI ZR 133/10, NJW 2011, 1674 (mn. 11); Henssler/Deckenbrock’ Der (Teil-)
Vergütungsanspruch des Rechtsanwalts im Falle vorzeitiger Mandatsbeendigune im Normcefüee des
§ 628 BGB, NJW 2005, 1,5. 6 6 1,1 ivormgeiuge aes
16 MüKo BGB/Henssler, § 628 BGB mn. 18.
17 More broadly BGH 29.3.2011 - VI ZR 133/10, NJW 2011, 1674
'» BGH 16.1.1984 - II ZR 100/83, NJW 1984, 2093.
BAG 26.7.2001 - 8 AZR 739/00, NJW 2002, 1593; BAG 22.1.2009 - 8 AZR 808/07 NZA 2009 547
(mn. 32 et seq.). ‘
20 BGH 29.11.1965 - VII ZR 202/63, NJW 1966, 347.
21 BAG 2.1.1996 - 5 AZR 518/95, NZA 1997, 648, 649.
1144
Sagan/Seiwerth
Time off for search for employment 1-2 § 629
a contractual penalty to a third party; or compensation for operational losses.22 The service
provider or employee may in particular be entitled to compensation for the loss of the claim
to remuneration (§§611(1); 611a(2)) or a difference in wages after concluding a new
employment contract, including the costs of finding a new employer.23 For (free) service
contracts which are not employment contracts the compensation for loss of remuneration is
limited to the expiry of the notice period of a (hypothetical) termination of the party entitled
to services; the service provider cannot expect compensation for the period at which the
contract could have been terminated due to an ordinary termination by the other party to the
contract.-4 Within the scope of the KSchG, however, the ordinary termination of the
employment contract by the employer requires social justification (§ 1 KSchG).25 Thus, the
question arises as to whether the calculation of an employee’s claim to damages should be
based either on the assumption that the employer is entitled to declare ordinary termination
according to § 1 KSchG, or on the notion that the employee’s claim for damages is not
limited in time.26 According to the BAG, the employee’s claim under Sub. 2 is limited to the
loss ot remuneration incurred up to the expiry of the notice period of a fictitious termination,
to which an appropriate compensation in accordance with §§ 9, 10 KSchG can be added to
compensate tor the loss of dismissal protection.27
§629
Time off for search for
employment
§629
Freizeit zur Stellungssuche
After the termination of a permanent ser¬
vice relationship, the person entitled to ser¬
vices must grant the person obliged, on de¬
mand, reasonable time to seek another service
relationship.
Nach der Kündigung eines dauernden
Dienstverhältnisses hat der Dienstberechtigte
dem Verpflichteten auf Verlangen angemes¬
sene Zeit zum Aufsuchen eines anderen
Dienstverhältnisses zu gewähren.
A. Function
I. Purpose
Since 1 January 1900, § 629 guarantees service providers (§ 611) and employees (§ 611a) 1
the right to free time after termination to search for a job in order to take up a new position
and earn a living immediately after termination of the previous service or employment
contract.1
IL Position within the BGB
In general, employees are obliged to register personally with the Bundesagentur fur Arbeit 2
(Federal Employment Agency) no later than three months before their employment relation¬
ship ends (§38(1) SGB III). Employers are supposed to inform employees about their
obligations under § 38(1) SGB III, to exempt them from work so that they can register with
22 For details see MüKo BGB/Henssler, § 628 BGB mn. 97 et seq.
23 For details see ErfK Arbeitsrecht/Müller-Glöge, § 628 BGB mn. 39 et seq.
24 BGH 3.3.1993 - VIII ZR 101/92, NJW 1993, 1386; BGH 16.7.2008 - VIII ZR 151/05, NJW 2008,
3436.
25 See * § 620 mn. 11.
26 See Staudinger BGB/Preis, § 628 BGB mn. 54; APS Kündigungsrecht/Rolfs, § 628 BGB mn. 60.
27 BAG 26.7.2001 - 8 AZR 739/00, NJW 2002, 1593; BAG 26.7.2007 - 8 AZR 796/06, NZA 2007, 1419;
further Staudinger BGB/Preis, § 628 BGB mn. 46 et seq.
1 As to the historical background see Staudinger BGB/Preis, § 629 BGB mn. 1.
Sagan/Seiwerth
1145
§ 629 3-5 Division 8. Particular types of obligations
the Bundesagentur für Arbeit, and to enable them to participate in the necessary measures of
further occupational training (§2(2) No. 3 SGB III). However, no irect c aim o t e
employee against the employer can be derived from these provisions of socia security aw.
Nevertheless, § 629 also applies to qualification measures if they are urgent y require an
there are no operational reasons preventing the employee from being released rom the
obligation to work.2
III. Scope of application
3 § 629 applies to all permanent service and employment contracts (§§ 611,61 la). The term
permanent has the same meaning as in §§ 617, 627, 630.3 § 629 also applies to apprentices
(§ 10(2) BBiG). § 629 does not concern the reimbursement of costs incurred by the employee
due to applying to a new employer. Rather, the applicant may be entitled to reimbursement
of expenses against the potential new employer if the latter demands a personal interview
(§§ 662, 670 by analogy).4
B. Explanation
I. Termination
4 § 629 applies to any ending of the service or employment contract; the term termination
thus covers dismissals, termination agreements and an agreed contractual term.5 In the case
of a fixed-term employment contract, § 629 applies from the date from which a hypothetical
ordinary termination by the employer would end the employment relationship on the agreed
end date (§ 622).6 § 629 is applicable prior to the receipt of the termination (§ 130) if the
employer declares that he will soon terminate the employment relationship for operational
reasons (e.g. due to a company closure).7
IL Exemption
5 According to § 629, employees are not entitled to release themselves from work. They
rather may require the employer to grant such exemption, but must indicate the reason for
and the expected duration of the exemption.8 In addition, § 629 only guarantees a reasonable
time to seek another service relationship. The determination of the details with regard to the
duration and timing of the exemption from work is a unilateral decision by the employer in
the sense of §315; however, the employer must take into account the interests of the
employee-even more so than in other areas.9 Remuneration during the time of exemption
from work is not subject to § 629, but § 616. However, the reasonable time required for the
job search (§ 629) may be longer than the relatively trivial period (§ 616) during which the
employee’s claim to remuneration is maintained.10
2 See MüKo BGB/Henssler, § 629 BGB mn. 14-5; Staudinger BGB/Preis 6 628 BGB mn 16
3 See $ 627 mn. 3. ’*
< BAG 29.6.1988 - 5 AZR 433/87, NZA 1989, 468; as to the details see ErfK Arbeitsrecht/Preis $ 61 la
BGB mn. 244 et seq. ‘ ’
5 Staudinger BGB/Preis, § 629 BGB mn. 12.
6 ErfK Arbeitsrecht/Müller-Glöge, § 629 BGB mn. 3.
7 BeckOK BGB/Euchs/Baumgärtner, § 629 BGB mn. 4.
8 See ErfK Arbeitsrecht/Müller-Glöge, § 629 BGB mn. 4.
9 ErfK Arbeitsrecht/Müller-Glöge, § 629 BGB mn. 7. On the disnuied iwl.- i ,
can take time off by himself in case of unjustified refusal of the demand see Standing BGB/PrZt bS
BCjB mn* 21» *
,fJ BAG 13.11.1969 - 4 AZR 35/69, AP BGB § 616 No. 41.
1146
Sagan/Seiwerth
Duty to provide a reference
1-3 § 630
§630
Duty to provide a reference
Upon the termination of a permanent
sendee relationship, the person obliged may
demand from the other party a written refer¬
ence on the service relationship and its dura¬
tion. 2The reference must extend, on demand,
to the performance and conduct in sendee.
3The reference may not be provided in elec¬
tronic form. 4If the person obliged is an
employee, § 109 of the Trade Code applies.
§630
Pflicht zur Zeugniserteilung
!Bei der Beendigung eines dauernden
Dienstverhältnisses kann der Verpflichtete
von dem anderen Teil ein schriftliches Zeug¬
nis über das Dienstverhältnis und dessen
Dauer fordern. 2Das Zeugnis ist auf Verlan¬
gen auf die Leistungen und die Führung im
Dienst zu erstrecken. 3Die Erteilung des
Zeugnisses in elektronischer Form ist aus¬
geschlossen. 4Wenn der Verpflichtete ein Ar¬
beitnehmer ist, findet § 109 der Gewerbeord¬
nung Anwendung.
A. Function
I. Purpose
§ 630 obliges the party entitled to services to provide a (job) reference. The reference is 1
intended to promote the professional development of the service provider.1 In particular, it
shall assess the performance of the service provider and is intended to serve future employers
or contractual partners as a basis for their hiring decision.* 2
IL Scope of application
Initially, § 630 applied to both service and employment contracts. As of 1 January 2003, 2
the 4th St.3 came into force which refers to the special claim to a job reference for employees
in § 109 GewO. However, § 109 GewO is very similar to the 1st to 3rd St.; therefore, § 109
GewO is taken into account in the following where appropriate.
§ 630 applies only to ‘permanent’ service relationships; the term permanent has the same 3
meaning as in § 627.4 Service providers who carry out independent work cannot demand a
reference. Whoever provides services without instructions advertises with such services and
the result of the activity. In contrast, those who are dependent and bound by instructions
are only partially responsible for the results of their work and are therefore dependent on
the assessment of the person who has issued binding instructions. The excessive wording of
§ 630 must therefore be reduced. The provision applies only to service providers who
perform services in a manner similar to an employee and are therefore dependent on an
assessment of their professional activity; these are, for example, employee-like persons
(§5 (1) 2nd St. ArbGG), including homeworkers (§ 1 HAG); single-company commercial
agents (§ 92a HGB), minor commercial agents (§ 84(2) HGB); directors of a limited
liability company (§ 35 GmbHG) who are not majority shareholders,5 but not free-lance
professionals (e.g. physicians, lawyers, architects etc.) and board members of a stock
corporation.6
* BAG 16.9.1974 - 5 AZR 255/74, NJW 1975, 407; BGH 15.5.1979 - VI ZR 230/76, NJW 1979, 1882,
1884.
2 See BAG 14.10.2003 - 9 AZR 12/03, NJW 2004, 2770, 2271; BAG 12.8.2008 - 9 AZR 632/07, NZA
2008, 1349 (mn. 16).
3 BGBl. I 2002, p. 3412; as to the historic background see Schießmann, Historisches zum Arbeits¬
zeugnis, NZA 2006, 1392.
4 See * § 627 mn. 3.
5 BGH 9.11.1967 - II ZR 64/67, NJW 1968, 396.
6 See Staudinger BGB/Preis, § 630 BGB mn. 3 (with further references).
Sagan/Seiwerth 1147
4
§ 630 4-8 Division 8. Particular types of obligations
The service provider or employee cannot waive the right to a (job) reference prior
end of the service or employment relationship. According to the BAG, sett emen agreemen s
(for the ending of an action for protection against dismissal) generally cannot e in erpre e
as a waiver of the employee’s right to a job reference.7
B. Explanation
I. Claim
5 The claim to a (job) reference accrues upon termination of the service or employment
contract. Due to the systematic connection to § 629, the (job) reference may be requested as
soon as there is a claim for exemption from work under § 629.8 Neither § 630 nor § 109
GewO explicitly stipulate a claim for an intermediate reference prior to termination. In
certain cases, such a claim may be based on collateral obligations to the service or employ¬
ment contract; e. g. during court proceedings on the validity of a termination.
IL Reference
6 The reference must in principle be issued by the party entitled to services or employer.
However, it may be issued by authorised employees if they are the superior of the person to
be assessed, but not by external personnel (e.g. lawyers).10 In the event of insolvency
proceedings, the insolvency debtor shall issue the (job) reference if the service or employment
relationship ended before the application for insolvency; otherwise the insolvency adminis¬
trator shall issue the (job) reference.11 After a transfer of business, the transferee is required
to issue the reference upon termination of the employment relationship irrespective of the
length of service prior and after the transfer. The transferee cannot claim a lack of knowledge
of the performance and behaviour of the employee prior to the transfer.12
1. Type
7 The 1st and 2nd St./§ 109(1) 2nd and 3rd St. GewO distinguish between basic and qualified
references. A basic reference contains information at least about the service or employment
relationship and its duration. Upon demand of the service provider or employee a qualified
reference must be issued which extends to performance and conduct. The demand for a
reference, is usually to be understood as a request for a qualified reference.13
2. Form
8 According to the Is1 St./§ 109(3) GewO, the (job) reference must be issued in written form
(§ 126). The reference has to be neat and tidy (no stains, crossed out words, spelling errors
etc.).14 In addition, it must not give the impression that the issuer dissociates himself from its
content (e.g. strikingly unusual signature).15
7 BAG 16.9.1974 - 5 AZR 255/74, NJW 1975, 407.
8 BAG 27.2.1987 - 5 AZR 710/85, NZA 1987, 628, 629; see ->• § 629 mn 4
’BAG 4.11.2015-7 AZR 933/13, NZA 2016, 547, 551. ' ’
10 BeckOK BGB/Fuchs/Baumgärtner, § 630 BGB mn. 9, 11.
11 BAG 23.6.2004 - 10 AZR 495/03, NZA 2004, 1392.
12 BAG 16.10.2007 - 9 AZR 248/07, NZA 2008, 298.
13 ErfK Arbeitsrecht/Müller-Glöge, § 109 GewO mn. 5.
14 For examples see BAG 3.3.1993 - 5 AZR 182/92, NZA 1993 697’ Rap ?i o
NJW 2000, 1060. ’ 7’ BAG 2L91999 - 9 AZR 893/98,
15 LAG Hamm 27.7.2016 - 4 Ta 118/16, NZA-RR 2016, 570.
1148
Sagan/Seiwerth
Duties typical for the treatment contract
§ 630a
3. Content
The content of the reference must adhere to the principles of uniformity, totality and 9
veracity .16 On the other hand, the ‘benevolent standard of an informed employer’ must be
applied when formulating the (job) reference.17 The concrete choice of words is left to the
discretion of the party entitled to services or employer. The principle of uniformity means in
particular that the reference must assess the performance and the conduct of the service
provider or employee during the entire time of the contractual relationship. The overall
implementation of the contract must be assessed; individual incidents must not be high¬
lighted either positively or negatively.18 The reference must be total, i.e. complete and
precise.19 This regularly requires an individualised text.20 There is a tension between the
principle of veracity and the benevolent standard of an informed employer. However, a
reference can be benevolent only in the context of truth.21 The party entitled to services or
employer may decide which positive or negative characteristics of the service provider or
employee shall be emphasised; there is no obligation to mention each individual aspect.22
There is a margin of discretion in assessing performance.23
III. Breach
If a reference does not meet the legal requirements, the claim to a reference remains.24 25 10
The party entitled to sendees or employer is bound by the content of a reference he issued
previously with regard to the same service provider or employee; deviations are in principle
only permissible if previously unknown facts become known after the previous reference has
been issued.2? A culpable breach of the obligation to issue a (job) reference can lead to
liability for damages pursuant § 280(1) or §§ 280(1), (2), 286.26 27 In the case of deliberately
false information, third parties may have a claim for damages under tort law (§ 826).2'
Subtitle 2
Treatment contract
Untertitel 2
Behandlungsvertrag
§ 630a
Duties typical of the contract in
the treatment contract
(1) The treatment contract obliges the
party agreeing to provide medical treatment
for a patient (treating party) to provide the
promised treatment, and the other party (pa-
§ 630a
Vertragstypische Pflichten beim
Behandlungsvertrag
(1) Durch den Behandlungsvertrag wird
derjenige, welcher die medizinische Behand¬
lung eines Patienten zusagt (Behandelnder),
zur Leistung der versprochenen Behandlung,
der andere Teil (Patient) zur Gewährung der
16 See Staudinger BGB/Preis, § 630 BGB mn. 38.
17 BAG 12.8.2008 - 9 AZR 632/07, NZA 2008, 1349 (mn. 19); BAG 15.11.2011 - 9 AZR 386/10, NJW
2012, 1754 (mn. 11).
18 See Staudinger BGB/Preis, § 630 BGB mn. 39.
19 BAG 12.8.1976 - 3 AZR 720/75, AP BGB § 630 No. 11.
20 See Staudinger BGB/Preis, § 630 BGB mn. 40.
21 BAG 9.9.1992 - 5 AZR 509/91, NZA 1993, 698, 699.
22 BAG 12.8.2008 - 9 AZR 632/07, NZA 2008, 1349.
23 See BAG 18.11.2014 - 9 AZR 584/13, NZA 2015, 435 with references to the use of grades.
24 BAG 4.10.2005 - 9 AZR 507/04, NZA 2006, 436 (mn. 14 et seq.).
25 BAG 21.6.2005 - 9 AZR 352/04, NZA 2006, 105, 106.
io See BAG 12.2.2013 - 3 AZR 120/11, NZA 2014, 31.
27 See BGH 22.9.1970 - VI ZR 193/69, NJW 1970, 2291.
Kirchhefer-Lauber
1149
§ 630a 1-5 Division 8. Particular types of obligations
tient) to pay the agreed remuneration unless
a third party is obliged to effect payment.
(2) Unless agreed otherwise» the treatment
must take place according to the medical
standards that are generally recognised at the
time of the treatment.
vereinbarten Vergütung verpflichtet, soweit
nicht ein Dritter zur Zahlung verpflichtet ist.
(2) Die Behandlung hat nach den zum Zeit¬
punkt der Behandlung bestehenden, allgemein
anerkannten fachlichen Standards zu erfolgen,
soweit nicht etwas anderes vereinbart ist.
A. Function
I. Purpose
1 The provision serves to regulate the contract between treating party and patient.
II. Position within the BGB
2 As a rule within Book 2, Title 8 Service Contracts and similar contracts, the treatment
contract makes allowance for the special character of medical treatments and the doctor¬
patient relationship. The legislator regards the treatment contract as similar to a service
contract, but without a guarantee regarding the success of the treatment.
III. Scope of application
3 § 630a applies to all forms of treatments within medical practice in a broader sense,
including plastic surgery. Only human patients, not animals fall under the scope of the
provision. Medical treatment comprises treatment not only by doctors but also by psy¬
chotherapists, midwifes and alternative practitioners. The broad scope is reflected through
the umbrella term treating party. There is also a strong argument for the application to
parties who pretend to have a medical qualification.1
B. Context
4 §§ 630a-630h entered into force in February 2013 and consist mainly of codified case law.
Thus the rules in §§ 630a-630h have to be read and interpreted in the light of the case law
applied in this area. Accordingly, a deviation from the former case law is intended only in
case of divergent wording of the provisions.
C. Explanation
5 The primary duty to perform is to carry out the treatment according to the contract.
Sub. 2 states as part of the duty to perform, that the treatment must take place according to
the medical standards that are generally recognised at the time of the treatment. At the same
time Sub. 2 specifies and complements the concept of negligence as defined in § 276(2) The
referral to the time of the treatment is to be especially observed. The possibility of other
agreements allows for religiously motivated contractual differences from the medical stan¬
dards. Where medical treatment is provided without established, generally recognised
standards - such as new methods - the approach is to apply the standard of diligence from
a party exercising caution when treating the patient.2 The main duty of the patient is to pay
the agreed remuneration, unless a third party is obliged to effect payment This latter case
1 See MüKo BGB/Wagner, § 630a BGB mn. 9.
2 BGH 27.3.2007 - VI ZR 55/05; BGH 22.5.2007 - VI ZR 35/06.
1150
Kirchhefer-Lauber
Cooperation between the contracting parties § 630c
takes into account statutory health insurance, whereby the claim for remuneration is directed
towards the patient's insurer, not the patient himself.
§ 630b
Applicable provisions
The provisions on the service relationship,
which is not an employment relationship
within the meaning of § 622, are to be ap¬
plied to the treatment relationship unless this
subtitle determines otherwise.
§ 630b
Anwendbare Vorschriften
Auf das Behandlungsverhältnis sind die
Vorschriften über das Dienstverhältnis, das
kein Arbeitsverhältnis im Sinne des § 622 ist,
anzuwenden, soweit nicht in diesem Unter¬
titel etwas anderes bestimmt ist.
The provision underlines that the treatment contract is a special form of service contract. 1
§ 630b refers to the provisions on the service relationships, which are not employment relation¬
ships within the meaning of § 622. These provisions apply, unless §§ 630a-630h state something
more specific or divergent. In particular, § 612 applies for the remuneration according to the
GOZ (Gebührenordnung für Zahnärzte - Scale of Fees for Dentists) and GOÄ (Gebührenord¬
nung für Ärzte - Scale of Fees for Doctors). Furthermore, §615 applies in cases whereby a
patient does not attend an appointment and the remuneration is lost for the treating party.
§ 630c
Cooperation between the
contracting parties; obligations to
provide information
(1) The treating party and the patient
should work together to implement the treat¬
ment.
(2) IThe treating party is obliged to explain
to the patient in a comprehensible manner at
the beginning of the treatment, and where
necessary during the same, all and any cir¬
cumstances that are relevant to the treatment,
in particular the diagnosis, the anticipated
health development, the therapy and the mea¬
sures to be taken on the occasion of and
subsequent to the therapy. 2If circumstances
are recognisable for the treating party which
give rise to the presumption of malpractice,
he/she shall inform the patient thereof on
request or in order to avert health risks. 3If
the treating party or one of his/her relatives
designated in § 52 subsection (1) of the Code
of Criminal Procedure has committed mal¬
practice, the information in accordance with
sentence 2 may only be used for evidential
purposes in criminal or regulatory fine pro¬
ceedings pursued against the treating party or
against a member of his/her family with the
consent of the treating party.
(3) *If the treating party knows that the
complete assumption of the treatment costs
by a third party is not secured, or if sufficient
indications of this emerge under the circum-
§ 630c
Mitwirkung der Vertragsparteien;
Informationspflichten
(1) Behandelnder und Patient sollen zur
Durchführung der Behandlung Zusammen¬
wirken.
(2) ‘Der Behandelnde ist verpflichtet, dem
Patienten in verständlicher Weise zu Beginn
der Behandlung und, soweit erforderlich, in
deren Verlauf sämtliche für die Behandlung
wesentlichen Umstände zu erläutern, ins¬
besondere die Diagnose, die voraussichtliche
gesundheitliche Entwicklung, die Therapie
und die zu und nach der Therapie zu ergrei¬
fenden Maßnahmen. 2Sind für den Behan¬
delnden Umstände erkennbar, die die An¬
nahme eines Behandlungsfehlers begründen,
hat er den Patienten über diese auf Nachfrage
oder zur Abwendung gesundheitlicher Gefah¬
ren zu informieren. 3Ist dem Behandelnden
oder einem seiner in § 52 Absatz 1 der Straf¬
prozessordnung bezeichneten Angehörigen
ein Behandlungsfehler unterlaufen, darf die
Information nach Satz 2 zu Beweiszwecken in
einem gegen den Behandelnden oder gegen
seinen Angehörigen geführten Straf- oder
Bußgeldverfahren nur mit Zustimmung des
Behandelnden verwendet werden.
(3) ‘Weiß der Behandelnde, dass eine voll¬
ständige Übernahme der Behandlungskosten
durch einen Dritten nicht gesichert ist oder
ergeben sich nach den Umständen hierfür
Kirchhefer-Lauber
1151
Division 8. Particular types of obligations
§ 630c 1-4
stances, he/she must inform the patient in
text form prior to commencing the treatment
of the likely costs of the treatment. 1 2Further
requirements from other provisions as to
form remain unaffected.
(4) The patient does not need to be in¬
formed where this can exceptionally be dis¬
pensed with because of special circumstances,
in particular if the treatment cannot be post¬
poned or the patient has explicitly waived
being informed.
hinreichende Anhaltspunkte, muss er den Pa¬
tienten vor Beginn der Behandlung über die
voraussichtlichen Kosten der Behandlung in
Textform informieren. W’itergehende Form¬
anforderungen aus anderen Vorschriften blei-
ben unberührt. .
(4) Der Information des Patienten bedarf
es nicht, soweit diese ausnahmsweise auf¬
grund besonderer Umstände entbehrlich ist,
insbesondere wenn die Behandlung unauf¬
schiebbar ist oder der Patient auf die Infor¬
mation ausdrücklich verzichtet hat.
A. Function
1 § 630c contains several directory provisions and duties, especially for the treating party.
Systematically speaking, Subs 2 and 3 are more specific than Sub. 1. Regarding the duty to
inform, § 630e takes precedence in relation to Sub. 2 1st St.
B. Explanation
I. Compliance
2 Sub. 1 comprises the directory provision regarding compliance. Based on the special
confidential relationship between treating party and patient, it states the general obligations
of patients. The violation of these obligations does not result in a damages claim but can
negate the treating party’s responsibility for malpractice. With regard to the treating party,
Sub. 1 states not only obligations but rather duties, especially in conjunction with other
provisions, e. g. § 630d. Sub. 1 2nd and 3rd St. establish a duty to inform about malpractice of
the treating party or a third party. This kind of duty is uncommon in German private law:
there was no case law underpinning a duty to disclose malpractice and the duty has been
criticised.1 Accordingly, there is uncertainty surrounding the effect of the codification of this
disclosure rule on affect the liability of treating parties.
II. General information duties
3 Sub. 2 1st St. comprises general information duties for the treating party. The enumeration
only consists of examples (in particular), which points to the ongoing validity of the former
case law.
4
III. Information on financial effects
Sub. 3 establishes the duty to inform about the financial effects of the treatment contract.
The provision has been justified with the apparently superior knowledge of the treating party
with regard to the extent health insurance companies will cover the costs of certain
treatments. It can be questioned whether the treating parties can really be expected to be
informed concerning all the different reimbursement policies of different insurance compa¬
nies, so they can advise and inform their patients accordingly. Prior to codification in 2013
the BGH provided that the patient could hold the violation of the duty against the claim of
.h. treating patty «cording to § 242’ After cod.r.cation, i, 5ttms „„J, ’
for damages according to § 280(1).
1 Summarised in MuKo BGB/Wagner, § 630c BGB mn. 27.
2 BGH 1.2.1983 - VI ZR 104/81, NJW 1983, 2630.
1152
Kirchhefer-Lauber
Consent
1-2 § 630d
IV. Exception
'S 3 ®enera^ c^ause regarding dispensation of the information duty. It is substan- 5
tiate by two examples, i.e. when the treatment cannot be postponed and when the patient
has explicitly waived being informed. Tacit waiver of the right to be informed is excluded. It
is strongly advisable for the treating party to document such a patient’s wish.
§ 630d
Consent
(1) 1 Prior to implementing medical treat¬
ment, in particular a procedure affecting the
body or health, the treating party is obliged
to acquire the consent of the patient. 2If the
patient is unable to consent, the consent of a
party entitled to do so is to be acquired unless
a thing will in accordance with § 1901a(l)
sentence 1 permits or prohibits the measure.
3Further requirements with regard to consent
ensuing from other provisions remain unaf¬
fected. 4If consent to a measure which cannot
be delayed cannot be acquired in good time,
it may be implemented without consent if
this is in line with the implicit will of the
patient.
(2) The effectiveness of the consent is con¬
tingent on the patient, or in the case of
subsection (1) sentence 2 the party entitled
to give consent, having been informed in
accordance with §630e(l) to (4) prior to
giving consent
(3) Consent may be revoked at any time,
without complying with a specific format,
and without stating reasons.
630d
Einwilligung
(1) ’Vor Durchführung einer medizini¬
schen Maßnahme, insbesondere eines Ein¬
griffs in den Körper oder die Gesundheit, ist
der Behandelnde verpflichtet, die Einwil¬
ligung des Patienten einzuholen. 2lst der Pa¬
tient einwilligungsunfähig, ist die Einwil¬
ligung eines hierzu Berechtigten einzuholen,
soweit nicht eine Patientenverfügung nach
§ 1901a Absatz 1 Satz 1 die Maßnahme ge¬
stattet oder untersagt.3Weitergehende Anfor¬
derungen an die Einwilligung aus anderen
Vorschriften bleiben unberührt. 4Kann eine
Einwilligung für eine unaufschiebbare Ma߬
nahme nicht rechtzeitig eingeholt werden,
darf sie ohne Einwilligung durchgeführt wer¬
den, wenn sie dem mutmaßlichen Willen des
Patienten entspricht.
(2) Die Wirksamkeit der Einwilligung setzt
voraus, dass der Patient oder im Fall des
Absatzes 1 Satz 2 der zur Einwilligung Be¬
rechtigte vor der Einwilligung nach Maßgabe
von § 630e Absatz 1 bis 4 aufgeklärt worden
ist.
(3) Die Einwilligung kann jederzeit und
ohne Angabe von Gründen formlos widerru¬
fen werden.
A. Function
§ 630d codifies the principle that consent is to be acquired prior to a procedure affecting 1
the physical integrity of a person. This results from the right of self-determination
enshrined in Art. 2(1), Art. 1(1) GG.
B. Context
Whilst consent in tort law is a ground of justification, contract law determines the 2
acquisition of consent as a contractual duty.
Kirchhefer-Lauber
1153
§ 630e
Division 8. Particular types of obligations
C. Explanation
I. Consent
3 According to Sub. 1 2nd St., consent requires the ability to consent. Unfortunately, there is
no definition for the ability to consent for a medical treatment. 1 here are^^e Provls^ns ln
medical law which regulate the ability to consent, e.g. § 8a 1st St. No. 5 ransp an a
tionsgesetz\ Transplantation Act) and § 40(4) No. 3 AMG (Arzneimitte gesetz e icina
Products Act). In any case, the ability to consent is not equivalent to t e ega capacity to
contract (§§ 104 et seq. BGB). According to the BGH, the ability to consent depends on
whether the patient has the cognitive and moral maturity to judge the importance, re evance
and consequences of the treatment in question.1 Further requirements with respect to t e
ability to consent result from §§ 1904, 1905, 1906 and the GenDG (Gesetz über genetische
Untersuchungen bei Menschen - Genetic Diagnosis Act).
IL Exception
4 In deviation from the principle that consent has to be acquired, Sub. 1 4th St. allows for the
implementation of medical treatment without consent if the measure cannot be delayed and
if this is in line with the implied will of the patient. The subjective individual and personal
circumstances of the patient have to be taken foremost into account.2 Objective criteria are
only of secondary importance. According to Sub. 2, the effectiveness of the consent requires
information according to § 630e BGB. The consent can be withdrawn at any time, either
explicitly or implied (Sub. 3).
§ 630e
Obligations to provide
information
(1) ’The treating party is obliged to inform
the patient of all and any circumstances
which are relevant to consent. 2This includes
in particular the nature, extent, implementa¬
tion, anticipated consequences and risks in¬
volved in the measure, as well as its necessity,
urgency, suitability and prospects for success
with regard to the diagnosis or the therapy.
3Altematives to the measure must also be
referred to in the information if several
equally medically indicated, customary meth¬
ods may lead to significantly different strains,
risks or chances of recovery.
(2) ’The information must
1. be provided orally by the treating party
or by a person who has the requisite training
to carry out the measure; additionally, docu¬
ments may also be referred to which the
patient receives in text form,
§ 630e
Aufklärungspflichten
(1) ’Der Behandelnde ist verpflichtet, den
Patienten über sämtliche für die Einwilligung
wesentlichen Umstände aufzuklären. 2Dazu
gehören insbesondere Art, Umfang, Durch¬
führung, zu erwartende Folgen und Risiken
der Maßnahme sowie ihre Notwendigkeit,
Dringlichkeit, Eignung und Erfolgsaussichten
im Hinblick auf die Diagnose oder die Thera¬
pie. 3Bei der Aufklärung ist auch auf Alter¬
nativen zur Maßnahme hinzuweisen, wenn
mehrere medizinisch gleichermaßen indi¬
zierte und übliche Methoden zu wesentlich
unterschiedlichen Belastungen, Risiken oder
Heilungschancen führen können.
(2) lDie Aufklärung muss
1. mündlich durch den Behandelnden oder
durch eine Person erfolgen, die über die zur
Durchführung der Maßnahme notwendige
Ausbildung verfügt; ergänzend kann auch
au nterlagen Bezug genommen werden,
die der Patient in Textform erhält,
1 BGH 9.12.1958 - VI ZR 203/57, N)W 1959, 811.
2 BGH 4.10.1999 - 5 StR 712/98, NJW 2000, 885, 886.
1154
Kirchhefer-Lauber
to provide information
Obligations
2. be provided in good time so that the
patient can take his/her decision on consent
in a well-considered manner,
3. be understandable for the patient.
The patient shall be provided with dupli¬
cates ot documents which he/she has signed
in connection with the information or con¬
sent.
(3) The patient does not need to be provided
with information where this can be exception¬
ally dispensed with because of particular cir¬
cumstances, in particular if the measure can¬
not be delayed or the patient has explicitly
waived being provided with the information.
(4) If, in accordance with § 630d(l) sen¬
tence 2, the consent of a party entitled to do
so is to be obtained, the latter shall be informed
in accordance with subsections (1) to (3).
(5) ‘In cases coming under §630d(l) sen¬
tence 2, the major circumstances in accor¬
dance with subsection (1) shall also be ex¬
plained to the patient in a manner that he/she
is able to understand, where the latter
is capable of absorbing the explanation on the
basis of his/her state of development and abil¬
ity to understand and unless it is inconsistent
with his/her well-being. 2Subsection (3) shall
apply with the necessary modifications.
1-3 § 630e
2. so rechtzeitig erfolgen, dass der Patient
seine Entscheidung über die Einwilligung
wohlüberlegt treffen kann,
3. für den Patienten verständlich sein.
2Dem Patienten sind Abschriften von Un¬
terlagen, die er im Zusammenhang mit der
Aufklärung oder Einwilligung unterzeichnet
hat, auszuhändigen.
(3) Der Aufklärung des Patienten bedarf es
nicht, soweit diese ausnahmsweise aufgrund
besonderer Umstände entbehrlich ist, ins¬
besondere wenn die Maßnahme unaufschieb¬
bar ist oder der Patient auf die Aufklärung
ausdrücklich verzichtet hat.
(4) Ist nach § 630d Absatz 1 Satz 2 die Ein¬
willigung eines hierzu Berechtigten einzuho¬
len, ist dieser nach Maßgabe der Absätze 1 bis
3 aufzuklären.
(5) lIm Fall des § 630d Absatz 1 Satz 2 sind
die wesentlichen Umstände nach Absatz 1
auch dem Patienten entsprechend seinem
Verständnis zu erläutern, soweit dieser auf¬
grund seines Entwicklungsstandes und seiner
Verständnismöglichkeiten in der Lage ist, die
Erläuterung aufzunehmen, und soweit dies
seinem Wohl nicht zuwiderläuft. 2Absatz 3
gilt entsprechend.
A. Function
Consent has to be acquired for every procedure affecting the physical integrity of a person 1
(§ 630d). The patient is only able to give consent after he has been informed, i.e. informed
consent. The information laid down in § 630e therefore precedes the consent and also
represents the content of the consent. This means that the consent can never extend beyond
the information provided.
B. Context
The obligation to inform is based on the right of self-determination and tort law. §§ 630d 2
and 630e will also play a role in criminal law (e.g. offences against the person).
C. Explanation
I. General obligation
Sub 1 1st St. establishes a broad, general obligation for the treating party to inform the patient. 3
It extends to all and any circumstances that are relevant to consent. Sub. 1 2nd St. supplements
the 1st St. with examples of relevant information concerning the treatment measure itself and its
relationship to the diagnosis. Sub. 1 3rd St. places the treating party under the obligation to also
inform the patient of alternative measures if they have differing consequences regarding the
strains1 resulting from the alternative treatment, risks or chances of recovery.
1 Translation note: Burdens is a more suitable translation of Belastungen in § 630e( 1) 3rd St.
Kirchhefer-Lauber
1155
§ 630f
Division 8. Particular types of obligations
IL Requirements
4 Sub. 2 is concerned with the formal requirements and provision of information.
information is to be provided orally. There are no exemptions from t is ru e. ever e ess,3
is possible to make reference to written documents that are given to the patien . econ y, e
person who provides the information must have the requisite training to carry ou * e
measure. Where treatment by a doctor is concerning, the person provi ing t ie m ormation
must satisfy the standard of medical specialist.2 Thirdly, the information must e provi e in
good time so that the patient can take his decision on consent in a well-consi ere manner,
the case law on this topic applies.3 Fourthly, the information must be understanda e or the
individual patient. This is especially difficult where foreign language patients must be
informed. According to case law, the treating party must seek help by a translator. The
treating part}7 has the burden of proof, § 630h(2).
III. Exception
5 Sub. 3 regulates cases in which the information may be dispensed with. The provision
gives two examples where information can be exceptionally dispensed with because of
particular circumstances: if the measure cannot be delayed or the patient has explicitly
waived being provided with the information. The legislator chose the wording soweit (mean¬
ing as far as), stressing the necessity of temporally possible, but reduced information.
IV. Party
6 In general, the information has to be addressed at the patient (Sub. 4). In cases of minors,
both parents have to consent. However, for normal treatments it suffices if one parent is
informed, whereas both parents need to be informed if the treatment in question involves
severe risks for the child.
V. Capability
7 Sub. 5 concerns patients who are not able to consent. It is a new approach which provides
that such patients must receive information according to their mental and physical
capability. The legislator’s motivation was to include persons incapable of consenting in the
treatment process.5 For the purposes of excluding liability under § 280(1), the treating party
will have to prove that the patient unable to consent was informed according to his scope of
understanding.
§ 630f
Documentation of the treatment
(1) 'For the purpose of documentation, the
treating party is obliged to keep medical
records in paper form or as electronic docu-
§ 630f
Dokumentation der Behandlung
Der Behandelnde ist verpflichtet, zum
k ^Dokumentation in unmittelbarem
'chen Zusammenhang mit der Bchand-
2 BGH 7.11.2006 - VI ZR 206/05, NJW-RR 2007, 310; OlG
RR 1998, 459.
Karlsruhe 19.3.1997 - 13 U 42-96, NJW-
3 See e.g. the BGH decisions 7.4.1992- VI ZR 192/91, NJW 1992 iie
NJW 1994, 3008, 3010; 14.11.1995 - VI ZR 359/94, NJW 1996 777 770 352; l2'7'"4 - VI ZR 299/93,
2000,1784,1787; ’ ’ //9; 15 2.2000 - VI ZR 48/99, NJW
1 OLG Düsseldorf 12.10.1989 - 8 U 60/88, NJW 1990, 771 • OIC M
BeckRS 1992,05291. ’ ’ München 26.11.1992 - 1 U 6976/91,
5 BT-Drs. 17/11710 of 28.11.2012, p. 9, 29.
1156
Kirchhcfer-kauber
Documentation of the treatment
mentation in a direct temporal link with the
treatment. Corrections and alterations of
entries in the medical records are only per¬
missible if, in addition to the original con¬
tent, the point in time at which they were
carried out remains recognisable. 3This is also
to be ensured for medical records that are
kept electronically.
(2) ‘The treating party is obliged to record
all measures in the medical records which are
relevant in medical terms for the current and
future treatment and its results, in particular
the establishment of the medical history, di¬
agnoses, examinations, results of examina¬
tions, findings, therapies and their effects,
procedures and their impact, consent and
information. Physicians’ letters are to be
included in the medical records.
(3) The treating party must keep the med¬
ical records for a period of ten years after the
conclusion of the treatment unless other per¬
iods for their retention exist in accordance
with other provisions.
1-4 § 630f
lung eine Patientenakte in Papierform oder
elektronisch zu fuhren. Berichtigungen und
Änderungen von Eintragungen in der Patien¬
tenakte sind nur zulässig, wenn neben dem
ursprünglichen Inhalt erkennbar bleibt, wann
sie vorgenommen worden sind. 3Dies ist auch
für elektronisch geführte Patientenakten si¬
cherzustellen.
(2) ‘Der Behandelnde ist verpflichtet, in
der Patientenakte sämtliche aus fachlicher
Sicht für die derzeitige und künftige Behand¬
lung wesentlichen Maßnahmen und deren
Ergebnisse aufzuzeichnen, insbesondere die
Anamnese, Diagnosen, Untersuchungen, Un¬
tersuchungsergebnisse, Befunde, Therapien
und ihre Wirkungen, Eingriffe und ihre Wir¬
kungen, Einwilligungen und Aufklärungen.
2Arztbriefe sind in die Patientenakte auf¬
zunehmen.
(3) Der Behandelnde hat die Patientenakte
für die Dauer von zehn Jahren nach Ab¬
schluss der Behandlung aufzubewahren, so¬
weit nicht nach anderen Vorschriften andere
Aufbewahrungsfristen bestehen.
A. Function
The duty of documentation of the treating party serves several purposes. Where it used to 1
be a memory’ aid for the treating party, it is now a means of ensuring an appropriate way of
further treatment and as result of the general personality right also a means of justifying the
process of the procedure or operation towards the patient. But above all, it serves an
evidentiary’ function.
B. Explanation
I. Breach
The breach of the duty of documentation can have several implications, especially with 2
regard to malpractice, § 630(3).
II. Time period
The requirement of a direct temporal context with the treatment is new and stricter than 3
unverzüglich (without undue delay) in § 121(1). Documentation for operative procedures
must be carried out the same day.
III. Medical records
Medical records can be kept in paper or electronically, freedom from manipulation must 4
be ensured. Corrections and alterations of entries in the medical records are only permissible
if, in addition to the original content, the point in time at which they were carried out
remains recognisable. Sub. 1 2nd and 3rd St. aim to correlate with the principles of adequate
and orderly accounting (§ 239(3) HGB, § 146(4) AO).
Kirchhefer-Lauber
1157
§ 630g 1
Division 8. Particular types of obligations
IV. Content
, tn examples. The documenta-
5 Sub. 2 regulates the content of the information by reference
tion has to be understandable.
V. Retention period
6 Sub. 3 establishes a retention period for the medical records of 10 years a ter
conclusion of the treatment. The period corresponds to § 10(3) MBO ( erufsor nung
fiir die in Deutschland tätigen Ärztinnen und Ärzte - Model Professiona o e or oc ors
practising in Germany). Priority periods exist in § 12 GenDG (Gesetz u er genetisc e
Untersuchungen bei Menschen - Genetic Diagnosis Act), § 28(3) RöV (Röntgenveror nung
- X-Ray Regulation), §§ 15, 14(3) TFG (Gesetz zur Regelung des Transfusionswesens -
Transfusion Regulation Act). The breach of the retention period results in a reversal of the
burden of proof (§ 630h(3)).
§ 630g
Inspection of the medical records
(1) lThe patient is on request to be per¬
mitted to inspect the complete medical re¬
cords concerning him/her without delay to
the extent that there are no considerable
therapeutic grounds or third-party rights at
stake to warrant objections to inspection.
2Reasons must be provided for a refusal to
permit inspection. 3§ 811 is to be applied
with the necessary modifications.
(2) ‘The patient can also request electronic
duplicates of the medical records. 2He/she
shall reimburse to the treating party the costs
incurred.
(3) ‘In the event of the death of the patient,
the rights ensuing from subsections (1) and
(2) to exercise the interests under property
law fall to his/her heirs. 2The same applies to
the closest relatives of the patient where they
assert immaterial interests. 3The rights are
ruled out where inspection runs counter to
the explicit or presumed will of the patient.
§ 630g
Einsichtnahme in die
Patientenakte
(1) 'Dem Patienten ist auf Verlangen un-
verzüglich Einsicht in die vollständige, ihn
betreffende Patientenakte zu gewähren, so¬
weit der Einsichtnahme nicht erhebliche the¬
rapeutische Gründe oder sonstige erhebliche
Rechte Dritter entgegenstehen. 2Die Ableh¬
nung der Einsichtnahme ist zu begründen.
3§ 811 ist entsprechend anzuwenden.
(2) ‘Der Patient kann auch elektronische
Abschriften von der Patientenakte verlangen.
2Er hat dem Behandelnden die entstandenen
Kosten zu erstatten.
(3) ‘Im Fall des Todes des Patienten stehen
die Rechte aus den Absätzen 1 und 2 zur
Wahrnehmung der vermögensrechtlichen Inte¬
ressen seinen Erben zu. 2Gleiches gilt für die
nächsten Angehörigen des Patienten, soweit sie
immaterielle Interessen geltend machen. 3Die
Rechte sind ausgeschlossen, soweit der Ein¬
sichtnahme der ausdrückliche oder mutma߬
liche Wille des Patienten entgegensteht.
A. Function
1 The right to inspection of the medical records is based on the underlying right to self-
determination in regard to information. 7 6 b
1158
Kirchhefer-Lauber
Inspection of the medical records
2-7 § 630g
B. Explanation
I. Medical record
The right to inspection refers to the complete original medical record. Taking into 2
account the provisions ot § 630f and § 630h(3), it is not advisable to keep more than one
record.
II. Inspection
Inspection ot the medical records is only permitted on request, which must be clearly 3
expressed. The inspection has to be permitted unverzüglich (without undue delay), which is
defined in § 121(1). Nevertheless, in practice the organisation of a doctor’s surgery or clinic
will, in reality, require some days. Damages can be claimed in the event of a culpably caused
delay.
III. Denial of inspection
The inspection may be denied if there are considerable therapeutic grounds or third-party 4
rights at stake to warrant objections to full or partial inspection, such as self-endangerment.
In cases of doubt, however, the decision must be in favour of inspection. The reasons for a
refusal to permit inspection must be provided. This is a relatively new rule, which involves
the risk that the reasons reveal the grounds which originally resulted in the decision to deny
inspection.
IV. Place
For the place of inspection, Sub. 1 3rd St. refers to § 811: inspection must be allowed at the 5
place where the records are stored. According to § 811(1) 2nd St., each party can demand
inspection at a different place, where there is an important reason for this request. The costs
must be paid by the patient.
V. Duplicates
Sub. 2 additionally regulates that the patient can also request electronic duplicates of the 6
medical records and also film records, if they exist. The patient shall reimburse to the
treating party the costs incurred. Courts have accepted copy fees up to 50 cents per page.1
VI. Death
Sub. 3 establishes a post-mortem right to inspection of the medical records and distin- 7
guishes between interests under property law, which are granted to the heirs, and immater¬
ial interests, which can be claimed by the closest relatives. Whereas the provision does not
provide further details, the legislative explanatory documentation lists spouses, civil partner¬
ship partner, children, parents, siblings and grandchildren.2
1 LG München I 19.11.2008 - 9 0 5324/08, BeckRS 2009, 28490.
2 BT-Drs. 17/10488 of 15.8.2012, p. 27.
Kirchhefer-Lauber
1159
§ 630h 1
Division 8. Particular types of obligations
§630h
The burden of proof in case of
liability for malpractice and errors
in providing information
(1) An error is to be presumed to have been
committed by the treating party if a general
treatment risk has materialised which was
fully manageable for the treating party and
which led to the injury to the life, limb or
health of the patient.
(2) 'The treating party is to prove that he/
she has acquired consent in accordance with
§ 630d and provided information in accor¬
dance with the requirements of § 630e. 2If
the information does not comply with the
requirements of § 630e, the treating party
may assert that the patient would also have
consented to the measure had proper infor¬
mation been provided.
(3) If the treating party has not recorded a
medically-necessary major measure and its
result in the medical records, counter to
§ 630f(l) or (2), or if, counter to § 630f(3),
he/she has not retained the medical records,
it is to be presumed that he/she has not
carried out this measure.
(4) If a treating party was not qualified to
carry out the treatment which he/she per¬
formed, it is to be presumed that the lack of
qualification was the cause of the occurrence
of the injury to the life, limb or health.
(5) 'If gross malpractice has committed,
and if this is susceptible as a matter of prin¬
ciple to cause an injury to life, limb or health
of the nature which in fact took place, it is to
be presumed that the malpractice was the
cause of this injury. 2This is also to apply if
the treating party omitted to take or record a
medically-necessary finding in good time
where the finding would with sufficient cer¬
tainty have led to a result which would have
given rise to further measures, and if failure
to carry out such measures would have con¬
stituted gross malpractice.
§ 630h
Beweislast bei Haftung für
Behandlungs- und
Aufklärungsfehler
(1) Ein Fehler des Behandelnden wird ver¬
mutet, wenn sich ein allgemeines Behand¬
lungsrisiko verwirklicht hat, das für den Be¬
handelnden voll beherrschbar war und das
zur Verletzung des Lebens, des Körpers oder
der Gesundheit des Patienten geführt hat.
(2) 'Der Behandelnde hat zu beweisen, dass
er eine Einwilligung gemäß § 630d eingeholt
und entsprechend den Anforderungen des
§630e aufgeklärt hat. 2Genügt die Aufklä¬
rung nicht den Anforderungen des § 630e,
kann der Behandelnde sich darauf berufen,
dass der Patient auch im Fall einer ordnungs¬
gemäßen Aufklärung in die Maßnahme ein¬
gewilligt hätte.
(3) Hat der Behandelnde eine medizinisch
gebotene wesentliche Maßnahme und ihr
Ergebnis entgegen § 630f Absatz 1 oder
Absatz 2 nicht in der Patientenakte auf¬
gezeichnet oder hat er die Patientenakte ent¬
gegen § 630f Absatz 3 nicht aufbewahrt, wird
vermutet, dass er diese Maßnahme nicht ge¬
troffen hat.
(4) War ein Behandelnder für die von ihm
vorgenommene Behandlung nicht befähigt,
wird vermutet, dass die mangelnde Befähi¬
gung für den Eintritt der Verletzung des
Lebens, des Körpers oder der Gesundheit ur¬
sächlich war.
(5) 'Liegt ein grober Behandlungsfehler vor
und ist dieser grundsätzlich geeignet, eine
Verletzung des Lebens, des Körpers oder der
Gesundheit der tatsächlich eingetretenen
Art herbeizuführen, wird vermutet, dass der
Behandlungsfehler für diese Verletzung ur¬
sächlich war. 2Dies gilt auch dann, wenn es
der Behandelnde unterlassen hat, einen medi¬
zinisch gebotenen Befund rechtzeitig zu erhe¬
ben oder zu sichern, soweit der Befund mit
hinreichender Wahrscheinlichkeit ein Ergeb¬
nis erbracht hätte, das Anlass zu weiteren
Maßnahmen gegeben hätte, und wenn das
Unterlassen solcher Maßnahmen grob fehler¬
haft gewesen wäre.
A. Function
1 § 630h serves to codify all the case law concerning thn ki.ri c r f
liability, the principles of facilitation of proof, and to extend thncn\Cn n ^r°° ^°tlorS
The principles developed in .ori l.„ tae „„„ been
1160
Kirchhefer-Lauber
Burden of proof in case of liability for malpractice 2-6 § 630h
B. Context
§ 630h is based on § 280(1). Malpractice is regarded as a breach of duty. The same applies 2
to all other duties. The patient has to prove the conclusion of a treatment contract, a breach
of duty, his damages, and causation (§ 280(1) 1st St.). According to § 280(1) 2nd St., the
Vertretenmüssen (responsibility for the fault) is presumed. Due to the modifying case law -
now codified - the scope of application within the liability law for doctors is very small to
non-existent. The legislative grounds reveal that the tortious liability according to §§ 823 et
seq. is supposed to remain separate from the liability according to § 630h.1
C. Explanation
I. Partial reversal
§ 630h consists of a list of factors that result in a partial reversal of the burden of proof. In 3
contrast to the list of examples in the provisions concerned with duties of information, this
list appears to be exhaustive. As such, at least in contract law there is no space for case law
that creates new factors for a reversal of the burden of proof.
IL General treatment risk
A general treatment risk, which was fully manageable for the treating party, will generally 4
be a risk that arises from the organisation and domain of the treating party. If such a risk
materialises, the malpractice of the treating party is presumed in the sense of § 280(1). The
causation is not presumed.
III. Consent
The provision that the treating party is to prove that he has acquired consent in 5
accordance with § 630d and provided information in accordance with the requirements of
§ 630e originates from tort law, where consent is a ground of justification. Sub. 2 does not
refer to the duties of information in § 630c. If the information does not comply with the
requirements of § 630e, the treating party may assert that the patient would also have
consented to the measure, had proper information been provided. Here, the case law
concerning the so-called hypothetical consent has been codified.2
IV. Medical records and qualification
Sub. 3 regulates, that if the treating party has not recorded a medically-necessary major 6
measure and its result in the medical records, contrary to § 630f( 1) or (2), or if, contrary to
§ 630f(3), he has not retained the medical records, there is the presumption that he has not
carried out this measure. The provision extends to an error by a novice. If the supervision of
a novice is not sufficiently recorded, it is presumed that no supervision took place. In
combination with Sub. 4, which regulates the case in which the treating party was not
qualified to carry out the treatment performed, it is to be presumed that the lack of
qualification was the cause of the occurrence of the injury to the life, limb or health; even
the causation can be presumed.
1 BT-Drs. 17/10488 of 15.8.2012, p. 27.
2 e.g. BGH 5.2.1991 - VI ZR 108/90, NJW 1991, 2342; BGH 7.3,1998 - VI ZR 74/97, NJW 1998, 2734.
Kirchhefer-La uber
1161
§ 631 1-2
Division 8. Particular types of obligations
7
V. Gross malpractice
The most distinctive provision is to be found in Sub. 5, which codified t ”
gross malpractice, and is more an equity rule than a dogmatica y jus i i
patient must prove the existence of gross malpractice, i.e. a severe fault. The legal
consequence is a complete reversal of the burden of proof concerning le on
constituting the liability. Sub. 5 2nd St. extends the application of this complete re ersal of
the burden of proof to normal malpractice combined with hypothetica ma prac ice.
Title 9
Contract to produce a work and
similar contracts
Subtitle 1
Contract to produce a work
Chapter 1
General provisions
Titel 9
Werkvertrag und ähnliche
Verträge
Untertitel 1
Werkvertrag
Kapitel 1
Allgemeine Vorschriften
§631
Typical contractual duties in a
contract to produce a work
(1) By a contract to produce a work, a
contractor is obliged to produce the promised
work and the customer is obliged to pay the
agreed remuneration.
(2) The subject matter of a contract to
produce a work may be either the production
or alteration of a thing or another result to be
achieved by work or by a service.
§631
Vertragstypische Pflichten beim
Werkvertrag
(1) Durch den Werkvertrag wird der Un¬
ternehmer zur Herstellung des versprochenen
Werkes, der Besteller zur Entrichtung der
vereinbarten Vergütung verpflichtet.
(2) Gegenstand des Werkvertrags kann so¬
wohl die Herstellung oder Veränderung einer
Sache als auch ein anderer durch Arbeit oder
Dienstleistung herbeizuführender Erfolg sein.
A. Function
I. Purpose
1 The provision regulates the main contractual duties of the parties in a contract to produce
a work The contract to produce a work is a mutual synallagmatic contract whereby a
synallagmatic connection exists between the contractor’s obligation to produce the promised
work and the customer’s obligation to pay the agreed remuneration.
2
IL Scope and distinction from other contract types
Difficulties may arise in distinguishing the contract to produce a work from the service
contract that is regulated by §§ 611 et seq. As opposed to the person who promises a service
the contractor within the meaning of § 631 is not obliged to perform the services but owes a
particular success.1 For instance, a treatment contract (which is regulated by the §§630a et seq
1 MüKo BGB/Busche, § 631 BGB mn. 1.
1162
Fervers
Typical contractual duties in a contract to produce a work 3-5 § 631
as a particular type ot service contract) is not considered a contract to produce a work since the
treating party does not commit himself to cure the patient but only to treat the patient as best
as possible. However, this criterion of distinction may become difficult to use because on the
one hand the contractor is almost never able to absolutely ensure a certain success and on the
other hand a customer will not be satisfied with just a performance of a service without any
kind of success. For example, a contract of carriage is considered a contract to produce a work,2
notwithstanding the fact that the carrier cannot ensure the success of the transport. And a
telecommunications contract is mainly qualified as a service contract3 even though the client
may expect the telecommunications to function, i.e. a success. It is, therefore, important to
distinguish the function of the two contract types and to examine the parties’ will in each
individual case. In contrast to a person promising the performance of services, the contractor
bears the risk ot remuneration (Vergütungsgefahr) until the acceptance of the work. Moreover,
a person promising performance of services often has a tendency to get paid on a timely basis,
whereas the required working time may be less relevant for a contractor. Additionally, the
customer has the rights according to §§ 634 et seq. in case of a defect, whereas the 611 et
seq. do not contain specific statutory provisions with regard to the rights in case of defects.
B. Context
The contract to produce a work has featured since the BGB entered into force on 1 January 3
1900. The 2002 modernisation of the law of obligations brought a number of changes: it
introduced § 651 (now § 650) which means that the provisions of sale of goods are applicable
to a contract dealing with the supply of movable things to be produced or manufactured.
Additionally, the limitation period for defects was extended.4 5 On 1 January 2018, reforms to
construction contract law brought additional changes, particularly introducing specific
provision with regard to the construction contract (§§ 650a et seq.) and introducing the
possibility of a termination for a compelling reason in § 648a?
C. Explanation
I. Requirements
The parties’ contractual duties in a contract to produce a work only arise if there is a valid 4
contract to produce a work.
1. Contract to produce a work
According to the aforementioned criteria, contracts as the architect contract,6 the con- 5
struction contract7 (specific provision in §§ 650a et seq.), the repair contract,8 the advertising
contract,9 the contract to create a website,10 the contract to produce an advisory opinion,11
the contract of carriage,12 etc. are mainly qualified as contracts to produce a work. §§ 145 et
seq. apply to the conclusion of the contract.
2 BGH 21.12.1973 - IV ZR 158/72, NJW 1974, 852.
3 BGH 7.3.2013 - III ZR 231/12, NJW 2013, 2021 (mn. 15).
4 For more details see BcckOGK BGB/Merkle, § 631 BGB mn. 11-18.
5 See BeckOGK BGB/Merkle, § 631 BGB mn. 591-618.
6 See BGH 7.5.1962 - VII ZR 7/61, NJW 1962, 1499.
7 BGH 10.3.1983 - VII ZR 302/82, NJW 1983, 1489.
8 MuKo BGB/Busche, § 631 BGB mn. 163.
9 LG Köln 10.11.1998 - 11 S 360 - 97, NJW-RR 1999, 563.
10 BGH 4.3.2010 - III ZR 79/09, NJW 2010, 1449.
11 BGH 10.6.1976 - VII ZR 129/74, NJW 1976, 152.
12 BGH 21.12.1973 - IV ZR 158/72, NJW 1974, 852.
Fervers
1163
§ 632 Division 8. Particular types of obligations
2. Validity
6 Problems with regard to the validity of the contract occur in practice if the parties agree
that the contractor does not issue an invoice to the customer in order not to pay the tax to
the authorities and, in return, produces the work for a lower remuneration (Schwarzarbeits¬
abrede). Since such an agreement is illegal due to § 1(2) SchwarzArbG13, and the contract to
produce a work is also invalid (§ 134),14 which means neither the contractor nor the
customer can claim production of the work and the corresponding remuneration. Addition¬
ally, the customer does not have the rights set out in § 634 if the work is defective since
§§ 634 et seq. require a valid contract to produce a work.15 Moreover, even if the contractor
has produced the promised work, he can neither claim remuneration nor can he claim
restitution according to § 812(1) 1st St. 1st Alt. since § 817 2nd St. applies due to the illegal
agreement.16 On the other hand, if the customer has already paid the remuneration he
cannot claim restitution either due to § 817 2nd St.17
II. Contractual duties
7 The contractor is obliged to produce the promised work. He does not need to produce it
personally but is allowed to avail himself of other persons to perform his duty (Erfüllungsge¬
hilfen) unless personal performance is required according to the contract, which can
particularly be the case with artistic or scientific duties.18 The customer is obliged to pay the
agreed remuneration upon the acceptance of the work (§ 641).
III. Construction contracts
8 Specific provisions exist for construction contracts with the VOB/B (Allgemeine Vertrags¬
bedingungen für die Ausführung von Bauleistungen - Award Rules for Building Works, Part
B) which is a set of rules for the use as standard terms in construction contracts that
complements and partly modifies the statutory provisions.19 The VOB/B do not apply
automatically and thus need to be included by the contractual parties.
§632
Remuneration
(1) Remuneration for work is deemed to be
tacitly agreed if the production of the work,
in the circumstances, is to be expected only in
return for remuneration.
(2) If the amount of remuneration is not
specified, then if a tariff exists, the tariff
remuneration is deemed to be agreed; if no
tariff exists, the usual remuneration is
deemed to be agreed.
(3) In case of doubt, remuneration is not to
be paid for a cost estimate.
§632
Vergütung
(1) Eine Vergütung gilt als stillschweigend
vereinbart, wenn die Herstellung des Werkes
den Umständen nach nur gegen eine Ver¬
gütung zu erwarten ist.
(2) Ist die Höhe der Vergütung nicht be¬
stimmt, so ist bei dem Bestehen einer Taxe
die taxmäßige Vergütung, in Ermangelung
einer Taxe die übliche Vergütung als verein¬
bart anzusehen.
(3) Ein Kostenanschlag ist im Zweifel nicht
zu vergüten.
13 Gesetz zur Bekämpfung der Schwarzarbeit und illegalen Beschäftigung, 23.7 2004
Combat Undeclared Work and Unlawful Employment). 1
BGH 1.8.2013 - VII ZR 6/1, NJW 2013, 3167.
15 BGH 1.8.2013 - VII ZR 6/1, NJW 2013, 3167.
16 BGH 10.4.2014 - VII ZR 241/13, NJW 2014, 1805.
17 BGH 11.6.2015 - VII ZR 216/14, NJW 2015, 2406.
'« HK-BGB/Scheuch, § 631 BGB mn. 7.
BGBl I 1842 (Act to
19 For more details see BeckOGK BGB/Merklc, § 631 BGB mn. 35-117
1164
Fervers
Remuneration
1-5 § 632
A. Function
The provision regulates the case in which there is no explicit agreement between the 1
parties as to the remuneration. The provision states what already follows from the general
rules with regard to the interpretation of declarations of intent: if the production of the work
can only be expected for remuneration, the customer’s offer or acceptance can be interpreted
as a declaration to pay a remuneration. In this case there is no lack of agreement (Dissens)
between the parties which means that the contract to produce a work is not invalid.
B. Explanation
I. Requirements
The provision requires the existence of a valid contract to produce a work, the absence of 2
an explicit agreement and further that the production of the work, in circumstances, could
only be expected in return for remuneration.
1. Absence of an explicit agreement
If there is an explicit remuneration agreement between the parties, the amount of the 3
remuneration cannot be specified by the application of Sub. 2. This is particularly relevant if
the agreed remuneration is (significantly) lower than the tariff or the usual remuneration
would be. According to case law, the contractor bears the burden of proof for the absence of
a remuneration agreement. The absence being a negative fact, however, the contractor bears a
secondary burden of proof (sekundäre Darlegungslast) which means that the contractor must
provide specific information about an alleged remuneration agreement (e.g. time, place and
content of the agreement). Subsequently, the contractor has the possibility to prove that this
specific agreement does not exist.1
2. Decisive circumstances
Although not stated in Sub. 1, the production of the work in return for remuneration is 4
not the exception, but rather the rule,2 especially if the contractor produces the work as part
of a commercial activity.3 On the other hand, a tacit agreement must not be assumed if there
are serious doubts about the fact that the production of the work could only be expected in
return for remuneration.4 This might especially be the case if there are amicable or family ties
between the parties and if the production of the work does not place any high demands.5
3. Amount of remuneration
If the amount of remuneration is not specified, the tariff remuneration is deemed to be 5
agreed if a tariff exists. A tariff within the meaning of the provision is e.g. the RVG6 for
lawyers and the GoA7 for doctors. If no tariff exists, the usual remuneration is deemed to be
agreed, i.e. the remuneration which is considered usual at the time of the conclusion of the
1 BGH 26.3.1992 - VII ZR 180/91. NJW-RR 1992, 848; BGH 23.1.1996 - X ZR 63/94, NJW-RR 1996,
952 (mn. 12).
2 BeckOGK BGB/Mundt, § 632 BGB mn. 476.
3 See BGH 9.4.1987 - VII ZR 266/86, NJW 1987, 2742 (mn. 11-14).
4 BGH 8.6.2004 - X ZR 211/02, NJW-RR 2005, 19.
5 BeckOGK BGB/Mundt, § 632 BGB mn. 479.
6 Rechtsanwaltsvergutungsgese'z - Law on the Remuneration of Attorneys. An English translation of
the RVG is available under www.gesetze-im-internet.de.
7 Gebührenordnung für Ärzte - Scale of Fees for Doctors.
Fervers
1165
§ 632a 1 Division 8. Particular types of obligations
contract at the same place for comparable productions of work whereas the same conditions
in several individual cases are necessary.8
4. Cost estimate
6 No remuneration has to be paid, in case of doubt, for a cost estimate. The legislator was of
the view that, according to the general sense ot justice, the contractor cannot expect t e
payment of a remuneration without an explicit agreement.9
§ 632a
Part payments
(1) ’The contractor may demand a part
payment from the customer for work owed
the contract in the amount of the value of the
performance tendered. 2If the performance
does not conform to the contract, the custo¬
mer can refuse to pay a reasonable part of the
part payment. 3The burden of proof for per¬
formance in accordance with the contract
remains with the contractor until acceptance.
4§ 641(3) applies with the necessary modifica¬
tions. 5The w'ork must be documented by a
list which must facilitate a rapid, secure eva¬
luation of the work. Sentences 1 to 5 also
apply to required materials or building com¬
ponents that are supplied or specially pre¬
pared and made available if ownership of the
materials or building components is trans¬
ferred to the customer or an appropriate
security is provided for this, at his option.
(2) Secunties in accordance with
subsection (1) sentence 6 may also be pro¬
vided by means of a guarantee or other pay¬
ment undertaking by a financial institution
or credit insurer entitled to operate in the
scope of application of this Code.
§ 632a
Abschlagszahlungen
(1) ’Der Unternehmer kann von dem Bestel¬
ler eine Abschlagszahlung in Höhe des Wertes
der von ihm erbrachten und nach dem Vertrag
geschuldeten Leistungen verlangen. 2Sind die
erbrachten Leistungen nicht vertragsgemäß,
kann der Besteller die Zahlung eines angemes¬
senen Teils des Abschlags verweigern. 3Die
Beweislast für die vertragsgemäße Leistung
verbleibt bis zur Abnahme beim Unternehmer.
4§ 641 Abs. 3 gilt entsprechend. 5Die Leistun¬
gen sind durch eine Aufstellung nachzuweisen,
die eine rasche und sichere Beurteilung der
Leistungen ermöglichen muss. 6Die Sätze 1 bis
5 gelten auch für erforderliche Stoffe oder
Bauteile, die angeliefert oder eigens angefertigt
und bereitgestellt sind, wenn dem Besteller
nach seiner Wahl Eigentum an den Stoffen
oder Bauteilen übertragen oder entsprechende
Sicherheit hierfür geleistet wird.
(2) Die Sicherheit nach Absatz 1 Satz 6
kann auch durch eine Garantie oder ein sons¬
tiges Zahlungsversprechen eines im Geltungs¬
bereich dieses Gesetzes zum Geschäftsbetrieb
befugten Kreditinstituts oder Kreditversiche¬
rers geleistet werden.
A. Function
I. Purpose and underlying principles
1 The provision takes into account that, due to the fact that the customer does not need to
pay remuneration until acceptance of the work according to § 641(1) p' St the contractor
always bears a high risk concerning advance performance. It is often not possible for the
contractor to cover this risk entirely with a retention of title since the
customer may acqu.re ownership by operation of law according to 88 946 947 9S0 The
contractor’s obligation to produce the work and the customer’s obligation 'to pay the part
paymen. are Synallagma ,e obbga.mns. rim implies ,|ut lhc t,„r nn. y\x.tuJ m
continue with the production of the work tint the part o ivm.-nt .i y .
to s 320.1) 1- S,.' Such concern needs be b™
into balance with the customers
8 BGH 26.10.2000 - VII ZR 239/98. N|W 2001, 151 (mn 14)
9 BT-Drs. 14/6040 of 14.5.2001, p. 260.
1 See Staudinger BGB/Peters/Jacoby, § 632a BGB mn. 2-3
1166
Pervers
Material defects and legal defects § 633
interest not to pay for a defective work. Thus, according to Sub. 1 2nd-5,h St. the customer is
put in much the same position as upon acceptance of the work.
II. Positioning
There are a couple ot provisions that are related to § 632a. According to § 309 No. 15(a) 2
an agreement is ineffective if the customer is obliged to pay part payments that are
substantially higher than the amount regulated in Sub. 1 and § 650m(I). § 650m(l) regulates
an important limit for part payment: The provision concerns consumer construction
contracts (Verbraucherbauverträge) and states that the amount of the part payment must
not exceed 90 percent ot the entire remuneration.
B. Context
The provision has been introduced by the Late Payment of Commercial Debts Act2, 3
reformed by the Securitisation Act3 and recently reformed again by the Construction
Contracts Act4 which entered into force on 1 January 2018. As opposed to the former
version, according to Sub. 1 1st St. the question how much increase in value the customer
has received is no longer relevant; instead the value of the work carried out is decisive.
Additionally, the contractor may, in principle, also demand payment if the (part of the) work
is defective; the customer only has the right to refuse payment according to Sub. 1 2nd St.
§ 631(1) 3rd St. newly regulates the burden of proof. The former versions of Subs 2 and 3
have also been changed and can now be found in § 650v and § 650m.5
C. Explanation
The contractor is not entitled to demand payment in advance but only a part payment for 4
work carried out (Sub. 1 1st St.). If the work carried out is defective, the contractor’s entitlement
is not excluded but the customer has the right to refuse to pay a reasonable portion of the part
pavment according to Sub. 1 2nd St. whereby, according to Sub. 1 3rd St., the contractor bears the
burden of proof that the (part of the) work is free of defects. Sub. 1 4th St. states that § 641(3)
applies with the necessary modifications and hereby defines a reasonable portion within the
meaning of Sub. 1 2nd St.: as a rule, twice the costs necessary to remedy the defect are
appropriate. Sub. 1 6th St. states that the contractor may also demand part payments for material
which is to be manufactured, but only if the contractor provides security for the customer by
means of either transfer of ownership or another security according to § 232 or Sub. 2.
§633
Material defects and legal defects
(1) The contractor must procure the work
for the customer free of material defects and
legal defects.
(2) 'The work is free of material defects if
it is of the agreed quality. 2To the extent that
§633
Sach- und Rechtsmangel
(1) Der Unternehmer hat dem Besteller das
Werk frei von Sach- und Rechtsmängeln zu
verschaffen,
(2) ’Das Werk ist frei von Sachmängeln,
wenn es die vereinbarte Beschaffenheit hat.
2 Gesetz zur Beschleunigung fälliger Zahlungen, 30.3.2000, BGBl I 330.
3 Forderungssicherungsgesetz, 23.10.2008, BGBl I 2022.
« Gesetz zur Reform des Bauvertragsrechts, zur Änderung der kaufrechtlichen Mängelhaftung, zur
Stärkung des zivilprozessualen Rechtsschutzes und zum maschinellen Siegel im Grundbuch* und Schi/fsre*
gisterverfahren, 2HA.2O17, BGBl 1 969.
5 See BeckOGK BGB/Mundt, § 632 BGB mn. 1.
Pervers
1167
§ 633 1-4 Division 8. Particular
the quality has not been agreed, the work is
free from material defects
1. if it is suitable for the use envisaged in
the contract, or else
2. if it is suitable for the customary use and
is of a quality that is customary in works of
the same type and that the customer may
expect in view of the type of work.
5It is equivalent to a material defect if the
contractor produces a work that is different
from the wrork ordered or too small an
amount of the work.
(3) The work is free of legal defects if third
parties, with regard to the work, either can¬
not assert any rights against the customer or
can assert only such rights as are taken over
under the contract.
types of obliga tions
Soweit die Beschaffenheit nicht vereinbart
ist, ist das Werk frei von Sachmängeln,
1. wenn es sich für die nach dem Vertrag
vorausgesetzte, sonst
2. für die gewöhnliche Verwendung eignet
und eine Beschaffenheit aufweist, die bei
Werken der gleichen Art üblich ist und die
der Besteller nach der Art des Werkes erwar-
ten kann.
'Einem Sachmangel steht es gleich, wenn
der Unternehmer ein anderes als das bestellte
Werk oder das Werk in zu geringer Menge
herstellt.
(3) Das Werk ist frei von Rechtsmängeln,
wenn Dritte in Bezug auf das Werk keine
oder nur die im Vertrag übernommenen
Rechte gegen den Besteller geltend machen
können.
A. Function
1 The provision specifies the contractor’s obligation to produce a work which is free of
material and legal defects. The existence of a defect is decisive for the customer’s rights
according to §§ 634 et seq. as well as for the question whether the customer is obliged to
accept the work as, according to § 640(1) 1st St., the customer is only obliged to accept a work
which is produced in conformity with the contract.
B. Context
2 Although § 633 has been harmonised with the provisions concerning the material and
legal defects of a purchased item (§§ 434, 435) by the modernisation of the law of obligations
in 2002, § 633 has - other than §§ 434, 435 - no European context since the EU Consumer
Sales Directive does not regulate contracts to produce a work
C. Explanation
3
4
I. Material defects
The concept of the defect is primarily based on a subjective perspective (subjektiver
Mangelbegriff). This means that, first, it is decisive whether the parties have concluded an
agreement about the quality (Sub. 2 1st St.). If the parties agreed on a certain (lower) quality
or on the work having a certain defect, it is irrelevant whether the work is suitable for the
customary use. In the absence of an agreement on the quality, the work is free of defects if it
is suitable for the use envisaged in the contract (Sub. 2 2nd St. No. 1), or else, if it is suitable
for the customary use and is of a quality that is customary in works of the same type and that
the customer may expect in view of the type of work (Sub. 2 2lld St. No 2) It is important to
note that these criteria correspond to what would be the result of a completive interpretation
of the contract (ergänzende Vertragsauslegung). h
1. Agreement on quality
The term quality has a broad meaning and includes all (special) properties of the work
together with relevant external circumstances and all factors wk; -i. . ' 1 r tlK Wt r
■ wnu.ii may have an impact on
1168
Fervers
Rights oj the customer in the case of defects § 634
the work. Thus, a work is detective if the purpose pursued by the contract cannot be
reae e an if the work cannot fulfil the function it shall have according to the contract.1 2 3 4
js app ies even it the agreed functionality cannot be reached by the agreed production
met o . In such a case, however, cure within the meaning of § 635 might be impossible
accor ing to § 275(1)? For an agreement on quality it is not necessary that the contractor
shows an explicit willingness to be liable for it.
2. Absence of an agreement on quality
The basis tor the question whether the work meets the requirements of Sub. 2 2nd St. Nos 1 5
and 2 is the general prevailing opinion in commercial practice (Verkehrsauffassung). Thus,
tor instance, the work is detective if it does not follow recognised technical rules5, if it does
not function6 or it the work has deficiencies regarding safety.7
II. Aliud and incomplete work
According to Sub. 2 3rd St., it is equivalent to a material defect if the work is different from 6
what the contractor ordered or if the amount of the work is too small. Without this provision,
these two cases would be treated as non-performance, with the consequence that the work
would not be considered defective, but that the customer could still claim performance
according to §631(1). This provision, however, takes into account that it is impossible to
distinguish between a regular defect of the work on the one side and a different work on the
other as even* defective work could theoretically be considered a different work.
III. Legal defects
According to Sub. 3, the work is free of legal defects if third parties, with regard to the 7
work, either cannot assert any rights against the customer or can assert only such rights as
are taken over under the contract. Thus, the work has a legal defect if third parties can assert
intellectual property rights such as a copyright or a patent. Likewise, the work is defective if
there are public legal restrictions (öffentlich-rechtliche Beschränkungen) that are not rooted in
the condition of the work.8
IV. Existence of defect
The relevant date for the question whether a defect exists or not is, in general, the passing 8
of risk (Gefahrübergang), i.e. the acceptance of the work.9
§634
Rights of the customer in the case
of defects
If the work is defective, the customer, if the
requirements of the following provisions are
met and to the extent not otherwise specified,
may
§634
Rechte des Bestellers bei Mängeln
Ist das Werk mangelhaft, kann der Bestel¬
ler, wenn die Voraussetzungen der folgenden
Vorschriften vorliegen und soweit nicht ein
anderes bestimmt ist,
1 BeckOK BGB/Voit, § 633 BGB mn. 4.
2 BGH 29 9.2011 - VII ZR 87/11, NJW 2011, 3780.
3 BGH 29.9.2011 - VII ZR 87/11, NJW 2011, 3780 (mn. 11).
4 BGH 8 5 2014 - VII ZR 203/11, NJW 2014, 3365 (mn. 23).
5 BGH 4*6*2009 - VII ZR 54/07, NJW 2009, 2439.
6 For more details see BeckOK BGB/Voit, § 633 BGB mn. 9-10.
7 OLG Köln 6.5.1991 - 12 U 130/88, NJW-RR 1991, 1077.
8 MuKo BGB/Buschc, § 633 BGB mn. 33.
9 BGH 25.2.2016 - VII ZR 210/13, NJW 2016, 2183.
Fervers
1169
Division 8. Particular types of obligations
§ 634 1-3
1. under § 635, demand cure,
2. under § 637, remedy the defect himself
and demand reimbursement for required ex¬
penses,
3. under §§ 636, 323 and 326(5), revoke the
contract or under § 638, reduce payment, and
4. under §§636, 280, 281, 283 and 311a,
demand damages, or under § 284, demand
reimbursement of futile expenditure.
1. nach S 635 NKhernillung «Hangen,
2 nach 8 637 den Mangel selbst beseitigen
und Ersatz der erforderlichen Aufwendungen
Ve3,anach’den §8 636, 323 und 326 Abs. 5 von
dem Vertrag zurücktreten oder nach § 638
die Vergütung mindern und
4. nach den §§ 636, 280, 281, 283 und 31 la
Schadensersatz oder nach § 284 Ersatz ver¬
geblicher Aufwendungen verlangen.
A. Function
1 The provision enumerates the customer’s rights in case of a defective work. The provision
further reveals the ranking rationale of these rights. The primary right is the right to demand
cure under § 635. Under the additional condition that the customer has set a period for cure,
§ 637 allows him to remedy the defect himself and demand reimbursement for required
expenses or revoke the contract or reduce payment. Finally, under the additional condition
that the contractor is responsible for the defect, the customer may demand damages under
§§ 311a, 280, 281, 283 or demand reimbursement of futile expenditure.
B. Explanation
I. Other legal remedies
2 Whereas it is still possible for the customer to declare voidability according to § 119(1) and
§ 123(1), it is not possible to declare voidability based on mistake about the characteristics of
the work according to § 119(2) since §§ 634 et seq. are an exhaustive set of special rules.1
Likewise, the customer is not allowed to claim damages according to §§ 280(1), 311(2), 241
(2) based on the assertion that the contractor has negligently violated his obligation to
provide appropriate information as to the quality of the work.2 Claims for damages based on
§§ 823 et seq. can be asserted in addition to the rights laid down in §§ 634 et seq.3 4
IL Damages
3 The customer may demand damages in lieu of performance according to §§ 634 No. 4, 280
(1), (3), 283 or § 31 la(2) if cure cannot be provided within the meaning of § 275; § 31 la(2)
applies if cure was already impossible upon conclusion of the contract. Cure is impossible if
both remedy of the defect and the production of a new work are impossible. The customer
may demand damages in lieu of performance according to §§ 634 No. 4, 280(1), (3) 281 after
expiry of a reasonable period for cure set by the customer. If the customer demands damages
in lieu of performance, there is a distinction to be made between the großer Schadensersatz
and the kleiner Schadensersatz.* If the customer chooses the großer Schadensersatz, which is
only possible if the defect is not insignificant according to § 281(1) 2nd St., he is to return the
defective work to the contractor according to § 281(5), his claim for performance is excluded
according to § 281(4) and, in return, he can claim compensation for the damages which arose
due to the definitive lack of performance.5 Thus, if the work would have had a higher value
1 MuKo BGB/Busche, § 634 BGB mn. 5.
2 BeckOK BGB/Voit, § 634 BGB mn. 2«.
3 BGH 3.2.1988 - X ZR 27/96, NJW 1998, 2282 (mn. 9).
4 For an explanation of these concepts, sec ►§281 mn. 15-16.
5 See Gsell, Die schadensrechtliche Einordnung der Mehrkosten eines vnr/eitio..« n, -i . . .k
der „Zauberformel“ als Beispiel für die Leistungsfähigkeit der Dounntik in nai
Alitui*, in Auer et al. (eds), Privat -
1170
Fervers
Limitation of claims for defects § 634a
than the amount ot the agreed remuneration» the customer can claim the difference since this
loss ot piofit has been caused by the definitive lack of performance. Likewise, the customer
can claim compensation tor a profit he would have taken out of a sale of the non-defective
work. It the customer chooses the kleiner Schadensersatz, he does not have to return the
detective work according to § 281(5). Therefore, he can claim compensation for the fact that
the contractor has definitively produced a defective work. It is thus possible for the customer
to claim the ditterence between the value of the defective and the hypothetical conforming
work. It the customer has sold the work and could only realise a lower price due to the
detect, he can claim the difference between the actual and the price he would have realised if
the work had not been defective/ Finally, if the customer has remedied the defect himself he
can demand reimbursement ot the necessary expenses.8 However, the BGH has changed its
policy as to fictitious expenses for remedy (fiktive Mängelbeseitigungskosten): if the customer
does not actually remedy the defect, it is no longer possible for him to claim the expenses that
he would have had in case of a remedy.9
§ 634a
Limitation of claims for defects
(1) The claims cited in § 634 Nos 1, 2 and 4
are statute-barred
1. subject to No. 2, in two years in the case
of a work whose result consists in the manu¬
facture, maintenance or alteration of a thing
or in the rendering of planning or monitor¬
ing senices for this purpose,
2. in five years in the case of a building and
in the case of a work whose result consists in
the rendering of planning or monitoring ser¬
vices for this purpose, and
3. apart from this, in the regular limitation
period.
(2) In the cases of subsection (1) Nos 1 and
2, limitation begins on acceptance.
(3) ‘Notwithstanding subsection (1) Nos 1
and 2, and subsection (2), claims are statute-
barred in the standard limitation period if
the contractor fraudulently concealed the de¬
fect. 2However, in the case of subsection (1)
No. 2, claims are not statute-barred before
the end of the period specified there.
(4) ‘The right of revocation referred to in
§ 634 is governed by § 218. Notwithstanding
the ineffectiveness of revocation under § 218
(1), the customer may refuse to pay the re¬
muneration to the extent that he would be
entitled to do so by reason of the revocation.
3If he uses this right, the contractor may
revoke the contract.
§ 634a
Verjährung der Mängelansprüche
(1) Die in § 634 Nr. 1, 2 und 4 bezeichne¬
ten Ansprüche verjähren
1. vorbehaltlich der Nummer 2 in zwei Jah¬
ren bei einem Werk, dessen Erfolg in der
Herstellung, Wartung oder Veränderung ei¬
ner Sache oder in der Erbringung von Pla-
nungs- oder Überwachungsleistungen hierfür
besteht,
2. in fünf Jahren bei einem Bauwerk und
einem Werk, dessen Erfolg in der Erbringung
von Planungs- oder Überwachungsleistungen
hierfür besteht, und
3. im Übrigen in der regelmäßigen Verjäh¬
rungsfrist.
(2) Die Verjährung beginnt in den Fällen
des Absatzes 1 Nr. 1 und 2 mit der Abnahme.
(3) ‘Abweichend von Absatz 1 Nr. 1 und 2
und Absatz 2 verjähren die Ansprüche in der
regelmäßigen Verjährungsfrist, wenn der Un¬
ternehmer den Mangel arglistig verschwiegen
hat. 2Im Fall des Absatzes 1 Nr. 2 tritt die
Verjährung jedoch nicht vor Ablauf der dort
bestimmten Frist ein.
(4) ‘Für das in § 634 bezeichnete Rück¬
trittsrecht gilt §218. 2Der Besteller kann
trotz einer Unwirksamkeit des Rücktritts
nach § 218 Abs. 1 die Zahlung der Vergütung
insoweit verweigern, als er auf Grund des
Rücktritts dazu berechtigt sein würde.
’Macht er von diesem Recht Gebrauch, kann
der Unternehmer vom Vertrag zurücktreten.
rechtsdogmatik im 21. Jahrhundert: Festschrift für Claus-Wilhelm Canaris zum 80. Geburtstag (de
Gruyter 2017), p. 451 et seq.
6 BGH 11.10.2012 - VII ZR 179/11, NJW 2013, 370.
7 BGH 22.2.2018 - VII ZR 46/17, NJW 2018, 1463 (mn. 28-29).
8 BGH 22.2.2018 - VII ZR 46/17, NJW 2018, 1463 (mn. 46).
9 BGH 22.2.2018 - VII ZR 46/17, NJW 2018, 1463 (mn. 30 ct seq.).
Fervers
1171
§ 634a 1-3 Division 8. Particular types of obligations
(5) § 218 and subsection (4) sentence 2
above apply with the necessary modifications
to the right to reduce the price specified in
§634.
(5) Auf das in §634 bezeichnete Min¬
derungsrecht finden §218 und Absatz 4
Satz 2 entsprechende Anwendung.
A. Function
I. Purpose
1 The provision regulates the limitation of claims for the rights laid down in § 634 and
thereby modifies the general provisions §§ 195, 199 for some types of work (Sub. 1 Nos 1
and 2) in two respects. Firstly, the limitation period is modified: it is shortened in case of a
work whose result consists in the manufacture, maintenance or alteration of a thing or in the
rendering of planning or monitoring services for this purpose (Sub. 1 No. 1), whereas it is
extended in case of a building and in the case of a work whose result consists in the rendering
of planning or monitoring services for this purpose (Sub. 1 No. 2). Secondly, the commence»
ment of the limitation period is modified: in contrast to § 199(1), it is not relevant whether
the customer obtains knowledge of the defect or would have obtained such knowledge if he
had not shown gross negligence; instead, Sub. 2 states that the limitation period commences
upon acceptance of the work. This means that the contractor’s claims are statue-barred after
expiry of the limitation period even if he learns of the defect at a later date. These
modifications take into account that the causes and effects of defects in a work are typically
difficult to prove after expiry of a longer time period.1
II. Scope of application
2 § 634a only applies to the rights laid down in § 634. This means that § 634a does not apply
to claims for damages that are not based on a defect2, to tortious claims3, to the claim
according to § 346 as a consequence of the revocation4 and to the contractor’s claim for
reimbursement of an advance payment according to § 637(3).5 § 634a cannot apply directly
to the right to revoke the contract (§ 634 No. 3) since § 634a regulates the limitation of
claims and, according to § 194(1), only claims can be subject to limitation; the right to revoke
the contract, however, is not a claim within the meaning of § 194(1), but a right to influence
a legal relationship (Gestaltungsrecht). However, according to Sub. 4 1st St., 218(1) 1st St.,
revocation is ineffective if the claim for cure is statute-barred and the contractor invokes this.
Consequently, the period during which the customer may revoke the contract is only as long
as the period during which he may claim cure according to Sub. 1. The same applies to the
right to reduce payment (§§ 634 No. 3, 638) according to Sub. 5, § 218(1).
B. Explanation
I. Two-year period
The two-year period laid down in Sub. 1 No. 1 does not apply if the work is to produce a
building (subject to No. 2). And even though it says manufacture it is important to note that
the provision does not apply in case of goods to be produced or manufactured since in this
1 BT-Drs. 14/6040 of 14.5.2001, p. 264.
2 BeckOK BGB/Voit, § 634a BGB mn. 31.
3 HK-BGB/Scheuch, § 634a BGB mn. 2.
4 As to the corresponding question in 437 No. 2, 438(1) No 3 see I«;m ich
NJW 2007, 674 (mn 35 et seq.). C 'K’H ,5J 120°6 - VII] ZR 3/06,
5 BGH 14.1.2010 - VII ZR 213/07, NJW 2010, 1195 (mn. 11).
1172
Fervers
Limitation of claims for defects 4-6 § 634a
case § 650 is applicable. Additionally, work services with regard to animals will not be work
services within the meaning of Sub. 1 No. 1: while animals are generally governed by the
provisions that apply to things according to § 90a 3rd St., the work services will not be a
manufacture, maintenance or an alteration.6 Thus, Sub. 1 No. 1 applies, for example, if the
contractor is to maintain or alter movable things or, in case of immovable things, if the work
would not be considered to be a building in case of a hypothetical new construction.7
II. Building
A building within the meaning of Sub. 1 No. 2 is a construction that has been produced by 4
means of labour and material and that is connected to the ground.8 Thus, Sub. 1 No. 2 can
also be applicable to streets9, wind energy plants10, training grounds11 and photovoltaic
systems on the roof.12 In contrast, Sub. 1 No. 2 does not apply to the deployment of a garden
fountain13 and tor the demolition of a building.14
III. Fraudulent concealment of the defect
If the contractor has fraudulently concealed the defect, Sub. 3 1st St. states that claims are 5
statute-barred in the standard limitation period (§§ 195, 199). This is due to the fact that
there is no reason to advantage the contractor with a shorter limitation period in cases of
fraudulent concealment. Therefore, Sub. 3 2nd St. further states that claims according to
Sub. 1 No. 2 are not statute-barred before the end of the (five-year) period specified there
which prevents the contractor from benefiting from his fraudulent concealment since the
limitation period according to § 195 only amounts to three years. The contractor has
fraudulently’ concealed the defect if he knows about the defect or if he at least assumes that
the work is defective and if he, nonetheless, does not reveal the defect knowing or at least
assuming that the customer does not have any knowledge of the defect.1* There is no need
for a separate intent to cause damage.16 Likewise, conditional intent (bedingter Vorsatz) is
sufficient.17
IV. Right to refuse to pay
If the customer has not already paid the remuneration and if the work is defective, he may 6
refuse the payment of remuneration according to §§ 320, 641(3) if he himself can claim cure
according to 634 No. 1, 635. However, if his right to claim cure is statue-barred and if he
therefore can no longer revoke the contract according to Sub. 1 1st St., § 218(1) 1st St., it
would not be appropriate if the contractor could claim remuneration even though the work is
defective. Thus, in order to protect the contractual balance, Sub. 4 2nd St. allows the customer
to refuse to pay the remuneration to the extent that he would be entitled to do so by reason
of the revocation. In order to entitle the contractor to demand return of the defective work in
this case, Sub. 4 3rd St. confers on the contractor the right to revoke the contract himself.18
6 MuKo BGB/Busche, § 634a BGB mn. 28.
7 BGH 2.6.2016 - VII ZR 348/13, NJW 2016, 2876 (mn. 27).
« BGH 16.9.1971 - VII ZR 5/70, NJW 1971, 2219 (mn. 7).
9 BGH 22.6.1964 - VII ZR 44/63, MDR 1964, 742 (mn. 16).
10 LG Kiel 17.3.2011 - 90 116/10, BeckRS 2011, 22960.
11 BGH 20.12.2012 - VII ZR 182/10, NJW 2013, 601 (mn. 17 et seq.).
12 BGH 2.6.2016 - VII ZR 348/13, NJW 2016, 2876 (mn. 29-30).
13 OLG Dusseldorf 26.3.1999 - 22 U 210/98, NJW-RR 1999, 1182 (mn. 3 et seq.).
H BGH 9.3.2004 - X ZR 67/01, NJW-RR 2004, 1163 (mn. 4 ct seq.).
15 BeckOK BGB/Voit, § 639 BGB mn. 3, 13 with further references.
16 BGH 5.12.1985 - VII ZR 5/85, NJW 1986, 980 (mn. 7).
17 BGH 7.7.1989 - V ZR 21/88, NJW 1990, 42 (mn. 13).
18 See HK-BGB/Scheuch, § 634a BGB mn. 9.
Fervers
1173
§ 635 1-3
Division 8, Particular types of obligations
§635
Cure
(1) If the customer demands cure, then the
contractor may, at his option, remedy the
defect or produce a new work.
(2) The contractor must bear the expendi¬
ture necessary for cure, including, without
limitation, transport, workmen’s travel, work
and materials costs.
(3) The contractor may refuse cure, with¬
out prejudice to § 275(2) and (3), if it is only
possible at disproportionate cost.
(4) If the contractor produces a new work,
he may demand from the customer return of
the defective work in accordance with §§ 346
to 348.
§635
Nacherfiiilung
(1) Verlangt der Besteller Nacherfüllung, so
kann der Unternehmer nach seiner Wahl den
Mangel beseitigen oder ein neues Werk her¬
stellen.
(2) Der Unternehmer hat die zum Zwecke
der Nacherfüllung erforderlichen Aufwen¬
dungen, insbesondere Transport-, Wege-, Ar-
beits- und Materialkostcn zu tragen.
(3) Der Unternehmer kann die Nacherfül¬
lung unbeschadet des § 275 Abs. 2 und 3
verweigern, wenn sie nur mit unverhältnis¬
mäßigen Kosten möglich ist.
(4) Stellt der Unternehmer ein neues Werk
her, so kann er vom Besteller Rückgewähr des
mangelhaften Werkes nach Maßgabe der
§§ 346 bis 348 verlangen.
A. Function
I. Purpose
1 The right to demand cure is the primary right for the customer. Instead of revoking the
contract immediately or demand damages in lieu of performance, the customer must first
demand cure in order to give the contractor a second chance to procure a defect-free work.
The customer’s entitlement to demand cure is only a modification of the former entitlement
to demand the production of the work according to § 631(1).1
IL Position within the BGB
2 There is a similar provision in sale of goods law, namely § 439 according to which the buyer
may demand cure from the seller. There is, however, a substantial difference between the two
provisions: whereas according to § 439(1) the buyer may choose between the remedy of the
defect and the supply of a new thing free of defects, according to § 635 the contractor has the
right of choice. This is because, in contrast to a seller, the contractor produces the work himself
which means that he can generally judge the best between these two alternatives.2 3
3
B. Explanation
I. Requirements
According to § 634 No. 1 and Sub. 1, the customer may demand cure if the work is
defective. This especially means that it is irrelevant whether or not the contractor is at fault
for the defect. According to the general rules, the customer bears the burden of proof md
the burden of producing evidence (Darlegungslast) for the existence of a defect It is
sufficient, however, that the customer specifies the defect itself; he does not need tn Mse.-ifv
the cause for the defect (Symptomrechtsprechung)} '* *
1 MüKo BGB/Busche, § 635 BGB mn. 2.
2 Bf-Drs. 14/6040 of 14.5.2001, p. 265.
3 BGH 3.7.1997 - VI1 ZR 210/96, NJW-RR 1997, 1376; for
2014, § 634 BGB mn. 45.
more details Staudinger BGB/IMers/Jacoby,
1174
Fervers
Cure
4-6 § 635
IL Cure
The contractor may choose between the remedy of the defect or the production of a new 4
wor \ According to the explanatory memorandum to the SMG, the customer may refuse the
contractor s choice if it is unacceptable for him according to the general rule of good faith
(§ 242). The customer may also refuse the chosen way of cure if it will not lead to a work
which is tree of defects.4 5 It is important to note though that a distinction between the remedy
ot the defect and the production of the new work may often be difficult and that the
distinction is not as decisive as it is in case of a sale: the work is usually produced after the
conclusion ot the contract so that the customer is only interested in obtaining a work which
is tree of defects.6 It, for example, the contractor is obliged to repair a bike and, despite his
efforts, the bike is still detective, it may be difficult to decide whether a new attempt at repair
is a remedy ot the detect or a new production of the work. It follows that the contractors
right ot choice also serves the purpose of avoiding delimitation problems.7
1. Costs
In general, the contractor must bear the expenditure necessary for cure according to 5
Sub. 2. According to § 309 No. 8, an agreement by which the costs are passed to the customer
is ineffective. The contractor must also take into account the customer’s legitimate interests
and perform cure in a way that is appropriate for the customer even if this involves higher
costs.8 This means, for example, that he must not perform cure at an inopportune moment
(zur Unzeit). However, according to case law there are some circumstances in which the
customer has to contribute to the costs. First, the customer has to contribute to the business-
as-usual costs (Sowiesokosten): if the parties conclude an agreement that a certain work shall
be produced in a certain method it might occur that - initially unbeknownst to the parties -
the work cannot be produced by using the envisaged method but only by using a method
which is more cost-intensive. Since the customer is entitled to demand cure nonetheless9, the
contractor would be obliged to perform work services which have not been included in the
agreement. Therefore, the customer has to contribute to the costs,10 unless it arises from the
interpretation of the contract that the contractor shall bear the risk of additional costs.11
Second, the customer must contribute to the costs if he gains advantages by the cure that
have not been included in the contract, such as a superior work due to an increased
technological standard.12 Third, a contribution by the customer is necessary if he is partially
responsible for the defect (§ 254).13
2. Refusal of cure
The contractor may refuse cure under the conditions of § 275(2), (3) and according to 6
Sub. 3 if cure is only possible at disproportionate cost. The main difference between § 275(2)
and Sub. 3 is that § 275(2) requires that cure is grossly disproportionate to the interest in
performance of the customer which is usually not the case because very cost-intensive
production of a new work will normally lead to a work that has a higher value for the
4 BT-Drs. 14/6040 of 14.5.2001, p. 265.
s g(3j-j 5.5,2011 - VII ZR 28/10, NJW 2011, 1872.
6 Staudinger BGB/Peters/Jacoby, 2014, § 634 BGB mn. 32-33.
7 MuKo BGB/Busche, § 635 BGB mn. 11.
H Staudinger BGB/Peters/Jacoby, 2014, § 635 BGB mn. 29.
9 BGH 16 7 1998 - VII ZR 350/96, NJW 1998, 3707.
10 BGH 27 7.20006 - VII ZR 202/04, NJW-RR 2007, 597 (mn. 25).
11 B<’H !7 5J984 - VII ZR 169/82, NJW 1984, 2457 (mn. 21).
12 BeckOK BGB/Voit, § 635 BOB mn. 21.
b bgH 16.10.2014 - VII ZR 152/12, NJW 2014, 3645 (mn. 24).
Fervers
1175
§ 636 1-2 Division 8. Particular types of obligations
. j j lo exist if, taking all the
customer as well. Disproportionality pursuant to Sub. 3 is deei arising costs u
circumstances into account, the success ot the cure is out of prop substantjal interest jn
Relevant circumstances are the question whether the customer n>
the production of a defect-free work14 15 and the question whether the contrac or •
for the existence of the defect.16 If the contractor refuses cure within tie ™ean11 8 u •
, ,. , . . . . am No 3, 323), immediately
the customer may immediately revoke the contract ($§ o3o, oj*» , ,• (
reduce the price (§§ 636, 634 No. 3, 638) or immediately claim amages In Ieu 0
performance (§§636* 634 No. 4, 280(1), (3), 283) or reimbursement of futile expenses
(§§ 636, 634 No. 4, 284). Excluded is, however, self-help according to § 637 since otherwise
the customer could claim reimbursement of costs that are considered to be isproportionate.
§636
Special provisions on revocation
and damages
Except in the cases of § 281(2) and 323(2),
there is no need for a period to be set even if
the contractor refuses cure under § 635(3) or
if cure has failed or cannot be reasonably
expected of the customer.
§636
Besondere Bestimmungen für
Rücktritt und Schadensersatz
Außer in den Fällen der § 281 Abs. 2 und
323 Abs. 2 bedarf es der Fristsetzung auch
dann nicht, wenn der Unternehmer die Nach¬
erfüllung gemäß § 635 Abs. 3 verweigert oder
wenn die Nacherfüllung fehlgeschlagen oder
dem Besteller unzumutbar ist.
A. Function
1 In general, the customer must set an additional reasonable period for cure before he can
revoke the contract or claim damages in lieu of performance (Schadensersatz statt der
Leistung) according to § 281(1) 1st St. and § 323(1), respectively. Setting a period may be
dispensed under the conditions of § 281(2) and 323(2) if the obligor seriously and defini¬
tively refuses cure or if there are special circumstances which, after the interests of both
parties are weighed, justify the immediate assertion of a claim for damages or the immediate
revocation of the contract. Additionally, the immediate revocation is possible according to
§ 323(2) No. 2 if the contractor does not render performance by a date specified in the
contract or within a period specified in the contract, in spite of the fact that, according to a
notice given by the customer to the contractor prior to conclusion of the contract or based on
other circumstances attending at the time of its conclusion, the performance as per the date
specified or within the period specified is of essential importance to the customer. § 636
contains three additional exceptions from the principle that a reasonable period needs to be
set: if the contractor refuses cure under § 635(3), if cure has failed or if cure cannot be
reasonably expected from the customer. Thus, § 636 alleviates the immediate revocation of
the contract and the immediate claim of damages in lieu of performance
B. Explanation
I. Refusal
2
The contractor is entitled to refuse cure according to 6 635H1 ;r ,
disproportionate cost. In this case, it would not make sense for ih *S °n ^°SS' 1
period since he is no i„„eer enii.led ro eia» iX
14 BGH 18.7.2013 - VII ZR 231/11, BeckRS 2013, 13704 (mn. II)
15 BGH 10.) 1.2005 - VII ZR 64/04, NJW-RR 2006, 304.
16 BGH 11.10. 2012 - VII ZR 179/11, NJW 2013, 370 (mn. 12)
1176
Fervers
Self-help § 637
applicable» however, if the contractor was actually entitled to refuse cure according to § 635
(3).1 It he refuses cure although he is not entitled to do so, § 281(2) or § 323(2) No. 1 applies.
According to case law, it is not sufficient that the conditions of § 635(3) are met and that the
contractor would theoretically be entitled to refuse cure. Instead, setting a period may only be
dispensed with it the contractor actually refuses cure.2
IL Failure
The cure has tailed if one must assume that the cure will not lead to a work without any 3
detects.3 In contrast to § 440 2nd St., § 636 contains no assumption that the cure is deemed to
have failed after the second unsuccessful attempt. However, two unsuccessful attempts may
often be an indication for the failure of the cure.4 It is important to note that the provision’s
scope ot application is not ver}' broad: if the customer has set an additional period and if this
period has expired, the customer may revoke the contract or claim damages in lieu of
performance regardless of whether cure has failed or not. And if the customer has not set a
period there will usually be no attempt for cure. Additionally, according to case law, setting a
period does not necessarily require the indication of a certain date. Instead, it is sufficient if
the creditor expresses in a clear and unequivocal manner that the obligor is obliged to
perform within a certain period.5 The scope of application of § 636 2nd Alt. is therefore
limited to the case in which the contractor has tried to cure without the customer having set
even a soft period and to the case in which the customer has set a longer period whose
expiration he does not want to await due to the failure of the cure.6
III. Reasonable expectation
In addition to § 323(2) No. 3 which regulates the case in which setting a period cannot be 4
expected of the creditor, § 636 3rd Alt. deals with the case in which cure itself cannot be
reasonably expected of the customer. This is the case if the customer’s confidence has been
permanently affected by the contractor’s unreliability or breach of contract. Thus, it is not
sufficient that the work is defective unless the defect leads to the conclusion that the
contractor is unreliable or that he works in a non-serious manner.7 In this case, it cannot
be expected of the customer to make the work available for the contractor and to rely on
cure.
§637
Self-help
§637
Selbstvornahme
(1) If there is a defect in the work, the
customer may, after the expiry without result
of a reasonable period specified by him for
cure, remedy the defect himself and demand
reimbursement of the necessary expenses, un¬
less the contractor rightly refuses cure.
(1) Der Besteller kann wegen eines Man¬
gels des Werkes nach erfolglosem Ablauf
einer von ihm zur Nacherfüllung bestimm¬
ten angemessenen Frist den Mangel selbst
beseitigen und Ersatz der erforderlichen
Aufwendungen verlangen, wenn nicht der
Unternehmer die Nacherfüllung zu Recht
verweigert.
1 BGH 11.10. 2012 - VII ZR 179/11, NJW 2013. 370.
2 BGH 19.12.2012 - VIII ZR 96/12. NJW 2013. 1074 (mn. 27-29 (with regard to § 275(2)).
} BeckOK BGB/Voit, § 636 BGB mn. 24.
4 HK-BGB/Scheuch. $ 636 BGB mn. 3.
5 BGH 12.8.2009 - VIII ZR 254/08, NJW 2009, 3153; BGH 13.7.2016 - VIII ZR 49/15, NJW 2016, 3654
(mn. 25); BGH 18.3.2015 - VIII ZR 176/14, NJW 2015, 2564.
6 BeckOK BGB/Voit, § 636 BGB mn. 24.
7 BGH 8.12.1966 - VII ZR 144/64, NJW 1967, 388; BeckOK BGB/Voit, § 636 BGB mn. 22.
Fervers
1177
§ 637 1-3 Division 8. Particular types of obligations
(2) ’§ 323(2) applies with the necessary
modifications. * 2 3 4 A period of time need not be
specified even if cure has failed or cannot
reasonably be expected of the customer.
(3) The customer may demand from the
contractor advance payment of the expenses
necessary to remedy the defect.
(2) ‘8 323 Abs. 2 findet entsprechende An¬
wendung. 2Der Bestimmung einer Frist be¬
darf es auch dann nicht, wenn die Nacher-
Zng fehlgeschlagen oder dem Besteller
unzumutbar ist.
(3) Der Besteller kann von dem Unterneh¬
mer für die zur Beseitigung des Mangels er¬
forderlichen Aufwendungen Vorschuss ver-
langen.
A. Function
1 The provision gives the possibility of self-help to the customer if the work is defective and
if the customer has set a reasonable period for cure or if setting a period cou e omitte .
The possibility of self-help, however, is not a unique feature of § 637. After the expiry of a
reasonable period or under the conditions of §§ 634 No. 4, 281(2), the customer is entitled to
remedy the defect himself and demand reimbursement of the necessary expenses according
to §§ 634 No. 4, 280(1), (3), 281 as well. The first unique feature of § 637 is the possibility of
self-help regardless of any kind of negligence on the contractor s part (verschuldcnsunabhän-
giges Selbstvornahmerecht). The second unique feature is the possibility for the customer to
demand payment in advance according to Sub. 3. The provision only applies for a contract to
produce a work and cannot be applied by analogy to purchase agreements.1
B. Explanation
I. Requirements
2 The work has to be defective and the customer must have set an additional reasonable
period for cure or, as § 323(2) applies according to Sub. 2 1st St., an additional period need
not be set subject to the conditions of § 323(2). Additionally, Sub. 2 2nd St. states - in
accordance with § 636 - that a period of time does not need to be specified if cure has failed
or cannot reasonably be expected of the customer. Lastly, the customer has no right to self¬
help if the contractor rightly refuses cure due to §§ 275(2), (3), 635(3).
3
IL Legal consequences
The customer may remedy the defect himself and demand reimbursement of the necessary
expenses. However, the customer does not necessarily have to take action himself instead, he
can also contract the task out to a third person. The customer can only claim the necessary
expenses which means that he may only spend a reasonable amount for the remedy of the
defect. If fault on the part of the customer has contributed to the occurrence of the defect,
the contactor may reduce the reimbursement.2 Likewise thp .
U • 1 . zc rz z me reimbursement is reduced as to
the business-as-usual-costs (Sowieso-Kosten)/ According tn e.ik i >
... i ...... . . . j “ & dUD- the customer has the
additional possibility to demand advance payment of the exnpncpv j
i f , i i . expenses necessary to remedy the
defect. This gives the customer not only the advantage that ho ~ . u 7 . 7 .
. . . , & at ne docs not have to advance the
necessary costs but there is also a possibility for the customer to ,1. . „
or not the contractor is obliged to reimburse the expense" Y qUCS‘'°n Whet
’ BGH 23.2.2005 - VIII ZR 100/04, NJW 2005, 1348 (mn. 21)
2 MuKo BGB/Busche, § 637 BGB mn. 14.
3 BeckOK BGB/Voit, § 637 BGB mn. 11.
4 Staudinger BGB/Peters/jacoby, 2014, § 634 BGB mn. 86.
1178
Ververs
Reduction o f price
1-3 § 638
§638
Reduction of price
(1) ’Instead of revocation of the contract,
the customer may reduce the remuneration
by declaration to the contractor. 2The ground
for exclusion under § 323(5) sentence 2 does
not apply.
(2) If the customer or the contractor con¬
sists of more than one person, reduction of
price may be declared only by or to all of
them.
(3) ’In the case of reduction of price, the
payment is to be reduced in the proportion
which, at the time wlien the contract was
entered into, the value of the work in a state
free of detects would have had to the actual
value. 2To the extent necessary, the price re¬
duction is to be established by appraisal.
(4) ’If the customer has paid more than the
reduced remuneration, the contractor must
reimburse the surplus. 2§ 346(1) and §347
(1) apply with the necessary’ modifications.
§638
Minderung
(1) ’Statt zurückzutreten, kann der Bestel¬
ler die Vergütung durch Erklärung gegenüber
dem Unternehmer mindern. 2Der Ausschluss¬
grund des § 323 Abs. 5 Satz 2 findet keine
Anwendung.
(2) Sind auf der Seite des Bestellers oder
auf der Seite des Unternehmers mehrere be¬
teiligt, so kann die Minderung nur von allen
oder gegen alle erklärt werden.
(3) ’Bei der Minderung ist die Vergütung
in dem Verhältnis herabzusetzen, in welchem
zur Zeit des Vertragsschlusses der Wert des
Werkes in mangelfreiem Zustand zu dem
wirklichen Wert gestanden haben würde.
2Die Minderung ist, soweit erforderlich,
durch Schätzung zu ermitteln.
(4) ’Hat der Besteller mehr als die gemin¬
derte Vergütung gezahlt, so ist der Mehr¬
betrag vom Unternehmer zu erstatten. 2§ 346
Abs. 1 und § 347 Abs. 1 finden entsprechende
Anwendung.
A. Function
The provision provides the customer with an additional option in case of a defective work. 1
Instead of revoking the contract or claiming damage in lieu of performance, the customer is
alternatively entitled to keep the defective work and only reduce the remuneration. § 638
corresponds to § 441 in sale of goods law.
B. Explanation
I. Requirements
The customer may reduce the remuneration under the same conditions under which he 2
could revoke the contract. This follows from the wording instead of revocation. Thus,
according to §634 No. 3, 323(1) there has to be a material or legal defect within the
meaning of § 633 and the customer must have set an additional period for cure unless there
is no need to set such a period according to § 323(2) or § 636. In contrast to the revocation of
the contract, however, the customer may also reduce the remuneration if the defect is trivial
since § 323(5) 2nd St. does not apply (Sub. 1 2nd St.). This is appropriate because, in case of a
trivial defect, the customer is forced to keep the defective work (§ 323(5) 2nd St.) and without
a possibility to reduce the price the contractual balance would be severely affected. In order
to reduce the remuneration, the customer must declare the reduction to the contractor
without any formal requirements.
II. Calculation
Sub. 3 sets out the formula for determining the amount of reduction: the payment is to be 3
reduced in the proportion which, at the time when the contract was entered into, the value
of the work in a state free of defects would have had to the actual value. I’or example: the
Fervers
1179
§ 639 1-2 Division 8. Particular types of obligations
i ~rL which - without any defects - would have
contract obliges the contractor to produce a work f he defects
a value of 10.000 euro. bn. for which .1.0 eustonwr » 7 ^reduce .he price by 20 percc«
in a decrease in value to 8.000 euro, the customer s en cusl(imcr h
(8,000:10,000) to 6,400 euro. Thus, the system takes into ac
concluded a favourable agreement with a profit of 20 percent.
III. Surplus
4 If the customer has already paid more than the reduced price, he may demand reimburse,
ment from the contractor according to Sub. 4.
IV. Limitation
5 The entitlement to reduce the price is not a claim within the meaning of § 194. It is rather
a right to alter a legal relationship (Gestaltungsrecht) and therefore cannot be subject to
limitation. However, according to §§ 634 No. 3, 634a(5), 218(1) 1st St. the reduction of price
is ineffective if the claim for cure is statute-barred and the contractor invokes this.
§639
Exclusion of liability
The contractor may not rely on an agree¬
ment by which the rights of the customer
with regard to a defect are excluded or re¬
stricted, insofar as the contractor fraudu¬
lently concealed the defect or gave a guaran¬
tee for the quality of the work
§639
Haftungsausschluss
Auf eine Vereinbarung, durch welche die
Rechte des Bestellers wegen eines Mangels
ausgeschlossen oder beschränkt werden,
kann sich der Unternehmer nicht berufen,
soweit er den Mangel arglistig verschwiegen
oder eine Garantie für die Beschaffenheit des
Werkes übernommen hat.
A. Function
1 The provision deals with agreements by which the customer’s rights as to a defect are
excluded or restricted. Due to the fact that the provision explicitly regulates two cases in
which the contractor may not rely on such an agreement, it is clear that such an agreement,
in general, can be concluded between the parties.
B. Explanation
I. Fraudulent concealment
2
The contractor may not rely on the agreement insofar a« t,» r.., j i , ... .•
This is the case if the contractor knows about the defect or if he aH ” t"* ? COncea ed ,he de ^t’
defective and if be. nonetheless, does nn. reveal lhe defer. k„„', ' T"” "" T , “
customer does not have any knowledge of the defect.1 Ther > • ® or a *east assuming that the
cause damage.2 3 Likewise, conditional intent (bedingter Vorsatz) ^suffr' * SCparatC ’ntCllt l°
1 BeckOK BGB/Voit, § 639 BGB mn. 3, 13.
2 BGH 5.12.1985 - VII ZR 5/85, NJW 1986, 980 (mn 7)
3 BGH 7.7.1989 - V ZR 21/88, NJW 1990, 42 (mn 13)
1180
Pervers
Acceptance
§640
IL Guarantee
Strict standards apply with regard to the question whether the contractor actually gave a 3
guarantee. It is necessary that the contractor declares in a clear and unequivocal manner that
he wants to be held responsible in case of a defect; thus, a pure agreement on quality is not
sufficient.4
III. Legal consequences
The contractor may not rely on the agreement with respect to the defect that has been 4
fraudulently concealed or the quality referred to in the guarantee.5
1. Standard terms
An additional fairness test is necessary according to § 307 et seq. if the agreement has been 5
concluded by means of standard terms. The agreement may especially be ineffective accord¬
ing to § 309 Nos 7, 8. An agreement that involves a complete exclusion of liability is
ineffective even it the agreement has been concluded between businesses (B2B).6 A complete
exclusion of liability is even ineffective in an individual notarised agreement, unless the
consequences of such an agreement have been discussed in depth.7
2. Damages and remuneration
If the contractor has fraudulently concealed a defect the customer may also be entitled to 6
claim damages according to 280(1), 241(2), 311(2), § 823(2) together with § 263(1) StGB,
and § 826. Additionally, he may revoke the contract immediately without setting a period
according to 634 No. 3, 323(2) No. 3 and subsequently claim return of the remuneration
paid to the contractor according to §§ 634 No. 3, 346(1).
§640
Acceptance
(1) ‘The customer is obliged to accept the
work produced in conformity with the con¬
tract, except to the extent that, in view of the
quality of the work, acceptance is excluded.
2 Acceptance may not be refused by reason of
trivial defects.
(2) A work is also accepted when the con¬
tractor has set after completion a reasonable
period of time for acceptance and the custo¬
mer has not refused to accept within this
period by reason of at least one defect. 2If
the customer is a consumer, the legal conse¬
quences of sentence 1 only occur when the
contractor has, together with the acceptance
request, indicated the consequences of an
undeclared refusal to accept or a refusal to
§640
Abnahme
(1) ‘Der Besteller ist verpflichtet, das ver¬
tragsmäßig hergestellte Werk abzunehmen,
sofern nicht nach der Beschaffenheit des Wer¬
kes die Abnahme ausgeschlossen ist. 2Wegen
unwesentlicher Mängel kann die Abnahme
nicht verweigert werden.
(2) Als abgenommen gilt ein Werk auch,
wenn der Unternehmer dem Besteller nach
Fertigstellung des Werks eine angemessene
Frist zur Abnahme gesetzt hat und der Be¬
steller die Abnahme nicht innerhalb dieser
Frist unter Angabe mindestens eines Mangels
verweigert hat. 2Ist der Besteller ein Verbrau¬
cher, so treten die Rechtsfolgen des Satzes 1
nur dann ein, wenn der Unternehmer den
Besteller zusammen mit der Aufforderung
zur Abnahme auf die Folgen einer nicht er-
4 BeckOK BGB/Voit, § 639 BGB mn. 17.
5 MuKo BGB/Busche, § 639 BGB mn. 10.
6 BGH 19.9.2007 - VJJJ ZR 141/06, NJW 2007, 3774.
7 BGH 8 3 2007 - Vif ZR 130/05, NJW-RR 2007, 895.
Fervers
1181
§641 1
Division 8. Particular types of obligations
accept without information on defects; the
instruction is to be given in text form.
(3) If the customer accepts a defective work
under subsection (1) sentence 1, even though
he knows of the defect, he only has the rights
designated in § 634 Nos 1 to 3 if he reserves
his rights with regard to the defect when he
accepts the work.
§641
Due date of remuneration
(1) ’The remuneration must be paid upon
acceptance of the work. 2If the work is to be
accepted in parts and the remuneration for
the individual parts is specified, then the
remuneration is to be paid for each part
when it is accepted.
(2) ’The remuneration of the contractor
for a work whose production the customer
has promised to a third party is due at the
latest
1. to the extent that the customer has
received from the third party his remunera¬
tion or parts of his remuneration for the
production of the promised work,
2. to the extent that the work of the custo¬
mer has been accepted by the third party or is
deemed to have been accepted, or
3. to the extent that the contractor has
unsuccessfully set the customer a suitable
deadline for information on the circum¬
stances referred to in nos. 1 and 2.
2If the customer has given the third party
security on account of possible defects of the
work, sentence 1 applies only if the contractor
gives the customer an appropriate security.
(3) If the customer may demand remedy of
a defect, he may, after becoming due, refuse
to pay a reasonable portion of the remunera¬
tion; twice the costs necessary to remedy the
defect are appropriate as a rule.
(4) If the remuneration is assessed in
money, the customer must pay interest on it
from the acceptance of the work on, except to
the extent that remuneration is deferred.
klärten oder ohne Angabe von Mangeln ver¬
weigerten Abnahme hingewiesen hat; der
Hinweis muss in Textform erfolgen.
(3) Nimmt der Besteller ein mangdhaftes
Werk gemäß Absatz 1 Satz 1 ab obschon er
den Mangel kennt, so stehen ihm die in § 634
Nr 1 bis 3 bezeichneten Rechte nur zu, wenn
er sich seine Rechte wegen des Mangels bei
der Abnahme vorbehält.
§641
Fälligkeit der Vergütung
(1) ’Die Vergütung ist bei der Abnahme
des Werkes zu entrichten. 2Ist das Werk in
Teilen abzunehmen und die Vergütung für
die einzelnen Teile bestimmt, so ist die Ver¬
gütung für jeden Teil bei dessen Abnahme zu
entrichten.
(2) ’Die Vergütung des Unternehmers für
ein Werk, dessen Herstellung der Besteller
einem Dritten versprochen hat, wird spätes¬
tens fällig,
1. soweit der Besteller von dem Dritten für
das versprochene Werk wegen dessen Herstel¬
lung seine Vergütung oder Teile davon erhal¬
ten hat,
2. soweit das Werk des Bestellers von dem
Dritten abgenommen worden ist oder als
abgenommen gilt oder
3. wenn der Unternehmer dem Besteller
erfolglos eine angemessene Frist zur Auskunft
über die in den Nummern 1 und 2 bezeichne¬
ten Umstände bestimmt hat.
2Hat der Besteller dem Dritten wegen mög¬
licher Mängel des Werks Sicherheit geleistet,
gilt Satz 1 nur, wenn der Unternehmer dem
Besteller entsprechende Sicherheit leistet.
(3) Kann der Besteller die Beseitigung eines
Mangels verlangen, so kann er nach der Fäl¬
ligkeit die Zahlung eines angemessenen Teils
der Vergütung verweigern; angemessen ist in
der Regel das Doppelte der für die Beseiti¬
gung des Mangels erforderlichen Kosten.
(4) Eine in Geld festgesetzte Vergütung hat
der Besteller von der Abnahme des Werkes an
zu verzinsen, sofern nicht die Vergütung ge¬
stundet ist. b * *
A. Function
1 The contract to produce a work aims at the production of an individual success The
acceptance of the work is the point of time when the customer at least basically accents the
work as produced. This acceptance leads to a substantial change in the contractu il'rel iHons
As is apparent from § 641(1), the contractor generally has to perform in advance Acceptance
is the point of time when his claim for remuneration becomes due Addition illy' the
1182
Pervers
Due date of remuneration 2-3 § 641
contractor may no longer demand the production of a work according to § 631(1); he is
irmte to t e rights laid down in § 634. This also implies that the burden of proof changes:
u ereas efore acceptance the contractor bears the burden of proof that his work is free of
defects» the customer is to prove that the work is defective in order to assert a claim
according to 634 et seq.1 Finally» the contractor bears the risk until acceptance of the
work according to § 644(1) 1st St.; this risk passes to the customer upon acceptance.
B. Explanation
I. Legal nature
The legal nature of the acceptance is debated. However, regardless if it is considered a 2
declaration of intent2 or an act similar to business transactions3 (geschäftsähnliche Hand¬
lung), the customer must have legal capacity within the meaning of 104 et seq. While
also 119 et seq. can generally be applied» it is not possible to effect avoidance based on the
fact that the work is defective since» in this case, the §§ 633 et seq. apply exclusively.4
Acceptance may be declared expressly or by implication (ausdrücklich oder konkludent)5;
the 164 et seq. apply as well.6
IL Definition
Acceptance is composed of two elements: physical acceptance and the declaration that 3
the customer basically approves the work as being in conformity with the contract.7 *
However, this does not mean that the customer declares that he considers the work to be
free of any defects but only that he basically accepts it? This is also apparent from § 640(1)
2nd St. according to which acceptance may not be refused by reason of trivial defects.
Therefore, the objective standpoint of the recipient (objektiver Empfängerhorizont) is
decisive in order to determine whether a customer’s act can be considered acceptance. For
instance, countersigning time sheets9, and requesting referment10 are not sufficient; even
the sale of the work does not automatically imply acceptance.11 If the work has not been
completely produced, the contractor may, in principle, not assume that the customer
accepts the work.12 If the work is not very complex, the receipt of the work may be
considered acceptance; this does not apply in case of a more complex work.13 However, if
the customer uses the work in accordance with its intended use14 or if he pays the
remuneration without any reservation15, the contractor may generally assume that the
customer has accepted the work.
1 BeckOK BGB/Voit, § 640 BGB mn. 1-2.
2 Hartung, Die Abnahme im Baurecht, NJW 2007, 1099, 1100.
3 MuKo BGB/Busche, 640 BGB mn. 4.
4 OLG München 13.12.2011 - 9 U 2533/11 Bau. NJW 2012, 397 (mn. 16).
5 BGH 26.9.2013 - VII ZR 220/12, NJW 2013, 3513 (mn. 18); Jauernig BGB/Mansel, § 640 BGB mn. 3.
6 MuKo BGB/Busche. § 640 BGB mn. 5.
7 BGH 25.2.2010 - VII ZR 64/09, NJW-RR 2010, 748 (mn. 25) with further references.
* MuKo BGB/Busche, § 640 BGB mn. 15.
9 OLG Brandenburg 25.1.2012 - 4 U 112/08, NJW-RR 2012, 535 (mn. 82).
10 MuKo BGB/Busche, § 640 BGB mn. 17.
11 BGH 25.4.1996 - X ZR 59/94, NJW-RR 1996. 883 (mn. 18).
12 BGH 3.11.1992 - X ZR 83/90, NJW 1993, 1063 (mn. 26).
B BeckOK BGB/Voit, § 640 BGB mn. 7-8 with further references.
14 MuKo BGB/Busche, § 640 BOB mn. 18 with further references and details.
,s BGH 24.1 J. 1969 - VII ZR 177/67, NJW 1970, 421 (mn. 22 et seq.).
Fervers
1183
§642
Division 8. Particular types of obligations
4
III. Refusal of acceptance
§ 640(1) provides that it is a primary obligation of the customer to accept work The
customer cannot refuse to perform for reason of trivial defects. If the cus omer refUses
nonetheless, there is the possibility of a fictitious acceptance (fiktive AbnaJ according to
§ 640(2): a work is also accepted when the contractor has set a ter com a reasonable
period of time for acceptance and the customer has not refuse to accep wi in is period
by reason of at least one defect. The purpose of this provision is to prevcn * customer
from refusing acceptance improperly. He must at least indicate one e ec , w ereas it js
sufficient if he specifies the symptoms of a defect.16 17 The contractor oes not ave to set a
period if the customer seriously and definitively refuses acceptance.
IV. Acceptance of a defective work
5 If the customer accepts a defective work even though he knows of the defect, he only has
the rights designated in § 634 Nos 1-3 if he reserves his rights with regard to the defect when
he accepts the work (§ 640(3)). This provision is comparable to § 442 and § 536b, though
their conditions are not equivalent: § 442 and § 536b require gross negligence, whereas
according to § 640(3) the customer must have positive knowledge of the defect.
V. Maturity without acceptance
6 Over and above the case of an unjustified refusal of acceptance, the claim for remuneration
also falls due in the cases laid down in § 641(2): the contractor within the meaning of § 641
(2) typically is a subcontractor and the customer is the main contractor.18 Thus, the purpose
of this provision is to protect the sub-contractor and confer a due claim for remuneration on
him even if the main contractor (his customer) has not accepted the work yet.
VI. The customer’s right to withhold payment after acceptance
7 § 641(3) entitles the customer to partly withhold the payment of the remuneration if he
has accepted the work but may demand cure according to § 635. The provision further states
that twice the costs necessary to remedy the defect are appropriate as a rule. The purpose of
this provision is to create an incentive to provide cure.19
§ 641a
(repealed)
§ 641a
(weggefallen)
§642
Collaboration by the customer
(1) If, in the production of the work, an act
by the customer is necessary, then the con¬
tractor may demand reasonable compensa¬
tion if the customer, by failing to perform
the act, is in default of acceptance.
§642
Mitwirkung des Bestellers
(1) Ist bei der Herstellung des Werkes eine
Handlung des Bestellers erforderlich, so kann
der Unternehmer, wenn der Besteller durch
das Unterlassen der Handlung in Verzug der
Annahme kommt, eine angemessene Entschä¬
digung verlangen.
16 MüKo BGB/Busche, (j 640 BGB mn. 30.
17 BGH 18.5.2010 - VII ZR 158/09, NZBau 2010 r
• s« taKXX BCB/Kogl. S M, BGB mn (' »
19 BeckOGK BGB/Kögl, § 64! BGB mn. 94. ‘ b
1184
Fervers
Termination for failure to collaborate
(2) The amount of compensation is as¬
sessed on the one hand on the basis of the
duration of the default and the amount of the
agreed remuneration, and on the other hand
on the basis of what expenses the contractor
saves or what the contractor can earn by
employing his working capacity elsewhere.
§643
Termination for failure to
collaborate
’In the case of § 642, the contractor is en¬
titled to give the customer a reasonable period
of time for making up for the act to be per¬
formed by declaring that he will terminate the
contract if the act is not undertaken by the end
of the period of time. 1 2The contract is deemed
to be cancelled if the act is not made up for by
the end of the period of time.
1-3 § 643
(2) Die Höhe der Entschädigung bestimmt
sich einerseits nach der Dauer des Verzugs
und der Höhe der vereinbarten Vergütung,
andererseits nach demjenigen, was der Unter¬
nehmer infolge des Verzugs an Aufwendun¬
gen erspart oder durch anderweitige Verwen¬
dung seiner Arbeitskraft erwerben kann.
§643
Kündigung bei unterlassener
Mitwirkung
’Der Unternehmer ist im Falle des § 642
berechtigt, dem Besteller zur Nachholung der
Handlung eine angemessene Frist mit der
Erklärung zu bestimmen, dass er den Vertrag
kündige, wenn die Handlung nicht bis zum
Ablauf der Frist vorgenommen werde. 2Der
Vertrag gilt als aufgehoben, wenn nicht die
Nachholung bis zum Ablauf der Frist erfolgt.
A. Function
The provisions tackle the case of default in acceptance on the part of the customer. If an act 1
of the customer is necessary and yet the customer does not collaborate, the contractor has no
possibility to produce the work with the result that the claim for remuneration cannot
become due. Additionally, the contractor must expect at any time that the customer might
perform the necessary act and that he, subsequently, is obliged to produce the work. Hereby,
the contractor’s economic freedom of disposal would be restricted inappropriately.1 Accord¬
ingly, 642, 643 entitle the contractor to demand reasonable compensation or to terminate
the contract (after having set a reasonable period) in case of default in acceptance, whereas
the general rules concerning default in acceptance (§§ 293 et seq.) do not include either of
these possibilities.
B. Explanation
I. Necessary act
The provisions apply if an act by the customer is necessary in the production of the work 2
and if the customer fails to perform the act or if he performs the act defectively.2 For
example, the customer must provide access to his property if the contractor is obliged to
construct a fence system on the property.3 If the customer is the building owner (Bauherr),
he must provide defect-free construction plans to the architect supervising the construction.4
II. Default
The general rules on default in acceptance apply (§§ 293 et seq.). This implies that 3
performance must be possible for the contractor (§ 297) and that the contractor offers
performance to the customer (§§ 293, 294, 295) or that the offer is dispensable (§ 296).
1 BeckOK BGB/Voit, § 642 BOB mn. 1.
2 Staudinger BGB/Peters/Jacoby, 20!4, § 642 BGB mn. 9.
5 OLG Düsseldorf 23.7.1999 - 22 U 9/99, NJW-RR 2000, 466.
4 BGH 27.11.2008 - VII ZR 206/06, NJW 2009, 582 (mn. 30).
Tervers
1185
§644
Division 8. Particular types of obligations
4
III. Reasonable compensation
The contractor may demand reasonable compensation according t § (. ) This
entitlement is not a claim for damages since it exists irrespective o y ' 0 e
customer and does not require the evidence of damage.5 6 7 * On the ot er an , e c aim or
compensation according to § 642(1) does not include compensation or os Pro >ts.
Instead, the contractor shall be compensated for the restriction ot is rec om o isposa .
§ 642(2) thus provides that the duration of the default and the amount o t e agreed
remuneration are to be taken into account to calculate the costs for ^e^sta an die
machines that could not deployed elsewhere and the costs for the idle wor . On t e other
hand, it must be taken into account the question whether the contractor saved expenses or
what the contractor could earn by deploying his working capacity elsewhere. Hereby, it
suffices if the contractor had the real possibility to earn money elsewhere, whereas it is not
necessary that he actually earned it.9
IV. Reasonable period
5 According to § 643 the contractor may give the customer a reasonable period of time for
making up for the act to be performed by declaring that he will terminate the contract if the
act is not undertaken by the end of the period of time. The contract is deemed to be cancelled
if the act is not made up for by the end of the period of time. The period must be sufficient to
give the customer the opportunity to perform the necessary act.10 If the period is too short,
the period is replaced by a reasonable period.11 If the customer does not perform the act and
if the contract is therefore deemed to be cancelled, the contractor may demand a part of the
remuneration that corresponds to the work performed (§§ 645 1st St., 2nd St., 643). Addi¬
tionally, he can claim compensation according to § 642 and he may have the possibility to
claim damages according to §§ 280(1), 241 (2).12
§644
Allocation of risk
(1) IThe contractor bears the risk until
acceptance of the work. 2If the customer is in
default of acceptance, then the risk passes to
him. ^The contractor is not liable for any
accidental destruction or accidental dete¬
rioration of the materials supplied by the
customer.
(2) If, at the demand of the customer, the
contractor ships the work to a place other
than the place of performance, then the pro¬
visions of § 447 governing purchase apply
with the necessary modifications.
§644
Gefahrtragung
(1) *Der Unternehmer trägt die Gefahr bis
zur Abnahme des Werkes. 2Kommt der Be¬
steller in Verzug der Annahme, so geht die
Gefahr auf ihn über. 3Für den zufälligen Un¬
tergang und eine zufällige Verschlechterung
des von dem Besteller gelieferten Stoffes ist
der Unternehmer nicht verantwortlich.
(2) Versendet der Unternehmer das Werk
au Verlangen des Bestellers nach einem an¬
deren Ort als dem Erfüllungsort, so finden
dte fiir den Kauf geltenden Vorschriften des
9 447 entsprechende Anwendung.
5 Staudinger BGB/Peters/Jacoby, 2014, (j 642 BGB mn. 24.
6 BGH 21.10. 1999 - VII ZR 185/98, NJW 2000, 1336 (mn 26)
7 BeckOK BGB/Voit, § 642 BGB mn. 14.
* Staudinger BGB/Peters/Jacoby, 2014, § 642 BGB mn. 25.
» BeckOK BGB/Voit, § 642 BGB mn. 15.
10 Jauernig BGB/Mansel 642, 643 BGB mn. 5.
11 MüKo BGB/Busche, § 643 BGB mn. 4.
12 See BGH 16.5.1968 - VII ZR 40/66, NJW 1968, 1873 (mn. 28)
1186
Pervers
Responsibility of the customer
1-2 § 645
§645
Responsibility of the customer
(1) lIf the work, before acceptance, is de¬
stroyed or deteriorates or becomes impractic¬
able as the result of a defect in the materials
supplied by the customer or as the result of
an instruction given by the customer for the
carrying out ot the work, without a circum¬
stance for which the contractor is responsible
contributing to this, then the contractor may
demand a part of the remuneration that cor¬
responds to the work performed and reim¬
bursement of those expenses not included in
the remuneration. 2The same applies if the
contract is cancelled under § 643.
(2) A more extensive liability of the custo¬
mer for fault is unaffected.
§645
Verantwortlichkeit des Bestellers
(1) lIst das Werk vor der Abnahme infolge
eines Mangels des von dem Besteller geliefer¬
ten Stoffes oder infolge einer von dem Bestel¬
ler für die Ausführung erteilten Anweisung
untergegangen, verschlechtert oder unaus¬
führbar geworden, ohne dass ein Umstand
mitgewirkt hat, den der Unternehmer zu ver¬
treten hat, so kann der Unternehmer einen
der geleisteten Arbeit entsprechenden Teil
der Vergütung und Ersatz der in der Ver¬
gütung nicht inbegriffenen Auslagen verlan¬
gen. 2Das Gleiche gilt, wenn der Vertrag in
Gemäßheit des § 643 aufgehoben wird.
(2) Eine weitergehende Haftung des Bestel¬
lers wegen Verschuldens bleibt unberührt.
A. Function
§§ 644, 645 modify the general provisions §§ 320, 326 and tackle the allocation of risk as 1
to the contract to produce a work. There is a distinction to be made between the performance
risk (Leistungsgefahr) and the price risk (Preisgefahr). The performance risk describes the
contractor’s risk that he is to produce the work again if it is destroyed or becomes
impracticable; the performance risk is regulated by the general provision § 275. §§ 644, 645,
in contrast, tackle the allocation of the price risk, i.e. the question under which circum¬
stances the contractor can claim remuneration even though the work has been destroyed or
has become impracticable.
B. Explanation
I. Allocation of risk prior to acceptance
§ 644(1) 1st St. generally states that the contractor bears the (price) risk until acceptance of 2
the work. As a consequence, the contractor cannot claim remuneration in case of an
accidental destruction or impracticability of the work. § 644(1) 1st St. does not apply if one
of the parties has culpably caused the destruction, the deterioration or the impracticability.
The application of the general provisions in this scenario means that e.g. in case of an
impossibility of fulfilment according to § 275(1) which has been culpably caused by the
customer, the contractor may claim remuneration according to § 326(2) 1st St. 1st Alt. minus
what he saves due to release from performance or acquires or wilfully fails to acquire from
other use of his labour (§ 326(2) 2nd St.).1 The risk passes to the customer upon acceptance
regardless of whether the customer has actually accepted it or if the work is deemed accepted
according to § 640(2). The risk also passes to the customer if he is in default of acceptance
according to § 644(1) 2nd St. Herein lies, in principle, a modification of § 326(2) since § 326
(2) 2nd St. does not apply. However, according to the prevailing opinion, § 326(2) 2nd St. can
apply by analogy.2
1 MüKo BGB/Busche, § 644 BGB inn. !2 et seq.
2 Staudinger BGB/Peters/Jacoby, § 644 BGB mn. 25.
Pervers
1187
§ 645 3-5
Division 8. Particular types of obligations
II. Transferred loss
3 If a third party has culpably caused the destruction of the work or its deterioration prior
to acceptance, this may lead to the situation in which DrittschadenshquidaUon (recovery of
transferred loss3) is necessary.4 It e.g. the contractor installs (in con ormity wit the
contract) a material component into the real property of the customer, t e customer
acquires property by operation of law according to § 946. Thus, i a t ir party estroys
the aforementioned material component, the contractor cannot claim arnages according
to § 823(1) against the third party since his property has not been injured. Likewise, the
customer cannot claim damages against the third party because he actua y suffered no
damage: in accordance with § 644(1) 1st St. he does not have to pay any remuneration for
the destroyed work prior to acceptance. Since it would be inappropriate to allow the third
party to be free from any obligation to compensate the damage, it is, according to the
concept of Drittschadensliquidationy possible that that customer can claim damages against
the third party insofar as they have been suffered by the contractor. Additionally, the
contractor may demand assignment of this claim which can be based on the application of
§ 285 by analogy.5
III. Partial remuneration
4 § 645 restricts the allocation of risk laid down in § 644(1) 1st St. stating that if the work, prior
to acceptance, is destroyed or deteriorates or becomes impracticable as the result of a defect in
the materials supplied by the customer or as the result of an instruction given by the
customer for the carrying out of the work, without a circumstance for which the contractor is
responsible contributing to this, the contractor may demand a part of the remuneration that
corresponds to the work performed and reimbursement of those expenses not included in the
remuneration. Therefore, § 645 also modifies the general provision § 326(1) 1st St. and confers a
claim for remuneration on the contractor even if the contractor cannot fulfil his obligation. The
provision takes into account that, if a defect in the materials supplied by the customer or an
instruction given by the customer has led to the destruction, deterioration or impracticability of
the work, this result is not caused by a circumstance for which the contractor must bear the risk
but by a circumstance from the customer’s sphere of influence. Given the fact that § 645 is
based on fairness and risk distribution, it is debated whether the provision may be applied by
analogy to cases in which a circumstance does not match the requirements of § 645 but is
attributable to the customer’s sphere of influence.6 The BGH has applied § 645 by analogy if the
destruction or the impracticability of the work has been caused by a circumstance attributable to
the customer as a person or to an act of the customer.7
5 Whereas a more extensive liability of the customer for fault is unaffected according to
§ 645(2), the customer cannot claim damages including lost profit according to § § 645(1); he
may only claim a partial remuneration plus reimbursement of those expenses' not included
in the remuneration. The contractor must show and prove the progress of the partly
produced work in proportion to the complete work.8
3 See * § 249 mn. 90 et seq. For further explanation of this
p. 217 et seq. The concept is described as a mechanism which
loss suffered by a third party as a result of the non-execution
debtor’, (p. 217).
concept see The German Law of Contract,
allows the ‘creditor to claim (liquidate) the
or faulty execution of the contract by the
4 See BGH 30.9.1969 - VI ZR 254/67, NJW 1970, 38 (mn. 35).
5 See Staudinger BGB/Peters/Jacoby, § 644 BGB mn. 10.
6 MüKo BGB/Busche, § 645 BGB mn. 14 et seq.
7 BGH 6.11.1980 - VII ZR 47/80, NJW 1981, 391 (mn. 18) with further
« BeckOK BGB/Voit, § 645 BGB mn. 25. r
references.
1188
Pervers
Security right of the contractor
§647
§646
Completion in lieu of acceptance
If acceptance is excluded due to the quality
of the work, then, in the cases of §§ 634a(2)
and 641, 644 and 645, completion of the work
takes the place of acceptance.
§646
Vollendung statt Abnahme
Ist nach der Beschaffenheit des Werkes die
Abnahme ausgeschlossen, so tritt in den Fäl¬
len des § 634a Abs. 2 und der §§ 641, 644 und
645 an die Stelle der Abnahme die Voll¬
endung des Werkes.
A. Function
The purpose of this provision is to regulate the case in which an acceptance of the work 1
within the meaning ot § 640 is not possible due to the quality of the work: in this case the
completion of the work takes the place of acceptance. It is important to note that the
application ot § 646 disadvantages the customer since - in contrast to the acceptance - he
cannot influence the date of the completion. For this reason, § 646 is to be interpreted in a
restrictive way.1
B. Explanation
I. Acceptance
According to the prevailing opinion, a tangible work can always be accepted within the 2
meaning of § 640.2 This is also the case if the customer is noi able to physically accept or
receive the work such as in the case of roof maintenance work.3 An intellectual work
(geistiges Werk) such as an advisory opinion can also be accepted if it is in tangible form,
e.g. if the advisory opinion is delivered as a written document or on a data medium.4
However, acceptance is excluded if the intellectual work is intangible, such as a concert or
a theatre performance. According to case law, acceptance is also excluded if, according to the
contract, the customer shall be exempt from accepting the work, e.g. in the case of a winter
road maintenance contract (Winterdienstvertrag) where the contractor shall perform as
agreed without the need for an acceptance by the customer.5
II. Completion
The work is completed if the work is procured. Thus, § 646 also applies if the work is 3
defective6 since the customer does not have - unlike in the case of an acceptance - the
possibility to decide whether he wants to approve the work.
§647
Security right of the contractor
For his claims under the contract, the con¬
tractor has a security right over the movable
things of the customer that he has produced
§647
Unternehmerpfandrecht
Der Unternehmer hat für seine Forderun¬
gen aus dem Vertrag ein Pfandrecht an den
von ihm hergcstcllten oder ausgebesserten
1 BeckOK BGB/Voit, § 646 BGB mn. 1.
2 RG 24.4.1925 - VI 10/25: RGZ 110, 404 (407-409).
’ MüKo BGB/Busche, § 646 BGB mn. 2.
1 See BeckOK BGB/Voit, § 646 BGB mn. 2.
5 BGH 6.6.2013 - VII ZR 355/12, NJW 2013, 3022 (mn. 16).
6 BeckOK BGB/Voit, § 646 BGB mn. 5.
Fervers
1189
§ 647 1-5 Division 8. Particular types of obligations
, »iirhnn Sachen des Bestellers, wenn sie
or repaired if they have come into his posses- beweg ‘ „ n„ otJcr zum Zwecke der
sion during the production or for the pur- bei der• r Beshz ge|angt
pose of repair. AusM.SM.ru b
A. Function
1
The purpose of this provision is to provide the contractor wit i a se c aims
under the contract. While in general contractual partners are pro ec e e ence o
unperformed contract according to § 320, the contractor, in princip e, oes no ave t is
option since the contractor is obliged to perform in advance (§ 641).
B. Explanation
I. Claims
2 The provision applies to all the contractor’s claims under the contract, i. e. for the claim for
remuneration (§§ 631, 648 2nd St.), the claim for reasonable compensation according to § 642,
the claim for a part of the remuneration (§ 645), claims for damages according to §§ 280 et seq.,
claims that result out of revocation and reduction of price and out of contractual penalties.1
Excluded are claims in tort (§§ 823 et seq.) and claims that result out of unjust enrichment
(§§ 812 et seq.) and agency without specific authorisation (§§ 677 et seq.).2 3
II. Moveable things
3 § 647 only applies to movable things, not to properties. However, within the scope of
construction contracts, the contractor may demand that a mortgage over the building
property of the customer is granted according to § 650e.
III. Possession
4 The contractor must have gained possession over the things during the production or for
the purpose of repair. Whereas an agency in possession within the meaning of § 855 is not
sufficient, possession includes direct possession (unmittelbarer Besitz) (§ 854) as well as
indirect possession (mittelbarer Besitz) (§ 868)?
5
IV. Customer
A security right only arises over the movable things of the customer which means that the
things must be owned by the customer. However, good faith acquisition by the owner mav be
possible. According to § 1207, the provision §932 governing the good faith acquisition of
ownership applies with the necessary modifications to the pledging if the thing does not
belong to the pledgor. However, § 1207 itself only applies to pledges created bv 1«^
transaction. To pledges created by operation of law such as § 647, §§ P04 et seq only applv
to a pledge created by legal transaction according to § 1257. This means that § 1207. which
governs the creation of the pledge, is not applicable; the possibility of an application bv
Whid’ * represented in kS..l
ineralure, W 1207, 932. 12S7 be applied by analogy w „ ,|K
1 BeckOK BGB/Voit, § 647 BGB mn. 3.
2 HK-BGB/Scheuch, § 647 BGB mn. 2.
3 MuKo BGB/Buschc, § 647 BGB mn. H -9.
1190
Pervers
Mortgage of an owner of a shipyard 1 § 647a
need for protection of the contractor who has no possibility to detect the separation between
customer and owner.4 The BGH, however, rejects the application by analogy arguing that
pledges created by legal transactions and pledges created by operation of law are essentially
different from each other: without any transaction there is no basis for a legal appearance
(Rechtsschein) since the contractor does not take into account any circumstances if the pledge
is created by operation of law.5 6 7 For the same reason, the BGH has rejected an application of
§ 366(3) HGBb and § 185(1)/ Therefore, is has become an established practice for the
contractor to conclude a contractual agreement on the creation of a pledge by means of
standard terms. In this case, good faith acquisition of the pledge is possible according to
§§ 1207, 932 without any further problems. And according to the BGH, a creation of a
pledge is not an unfair term within the meaning of § 307.8
V. Legal consequences
When the security is created, the provisions governing the pledge created by legal 6
transactions (§§ 1204 et seq.) apply according to § 1257. Thus, the contractor may claim
the restitution of the thing against the third person according to §§ 1227, 985. The
satisfaction of the pledged item by sale is governed by § 1228. The pledge extinguishes
together with the claim to which it relates according to § 1252; if the pledged item is returned
to the pledgor or the owner is extinguishes according to § 1253(1) 1st St. The contractor is
obliged to return the thing to the customer after the pledge is extinguished (§ 1223(1)).
§ 647a
Mortgage of an owner of a
shipyard
’The owner of a shipyard, for his claims in
relation to the building or repair of a ship,
may demand to be granted a ship mortgage
over the ship under construction or ship of
the customer. 2If the work is not yet com¬
pleted, then he may demand that a ship
mortgage is granted for a portion of the
remuneration corresponding to the work per¬
formed and for expenses not included in the
remuneration. 3§ 647 does not apply.
§ 647a
Sicherungshypothek des Inhabers
einer Schiffswerft
’Der Inhaber einer Schiffswerft kann für
seine Forderungen aus dem Bau oder der
Ausbesserung eines Schiffes die Einräumung
einer Schiffshypothek an dem Schiffsbauwerk
oder dem Schiff des Bestellers verlangen. 2Ist
das Werk noch nicht vollendet, so kann er die
Einräumung der Schiffshypothek für einen
der geleisteten Arbeit entsprechenden Teil
der Vergütung und für die in der Vergütung
nicht inbegriffenen Auslagen verlangen.
3§ 647 findet keine Anwendung.
The purpose of this provision is to protect the owner of a shipyard against insolvency of 1
the customer. By conferring a right to demand a mortgage on the owner of a shipyard, the
owner has the possibility to obtain a security as a compensation for the fact that firstly, he has
to produce the work in advance, and secondly, he might lose the ownership of material
components during the production of the work according to §§ 946, 93, 94.1 The provision
corresponds to the former version of § 648(2), whereby the builder’s security (formerly § 648
(1)) is now regulated in § 650e.
4 See Baur, Jürgen F./Stürner, Rolf, Sachenrecht (C.H.Beck 2009), § 55 mn. 40.
5 BGH 21.12.1960 - VIII ZR 146/59, NJW 1961, 52.
6 BGH 21.12.1960 - VIII ZR 146/59, NJW 1961, 52.
7 BGH 21.12.1960 - VIII ZR «9/59, NJW 1961, 499.
8 BGH 4.5. 1977 - VIII ZR 3/76, NJW 1977, 1240 (mn. 14).
’ MüKo BGB/Buschc, § 647a BGB mn. 1.
Pervers
1191
§ 648 1-2
Division 8. Particular types of obligations
§648
Right of termination of the
customer
’The customer may terminate the contract
at any time up to completion of the work. 2If
the customer terminates the contract, then
the contractor is entitled to demand the
agreed remuneration; however, he must allow
set-off of the expenses he saves as a result of
cancelling the contract or acquires or wilfully
fails to acquire from other use of his labour.
3There is a presumption that the contractor is
accordingly entitled to five percent of the
remuneration accounted for by the part of
the work not yet provided.
§648
Kiindigungsrecht des Bestellers
•Der Besteller kann bis zur Vollendung des
Werkes jederzeit den Vertrag kündigen.
2Kündißt der Besteller, so ist der Unterneh¬
mer berechtigt, die vereinbarte Vergütung zu
verlangen; er muss sich jedoch dasjenige an¬
rechnen lassen, was er infolge der Aufhebung
des Vertrags an Aufwendungen erspart oder
durch anderweitige Verwendung seiner Ar¬
beitskraft erwirbt oder zu erwerben böswillig
unterlässt. 3Es wird vermutet, dass danach
dem Unternehmer 5 vom Hundert der auf
den noch nicht erbrachten Teil der Werkleis¬
tung entfallenden vereinbarten Vergütung
zustehen.
A. Function
1 Even though a contract to produce a work is not, strictly speaking, a continuing obligation
(Dauerschuldverhalt ms) since the contractor’s act of performance can be a one-time act, the
contract to produce a work is often geared to the longer term. Thus, circumstances may arise
after the conclusion of the contract that lead to a customer’s interest to refrain from having
the work produced.1 Therefore, the 1st St. confers on the customer the right to terminate the
contract at any time up to completion of the work. A compelling reason for the termination
is - other than under § 648a - not necessary. However, the contractor would be unfairly
disadvantaged if the customer could terminate the contract with the result that the contractor
would lose his claim for remuneration. For this reason, the 2nd St. states that, in case of
termination, the contractor is entitled to demand the agreed remuneration minus expenses
saved.
B. Explanation
I. Requirements
2 The customer’s right to terminate the contract is not automatically excluded if the
contractor is, according to the contract, to perform continuing work services2 unless the
contractor has a particular and reasonable interest in performing the work services so he
cannot reasonably be expected to accept termination at any time? Generally, termination
may be declared expressly or by <mpl.cat.on< (ausdrücklich oder konkludent) and without any
form requirement.4 5 However, in case of a building contract r
termination requires written form (§ 650h), likewise in case of an archil "1Canin8 °D65^'
(1), 650h) and if the VOß/fP have been included in the «
■ See BGH 8.7.1999 - VII ZR 237/98, NJW 1999, 3261 (mn. 14)- Bg77777~
2011, 915 (mn. 11). ’’ GH 27 L20' > - VII ZR 133/10. NJW
2 BGH 27.1.2011 - VII ZR 133/10, NJW 2011, 915 (mn. 12 et se« 1
3 BGH 21.11.1985 - VII ZR 366/83, NJW 1986, 925 (mn 12 et J \
4 HK-BGB/Scheuch, § 648 BGB mn. 3. |J'
5 See ► § § 631 mn. 8.
1192
Fervers
Termination for compelling reason
§ 648a
II. Legal consequences.
e ex-nunc-effect of termination means that the contract remains effective up to
termination and can be a legal basis for those work services that have been already
performed. Termination (only) limits the contractor’s obligation to the part of the work
that has been produced upon termination6 7 8 which means that this part has to be free of
detects? As to the contractor’s claim for remuneration a distinction must be made between
3
the performed and unperformed work services. As to the performed services the contactor
can claim remuneration according to §§ 631, 632 due to the ex-nunc-effect of the termina¬
tion9 provided that the partly produced work is free of defects.10 According to the BGH, it is
further necessary for the claim to become due that the customer accepts the work within the
meaning ot §§ 640, 641.11 As to the unperformed work services , the contractor must allow a
set-off of the expenses he saves as a result of cancelling the contract or acquires or wilfully
fails to acquire from other use of his labour. The contractor must neither be better nor worse
oft than in case ot a complete production of the work.12 The contractor does not need to
allow set-off if the saving ot expenses has not directly been caused by the termination; this
applies to general costs such as rent and salaries that the contractor has to pay anyway.13
First, the contractor must show and prove which part of the agreed remuneration refers to
the work already produced and indicate the expenses he has saved due to the termination; the
contractor must thus disclose his overall calculation.14 If the contractor has - according to
the customer’s view - saved a higher amount of expenses, the customer bears the burden of
presentation and the burden of proof (Darlegungs- und Bewcislast) for this fact.15
III. Deviating agreements
The application of § 649 may be excluded by an individually negotiated agreement16, but 4
not via standard terms.17
§ 648a
Termination for compelling
reason
(1) !The contract may be terminated by
either party to the contract for a compelling
reason without complying with a notice per¬
iod. 2There is a compelling reason if the
terminating party, taldng into account all
the circumstances of the specific case and
weighing the interests of both parties, cannot
reasonably be expected to continue the con-
§ 648a
Kündigung aus wichtigem Grund
(1) 1 Beide Vertragsparteien können den
Vertrag aus wichtigem Grund ohne Einhal¬
tung einer Kündigungsfrist kündigen. 2Ein
wichtiger Grund liegt vor, wenn dem kündi¬
genden Teil unter Berücksichtigung aller Um¬
stände des Einzelfalls und unter Abwägung
der beiderseitigen Interessen die Fortsetzung
des Vertragsverhältnisses bis zur Fertigstel-
6 BGH 13.11.1981 - 1 ZR 168/79, NJW 1982, 2553; BGH 25.6.1987 - VII ZR 251/86, NJW 1988, 140
in. 15).
7 See BGH 19.12.2002 - VII ZR 103/00, NJW 2003, 1450 (mn. 30).
8 MuKo BGB/Busche, § 648 BGB mn. 16 with further references.
9 Jauernig BGB/Mansel, § 648 BGB mn. 3.
10 BGH 25.3.1993 - X ZR 17/92, NJW 1993, 1972 (mn. 21).
11 BGH 11.5.2006 - VII ZR 146/04, NJW 2004, 2475.
12 MuKo BGB/Busche, § 648 BGB mn. 2 with further references.
13 MüKo BGB/Busche, § 648 BGB mn. 24.
14 BGH 7.11.1996 - VII ZR 82/95, NJW 1997, 733.
15 BGH 5 5 1992 - X ZR 133/90, NJW-RR 1992, 1077.
16 See BGH 27.1.2011 - VII ZR 133/10, NJW 2011, 917 (mn. 16).
17 BGH 8.7.1999 - VII ZR 237/98, NJW 1999, 3261 (mn. 14).
Pervers
1193
§ 648a 1 Division 8. Particular types of obligations
tractual relationship until completion of the
work.
(2) Partial termination is possible; it must
refer to a separable part of the work due.
(3) § 314(2) and (3) apply with the neces¬
sary modifications.
(4) ’After the termination each party to the
contract may demand the other party to
jointly determine the status of the perfor¬
mance. * 2If a party refuses involvement or it
does not attend, for the purposes of deter¬
mining the status of performance, an agreed
appointment or an appointment set within a
reasonable period by the other party, it bears
the burden of proving the status of perfor¬
mance at the time of termination. 3This does
not apply if the party does not attend due to
circumstances for which it is not responsible
and which it has communicated without un¬
due delay to the other party.
(5) If the contract is terminated for com¬
pelling reason, the contractor is entitled to
demand only the remuneration for the part
of the work performed prior to termination.
(6) The entitlement to claim damages is
not excluded by the termination.
lung des Werks nicht zugemutet werden
(2) Eine Teilkiindigung ist möglich; sie
muss sich auf einen abgrenzbaren Teil des
geschuldeten Werks beziehen.
(3) § 314 Absatz 2 und 3 gilt entsprechend.
(4) 'Nach der Kündigung kann jede Ver¬
tragspartei von der anderen verlangen, dass
sie an einer gemeinsamen Feststellung des
Leistungsstandes mitwirkt. ’Verweigert eine
Vertragspartei die Mitwirkung oder bleibt sie
einem vereinbarten oder einem von der ande-
ren Vertragspartei innerhalb einer angemes¬
senen Frist bestimmten Termin zur Leis¬
tungsstandfeststellung fern, trifft sie die
Beweislast für den Leistungsstand zum Zeit¬
punkt der Kündigung. 3Dics gilt nicht, wenn
die Vertragspartei infolge eines Umstands
fernbleibt, den sie nicht zu vertreten hat und
den sie der anderen Vertragspartei unverzüg¬
lich mitgeteilt hat.
(5) Kündigt eine Vertragspartei aus wichti¬
gem Grund, ist der Unternehmer nur berech¬
tigt, die Vergütung zu verlangen, die auf den
bis zur Kündigung erbrachten Teil des Werks
entfällt.
(6) Die Berechtigung, Schadensersatz zu
verlangen, wird durch die Kündigung nicht
ausgeschlossen.
A. Function
1 The provision has been introduced by the 2017 reforms on construction law.1 Even though
a contract to produce a work is not, strictly speaking, a continuing obligation (Dauerschuld¬
verhältnis) since the contractor’s act of performance can be a one-time act, the contract to
produce a work is often geared to the longer term.2 Thus, also without the existence of § 648a
it has already been recognised that it must be possible for both parties to terminate the
contract if one party cannot reasonably be expected to continue the contractual relationship.
The right of termination according to § 648 (former § 649), however, is not sufficient since
according to § 648 2nd St. the customer is still obliged to pay the agreed remuneration despite
the termination. Therefore, a termination was considered possible according to the general
provisions, though it was heavily debated whether the termination could be based on the
application of § 314 by analogy3, the application of § 648 by analogy4 or on a claim for
damages.5 Consequently, the legislator decided to introduce a separate provision to ensure
legal certainty.6
'Gesetz zur Reform des Bauvertragsrechts, zur Änderung der kaufreehil; t.. << ,,
Stärkung des zivilprozessualen Rechtsschutzes und zum maschinellen Siegel im r‘r, ti 5ur
gisterverfahren, 28.4.2017, BGBl I 969. ‘ X ^'"»uibuch- und Schifjre-
2 MuKo BGB/Busche, (j 648a BGB mn. 14.
’BGH 26.3.2008 - X ZR 70/06, NJW-RR 2008, 1155 (mn isi- ml-
mn. 14. ' 15,: MuKo bCB/Busche, § 648a BGB
4 Voit, Die außerordentliche Kündigung des Werkvertrages dim-k i n
5 Staudinger BGß/Peters/Jacoby, 2014, § 649 BGB mn. 56. Csle,,cr BauR 2002, 1776.
6 BT-Drs. 1H/8486 of 18.5.2016, p. 33, 50.
1194
Pervers
1 erminatiofi for compelling reason
2-4 § 648a
B. Explanation
I. Compelling reason
Sub. 1 stipulates that the contract may be terminated for a compelling reason if the 2
terminating party, taking into account all the circumstances of the specific case and weighing
the interests of both parties, cannot reasonably be expected to continue the contractual
relationship until completion ot the work. Thus, it is necessary to give due consideration to
both parties interests taking into account all circumstances of the individual case.7 Taking
account ot this standard, termination is at least possible if there is a severe, fault-based breach
of duties that endangers the purpose of the contract,8 e.g. in case of severe defects of the
partly finished work9, verbal insults and assaults10 or in case of an unjustified and final
refusal ot performance.11 A party will most likely not be allowed to terminate the contract if
he has strongly contributed to the disruption of the relationship.12
II. Reasonable period
According to Sub. 3 and § 314(3), the party authorised to terminate the contract can only 3
do so within a reasonable period after obtaining knowledge of the reason for the termination.
Thus, it is necessary that the party has positive knowledge; gross negligence (grobe
Fahrlässigkeit) is not sufficient. Determining whether a period is reasonable requires
consideration of the relevant aspects such the complexity of the work, the impact of the
termination and a justifiable interest of the customer to wait; whereas the period of two
weeks laid down in § 626(2) is only an indicator, a termination later than two months after
obtaining knowledge of the reason for termination is mostly belated.13 According to Sub. 3
and § 314(2), the contract may, in case of a breach of duty, only be terminated after the
expiry without result of a period specified for relief or after a warning notice without result.
However, § 323(2) Nos 1 and 2 apply with the necessary modifications (§ 314(2)). Immediate
termination may be justified in light of the interests of the parties, therefore rendering the the
specification of a period for relief and the issue of a warning notice unnecessary (§ 314(3)).14
III. Legal consequences
The ex nunc effect of termination means that the contract is not affected until the date at 4
which the termination becomes effective; from this date on both parties are released from
their obligations.15 In contrast to § 648 2nd St., the contractor does not retain his claim to
remuneration; instead, he is only entitled to demand the remuneration for the part of the
work performed prior to termination. However, the contractor is not allowed to demand this
remuneration either if the work is defective without a possibility to provide cure and
therefore worthless for the customer16 or if the work - even in case a defect is lacking -
cannot be reasonably used by the customer.17
7 BeckOGK BGB/Reiter, § 648a BGB mn. 9.
« BGH 23.5.1996 - VII ZR 140/95, NJW-RR 1996, 1108 (mn. 24).
9 BGH 6.2.1975 - VII ZR 244/73, NJW 1975, 825 (mn. 14).
10 Staudinger BGB/Peters/Jacoby, 2014, § 649 BGB mn. 57.
11 OLG Dusseldorf 11.12.2014 - 1-22 U 92/14, NJW-RR 2015, 535 (mn. 71).
12 MuKo BGB/Busche, § 648a BGB mn. 6.
|} MuKo BGB/Busche, § 648a BGB mn. 7.
14 Sec BeckOGK BGB/Reiter, § 648a BGB mn. 30-31.
15 BeckOGK BGB/Reiter, § 648a BOB mn. 40.
16 BGH 11.3.1982 - VII ZR 128/81, NJW 1982, 1387 (mn. 19).
17 BGH 5.6.1997 - VII ZR 124/9, NJW 1997, 3017 (mn. 23).
Fervers
1195
§ 649 1-3
Division 8. Particular types of obligations
§649
Cost estimate
(1) If the contract is based on a cost esti¬
mate without the contractor guaranteeing the
accuracy of the estimate and if it turns out
that the work cannot be carried out without
substantially exceeding the estimate, then the
contractor is only entitled, if the customer
terminates the contract for this reason, to
the claim specified in § 645(1).
(2) If the estimate is expected to be ex¬
ceeded, the contractor must notify the custo¬
mer thereof without undue delay.
§649
Kostenanschlag
(1) Ist dem Vertrag ein Kostenanschlag
zugrunde gelegt worden, ohne dass der Un¬
ternehmer die Gewähr für die Richtigkeit des
Anschlags übernommen hat, und ergibt sich,
dass das Werk nicht ohne eine wesentliche
Überschreitung des Anschlags ausführbar ist,
so steht dem Unternehmer, wenn der Bestel¬
ler den Vertrag aus diesem Grund kündigt,
nur der im § 645 Abs. 1 bestimmte Anspruch
zu.
(2) Ist eine solche Überschreitung des An¬
schlags zu erwarten, so hat der Unternehmer
dem Besteller unverzüglich Anzeige zu ma¬
chen.
A. Function
1 The provision modifies § 648 2nd St. stating that the contractor is not entitled to claim full
but only partial remuneration if the contract is based on a cost estimate and if it turns out
that the work cannot be carried out without substantially exceeding the estimate. In this case,
it is reasonable to limit the contractor’s claim since the circumstance leading to termination
is attributable to the contractor.1 Moreover, the notification obligation in Sub. 2 reflects that
the contractual decision of the customer was largely due to the cost estimate.
B. Explanation
I. Cost estimate
2 A cost estimate is a calculation by the contractor that does not become part but only basis
of the contract.2 If, on the contrary, the contractor has guaranteed the accuracy of the
estimate or if he has made an offer within the meaning of § 145, there is no cost estimate-
instead, the contractor is to produce the work for the agreed remuneration.3
II. Substantial excess
3
There is no general rule to determine if the work cannot be carried out without
substantially exceeding the estimate. It is decisive if the excess causes a reasonable customer
to change his arrangements or to terminate the contract.4 The type of the work the
customer’s interests, the overall cost volume as well as the question whether cost recording
is difficult are to be taken into account.5 Mostly, an excess lower than 10 percent will not be
considered substantial.6
1 See BGH 23.10.1972 - VII ZR 50/72, NJW 1973, 140 (inn. 15).
2 BeckOGK BGB/Merkle, § 649 BGB mn. 5.
3 HK-BGB/Scheuch, § 649 BGB mn. 4.
4 BeckOGK BGB/Merkle, § 649 BGB mn. 24 et seq., 30.
5 MüKo BGB/Busche, § 649 BOB mn. 10.
6 MüKo BGB/Busche, §649 BOB mn. 10; dissenting Staudinger Rrii/n *
mn. 24. b WdVPctcrs/lacoby, 2014, § 649 BGB
1196
Fervers
Application of sale of goods law
§650
III. Excess as reason for termination
The substantial increase in costs above the estimation has to be the reason for the 4
termination by the customer. Thus, the customer must expressly base the termination on
this increase, whereas this statement may also be provided afterwards.7
IV. Circumstances attributable to the customer
§ 649 is based on the consideration that the contractor shall not claim full remuneration if 5
termination occurs due to a circumstance attributable to him. § 649 therefore does not apply
if the costs exceeding the cost estimate are due to inaccurate information given by the
customer.8 Likewise, § 649 is not applicable if the contractor has made a cost estimate as to a
work to be produced by a third party.9
V. Notification obligation
Sub. 2 stipulates that the contractor must notify the customer without undue delay if the 6
cost estimate is expected to be exceeded. After that he has to wait for the customer’s decision
before continuing with the production of the work.10 However, breach of this notification
obligation does not automatically mean that the customer only has to pay the remuneration
indicated in the cost estimate. Instead, the customer can (only) claim damages according to
280(1), 249, which means putting the customer in the situation that would exist if the
notification had been made: If the notification had been made and if the customer had
terminated the contract for this reason, he would only have to pay a partial remuneration
according to § 645. However, if the work has been produced in the meantime nonetheless,
the problem arises whether the customer must allow the value of the completely produced
work to be credited against him by way of adjustment of profit (Vortcilsausgleichung).
According to the prevailing opinion, such an adjustment of profit has to be made whereas
the customer shall also have the possibility to demand removal of the parts of the work that
have been added after the moment information should have been given by the contractor.11
§ 650
Application of sale of goods law
'The provisions of sale of goods law are
applicable to a contract dealing with the sup¬
ply of movable things to be produced or
manufactured. 2§ 442(1) sentence 1 also ap¬
plies to these contracts if the defects caused
by the material supplied by the customer. 3To
the extent that the movable things to be
produced or manufactured are not fungible
things, §§ 642, 643, 645, 648 and 649 apply,
subject to the proviso that the applicable
point of time under §§ 446 and 447 takes the
place of acceptance.
§650
Anwendung des Kaufrechts
’Auf einen Vertrag, der die Lieferung her-
zustellender oder zu erzeugender beweglicher
Sachen zum Gegenstand hat, finden die Vor¬
schriften über den Kauf Anwendung. 2§ 442
Abs. 1 Satz 1 findet bei diesen Verträgen auch
Anwendung, wenn der Mangel auf den vom
Besteller gelieferten Stoff zurückzuführen ist.
3Soweit es sich bei den herzustellenden oder
zu erzeugenden beweglichen Sachen um nicht
vertretbare Sachen handelt, sind auch die
642, 643, 645, 648 und 649 mit der Ma߬
gabe anzuwenden, dass an die Steile der Ab¬
nahme der nach den 446 und 447 maßgeb¬
liche Zeitpunkt tritt.
7 MüKo BGB/Busche, § 649 BGB mn. 11.
8 BGH 21.12.2010 - X ZR 122/07, NJW 2011, 989 (mn. 23).
9 BGH 23.12.1972 - VII ZR 50/72, NJW 1973, 140 (mn. 12 et seq).
10 Staudinger BGB/Peters/Jacoby, 2014, § 650 BGB mn. 11.
11 MüKo BGB/Busche, § 649 BGB mn. 18 with further references; HK BGB/Scheuch, § 649 BGB mn. 9.
Pervers
1197
§ 650 1-6
Division 8. Particular types of obligations
A. Function
, , • i; -jJa to contracts dealing with the
1 The provision states that the sale ot goods law is‘ aPl'lu numerous contracts to
supply of movable things to be produced or manufactuieu. X’
produce a work are subject to the sale of goods law.
B. Context
2 The provision has been introduced in 2002 by the Act on Modernisation of the aw of
Obligations (Schuldrechtsffiodemisierungsgesetz). This way, the provisions o e on
sumer Sales Directive were implemented since Art. 1(4) of the Directive Pr°vl e$
contracts for the supply of consumer goods to be manufactured or pro uce s a a so e
deemed contracts of sale for the purpose of the Directive. However, § 650 oes not just app y
to consumer contracts since the legislator favoured legislative clarity over specific provisions
just for consumer contracts.
C. Explanation
I. Moveable things
3 The provision only applies to movable things. §§ 631 et seq. still mainly apply if the
contractor is obliged to perform work on a property (i.e. an immovable thing) or the work
that shall be produced is not a thing at all, e.g. an advisory opinion.
IL Production; manufacture
4 § 650 only applies if the movable things are to be produced or manufactured. Produced
means that something new has to be created instead of just performing work on an existing
thing. Thus, a contract for maintenance work must be qualified as a contract to produce a
work since nothing new is created. Manufactured means that something is being created not
exclusively through the efforts of the contractor himself but with the help from nature, such
as in the case of animal or plant production.
III. Supply
5
§ 650 only applies to contracts dealing with the supply of movable things. According to the
prevailing opinion supply signifies that the contractor has to procure ownership and
possession for the customer; it does not matter in which way the ownership is procured.
The transfer of ownership does not need to take place by legal transaction as it suffices if the
customer acquires ownership by operation of law, e.g. according to § 950. Likewise the place
of performance is irrelevant. ’ h
6
IV. Application of sale of goods law
Sale of goods law applies if the contract must be qualified •>« ■
supply of movable things to be produced or manufactured. AdditionX^ r'X ""1
§ 442(1) 1st St. applies if the defect is caused by the materini ‘ Y» fording to 2 <t.,
Contrary to the first impression, the 2nd St. refers only to th • 1 * .SU^ ied ^Y the customer,
requirements of § 442(1) 1st St. (Rechtsfolgenverweisunv). Tl?. C°n^uences and not ,the
be excluded where the defect is caused by the material suppl je s rights can therefore
whether the customer had any knowledge of the defect customer regardless of
exclude the contractor’s responsibility for a defect whi< h tHlrP()se °f the 2nd St. is to
Can )c Jt tri bated to the customer.
1198
Pervers
Amendment of the contract; customer's right of instruction § 650b
V. Fungible things
The provision further differentiates if the contractor is obliged to produce or manufacture 7
fungible or non-fungible things. Fungible things (vertretbare Sachen) are movable things that in
business dealings are customarily specified by number, measure or weight (§91). If the
contractor is obliged to produce non-fungible things, §§ 642, 643, 645, 648 and 649 apply
subject to the proviso that the applicable point of time under §§ 446 and 447 takes the place of
the acceptance. 1 he purpose of this provision is to take into account that unforeseeables change
in circumstances during the production of non-fungible things make it necessary to apply
provisions that deal with such situations and which do not exist in sale of goods law. For
instance, it is necessary that the contractor notifies the customer if the actual costs exceed the
amount ot a cost estimate according to § 649(2). Likewise, the contractor needs to be entitled
to terminate the contract if the customer fails to cooperate (collaborate) according to § 643.
Chapter 2
Construction contract
Kapitel 2
Bauvertrag
§ 650a
Construction contract
(1) ‘A construction contract is a contract
for the construction, reconstruction, the re¬
moval or remodelling of a building, an out¬
door installation or a part thereof. 2The fol¬
lowing provisions of this chapter apply with
the necessary modifications to the construc¬
tion contract.
(2) A contract for the maintenance of a
building is a construction contract when the
work is of material importance for the struc¬
ture, existence or the intended use.
§ 650a
Bauvertrag
(1) ‘Ein Bauvertrag ist ein Vertrag über die
Herstellung, die Wiederherstellung, die Besei¬
tigung oder den Umbau eines Bauwerks, ei¬
ner Außenanlage oder eines Teils davon. 2Für
den Bauvertrag gelten ergänzend die folgen¬
den Vorschriften dieses Kapitels.
(2) Ein Vertrag über die Instandhaltung
eines Bauwerks ist ein Bauvertrag, wenn das
Werk für die Konstruktion, den Bestand oder
den bestimmungsgemäßen Gebrauch von we¬
sentlicher Bedeutung ist.
§ 650b
Amendment of the contract;
customer’s right of instruction
(1) ‘If the customer requests
1. an amendment to the agreed (§ 631(2))
outcome of the work or
2. an amendment that is necessary in order
to achieve the agreed outcome of the work
the parties to the contract must strive to
reach an agreement on the amendment and
the resulting increase or reduction in remu¬
neration. 2The contractor is obliged to pro¬
duce an offer on the increased or reduced
remnuneration, however in the event of a
reduction under sentence 1 No. 1 only if he
can be reasonably expected to perform the
amendment. JIf the contractor asserts that
his internal procedures make the instruction
§ 650b
Änderung des Vertrags;
Anordnungsrecht des Bestellers
(1) ‘Begehrt der Besteller
1. eine Änderung des vereinbarten Werk¬
erfolgs (§ 631 Absatz 2) oder
2. eine Änderung, die zur Erreichung des
vereinbarten Werkcrfolgs notwendig ist,
streben die Vertragsparteien Einvernehmen
über die Änderung und die infolge der Än¬
derung zu leistende Mehr- oder Minderver¬
gütung an. 2Der Unternehmer ist verpflichtet,
ein Angebot über die Mehr- oder Minderver¬
gütung zu erstellen, im Falle einer Minderung
nach Satz 1 Nummer 1 jedoch nur» wenn ihm
die Ausführung der Änderung zumutbar ist.
‘Macht der Unternehmer betriebsinterne
Vorgänge für die Unzumutbarkeit einer An-
Fervers
1199
§ 650c Division 8. Particular types of obligations
under subsection (1) sentence 1 No. 1 unrea¬
sonable« the contractor bears the burden of
proof. 4If the customer bears the responsibil¬
ity for planning the building or outdoor in¬
stallation, the contractor is obliged to pro¬
duce an offer on the increased or reduced
remuneration only if the customer has made
the necessary plans for the changes and made
these available to the contractor. 5If the con¬
sumer requests an amendment for which the
contractor has no claim under § 650c( 1) sen¬
tence 2 for remuneration for the increased
workload, the parties must strive to agree
only on the amendment; sentence 2 does not
apply in this case.
(2) ’If the parties do not reach an agree¬
ment under subsection (1) within 30 days after
the contractor has received the amendment
request, the customer can instruct the contrac¬
tor in text form to carry out the amendment.
2The contractor is obliged to follow the custo¬
mer’s instruction, however in the event of an
order according to subsection (1) sentence 1
no. 1 only if the contractor can reasonably be
expected to follow the instruction. Subsec¬
tion (1) sentence 3 applies with the necessary
modifications.
u Altent/ 1 Satz 1 Nummer 1 gel-
^iTrimhn die Beweislast hierfür. ‘'Trägt
der Besteller die Verantwortung für die Pia-
nung des Bauwerks oder der Außenanlage, .st
der Unternehmer nur dann zur Erstellung
eines Angebots über die Mehr- oder Mmder-
vergütung verpflichtet, wenn der Besteller die
für die Änderung erforderliche Planung vor¬
genommen und dem Unternehmer zur Ver¬
fügung gestellt hat. ’Begehrt der Besteller
eine Änderung, für die dem Unternehmer
nach § 650c Absatz 1 Satz 2 kein Anspruch
auf Vergütung für vermehrten Aufwand zu¬
steht, streben die Parteien nur Einvernehmen
über die Änderung an; Satz 2 findet in diesem
Fall keine Anwendung.
(2) 'Erzielen die Parteien binnen 30 Tagen
nach Zugang des Änderungsbegehrens beim
Unternehmer keine Einigung nach Absatz 1,
kann der Besteller die Änderung in Textform
anordnen. 2Der Unternehmer ist verpflichtet,
der Anordnung des Bestellers nachzukom¬
men, einer Anordnung nach Absatz 1 Satz 1
Nummer 1 jedoch nur, wenn ihm die Ausfüh¬
rung zumutbar ist. ’Absatz 1 Satz 3 gilt ent¬
sprechend.
§ 650c
Adaptation of remuneration upon
instructions in accordance with
§ 650(2)
(1) ’The amount of the claim to remunera¬
tion resulting from the increased or reduced
expense of the customer’s instruction in ac¬
cordance with § 650(2) is to be determined in
accordance with the costs actually necessary
together with reasonable additional charges
for general business costs, risk and profit. 2If
the contractor’s duty to perform includes the
planning of the building or outdoor installa¬
tion, in the case of § 650b( 1) sentence 1 No. 1
he has no claim to remuneration for in¬
creased expense.
(2) ’The contractor may refer to the quota¬
tions in an original calculation provided in
accordance with the agreement in order to
calculate the remuneration for the change to
the order. 2There is a presumption that the
remuneration updated on the basis of the
original calculation corresponding to the re¬
muneration according to subsection (1).
(3) ’In calculating the additional payments
owed in accordance with the agreement or
under § 632a the contractor may charge
§ 650c
Vergütungsanpassung bei
Anordnungen nach § 650b
Absatz 2
(1) ’Die Höhe des Vergütungsanspruchs
für den infolge einer Anordnung des Bestel¬
lers nach § 650b Absatz 2 vermehrten oder
verminderten Aufwand ist nach den tatsäch¬
lich erforderlichen Kosten mit angemessenen
Zuschlägen für allgemeine Geschäftskosten,
Wagnis und Gewinn zu ermitteln. 2Umfasst
ie Leistungspflicht des Unternehmers auch
die Planung des Bauwerks oder der Außen¬
anlage, steht diesem im Fall des § 650b
a XtZ \.SatZ 1 Nummer2 kein Anspruch
U.?^tUng fÜr vermehrten Aufwand zu.
nn u cr Unternehmer kann zur Berech-
dipH^A C* cr?ütung für den Nachtrag auf
hintnr|nS?tZCi *n e’ner vereinbarungsgemäß
wird veg Cn Urkalkulat’°n zurückgreifcn. 2Es
kXio„7U!et’ ‘i8’“ die Basis der Urkai-
«“•ung dcr Ver’
ganao Ae,reC,*"u"g von verci,,b“r,cn
Zahlungen kam.’7“ *cschu,<,e‘«’ Abschlags-
K kttnn tk‘r Unternehmer HO Prozent
1200
Pervers
security § 650f
einer in einem Angebot nach § 650b Absatz 1
Satz 2 genannten Mehrvergütung ansetzen,
wenn sich die Parteien nicht über die Höhe
geeinigt haben oder keine anderslautende ge¬
richtliche Entscheidung ergeht. 2Wählt der
Unternehmer diesen Weg und ergeht keine
anderslautende gerichtliche Entscheidung,
wird die nach den Absätzen 1 und 2 geschul¬
dete Mehrvergütung erst nach der Abnahme
des Werks fällig. Zahlungen nach Satz 1, die
die nach den Absätzen 1 und 2 geschuldete
Mehrvergütung übersteigen, sind dem Bestel¬
ler zurückzugewähren und ab ihrem Eingang
beim Unternehmer zu verzinsen. 4§ 288
Absatz l Satz 2, Absatz 2 und § 289 Satz 1
gelten entsprechend.
§ 650(1
Einstweilige Verfügung
Zum Erlass einer einstweiligen Verfügung
in Streitigkeiten über das Anordnungsrecht
gemäß § 650b oder die Vergütungsanpassung
gemäß § 650c ist es nach Beginn der Bauaus¬
führung nicht erforderlich, dass der Ver¬
fügungsgrund glaubhaft gemacht wird.
§ 650e
Sicherungshypothek des
Bauunternehmers
'Der Unternehmer kann für seine Forde-
rungen aus dem Vertrag die Einräumung
einer Sicherungshypothek an dem Baugrund¬
stück des Bestellers verlangen. 2Ist das Werk
noch nicht vollendet, so kann er die Einräu¬
mung der Sicherungshypothek für einen der
geleisteten Arbeit entsprechenden Teil der
Vergütung und für die in der Vergütung
nicht inbegriffenen Auslagen verlangen.
§ 650f
Bauhandwerkersicherung
(1) 'Der Unternehmer kann vom Besteller
Sicherheit für die auch in Zusatzaufträgen
vereinbarte und noch nicht gezahlte Ver¬
gütung einschließlich dazugehöriger Neben¬
forderungen, die mit 10 Prozent des zu si¬
chernden Vergütungsanspruchs anzusetzen
sind, verlangen. 2Satz 1 gilt in demselben
Umfang auch für Ansprüche, die an die Stelle
der Vergütung treten. 'Der Anspruch des
Unternehmers auf Sicherheit wird nicht da¬
durch ausgeschlossen, dass der Besteller Er¬
füllung verlangen kann oder das Werk abge¬
nommen hat. 'Ansprüche, mit denen der
Builders
80 percent of the additional remuneration
stated in an offer under § 650b( 1) sentence 2
if the parties have not agreed on the amount
or if there is no deviating court decision. 2If
the contractor chooses this means and there
is no deviating court decision, the additional
remuneration owed under subsections (1)
and (2) becomes due only after the acceptance
of the work. 'Payments under sentence 1
which exceed the additional remuneration
owed under subsections (1) and (2) are to be
returned to the customer, with interest from
the date they were received by the contractor.
4§ 288(1) sentence 2, (2) and § 289 sentence 1
apply with the necessary modifications.
§ 650d
Interim injunction
For the issue of an interim injunction in
disputes concerning the right of instruction
under § 650b or the adaptation of remunera¬
tion pursuant to § 650c, it is not necessary’ to
demonstrate a particular need for interim
relief after the construction has started.
§ 650e
Debt-securing mortgage of a
building contractor
'The contractor may demand the grant of a
debt-securing mortgage on the customer’s
building plot for his claims under the con¬
tract. 2If the work is not yet completed, he
may demand the grant of the debt-securing
mortgage for a part of the remuneration
corresponding to the work performed and
for the expenses not included in the remu¬
neration.
§ 650f
Builder’s security
(1) 'The contractor may demand security
from the customer for the remuneration also
agreed in additional commissions and not yet
paid, including incidental claims, which are
to be estimated at ten percent of the remu¬
neration claim to be secured. ^Sentence 1 also
applies to the same degree to claims replacing
the remuneration. 3The claim of the contrac¬
tor for a security is not ruled out by the
customer being able to demand fulfilment or
having accepted the work. ^Claims with which
the customer is able to offset against the
contractors right to remuneration are disre-
Fervers
1201
§ 650f Division 8. Particular types of obligations
garded when calculating the remuneration
unless they are non-contentious or have been
ascertained with the force of law. ^The secur¬
ity is to be deemed sufficient even if the
provider of the security reserves the right to
revoke his promise, in case of substantial
deterioration of the financial circumstances
of the customer, with effect for claims to
remuneration for building work that the con¬
tractor has not yet performed when the de¬
claration of revocation is received.
(2) ’The security may also be provided by
means of a guarantee or other promise of
payment by a banking institution or credit
insurer authorised to conduct business opera¬
tions within the area of application of this
Code. 2The banking institution or credit in¬
surer may only make payments to the con¬
tractor to the extent that the customer recog¬
nises the claim of the contractor to
remuneration or has been ordered by a pro¬
visionally enforceable judgment to pay the
remuneration and the requirements are met
under which execution of judgment may be
commenced.
(3) ’The contractor must pay to the custo¬
mer the customary costs of provision of se¬
curity up to a maximum amount of two
percent per year. 2This does not apply to the
extent that the security must be maintained
because of objections of the customer to the
remuneration claim of the contractor and the
objections turn out to be unfounded.
(4) To the extent that the contractor has
obtained a security for his claim to remunera¬
tion under subsection (1) or (2), the claim to
be granted a mortgage under § 650e is ex¬
cluded.
(5) 1 If the contractor has unsuccessfully
set the customer a suitable deadline to
provide the security in accordance with
subsection (1), the contractor may refuse to
carry out the work or may terminate the
contract. 2If he terminates the contract, the
contractor is also entitled to claim the agreed
remuneration; he must however allow set-off
of the expenses he saves as a result of cancel¬
ling the contract or acquires or wilfully fails
to acquire from other use of his labour.
3There is a presumption that the contractor
is accordingly entitled to five percent of the
remuneration accounted for by the part of
the work not yet provided.
Besteller gegen den Anspruch des Unterneh¬
mers auf Vergütung aufrechnen kann, blei¬
ben bei der Berechnung der Vergütung unbe¬
rücksichtigt, es sei denn, sie sind unstreitig
oder rechtskräftig festgestellt. ’Die Sicherhe.t
ist auch dann als ausreichend anzusehen,
wenn sich der Sicherungsgeber das Recht vor¬
behält, sein Versprechen im Falle einer we¬
sentlichen Verschlechterung der Vermögens¬
verhältnisse des Bestellers mit Wirkung für
Vergütungsansprüche aus Bauleistungen zu
widerrufen, die der Unternehmer bei Zugang
der Widerrufserklärung noch nicht erbracht
hat.
(2) ’Die Sicherheit kann auch durch eine
Garantie oder ein sonstiges Zahlungsverspre¬
chen eines im Geltungsbereich dieses Gesetzes
zum Geschäftsbetrieb befugten Kreditinsti¬
tuts oder Kreditversicherers geleistet werden.
2Das Kreditinstitut oder der Kreditversiche¬
rer darf Zahlungen an den Unternehmer nur
leisten, soweit der Besteller den Vergütungs¬
anspruch des Unternehmers anerkennt oder
durch vorläufig vollstreckbares Urteil zur
Zahlung der Vergütung verurteilt worden ist
und die Voraussetzungen vorlicgen, unter de¬
nen die Zwangsvollstreckung begonnen wer¬
den darf.
(3) ’Der Unternehmer hat dem Besteller
die üblichen Kosten der Sicherheitsleistung
bis zu einem Höchstsatz von 2 Prozent für
das Jahr zu erstatten. 2Dies gilt nicht, soweit
eine Sicherheit wegen Einwendungen des Be¬
stellers gegen den Vergütungsanspruch des
Unternehmers aufrechterhalten werden muss
und die Einwendungen sich als unbegründet
erweisen.
(4) Soweit der Unternehmer für seinen
Vergütungsanspruch eine Sicherheit nach
Absatz 1 oder 2 erlangt hat, ist der Anspruch
auf Einräumung einer Sicherungshypothek
nach § 650e ausgeschlossen.
(5) ’Hat der Unternehmer dem Besteller
erfolglos eine angemessene Frist zur Leistung
der Sicherheit nach Absatz 1 bestimmt, so
ann der Unternehmer die Leistung verwei¬
gern oder den Vertrag kündigen. 2Kündigt er
en ertrag, ist der Unternehmer berechtigt,
die vereinbarte Vergütung zu verlangen; er
muss sic jedoch dasjenige anrechnen lassen,
r:\C7n °!ge der Aufhebung des Vertrages
weiHofWvndU,lRCn CrSpart °dcr dl,rch andcr’
wirh|RC I crye,ldl,n8 »einer Arbeitskraft er-
w Zl’ erwerben unterlässt.
,T01'1' '*“• d""a<h ilcm L""cr-
erbnehl dcr dt'1’ noL‘*’
den ve±, dcr «"UelMu... .„«»Ito-
dtn vercl„barlcn VerBil,„„g„l5u;K,,.
1202
Fervers
Assessment of condition upon refusal to accept; final invoice
(6) ‘The subsections (1) to (5) are not ap¬
plicable if the customer
1. is a legal person under public law or a
special fund under public law with regard to
the property ot which insolvency proceedings
are not permissible, or
2. is a consumer and the contract is a
consumer construction contract under § 650i
or a property development contract under
§ 650u.
•Sentence 1 no. 2 does not apply if the
construction project is looked after by a con¬
struction agent authorised to dispose of the
financial resources of the customer.
(7) Any agreement deviating from the pro¬
visions of subsections (1) to (5) above is in¬
effective.
§ 650g
Assessment of condition upon
refusal to accept; final invoice
(1) ‘If the customer refuses to accept stat¬
ing defects, he must cooperate in assessing
jointly the condition of the work on request
by the contractor. 2The joint assessment of
the condition should indicate the date on
which it is made and be signed by both
parties to the contract.
(2) ‘If the customer does not attend an
agreed appointment or an appointment set
within a reasonable period by the contractor,
the contractor may also assess the condition
unilaterally. 2This does not apply if the cus¬
tomer does not attend due to circumstances
for which he is not responsible and which he
has communicated without undue delay to
the contractor. *The contractor must indicate
the date on which the unilateral assessment
was made, sign the unilateral assessment, and
provide the customer with a copy.
(3) ‘If the work has been procured for the
customer and an obvious defect is not stated
in the assessment under subsection (1) or (2),
it is presumed that this defect arose after the
assessment and that the customer is respon¬
sible. 2This presumption does not apply if the
nature of the defect is such that it cannot
have been caused by the customer.
(4) ‘The remuneration is to be paid once
§ 650g
(6) ‘Die Absätze 1 bis 5 finden keine An¬
wendung, wenn der Besteller
1. eine juristische Person des öffentlichen
Rechts oder ein öffentlich-rechtliches Sonder¬
vermögen ist, über deren Vermögen ein In¬
solvenzverfahren unzulässig ist, oder
2. Verbraucher ist und es sich um einen
Verbraucherbauvertrag nach § 650i oder um
einen Bauträgervertrag nach § 650u handelt.
2Satz 1 Nummer 2 gilt nicht bei Betreuung
des Bauvorhabens durch einen zur Verfügung
über die Finanzierungsmittel des Bestellers
ermächtigten Baubetreuer.
(7) Eine von den Absätzen 1 bis 5 abwei¬
chende Vereinbarung ist unwirksam.
§ 650g
Zustandsfeststellung bei
Verweigerung der Abnahme;
Schlussrechnung
(1) ‘Verweigert der Besteller die Abnahme
unter Angabe von Mängeln, hat er auf Ver¬
langen des Unternehmers an einer gemein¬
samen Feststellung des Zustands des Werks
mitzuwirken. 2Die gemeinsame Zustandsfest¬
stellung soll mit der Angabe des Tages der
Anfertigung versehen werden und ist von
beiden Vertragsparteien zu unterschreiben.
(2) ‘Bleibt der Besteller einem vereinbarten
oder einem von dem Unternehmer innerhalb
einer angemessenen Frist bestimmten Termin
zur Zustandsfeststellung fern, so kann der
Unternehmer die Zustandsfeststellung auch
einseitig vornehmen. 2Dies gilt nicht, wenn
der Besteller infolge eines Umstands fern¬
bleibt, den er nicht zu vertreten hat und den
er dem Unternehmer unverzüglich mitgeteilt
hat. 3Der Unternehmer hat die einseitige Zu¬
standsfeststellung mit der Angabe des Tages
der Anfertigung zu versehen und sie zu un¬
terschreiben sowie dem Besteller eine Ab¬
schrift der einseitigen Zustandsfeststellung
zur Verfügung zu stellen.
(3) ‘1st das Werk dem Besteller verschafft
worden und ist in der Zustandsfeststcllung
nach Absatz 1 oder 2 ein offenkundiger Man¬
gel nicht angegeben, wird vermutet, dass die¬
ser nach der Zustandsfeststellung entstanden
und vom Besteller zu vertreten ist. 2Die Ver¬
mutung gilt nicht, wenn der Mangel nach
seiner Art nicht vom Besteller verursacht
worden sein kann.
(4) ‘Die Vergütung ist zu entrichten, wenn
Fervers
1203
Division 8. Particular types of obligations
§ 650i
1. the customer has accepted the work or
the acceptance under § 641(2) is dispensable,
and
2. the contractor has provided the custo¬
mer with a verifiable final invoice.
2The final invoice is verifiable if it contains
a clearly laid out list of the performances
rendered and is comprehensible for the cus¬
tomer. 3It is deemed verified if the customer
has not raised substantiated objections
against its verifiability within 30 days of re¬
ceipt of the final invoice.
§ 650h
Written form of termination
The termination of the construction con¬
tract must be in wirting.
1. der Besteller das Werk abgenommen hat
oder die Abnahme nach § 641 Absatz 2 ent¬
behrlich ist und
2. der Unternehmer dem Besteller eine
prüffähige Schlussrechnung erteilt hat.
2Dic Schlussrechnung ist prüffähig, wenn
sie eine übersichtliche Aufstellung der er¬
brachten Leistungen enthält und für den Be¬
steller nachvollziehbar ist. 3Sie gilt als prüffä¬
hig, wenn der Besteller nicht innerhalb von
30 Tagen nach Zugang der Schlussrechnung
begründete Einwendungen gegen ihre Prüffä¬
higkeit erhoben hat.
§ 650h
Schriftform der Kündigung
Die Kündigung des Bauvertrags bedarf der
schriftlichen Form.
Chapter 3
Consumer construction contracts
Kapitel 3
Verbraucherbauvertrag
§ 650i
Consumer construction contracts
(1) Consumer construction contracts are
contracts by which a contractor is obliged
towards a consumer to construct a new build¬
ing or to undertake substantial remodelling
measures on an existing building.
(2) The consumer construction contract
must be in text form.
(3) The following provisions of this chapter
have concomitant application for consumer
construction contracts.
§ 650i
Building specifications
The contractor must inform the consumer
of the particulars set out in Article 249 of the
Introductory Act to the Civil Code (Einfiih-
rungsgesetz zum Bürgerlichen Gesetzbuche] in
the form provided for therein, unless the con¬
sumer or a third party commissioned by him
makes the material planning specifications.
§ 650i
Verbraucherbauvertrag
(1) Verbraucherbauverträge sind Verträge,
durch die der Unternehmer von einem Ver¬
braucher zum Bau eines neuen Gebäudes
oder zu erheblichen Umbaumaßnahmen an
einem bestehenden Gebäude verpflichtet
wird.
(2) Der Verbraucherbauvertrag bedarf der
Textform.
(3) Für Verbraucherbauverträge gelten er¬
gänzend die folgenden Vorschriften dieses
Kapitels.
§ 650j
Baubeschreibung
Der Unternehmer hat den Verbraucher
über die sich aus Artikel 249 des Einfüh¬
rungsgesetzes zum Bürgerlichen Gesetzbuche
ergebenden Einzelheiten in der dort vorgese¬
henen Form zu unterrichten, es sei denn, der
Verbraucher oder ein von ihm Beauftragter
macht die wesentlichen Planungsvorgaben.
1204
Fervers
Part payment; guarantee of claim to remuneration
§ 650m
§ 650k
Content of the contract
(l) Details concerning the execution of the
construction work which are contained in
building specifications made available prior
to conclusion of the contract form part of the
contract, unless the parties have expressly
agreed otherwise.
(2) 'To the extent that the building specifi¬
cations are incomplete or unclear, the con¬
tract is to be interpreted in consideration of
all circumstances surrounding the contract,
in particular the comfort and quality stan¬
dards used in the other specifications of the
performance. 2Any doubts in the interpreta¬
tion of the contract regarding the perfor¬
mance due by the contractor are resolved
against the contractor.
(3) 'The construction contract must con¬
tain binding information on the time of com¬
pletion of the work or, if this time can not be
given at the time of conclusion of the con¬
struction contract, on the duration of the
construction. 2If the contract does not con¬
tain this information, the pre-contractual in¬
formation on the time of completion or dura¬
tion of construction communicated in the
building specifications will form part of the
contract.
§ 650k
Inhalt des Vertrags
(1) Die Angaben der vorvertraglich zur
Verfügung gestellten Baubeschreibung in Be¬
zug auf die Bauausführung werden Inhalt des
Vertrags, es sei denn, die Vertragsparteien
haben ausdrücklich etwas anderes vereinbart.
(2) 'Soweit die Baubeschreibung unvoll¬
ständig oder unklar ist, ist der Vertrag unter
Berücksichtigung sämtlicher vertragsbeglei¬
tender Umstände, insbesondere des Komfort-
und Qualitätsstandards nach der übrigen
Leistungsbeschreibung, auszulegen. 2Zweifel
bei der Auslegung des Vertrags bezüglich der
vom Unternehmer geschuldeten Leistung ge¬
hen zu dessen Lasten.
(3) ’Der Bauvertrag muss verbindliche An¬
gaben zum Zeitpunkt der Fertigstellung des
Werks oder, wenn dieser Zeitpunkt zum Zeit¬
punkt des Abschlusses des Bauvertrags nicht
angegeben werden kann, zur Dauer der Bau¬
ausführung enthalten. 2Enthält der Vertrag
diese Angaben nicht, werden die vorvertrag¬
lich in der Baubeschreibung übermittelten
Angaben zum Zeitpunkt der Fertigstellung
des Werks oder zur Dauer der Bauausfüh¬
rung Inhalt des Vertrags.
§6501
Right of withdrawal
(1) ‘The consumer has a right of withdra-
wal pursuant to § 355, unless the contract was
notarially recorded. 2The contractor is ob¬
liged to notify the consumer in accordance
with Article 249 § 3 of the Introductory Act
to the German Civil Code [Einführungsgesetz
zum Bürgerlichen Gesetzebuche] of his right
to withdrawal.
§6501
Widerrufsrecht
'Dem Verbraucher steht ein Widerrufs¬
recht gemäß § 355 zu, es sei denn, der Ver¬
trag wurde notariell beurkundet. 2Der Unter¬
nehmer ist verpflichtet» den Verbraucher
nach Maßgabe des Artikels 249 § 3 des Ein¬
führungsgesetzes zum Bürgerlichen Gesetz¬
buche über sein Widerrufsrecht zu belehren.
§ 650m
Part payment; guarantee of claim
to remuneration
(1) If the contractor demands part pay¬
ment under § 632a, the total amount of the
part payments may not exceed 90 percent of
the agreed total remuneration including the
remuneration for supplementary perfor¬
mances under § 650c.
(2) ‘On effecting the first part payment,
the consumer must be given a security for
the correct implementation of the work with-
§ 650m
Abschlagszahlungen; Absicherung
des Vergütungsanspruchs
(1) Verlangt der Unternehmer Abschlags¬
zahlungen nach § 632a, darf der Gesamt¬
betrag der Abschlagszahlungen 90 Prozent
der vereinbarten Gesamtvergütung ein¬
schließlich der Vergütung für Nachtragsleis¬
tungen nach § 650c nicht übersteigen.
(2) 'Dem Verbraucher ist bei der ersten
Abschlagszahlung eine Sicherheit für die
rechtzeitige Herstellung des Werks ohne we-
Fervers
1205
Division 8. Particular types of obligations
§ 650n
out major defects» amounting to five percent
of the agreed total remuneration. 2If the re¬
muneration claim increases by more than
10 percent as a result of an instruction by
the consumer under 650b and 650c or as
a result of other amendments to or supple¬
ments of the contract, the consumer is to be
given a further security of five percent of the
additional remuneration claim on effecting
the next part payment. 3 At the request of the
contractor, the security is to be provided by
retention, with the consumer retaining part
payments up to the total amount of the se¬
curity’ owed.
(3) Securities in accordance with sub¬
section (2) may also be provided by means of
a guarantee or other payment undertaking by
a financial institution or credit insurer en¬
titled to operate in the area of application of
this Code.
(4) ‘If the contractor demands part pay¬
ment under § 632a, an agreement is ineffec¬
tive that obliges the consumer to provide
security for the agreed remuneration which
exceeds the next part payment or 20 percent
of the agreed remuneration. 2The same ap¬
plies if parties have agreed part payments.
sentlichc Mängel in Höhe von 5 Prozent der
vereinbarten Gesamlvergütung zu leisten.
^Erhöht sich der Vergütungsanspruch infolge
einer Anordnung des Verbrauchers nach den
88 650b und 650c oder infolge sonstiger Än¬
derungen oder Ergänzungen des Vertrags um
mehr als 10 Prozent, ist dem Verbraucher bei
der nächsten Abschlagszahlung eine weitere
Sicherheit in Höhe von 5 Prozent des zusätz¬
lichen Vergütungsanspruchs zu leisten. 3Auf
Verlangen des Unternehmers ist die Sicher¬
heitsleistung durch Einbehalt dergestalt zu
erbringen, dass der Verbraucher die Ab¬
schlagszahlungen bis zu dem Gesamtbetrag
der geschuldeten Sicherheit zurückhält.
(3) Sicherheiten nach Absatz 2 können
auch durch eine Garantie oder ein sonstiges
Zahlungsversprechen eines im Geltungs¬
bereich dieses Gesetzes zum Geschäftsbetrieb
befugten Kreditinstituts oder Kreditversiche¬
rers geleistet werden.
(4) Verlangt der Unternehmer Abschlags¬
zahlungen nach § 632a, ist eine Vereinbarung
unwirksam, die den Verbraucher zu einer
Sicherheitsleistung für die vereinbarte Ver¬
gütung verpflichtet, die die nächste Ab¬
schlagszahlung oder 20 Prozent der verein¬
barten Vergütung übersteigt. 2Gleiches gilt,
wenn die Parteien Abschlagszahlungen ver¬
einbart haben.
§ 650n
Preparation and handover of
documents
(1) ‘In good time before the execution of
the performance due, the contractor must
prepare and hand over to the consumer the
planning documents which the consumer
needs in order to provide evidence to autho¬
rities that the performance will be carried out
in accordance with the applicable public law
provisions. 2This duty does not exist as far as
the consumer or a third party commissioned
by him prepares the material planning re¬
quirements.
(2) At the latest at the completion of the
work the contractor must prepare and hand
over to the consumer those documents which
the consumer needs in order to provide evi¬
dence to authorities that the performance was
carried out in accordance with the applicable
public law provisions.
(3) Subsections (1) and (2) apply with the
necessary modifications if a third party, such
as a lender, demands evidence of adherence
§ 650n
Erstellung und Herausgabe von
Unterlagen
(1) 'Rechtzeitig vor Beginn der Ausfüh¬
rung einer geschuldeten Leistung hat der Un¬
ternehmer diejenigen Planungsunterlagen zu
erstellen und dem Verbraucher herauszuge¬
ben, die dieser benötigt, um gegenüber Be¬
hörden den Nachweis führen zu können, dass
die Leistung unter Einhaltung der einschlägi¬
gen öffentlich-rechtlichen Vorschriften aus¬
geführt werden wird. 2Die Pflicht besteht
nicht, soweit der Verbraucher oder ein von
ihm Beauftragter die wesentlichen Planungs¬
vorgaben erstellt.
Spätestens mit der Fertigstellung des
Werks hat der Unternehmer diejenigen Un¬
er agen zu erstellen und dem Verbraucher
erauszuge en, die dieser benötigt, um gc-
Z t***",kn »
der i i'— * ’C I'cis,l,,,g unter Einhaltung
schrifier? ' bftentlich-rcchtlichen Vor¬
schriften ausgeführt worden ist.
chend, wenn ^Xlu“"*1 2 gC,‘C" <”‘S,’rC'
fieber NH i • 1 er* c wa ein Darlehens-
B r' nir ,1k- b<-
1206
Pervers
Applicable provisions
§650q
to particular conditions and if the contractor
has raised the consumer’s legitimate cxpecta-
tions that these conditions will be adhered to.
stimmtcr Bedingungen verlangt und wenn
der Unternehmer die berechtigte Erwartung
des Verbrauchers geweckt hat, diese Bedin¬
gungen einzuhalten.
Chapter 4
Mandatory nature
Kapitel 4
Unabdingbarkeit
§ 650o
Deviating Agreements
640(2) sentence 2, 650i to 6501 and
650n can not be derogated from to the dis¬
advantage of the consumer. 2These provisions
apply even if they are circumvented by other
constructions.
§ 650o
Abweichende Vereinbarungen
*Von § 640 Absatz 2 Satz 2, den §§ 650i
bis 6501 und 650n kann nicht zum Nachteil
des Verbrauchers abgewichen werden. 2Diese
Vorschriften finden auch Anwendung, wenn
sie durch anderweitige Gestaltungen umgan¬
gen werden.
Subtitle 2
Architect contract and engineer
contract
Untertitel 2
Architektenvertrag und
Ingenieurvertrag
§ 650p
Typical contractual duties under
architect contracts and engineer
contracts
(1) Under an architect or engineer contract
the entrepreneur is obliged to tender the
performances which are necessary according
to the current planning and execution stages
of the building or of the outdoor installa¬
tions, in order to achieve the planning and
supervision objectives agreed between the
parties.
(2) *To the extent that essential planning
and supervision objectives have not been
agreed upon, the entrepreneur has to first
produce a planning basis in order to ascertain
these objectives. 2He must submit the plan¬
ning basis together with a cost estimation for
the project to the customer for approval.
§ 650p
Vertragstypische Pflichten aus
Architekten- und
Ingenieurverträgen
(1) Durch einen Architekten- oder Inge¬
nieurvertrag wird der Unternehmer verpflich¬
tet, die Leistungen zu erbringen, die nach
dem jeweiligen Stand der Planung und Aus¬
führung des Bauwerks oder der Außenanlage
erforderlich sind, um die zwischen den Par¬
teien vereinbarten Planungs- und Über¬
wachungsziele zu erreichen.
(2) lSoweit wesentliche Planungs- und
Überwachungszicle noch nicht vereinbart
sind, hat der Unternehmer zunächst eine Pla¬
nungsgrundlage zur Ermittlung dieser Ziele
zu erstellen. 2Er legt dem Besteller die Pla¬
nungsgrundlage zusammen mit einer Kosten¬
einschätzung für das Vorhaben zur Zustim¬
mung vor.
§ 650q
Applicable provisions
(1) Unless otherwise stated in this subtitle,
the provisions of chapter 1 of subtitle 1 as
well as 650b, 650e to 650h apply accord-
§650q
Anwendbare Vorschriften
(1) Für Architekten- und Ingenieurverträge
gehen die Vorschriften des Kapitels 1 des
Untertitels 1 sowie die 650b, 650e bis
Fervers
1207
Division 8. Particular types of obligations
§ 650s
ingly to architect contracts and engineer con¬
tracts
(2) ’For the adaptation of the remunera¬
tion in the event of an instruction according
to § 650b(2), the applicable version of the
payment calculation rules of the Fees Regula¬
tion for Architects and Engineers [Honorar¬
ordnung für Architekten und Ingenieure] ap¬
plies, insofar as the performances to be
tendered or cancelled fall within the scope of
the Fees Regulation. 2ln all other cases the
adaptation of the remuneration for the in¬
creased or reduced efforts due to the ordered
performance may be freely agreed. 3§ 650c
applies insofar as the parties do not reach an
agreement.
§ 650r
Special termination right
(1) ’After submission of the documents
according to § 650p(2) the customer may
terminate the contract. 2The termination
right is extinguished two weeks after submis¬
sion of the documents, however for a consu¬
mer only if at the time of submitting the
documents the entrepreneur informed him
in writing of the termination right, the time
frame in which the right can be exercised,
and the legal consequences of termination.
(2) ’The entrepreneur can set a reasonable
period of time for the approval under § 650p(2)
sentence 2. 2He may terminate the contract if
the customer refuses approval or does not make
a declaration relating to the documents within
the period of time under sentence 1.
(3) If the contract is terminated under
subsection (1) or (2), the entrepreneur is en¬
titled to demand remuneration only for the
performances tendered prior to termination.
§ 650s
Partial acceptance
The entrepreneur can demand partial ac¬
ceptance of the performances tendered
hitherto from the time of the acceptance of
the last performance by the contractor or
contractors.
650h entsprechend, soweit sich aus diesem
Untertitel nichts anderes ergibt.
(2) ’Für die Vergütungsanpassung im Fall
von Anordnungen nach § 650b Absatz 2 gel¬
ten die Entgeltberechnungsregeln der Hono¬
rarordnung für Architekten und Ingenieure
in der jeweils geltenden Fassung, soweit in¬
folge der Anordnung zu erbringende oder
entfallende Leistungen vom Anwendungs¬
bereich der Honorarordnung erfasst werden.
2lm Übrigen ist die Vergütungsanpassung für
den vermehrten oder verminderten Aufwand
auf Grund der angeordneten Leistung frei
vereinbar. ^Soweit die Vertragsparteien keine
Vereinbarung treffen, gilt § 650c entspre-
chend.
§ 650r
Sonderkündigungsrecht
(1) ’Nach Vorlage von Unterlagen gemäß
§ 650p Absatz 2 kann der Besteller den Ver¬
trag kündigen. 2Das Kündigungsrecht erlischt
zwei Wochen nach Vorlage der Unterlagen,
bei einem Verbraucher jedoch nur dann,
wenn der Unternehmer ihn bei der Vorlage
der Unterlagen in Textform über das Kündi¬
gungsrecht, die Frist, in der es ausgeübt wer¬
den kann, und die Rechtsfolgen der Kündi¬
gung unterrichtet hat.
(2) ’Der Unternehmer kann dem Besteller
eine angemessene Frist für die Zustimmung
nach § 650p Absatz 2 Satz 2 setzen. 2Er kann
den Vertrag kündigen, wenn der Besteller die
Zustimmung verweigert oder innerhalb der
Frist nach Satz 1 keine Erklärung zu den
Unterlagen abgibt.
(3) Wird der Vertrag nach Absatz 1 oder 2
gekündigt, ist der Unternehmer nur berech¬
tigt, die Vergütung zu verlangen, die auf die
bis zur Kündigung erbrachten Leistungen
entfällt. b
§ 650s
Teilabnahme
Der Unternehmer kann ab der Abnahme
der letzten Leistung des bauausführenden
Unternehmers oder der bauausführenden Un-
a ?ehmur e,Le Teilabnahme der von ihm bis
dahin erbrachten Leistungen verlangen.
1208
Fervers
Part payments
§ 650v
§ 650t
Joint and severable liability with
the contractor
If the customer claims against the entre-
preneur for a supervision error, which led to
a defect in the building or outdoor installa¬
tions, the entrepreneur can refuse to perform
if the contractor is also liable for the defect
and the customer has given the contractor a
reasonable period for cure that has not yet
expired without success.
§ 650t
Gesamtschuldnerische Haftung
mit dem bauausführenden
Unternehmer
Nimmt der Besteller den Unternehmer we¬
gen eines Überwachungsfehlers in Anspruch,
der zu einem Mangel an dem Bauwerk oder
an der Außenanlage geführt hat, kann der
Unternehmer die Leistung verweigern, wenn
auch der ausfuhrende Bauunternehmer für
den Mangel haftet und der Besteller dem
bauausführenden Unternehmer noch nicht
erfolglos eine angemessene Frist zur Nach¬
erfüllung bestimmt hat.
Subtitle 3
Untertitel 3
Property development contract
Bauträgervertrag
§ 650u
Property development contract;
applicable provisions
(1) 'A property development contract is a
contract for the construction or conversion of
a house or comparable building which at the
same time obliges the contractor to assign to
the customer ownership of the plot of land or
to establish or assign a hereditary building
right. 2The provisions of subtitle 1 apply with
regard to the construction or conversion un¬
less provided otherwise in the following pro¬
visions. 5The provisions on purchase apply
with regard to the claim to transfer owner¬
ship of the plot of land or to establish or
assign a hereditary building right.
(2) §§ 648, 648a, 650b to 650e, 650k(l) as
well as 6501 and 650m(l) do not apply.
§ 650u
Bauträgervertrag; anwendbare
Vorschriften
(1) ’Ein Bauträgervertrag ist ein Vertrag,
der die Errichtung oder den Umbau eines
Hauses oder eines vergleichbaren Bauwerks
zum Gegenstand hat und der zugleich die
Verpflichtung des Unternehmers enthält,
dem Besteller das Eigentum an dem Grund¬
stück zu übertragen oder ein Erbbaurecht zu
bestellen oder zu übertragen. 2Hinsichtlich
der Errichtung oder des Umbaus finden die
Vorschriften des Untertitels 1 Anwendung,
soweit sich aus den nachfolgenden Vorschrif¬
ten nichts anderes ergibt. 3Hinsichtlich des
Anspruchs auf Übertragung des Eigentums
an dem Grundstück oder auf Übertragung
oder Bestellung des Erbbaurechts finden die
Vorschriften über den Kauf Anwendung.
(2) Keine Anwendung finden die §§ 648,
648a, 650b bis 650e, 650k Absatz 1 sowie die
§§ 6501 und 650m Absatz 1.
§ 650v
Part payments
The contractor can demand part payments
from the customer only insofar as they have
been agreed in accordance with an ordinance
based on Article 244 of the Introductory Act
to the Civil Code fEinführungsgesetz zum
Bürgerlichen GesetzebucheJ.
§ 650v
Abschlagszahlungen
Der Unternehmer kann von dem Besteller
Abschlagszahlungen nur verlangen, soweit sie
gemäß einer Verordnung auf Grund von
Artikel 244 des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche vereinbart sind.
Fervers
1209
§ 651a Division 8. Particular types of obligations
, i ;.,irnJuccd in order to reform
8 The comprehensive and detailed 650a et seq. have been d j The construction
construction contract law and have been in force since 1 J. ontracts to produce a
contract is ot high practical relevance and is, often even more that . u;f,h thu
work, geared to the longer term. Additionally, the cost volume is typica y , ‘ r
the obligation to perform in advance is a significant burden to the
§§ 650b, 650c deal with contractual adjustments that may be necessary 1 ®
§§ 650e, 650f deal with securities to the benefit of the contractor. §§ 65 i e seq. sc u es
for consumer construction contracts. The consumer is protected by typica
tion instruments as formal requirements (§ 650i(2)), information duties (§s & nk ,
of withdrawal (§ 6501) and a semi-mandatory character ot the provisions (§ o) even oug
the provisions do not have a European background. §§ 650p et seq. regu ate t e arc itect
contract introducing i.a. a special termination right for the customer (§ 650r). ina y, § u
regulates the property development contract stating that the §§ 631 et seq. app y as to t e
construction of the building (except the provisions enumerated in § 650u(2)) and t e §§ 433 et
seq. apply as to the claim to transfer ownership of the plot of land.
§651 §651
(repealed) (nicht mehr belegt)
Subtitle 4
Package travel contract, retail and
facilitation of linked travel services
Untertitel 4
Pauschalreisevertrag,
Reisevermittlung und Vermittlung
verbundener Reiseleistungen
§ 651a
Typical contractual duties in a
package travel contract
(1) ’By a package travel contract, an entre¬
preneur (travel organiser) is obliged to pro¬
vide the traveller with a travel package. 2The
traveller is obliged to pay the travel organiser
the agreed price for the travel package.
(2) ’A travel package is the entirety of at
least two different types of travel services for
the purpose of the same travel package.
2There is also a travel package when
1. the travel services covered by the con¬
tract were compiled at the request of the
traveller or according to his choice, or
2. the travel organiser grants the traveller
the contractual right to choose the travel
services from his offer after the conclusion
of the contract.
§651a
Vertragstypische Pflichten beim
Pauschalreisevertrag
(1) ’Durch den Pau schal reisevertrag wird
der Unternehmer (Reiseveranstalter) ver¬
pflichtet, dem Reisenden eine Pauschalreise
zu verschaffen. 2Der Reisende ist verpflichtet,
dem Reiseveranstalter den vereinbarten Rei¬
sepreis zu zahlen.
(2) ’Eine Pauschalreise ist eine Gesamtheit
von mindestens zwei verschiedenen Arten
von Reiseleistungen für den Zweck derselben
Reise. 2Eine Pauschalreise liegt auch dann
vor, wenn
1. die von dem Vertrag umfassten Reise¬
leistungen auf Wunsch des Reisenden oder
entsprechend seiner Auswahl zusammen¬
gestellt wurden oder
2. der Reiseveranstalter dem Reisenden in
eiki Yertrag das ^echt einräumt, die Aus¬
wahl der Rciseleistungcn aus seinem Angebot
nach Vertragsschluss zu treffen.
kaufrechtlichen Mängelhaftung, zur
n Siegel ini Grundbuch- und Sclulfre-
1 Gesetz zur Reform des ßauvertragsrechts, zur Änderung der
Stärkung des zivilprozessualen Rechtsschutzes und zum maschinelle
gisterverfahren, 28.4.2017, BGBl 1 969.
2 See BT-Drs. 18/8486 of I«.5.2016, p. 58; MüKo BGB/Busche. § 6S()a BGB nin A
1210
Pervers
Typical contractual duties
(3) Travel services in the meaning of this
legislation are
1. carriage of persons,
2. accommodation, except when it serves
residential purposes,
3. lease
a) ot four-wheeled vehicles according to § 3
(1) ot the EC Motor Vehicle Approval Regu¬
lation of 3 February 2011 (Federal Law Gaz¬
ette I p. 126), last changed by Art. 7 of the
Regulation of 23 March 2017 (Federal Law
Gazette I p. 522), and
b) of class A motor vehicles according to
§6(1) of the Vehicle Approval Regulation of
13 December 2010 (Federal Law Gazette 1
p. 1980), last changed by Art. 4 of the Regula¬
tion of 18 May 2017 (Federal Law Gazette 1
p. 1282),
4. any tourist service which is not a travel
service within the meaning of nos. 1 to 3.
2Travel services which are intrinsically
part of another travel service are not consid¬
ered travel services for the purpose of sen¬
tence 1.
(4) ’There is no package travel when only
one type of travel service within the meaning
of subsection (3) sentence 1 nos. 1 to 3 is
compiled with one or more tourist services
within the meaning of subsection (3) sen¬
tence 1 no. 4 and the tourist services
1. do not account for a significant propor¬
tion of the value of the compilation and
neither represent an essential feature of the
compilation nor are advertised as such, or
2. are selected and agreed only after the
performance of a travel service within the
meaning of subsection (3) sentence 1 nos. 1
to 3.
2Within the meaning of sentence 1 no. 1
tourist services do not account for a signifi¬
cant proportion of the value of the compila¬
tion if they account for less than 25 percent
of the value.
(5) The provisions on package travel do not
apply to travel contracts which
1. are offered only occasionally, not for the
purpose of profit and only to a limited group
of individuals,
2. are less than 24 hours in duration and
do not include an overnight stay (day trip)
and whose price does not exceed 500 Euro, or
3. are concluded on the basis of a frame¬
work agreement for the organisation of busi¬
ness trips with a traveller who is an entrepre¬
neur, and for his business purposes.
in a package travel contract § 651a
(3) ’Reiseleistungen im Sinne dieses Geset¬
zes sind
1. die Beförderung von Personen,
2. die Beherbergung, außer wenn sie
Wohnzwecken dient,
3. die Vermietung
a) von vierrädrigen Kraftfahrzeugen gemäß
§ 3 Absatz 1 der EG-Fahrzeuggenehmigungs¬
verordnung vom 3. Februar 2011 (BGBl. I
S. 126), die zuletzt durch Artikel 7 der Verord¬
nung vom 23. März 2017 (BGBl. I S. 522) ge¬
ändert worden ist, und
b) von Krafträdern der Fahrerlaubnisklasse
A gemäß § 6 Absatz 1 der Fahrerlaubnis-Ver¬
ordnung vom 13. Dezember 2010 (BGBl. I
S. 1980), die zuletzt durch Artikel 4 der Ver¬
ordnung vom 18. Mai 2017 (BGBL I S. 1282)
geändert worden ist,
4. jede touristische Leistung, die nicht Rei¬
seleistung im Sinne der Nummern 1 bis 3 ist.
2Nicht als Reiseleistungen nach Satz 1 gel¬
ten Reiseleistungen, die wesensmäßig Be¬
standteil einer anderen Reiseleistung sind.
(4) ’Keine Pauschalreise liegt vor, wenn nur
eine Art von Reiseleistung im Sinne des Ab¬
satzes 3 Satz 1 Nummer 1 bis 3 mit einer oder
mehreren touristischen Leistungen im Sinne
des Absatzes 3 Satz 1 Nummer 4 zusammen¬
gestellt wird und die touristischen Leistungen
1. keinen erheblichen Anteil am Gesamt¬
wert der Zusammenstellung ausmachen und
weder ein wesentliches Merkmal der Zusam¬
menstellung darstellen noch als solches be¬
worben werden oder
2. erst nach Beginn der Erbringung einer
Reiseleistung im Sinne des Absatzes 3 Satz 1
Nummer 1 bis 3 ausgewählt und vereinbart
werden.
touristische Leistungen machen im Sinne
des Satzes 1 Nummer 1 keinen erheblichen
Anteil am Gesamtwert der Zusammenstellung
aus, wenn auf sie weniger als 25 Prozent des
Gesamtwertes entfallen.
(5) Die Vorschriften über Pauschalreisever¬
träge gelten nicht für Verträge über Reisen, die
1. nur gelegentlich, nicht zum Zwecke der
Gewinnerzielung und nur einem begrenzten
Personenkreis angeboten werden,
2. weniger als 24 Stunden dauern und
keine Übernachtung umfassen (Tagesreisen)
und deren Reisepreis 500 Euro nicht über¬
steigt oder
3. auf der Grundlage eines Rahmenvertrags
für die Organisation von Geschäftsreisen mit
einem Reisenden, der Unternehmer ist, für
dessen unternehmerische Zwecke geschlossen
werden.
Fervers
1211
§ 651c
Division 8. Particular types of obligations
§651b
Distinction from facilitation
(1) Notwithstanding §§65Iv and 651w,
the general provisions apply to the facilita¬
tion of travel services. 1 2 *An entrepreneur can
however not rely on only facilitating con¬
tracts with persons who are to perform all or
individual travel services (service providers)
when at least two different types of travel
services are to be performed for the traveller
for the purpose of the same trip and
1. the traveller selects the travel services in
a single point of sale of the entrepreneur
within the same booking process before he
agrees to pay,
2. the entrepreneur offers, or promises to
provide, or charges the travel services at a
total price, or
3. the entrepreneur advertises, or promises
to provide, the travel services under the term
‘package travel’ or other similar term.
3In these cases the entrepreneur is the tra¬
vel organiser. 4The booking process within
the meaning of sentence 2 no. 1 does not yet
begin when the traveller is asked about his
travel request and is merely advised on travel
offers.
(2) ’Points of sale within the meaning of
this legislation are
1. moveable or immoveable retail premises,
2. Websites for electronic commerce and
similar online sales facilities,
3. telephone services.
2It is also a point of sale when several
websites and similar online sales facilities
within the meaning of sentence 1 no. 2 create
the impression of a single facility.
§ 651c
Linked online booking process
(1) An entrepreneur who has concluded a
contract with a traveller by means of an on¬
line booking process or who has facilitated
such a contract by the same means, is consid¬
ered a travel organiser if
§651b
Abgrenzung zur Vermittlung
(1) ‘Unbeschadet der §§651v und 651w
gelten für die Vermittlung von Reiseleistun¬
gen die allgemeinen Vorschriften 2Em Unter¬
nehmer kann sich jedoch nicht darauf beru¬
fen nur Verträge mit den Personen zu
vermitteln, welche alle oder einzelne Reise¬
leistungen ausführen sollen (Leistungserbrin¬
ger), wenn dem Reisenden mindestens zwei
verschiedene Arten von Reiseleistungen für
den Zweck derselben Reise erbracht werden
sollen und
1. der Reisende die Reiseleistungen in einer
einzigen Vertriebsstelle des Unternehmers im
Rahmen desselben Buchungsvorgangs aus¬
wählt, bevor er sich zur Zahlung verpflichtet,
2. der Unternehmer die Reiseleistungen zu
einem Gesamtpreis anbietet oder zu verschaf¬
fen verspricht oder in Rechnung stellt oder
3. der Unternehmer die Reiseleistungen
unter der Bezeichnung „Pauschalreise“ oder
unter einer ähnlichen Bezeichnung bewirbt
oder auf diese Weise zu verschaffen ver¬
spricht.
3In diesen Fällen ist der Unternehmer Rei¬
severanstalter. 4Der Buchungsvorgang im
Sinne des Satzes 2 Nummer l beginnt noch
nicht, wenn der Reisende hinsichtlich seines
Reisewunsches befragt wird und zu Reise¬
angeboten lediglich beraten wird.
(2) ’Vertriebsstellen im Sinne dieses Geset¬
zes sind
1. unbewegliche und bewegliche Gewerbe¬
räume,
2. Webseiten für den elektronischen Ge¬
schäftsverkehr und ähnliche Online-Ver¬
kaufsplattformen,
3. Telefondienste.
2Wird bei mehreren Webseiten und ähnli¬
chen Online-Verkaufsplattformen nach Satz 1
Nummer 2 der Anschein eines einheitlichen
Auftritts begründet, handelt es sich um eine
Vertriebsstelle.
§ 651c
Verbundene Online-
Buchungsverfahren
(1) Ein Unternehmer, der mittels eines On-
ine-Buchungsverfahrens mit dem Reisenden
l?” er*ra8 ‘‘her eine Rciselcistung ge-
e^e„ > t“* °dcr ihm auf demselben Weg
Reisever ^*”1 Vcrtra8 vermittelt hat, ist als
Reiseveranstalter anzusehen, wenn
1212
Fervers
Linked online booking process
1. he facilitates for the traveller at least one
contract for a ditterent type of travel service
for the same travel package by allowing access
to the online booking process of another
entrepreneur,
2. he transfers the traveller’s name, pay¬
ment information and the email address to
the other entrepreneur, and
3. the father contract is concluded at the
latest 24 hours after the confirmation of the
conclusion of the contract for the first travel
senice.
(2) If in accordance with subsection (1) a
contract is concluded for a different type of
travel senice or several contracts for at least
one different type of travel service, the con¬
tracts concluded by the traveller constitute,
subject to §651a(4), a single package travel
contract within the meaning of § 651a(l).
(3) §651(5) No. 2 applies irrespective of
the price for the travel package.
1-2 § 651c
1. er dem Reisenden für den Zweck dersel¬
ben Reise mindestens einen Vertrag über eine
andere Art von Reiseleistung vermittelt, in¬
dem er den Zugriff auf das Online-Buchungs¬
verfahren eines anderen Unternehmers er¬
möglicht,
2. er den Namen, die Zahlungsdaten und
die E-Mail-Adresse des Reisenden an den an¬
deren Unternehmer übermittelt und
3. der weitere Vertrag spätestens 24 Stun¬
den nach der Bestätigung des Vertragsschlus¬
ses über die erste Reiseleistung geschlossen
wird.
(2) Kommen nach Absatz 1 ein Vertrag
über eine andere Art von Reiseleistung oder
mehrere Verträge über mindestens eine an¬
dere Art von Reiseleistung zustande, gelten
vorbehaltlich des §651a Absatz 4 die vom
Reisenden geschlossenen Verträge zusammen
als ein Pauschalreisevertrag im Sinne des
§ 651a Absatz 1.
(3) § 651a Absatz 5 Nummer 2 ist unab¬
hängig von der Höhe des Reisepreises anzu¬
wenden.
A. Function
§§ 651a-651c determine the scope of application for §§ 651a et seq. on the package travel 1
contract. It is decisive whether there is a package contract with the travel organiser or
whether there are just contractual relations to the service providers (Leistungserbringer). If
the traveller has only concluded two separate contracts with an airline and a hotel operator,
the traveller has only claims that arise out of the contractual relationship with the respective
contractual partner. However, if there is a travel organiser who is obliged to provide a travel
package to the traveller, any lack of conformity caused by a service provider can lead to a
claim against the travel organiser. Additionally, if a contract is qualified as a package travel
contract, §§ 651a et seq. contain several beneficial provisions for the traveller and thus lay
down far-reaching duties of the travel organiser. For instance, the travel organiser is not only
liable for damages but according to § 651 n(2) also for holiday leave spent to no avail. The
travel organiser has extensive information obligations according to § 65Id and the contract¬
ing possibilities for the travel organiser are restricted due to § 651 y. Thus, it is under¬
standable that a travel organiser will often claim to just be a travel facilitator to avoid the
scope of 651a et seq. Therefore, the §§ 651a et seq. serve the purpose of defining the term
travel package and allowing a distinction between a travel organiser and a travel facilitator.
B. Context
Based on several decisions1 by the BGH the legislator passed a law implementing the 2
package travel contract in to the BGB as a particular type of a contract to produce a work.2 In
1990, the EC passed the first (and former) Package Travel Directive 90/314/EEC which was -
according to its Art. 8 - based on the principle of minimum harmonisation (Mindestharmo-
nisierung) allowing the Member States to adopt or return to more stringent provisions to
1 See the overview at MüKo BGB/Tonner, § 651a BGB mn. 20 ct seq.
2 See BT-Drs. 8/2343 of 4.5.1979.
Pervers
1213
§ 651C 3 Division 8. Particular types of obligations
• • i ->i hv the current EU Package Travel
protect the consumer. This Directive was replaced by onisation (Vollharmoni-
Directive which is, by contrast, based on the pitnciple of ft n||t)Wed to introduce
sierung) (Art. 4). This means that the Member States are ijc. longc for
deviating provisions even if these provisions lead to a nig . -rppij Ul
traveller. Furthermore, the preliminary ruling procedure accor mg 0 .
take place much more often since in case of a doubt as to the interpre a ,o
the courts are no longer allowed to just decide in favour of the consumer. , ver,
despite the full harmonisation of the Directive, no limitation as to provisions a o no a
within the scope of the Directive.3 For instance, it would be possible to app y e a e*
seq. to contracts that could not be qualified as package travel contracts wit un le meaning o
the Directive. Besides the level of harmonisation, the ED Package rave irective as
brought several changes that the German legislator has implemented by passing amen ing
legislation4 which entered into force on 1 July 2018.
C. Explanation
I. Package travel (contract)
3 § 651a( 1) 1st St. defines the package travel contract as a contract by which an entrepre¬
neur (travel organiser) is obliged to provide the traveller with a travel package. A travel
package is, according to § 651 a(2), the entirety of at least two different types of travel
sendees for the purpose of the same travel package, e.g. the combination of flights and
accommodation. § 651a(3) lays down a number of sendees that can be considered travel
services within the meaning of § 651 a(2); in particular, each tourist service can be a travel
service according to § 651 a(3) No. 4. Under the application of the previous legislation, the
BGH applied §§ 651a et seq. by analogy even if the package only included one travel service
if the contractual partner of the traveller had acted like a travel organiser and had thus
committed himself to provide enjoyment of holiday.5 Even though such an analogy would
still be possible under European law,6 the German legislator has expressly rejected the idea.7
According to § 651 a(2) 2nd St., it is not necessary for a travel package to be offered a priori
by the travel organiser. Instead, it is sufficient if the travel services are compiled by
the traveller. Additionally, the contract is qualified as a package travel contract and the
entrepreneur as a travel organiser if the traveller selects the travel sendees in a single point
of sale of the entrepreneur within the same booking process, before he agrees to pay
(§ 651b(l) No. 1), if the entrepreneur offers, or promises to provide, or charges the travel
services at a total price (§ 651 b( 1) No. 2) or if the entrepreneur advertises, or promises to
provide, the travel services under the term package travel or under another similar term
(§ 651 b(l) No. 2). Hereby, the legislator has included the so-called ‘dynamic packaging’
implementing the case law of the CJEU.8 Moreover, with the introduction of § 651c the
legislator has included the so-called ‘click-through-situation’, i.e. a situation in which the
entrepreneur first only concludes or facilitates a contract including one travel sendee but
then offers an additional travel service by allowing access to the online booking process of
another entrepreneur and by transferring the traveller’s name, payment information and
the email address to the other entrepreneur.
’ Recital 21 EU Package Travel Directive; see also CJEU C-361/89 n, w;.„ i ■>,
Schellhase, Vollharmomsiertes Verbraucherkreditrecht - Ein Vorbild hir d ' LI:,‘U:C: 1991:11«; Gse
chung des Verbrauchervertragsrechts?, JZ 2(109, 22 IC Wtl*crc europäische zXnglei-
1 Drittes Gesetz zur Änderung reisercchlhcher Vorschriften, 17 7 2017
'BGH 17.1.1985 - Vff ZR 163/84, NJW 1985, 906; BGIJ 9.7.1992 - Vll zu 7
6 Expressly Recital 21 EU Package Travel Directive, Z'' ' mn*
7 B I Drs. 18/10822 of 11.1.2017, p. 66.
M CJEU (.-400/00 Club Tour EC1J:EU:C:2OO2:272.
1214
b'ervers
Information obligations; content of the contract
§651d
II. Travel intermediation
Travel intermediation (Reisevcrmittlung) is also possible under the application of the 4
current 651a et seq.9 An entrepreneur who only intermediates one travel service or a
travel package of another entrepreneur is still considered an intermediary. This is obvious in
the latter case since the traveller has another travel organiser to refer to.10 On the other hand,
it might appear tempting tor a travel organiser to just declare that he only acts as an
intermediary’ in order to evade the obligations imposed on him by the §§ 651a et seq.
Therefore, according to 651b( 1) 3rd St., 651c(l) it is not possible for an entrepreneur to
declare that he only acts as an intermediary if the conditions of § 651 b( 1) 2nd St. or § 65 lc( 1)
are satisfied since in these cases the intermediary acts at least similar to a travel organiser
without the traveller having another contractual partner in charge.
III. Service providers
The term senice providers (Leistungserbringer) is used for those who undertake the services 5
promised by’ the travel organiser. For instance, service providers are the air carrier who is
responsible for the flight and the hotel operator who is responsible for accommodation. In
case ot a package travel contract, direct contractual relations only exist between the traveller
and the travel organiser and between the travel organiser and the service providers. However,
firstly, the service providers are considered persons whom the travel organiser uses to
perform his obligation (Erfüllungsgehilfen des Reiseveranstalters) within the meaning of
§ 278 1st St. 2nd Alt.11, meaning that the travel organiser is fully responsible for fault on
the part of the service provider. Secondly, the contract between the travel organiser and the
service provider is considered a contract for the benefit of third parties (Vertrag zugunsten
Dritter) within the meaning of § 32812 which means that the traveller may assert the
respective claim directly against the service provider.
§651d
Information obligations;
content of the contract
(1) ‘The travel organiser is obliged to in¬
form the traveller in accordance with
Article 250 §§ 1 to 3 of the Introductory Act
to the Civil Code [Einfiihrungsgesetz zum
Bürgerlichen Gesetzbuche) before the travel¬
ler makes his contractual declaration. 2The
travel organiser fulfils thereby the obligations
of a travel facilitor under § 651v(l) sen¬
tence 1.
(2) The traveller may be charged additional
fees, charges or other costs only if he has been
informed thereof in accordance with
Article 250 § 3 no. 3 of the Introductory Act
to the Civil Code [Einführungsgesetz zum
Bürgerlichen Gesetzbuche) prior to making
his contractual declaration.
§651d
Informationspflichten;
Vertragsinhalt
(1) ’Der Reiseveranstalter ist verpflichtet,
den Reisenden, bevor dieser seine Vertragser¬
klärung abgibt, nach Maßgabe des Arti¬
kels 250 1 bis 3 des Einfiihrungsgesetzes
zum Bürgerlichen Gesetzbuche zu informie¬
ren. 2Er erfüllt damit zugleich die Verpflich¬
tungen des Reisevermittlers aus §651v
Absatz 1 Satz 1.
(2) Dem Reisenden fallen zusätzliche Ge¬
bühren, Entgelte und sonstige Kosten nur
dann zur Last, wenn er über diese vor Abgabe
seiner Vertragserklärung gemäß Artikel 250
§ 3 Nummer 3 des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche informiert worden
ist.
9 Paulus, Das neue Pauschalreisevertragsrecht, JuS 2018, 647, 650.
i" See BT-Drs. 18/10822 of 11.1.2017, p. 66.
11 Staudinger BGB/Staudinger, 2016, $ 651a BGB nm. 64.
12 BGH 17.1.1985 - Vll ZR 63/84, NJW 1985, 1457.
Pervers
1215
Division 8. Particular types of obligations
§651e
(3) ’The information provided according
to Article 250 § 3 nos. 1, 3 to 5, and 7 of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche]
forms part of the contract, unless the parties
have expressly agreed otherwise. 2 At the con¬
clusion of the contract or without undue
delay thereafter, the organiser must provide
the traveller with a copy or confirmation of
the contract in accordance with Article 250
§ 6 of the Introductory Act to the Civil Code
[Einführungsgesetz zum Bürgerlichen Gesetz¬
buche]. 3He must transfer the necessary travel
documents pursuant to Article 250 § 7 of the
Introductory Act to the Civil Code [Einfüh¬
rungsgesetz zum Bürgerlichen Gesetzbuche]
to the traveller in good time before the com¬
mencement of travel.
(4) Towards the traveller, the travel orga¬
niser bears the burden of proof that he has
complied with his information obligations.
(5) ’The special provisions in Article 250
§§ 4 and 8 of the Introductory Act to the
Civil Code [Einfuhrungsgesetz zum Bürgerli¬
chen Gesetzbuche] apply in package travel
contracts under §651c to the entrepreneur
considered as travel organiser as well as to
each other entrepreneur to whom data pur¬
suant to § 651a(l) No. 2 are communicated.
2The preceding paragraphs remain otherwise
unaffected.
(3) »Die gemäß Artikel 250 § 3 Nummer 1,
3 bis 5 und 7 des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche gemachten Anga¬
ben werden Inhalt des Vertrags, es sei denn,
die Vertragsparteien haben ausdrücklich et¬
was anderes vereinbart. 2Der Reiseveranstal¬
ter hat dem Reisenden bei oder unverzüglich
nach Vertragsschluss nach Maßgabe des Ar¬
tikels 250 § 6 des Einführungsgesetzes zum
Bürgerlichen Gesetzbuche eine Abschrift
oder Bestätigung des Vertrags zur Verfügung
zu stellen. 3Er hat dem Reisenden rechtzeitig
vor Reisebeginn gemäß Artikel 250 § 7 des
Einführungsgesetzes zum Bürgerlichen Ge¬
setzbuche die notwendigen Reiseunterlagen
zu übermitteln.
(4) Der Reiseveranstalter trägt gegenüber
dem Reisenden die Beweislast für die Erfül¬
lung seiner Informationspflichten.
(5) ’Bei Pauschalreiseverträgen nach § 651c
gelten für den als Reiseveranstalter anzuse¬
henden Unternehmer sowie für jeden anderen
Unternehmer, dem nach §651c Absatz 1
Nummer 2 Daten übermittelt werden, die be¬
sonderen Vorschriften des Artikels 250 §§ 4
und 8 des Einführungsgesetzes zum Bürgerli¬
chen Gesetzbuche. 2Im Übrigen bleiben die
vorstehenden Absätze unberührt.
1 The provision regulates the travel organiser’s information obligations. It implements Arts 5
and 6 EU Package Travel Directive and replaces the information obligations under the
former BGB-InfoVO.1 1 According to § 651d( 1) in conjunction with Art. 250 § 2 EGBGB, the
travel organiser must provide a specific form in order to comply with the information
obligation. According to Sub. 3, the information become part of the contract’s subject
matter. Apart from the travel organiser’s obligation, the travel intermediary must provide
information to the traveller according to § 651 v( 1) 1st St. If the travel organiser provides the
necessary information to the traveller, he fulfils thereby the obligations of the travel organiser
according to Sub. 1 2nd St.; it works the same vice versa according to § 651v( 1) 2nd St.
§651e
Transfer of contract
(1) ’Within a reasonable time prior to the
commencement of travel the traveller may
deciare on a durable medium that a third
party take over the rights and duties under
the package travel contract in his place. 2The
declaration is in any event timely when it is
§ 651e
V ertragsiibertragung
(1) Der Reisende kann innerhalb einer
angemessenen Frist vor Reisebeginn auf ei¬
nem dauerhaften Datenträger erklären, dass
on JC,ner ein Dri,,cr in die Rechte und
■tt zrv S| dCm i’auscili'lreisevertrag ein-
r' L D,e Er|dän*ng ist in jedem Fall recht-
1 The BGB-InfoVO (BGB-Informationspflichten Verordnung - iwu r. <
repealed on 1 July 2018. g 'B '"formation Regulations) was
2 See Führich, Das neue Pauschalreiserccht - Umsetzung der Pauschnlmk .. u.n
deutsches Recht, NJW 2017, 2945, 2947. ‘ chalrc,s<-r'c>’tllmc (F.U) 2015/2302 in
1216
Pervers
Transfer of contract
communicated to the travel organiser no later
than seven days before the commencement of
travel.
(2) The travel organiser may object to such
taking over of the contract by the third party
if the third party’ does not satisfy the contrac¬
tual travel requirements.
(3) 1 It a third party’ takes over the contract,
then the third party and the traveller are
liable to the travel organiser as joint and
several debtors for the travel price and any
additional costs caused by the third party
taking over the contract. 2The travel organi¬
ser may charge for additional costs if and
insofar as they are reasonable and actually
arise for the travel organiser.
(4) The travel organiser must provide the
traveller with evidence of the amount of ad¬
ditional costs caused by the third party’ taking
over the contract.
i-2§651e
zeitig, wenn sie dem Reiseveranstalter nicht
später als sieben Tage vor Reisebeginn zu¬
geht.
(2) Der Reiseveranstalter kann dem Eintritt
des Dritten widersprechen, wenn dieser die
vertraglichen Reiseerfordernisse nicht erfüllt.
(3) ’Tritt ein Dritter in den Vertrag ein,
haften er und der Reisende dem Reisever¬
anstalter als Gesamtschuldner für den Reise¬
preis und die durch den Eintritt des Dritten
entstehenden Mehrkosten. 2Der Reisever¬
anstalter darf eine Erstattung von Mehrkos¬
ten nur fordern, wenn und soweit diese an¬
gemessen und ihm tatsächlich entstanden
sind.
(4) Der Reiseveranstalter hat dem Reisen¬
den einen Nachweis darüber zu erteilen, in
welcher Höhe durch den Eintritt des Dritten
Mehrkosten entstanden sind.
A. Function
The provision grants the traveller the right to transfer his position under the package travel 1
to another traveller. Even though the provision does not seem to be of significant practical
relevance,1 the aforementioned right can be quite useful to the traveller since if he revokes the
package travel contract prior to the travel according to § 65Ih, the travel organiser may
demand reasonable compensation according to § 651h(l) 3rd St. Thus, it might be a more
interesting option for the traveller to sell his position under the package travel contract to a
third party’ rather than revoking it.2 The travel organiser’s interests are preserved by his right
to object.
B. Context
The provision implements Art. 9 EU Package Travel Directive and replaces the former 2
§ 651b. In comparison to the previous provision, the traveller must now give notice on a
durable medium. Moreover, the travel organiser’s right to object has been slightly modified:
whereas according to the former § 651b the travel organiser could only object if the third
party did not satisfy the specific travel requirements or if the participation of the third party
was contrary to statutory regulations or official orders, the third party must now satisfy all
the conditions applicable to that contract. According to the German legislator, however,
this will not lead to substantial changes.3 It might be questioned if the German implemen¬
tation of Art. 9 EU Package Travel Directive fully complies with European law since,
according to the Directive, it is not necessary for the travel organiser to actually object; in
fact, the traveller simply does not have the right to transfer his position to a person that
does not meet the requirements in the first place which could also mean that in such a case
the transfer does not take place even without an explicit objection by the traveller.
According to Sub. 3 2nd St., the travel organiser may only demand the payment of extra
charges if and insofar as they are reasonable and actually arise for the travel organiser. This
1 MüKo BGB/Tonner, § 651b BGB mn. 1.
2 BeckOK BGB/Geib, § 65le BGB mn. 1.
3 BT-Drs. 18/10822 of 11.1.2017, p. 72.
Fervers 1217
§ 651 f Division 8. Particular types of obligations
, „ , , . .. ilimn sum; this issue had been
means that the travel organiser is no longer allowed to sei a u F
debated under the application of the former § 651 b.'1
C. Explanation
I. Notification by the traveller
3 The traveller has to give notice within a reasonable time while according to Sub. 1 2 St.
it is in any case sufficient that the notification is communicated no later t an seven ays
before the commencement of travel. Thus, also if the traveller only gives notice a aYs
before commencement of the travel, it can still be considered within a reasona e time.
According to the prevailing opinion under the application of the former §651 , t e period
was reasonable if the travel organiser could still review the possibility to object, give notice to
the senice providers and issue new travel documents.* 5 This point of view might also be
applicable to § 65 le. Moreover, the traveller has to give notification on a durable medium
hence on a medium which meets the requirements specified in § 126b 2nd St., such as an
email, flash drive, fax, but also an audio file.6 7
IL Objection by the travel organiser
4 The travel organiser has the right to object if the transferee does not satisfy the contractual
travel requirements. This is e.g. the case if the transferee is not vaccinated as required' or if
he does not meet specific requirements as to age since for the travel organiser it is not
acceptable to take an elderly person on a travel package for teenagers.8
III. Legal consequences in case of a transfer
5 The transferee takes over the rights and duties under the package travel contract in place
of the transferor. In contrast, the transferor is not discharged but jointly and severally liable
for the payment of the travel price and any additional fees, charges or other costs arising
from the transfer (Sub. 3 1st St.). However, the travel organiser is, in principle, not allowed to
demand extra charges unless they are reasonable and actually arise (Sub. 3 2nd St.) for which
the travel organiser has to provide proof (Sub. 4).
§651f
Reservation of the right to modify;
reduction in price
(1) ’The travel organiser may unilaterally
increase the travel package price only if
1. the contract provides for this possibility
and additionally contains a reference to the
travel organiser’s obligation to reduce the
travel package price according to sub¬
section (4) sentence 1 as well as the informa¬
tion how changes to the travel package price
are to be calculated, and
§65 If
Änderungsvorbehalte;
Preissenkung
(p 'P«r Reiseveranstalter kann den Reise¬
preis einseitig nur erhöhen, wenn
1. der Vertrag diese Möglichkeit vorsieht
und zudem einen Hinweis auf die Verpflich¬
tung des Reiseveranstalters zur Senkung des
Reisepreises nach Absatz 4 Satz l sowie die
Angabe enthält, wie Änderungen des Reise¬
preises zu berechnen sind, und
* BT-Drs. 18/10822 of 11.1.2017, p. 72; Staudinger BGB/Staud.nger, r ,7
5 MuKo BGB/Tonner, § 65ib BGB mn. 4. b • 9 o. io BGB mn. 28.
6 BT-Drs. 18/10822 of 11.1.2017, p. 72.
7 OLG Frankfurt a.M. 21.9.1983 - 17 U 155/81: VersR )9H4, 587
8 MuKo BGB/Tonncr, § 651b BGB mn. 9.
1218
Fervers
Reservation of the right to modify; reduction in price
2. the increase in the travel package price
arises directly from a
a) price increase for the carriage of passen¬
gers due to higher costs for fuel or other
power sources,
b) increase in taxes and other fees for
agreed travel sendees, such as tourist fees,
port or airport charges, or
c) change in the exchange rates relevant to
the package
which occured after the conclusion of the
contract.
2The travel organiser must notify the tra¬
veller clearly and comprehensibly on a dur¬
able medium of the price increase, with a
justification and a calculation of the price
increase. 3 A price increase is effective only if
it complies with these requirements and the
notification of the traveller occurs no later
than 20 days before the commencement of
travel.
(2) ’The travel organiser may unilaterally
change contract terms other than the price of
the travel package only when this is provided
in the contract and the change is insignifi¬
cant. 2The travel organiser must inform the
traveller of the change in a clear, comprehen¬
sible and prominent manner and on a dur¬
able medium. 3 A change is effective only if it
complies with these requirements and is de¬
clared before the commencement of travel.
(3) § 308 no. 4 and § 309 no. 1 are not
applicable to reservations of a right to modify
according to subsections (1) and (2) which
were agreed through pre-formulated contract
terms.
(4) ’If the contract allows for the possibi¬
lity to increase the price of the travel package,
the traveller may demand a reduction in the
price of the travel package if and insofar as
the prices, fees or exchange rates listed in
subsection (1) sentence 1 no. 2 have changed
after the conclusion of the contract and prior
to the commencement of travel, and if this
leads to lower costs for the travel organiser.
2If the traveller has paid more than the
amount owed accordingly, the travel organi¬
ser must refund the excess amount. 'The
travel organiser may deduct his actual admin¬
istrative expenses from the excess amount to
be refunded. 4Upon request by the traveller,
be has to provide proof of the amount of the
administrative expenses incurred.
§ 651f
2. die Erhöhung des Reisepreises sich un¬
mittelbar ergibt aus einer nach Vertrags¬
schluss erfolgten
a) Erhöhung des Preises für die Beförde¬
rung von Personen aufgrund höherer Kosten
für Treibstoff oder andere Energieträger,
b) Erhöhung der Steuern und sonstigen
Abgaben für vereinbarte Reiseleistungen, wie
Touristenabgaben, Hafen- oder Flughafen¬
gebühren, oder
c) Änderung der für die betreffende Pau¬
schalreise geltenden Wechselkurse.
2Der Reiseveranstalter hat den Reisenden
auf einem dauerhaften Datenträger klar und
verständlich über die Preiserhöhung und de¬
ren Gründe zu unterrichten und hierbei die
Berechnung der Preiserhöhung mitzuteilen.
3Eine Preiserhöhung ist nur wirksam, wenn
sie diesen Anforderungen entspricht und die
Unterrichtung des Reisenden nicht später als
20 Tage vor Reisebeginn erfolgt.
(2) ’Andere Vertragsbedingungen als den
Reisepreis kann der Reiseveranstalter einsei¬
tig nur ändern, wenn dies im Vertrag vor¬
gesehen und die Änderung unerheblich ist.
2Der Reiseveranstalter hat den Reisenden auf
einem dauerhaften Datenträger klar, ver¬
ständlich und in hervorgehobener Weise
über die Änderung zu unterrichten. 3Eine
Änderung ist nur wirksam, wenn sie diesen
Anforderungen entspricht und vor Reise¬
beginn erklärt wird.
(3) § 308 Nummer 4 und § 309 Nummer 1
sind auf Änderungsvorbehalte nach den Ab¬
sätzen 1 und 2, die durch vorformulierte Ver¬
tragsbedingungen vereinbart werden, nicht
anzuwenden.
(4) ’Sieht der Vertrag die Möglichkeit einer
Erhöhung des Reisepreises vor, kann der Rei¬
sende eine Senkung des Reisepreises verlan¬
gen, wenn und soweit sich die in Absatz 1
Satz 1 Nummer 2 genannten Preise, Abgaben
oder Wechselkurse nach Vertragsschluss und
vor Reisebeginn geändert haben und dies zu
niedrigeren Kosten für den Reiseveranstalter
führt. 2Hat der Reisende mehr als den hier¬
nach geschuldeten Betrag gezahlt, ist der
Mehrbetrag vom Reiseveranstalter zu erstat¬
ten. ’Der Reiseveranstalter darf von dem zu
erstattenden Mehrbetrag die ihm tatsächlich
entstandenen Verwaltungsausgaben abziehen.
4Er hat dem Reisenden auf dessen Verlangen
nachzuweisen, in welcher Höhe Verwaltungs¬
ausgaben entstanden sind.
Fervers
1219
§ 651g
Division 8. Particular types of obligations
§ 651g
Significant changes to the contract
(1) ’The travel organiser may not unilater¬
ally increase the price in accordance with
§ 65If if it exceeds eight percent of the travel
package price. 2He may however offer a cor¬
responding price increase to the traveller and
demand that the traveller within a period of
time specified by the travel organiser» which
must be reasonable»
1. accepts the offer to increase the price, or
2. declares his revocation of the contract
Sentence 2 applies with the necessary mod¬
ification to changes to the contract other than
price increases when due to a circumstance
arising after the conclusion of the contract
the travel organiser can provide the package
only through a significant change to one of the
main characteristics of the travel services
(Article 250 § 3 No. 1 of the Introductory Act
to the Civil Code [Einführungsgesetz zum
Bürgerlichen Gesetzbuche]) or in deviation
from the traveller’s special requirements»
which have become content of the contract.
4The offer to increase the price may not be
submitted later than 20 days before the com¬
mencement of travel, the offer to make other
changes to the contract may not be made after
the commencement of travel.
(3) ‘The travel organiser may, in an offer to
increase the price or make another change to the
contract according to subsection (1), also offer
as an alternative the participation in another
travel package (substitute package). 2The travel
organiser must inform the traveller in accor¬
dance with Article 250 § 10 of the Introductory
Act to the Civil Code [Einführungsgesetz zum
Bürgerlichen GesetzbucheJ. ^The offer to in¬
crease the price or other change to the contract
is considered accepted after the period of time
specified by the travel organiser has expired.
(3) ’§§65111(1) sentence 2 and (5) apply
with the necessary modifications if the travel¬
ler revokes the contract; the traveller’s claims
under §651i(3) no. 7 remain unaffected.
2§651m applies with the necessary modifica¬
tions if he accepts the offer to change the
contract or to participate in a substitute pack¬
age and the package is not of at least equiva¬
lent quality to the package orginally owed;
§ 651 m(2) applies with the nccesssary modifi¬
cations to the difference in amount if the
substitute package is of equivalent quality but
entails lower costs for the travel organiser.
§651g
Erhebliche Vertragsänderungen
(1) 'Übersteigt die im Vertrag nach §651f
Absatz 1 vorbehaltene Preiserhöhung 8 Prozent
des Reisepreises, kann der Reiseveranstalter sie
nicht einseitig vornehmen. 2Er kann dem Rei¬
senden jedoch eine entsprechende Preiserhö¬
hung anbieten und verlangen, dass der Rei¬
sende innerhalb einer vom Reiseveranstalter
bestimmten Frist, die angemessen sein muss,
1. das Angebot zur Preiserhöhung an¬
nimmt oder
2. seinen Rücktritt vom Vertrag erklärt.
3Satz 2 gilt für andere Vertragsänderungen
als Preiserhöhungen entsprechend, wenn der
Reiseveranstalter die Pauschalreise aus einem
nach Vertragsschluss eingetretenen Umstand
nur unter erheblicher Änderung einer der
wesentlichen Eigenschaften der Reiseleistun¬
gen (Artikel 250 § 3 Nummer 1 des Einfüh¬
rungsgesetzes zum Bürgerlichen Gesetz¬
buche) oder nur unter Abweichung von
besonderen Vorgaben des Reisenden, die In¬
halt des Vertrags geworden sind, verschaffen
kann. 4Das Angebot zu einer Preiserhöhung
kann nicht später als 20 Tage vor Reise¬
beginn, das Angebot zu sonstigen Vertrags¬
änderungen nicht nach Reisebtginn unter¬
breitet werden.
(2) ’Der Reiseveranstalter kann dem Reisen¬
den in einem Angebot zu einer Preiserhöhung
oder sonstigen Vertragsänderung nach Ab¬
satz 1 wahlweise auch die Teilnahme an einer
anderen Pauschalreise (Ersatzreise) anbieten.
2Der Reiseveranstalter hat den Reisenden
nach Maßgabe des Artikels 250 § 10 des Ein¬
führungsgesetzes zum Bürgerlichen Gesetz¬
buche zu informieren. 3Nach dem Ablauf der
vom Reiseveranstalter bestimmten Frist gilt
das Angebot zur Preiserhöhung oder sonstigen
Vertragsänderung als angenommen.
(3) 'Tritt der Reisende vom Vertrag zurück,
findet § 651h Absatz 1 Satz 2 und Absatz 5 ent¬
sprechende Anwendung; Ansprüche des Reisen¬
den nach §6511 Absatz3 Nummer? bleiben
unberührt. 2Nimmt er das Angebot zur Ver¬
tragsänderung oder zur Teilnahme an einer
Ersatzreise an und ist die Pauschalrcise im Ver¬
gleich zur ursprünglich geschuldeten nicht von
mindestens gleichwertiger Beschaffenheit, gilt
‘ m entsprechend; ist sic von gleichwertiger
cschaffenhcit, aber für den Reiseveranstalter
mit geringeren Kosten verbunden, Ist im Hin-
Ak. ?f dcn Unterschiedsbetrag §65Im
Absatz 2 entsprechend anzuwenden.
1220
Fervers
Significant changes to the contract
1-4 § 651g
A. Function
§§ 65If, 651g take into account that the travel organiser’s calculation is based on several 1
parameters over which he has no control and that thus, it may sometimes be necessary for
the travel organiser to alter the price of the travel package or other contract terms. Since,
however, it would not be acceptable for the traveller to bear the travel organiser’s financial
risks, the provision strikes a balance between both parties’ interests. Whereas § 65If deals
with unilateral changes by the travel organiser, § 651g sets out rules for changes that cannot
be made by the travel organiser himself.
B. Context
The provisions implement Arts 10 and 11 EU Package Travel Directive and replace the 2
former § 651a(4) and (5). Compared to the former provisions, §§ 651 f, 651g are substantially
more detailed which is due to the detailed specifications of the, fully harmonising, EU
Package Travel Directive.
C. Explanation
I. Unilateral alteration
A unilateral alteration of the price of the travel package by the travel organiser is only 3
possible under the following conditions: (i) the package travel contract must provide for this
possibility and contain information how changes to the travel package price are to be
calculated (§ 651f( 1) 1st St No. 1). However, travel organisers will fulfil this condition quite
easily. Additionally, it is of little help for the traveller to find such information in the small
print; (ii) the increase in the travel package price must have been occurred after the
conclusion of the contract and directly arise from one of the circumstances laid down in
§ 651 f( 1) 1st St. No. 2 which are all circumstances the travel organiser has no influence on;
(iii) the package travel contract must, reciprocally, grant the traveller the right to demand a
reduction in the price of the travel package if and insofar as the prices, fees or exchange rates
listed in § 651f(l) 1st St. No. 2 have changed after the conclusion of the contract and prior
to the commencement of travel, and if this has led to lower costs for the travel organiser;
(iv) the package travel contract has to contain information as to this right (§ 651 f( 1) 1st St.
No. 1). Unilateral contract term changes other than the price of the travel package are
possible if this is provided in the contract and if the change is insignificant (§ 651 f(2)). § 65 If
(3) leads to a substantive change compared to the application of the former § 651a: whereas
under the application of the previous legal system, 308 No. 4, 309 No. 1 were applicable,
the application of those provisions is now replaced by the self-contained system of §§ 65If,
651g.1
IL Significant changes
§ 651g deals with significant changes to the contract that the travel organiser cannot make 4
unilaterally. According to § 65lg( 1), a change in the price of the package travel contract is
significant if it exceeds 8 percent. It is important to note that the former § 651a(5) 2nd St.
already considered a change as significant if it exceeded 5 percent. In this case, the travel
organiser may demand the traveller to either accept the offer to increase the price of to
declare his revocation of the contract. For significant changes other than the price of the
1 See BT-Drs. 18/10822 of 11.1.2017, p. 73.
Fervers
1221
§ 651h Division 8. Particular types of obliantions
. . i „icor <~in due to a circumstance
travel package, this possibility only exists d the trave or8' n^ j through a signjficant
arising after the conclusion of the contract, provide the packag X m Vd St ) Thus
change to one of the main characteristics ot the travel services (§ 8
arbitrary changes by the travel organiser are not possible.2
§65lh
Revocation prior to
commencement of travel
(!) 'Prior to commencement of travel, the
traveller may revoke the contract at any time.
2If the traveller revokes the contract, then the
travel organiser loses his claim to the agreed
travel package price. 'The travel organiser
may, however, demand reasonable compensa¬
tion.
(2) 'Reasonable standardised compensa¬
tion may be specified in the contract, also
through pre-formulated contract terms,
which is calculated according to:
1. the time between the declaration of re¬
vocation and the start of travel
2. the travel organiser's expected savings in
expenses, and
3. the expected income from the alternative
deployment of the travel services.
2If the contract does not specify standar¬
dised compensation, the amount of such
compensation is determined by the price of
the travel package minus the value of the
expenses saved by the travel organiser and
what he gains by alternative deployment of
the travel services. 3Upon request by the tra¬
veller the travel organiser is obliged to justify
the amount of the compensation.
(3) ’By way of derogation from sub¬
section (I) sentence 3 the travel organiser
may not demand compensation in the event
of unavoidable and extraordinary circum¬
stances occurring at the place of destination
or its immediate vicinity which significantly
affect the performance of the package or the
carriage of passengers to the destination. 2For
the purposes of this subtitle, circumstances
are unavoidable and extraordinary if they are
not subject to the control of the party who
relies upon them and if their consequences
could not have been avoided even if all rea¬
sonable precautions had been taken;
(4) ’The travel organiser may revoke the
contract prior to the commencement of travel
in the following cases:
§65lh
Rücktritt vor Reisebeginn
(!) ’Vor Reisebeginn kann der Reisende
jederzeit vom Vertrag zurücktreten. 2Tritt
der Reisende vom Vertrag zurück, verliert
der Reiseveranstalter den Anspruch auf den
vereinbarten Reisepreis. 5Der Reiseveranstal¬
ter kann jedoch eine angemessene Entschädi-
gung verlangen.
(2) ’Im Vertrag können, auch durch vor¬
formulierte Vertragsbedingungen, angemes¬
sene Entschädigungspauschalen festgelegt
werden, die sich nach Folgendem bemessen:
1. Zeitraum zwischen der Rücktrittserklä¬
rung und dem Reisebeginn,
2. zu erwartende Ersparnis von Aufwen¬
dungen des Reiseveranstalters und
3. zu erwartender Erwerb durch anderwei¬
tige Verwendung der Reiseleistungen.
2Werden im Vertrag keine Entschädigungs¬
pauschalen festgelegt, bestimmt sich die Höhe
der Entschädigung nach dem Reisepreis ab¬
züglich des Werts der vom Reiseveranstalter
ersparten Aufwendungen sowie abzüglich
dessen, was er durch anderweitige Verwen¬
dung der Reiseleistungen erwirbt. 3Der Reise¬
veranstalter ist auf Verlangen des Reisenden
verpflichtet, die Hohe der Entschädigung zu
begründen.
(3) ’Abweichend von Absatz l Satz 3 kann
der Reiseveranstalter keine Entschädigung
verlangen, wenn am Bestimmungsort oder in
dessen unmittelbarer Nähe unvermeidbare,
außergewöhnliche Umstände auftreten, die
die Durchführung der Pauschalreise oder die
Beförderung von Personen an den Bestim¬
mungsort erheblich beeinträchtigen. Um¬
stände sind unvermeidbar und außergewöhn¬
lich im Sinne dieses Untertitels, wenn sie
nicht der Kontrolle der Partei unterliegen,
die sich hierauf beruft, und sich ihre Folgen
auch dann nicht hätten vermeiden lassen,
wenn alle zumutbaren Vorkehrungen getrof¬
fen worden wären.
(4) ’Der Reiseveranstalter kann vor Reise¬
beginn in den folgenden Fällen vom Vertrag
zurucktreten:
2 Sec BT-Drs. J8/I0822 of 11.J.2O17, p. 74.
1222
Pervers
Revocation prior to commencement of travel
1-3 § 651h
1. the number of persons enrolled for the
package is less than the minimum number
stated in the contract; in this case the travel
organiser must declare revocation of the con¬
tract within the time period stipulated in the
contract, however at the latest
a) 20 days before the start of the package in
case ot trips lasting more than six days,
b) seven days before the start of the pack¬
age in case of trips lasting at least two and at
most six days,
c) 48 hours before the start of the package
in case of trips lasting less than two days,
2. the travel organiser is prevented from
the performance ot the contract due to un¬
avoidable, extraordinary’ circumstances; in
this case he must declare revocation without
undue delay after becoming aware of the
reason for revocation.
2If the organiser revokes the contract, he
loses his claim to the agreed price for the
travel package.
(5) If as a result of the revocation the travel
organiser is obliged to reimburse the price of
the travel package he must do so without
undue delay, however at the latest within
14 days after the revocation.
1. für die Pauschalreise haben sich weniger
Personen als die im Vertrag angegebene Min¬
destteilnehmerzahl angemeldet; in diesem
Fall hat der Reiseveranstalter den Rücktritt
innerhalb der im Vertrag bestimmten Frist zu
erklären, jedoch spätestens
a) 20 Tage vor Reisebeginn bei einer Reise¬
dauer von mehr als sechs Tagen,
b) sieben Tage vor Reisebeginn bei einer
Reisedauer von mindestens zwei und höchs¬
tens sechs Tagen,
c) 48 Stunden vor Reisebeginn bei einer
Reisedauer von weniger als zwei Tagen,
2. der Reiseveranstalter ist aufgrund unver¬
meidbarer, außergewöhnlicher Umstände an
der Erfüllung des Vertrags gehindert; in die¬
sem Fall hat er den Rücktritt unverzüglich
nach Kenntnis von dem Rücktrittsgrund zu
erklären.
2Tritt der Reiseveranstalter vom Vertrag
zurück, verliert er den Anspruch auf den
vereinbarten Reisepreis.
(5) Wenn der Reiseveranstalter infolge ei¬
nes Rücktritts zur Rückerstattung des Reise¬
preises verpflichtet ist, hat er unverzüglich,
auf jeden Fall aber innerhalb von 14 Tagen
nach dem Rücktritt zu leisten.
A. Function
The title of the provision may be misleading since the term Rücktritt in German law is 1
normally used for a right to have the contract rescinded due to a lack of conformity which is,
however, not the scope of § 65Ih. Instead, the provision takes into account the fact that the
package travel contract is, in most cases, concluded early in advance. Thus, unexpected
circumstances may occur between the conclusion of the contract and the commencement of
the travel that makes the travel unreasonable both for the traveller and the travel organiser
which is w’hy the provision confers a right to revoke the contract both on the traveller and the
travel organiser. However, whereas the travel organiser may only revoke the contract under
strict conditions, the traveller may revoke the contract at any time prior to the commencement
of the travel without any particular reason against payment of a reasonable compensation.
B. Context
The provision implements Art. 3(12) and Art. 12(1)—(4) EU Package Travel Directive and 2
replaces the former § 65 li and partly the former § 65 Ij.
C. Explanation
I. Revocation by the traveller
The traveller may revoke the contract without any particular reason al any lime according 3
to Sub. 1 Is’ St. If he revokes the contract, he does not have to pay the agreed price according
to Sub. 1 2nd St. but the travel organiser may (only) demand reasonable compensation. The
Fervers
1223
§ 6511 Division 8. Particular types of obligations
■ . i ,M„P| contract and also via standard
amount ot compensation can be set out in the package ‘^e* t0 (he criteria |ajd down
terms according to Sub. 2. The amount must be calculatedaceog calculated accordi
in Sub. 2 Nos 1-3. In case such an agreement is^lack,n8; th^| elscwhere but maliciously
to Sub. 2 2nd St. It the travel organiser could deploy the travel '
refrains from doing so, the travel organiser cannot demand compensation u
of good faith according to the view of the German legislator.1 1 he travc organi c nno
demand compensation in the event of unavoidable and extraordinary circums anccs occur
ring at the place of destination which significantly affect the performance o t e pac age or
the carriage of passengers to the destination (Sub. 3). '1 his takes into account t e act at in
this case there would have been a lack of conformity and that, if the trave organiser revo es
the contract himself, according to Sub. 4 1st St. No. 2 he cannot demand compensation eit er.
Unavoidable and extraordinary circumstances may be e.g. terrorist attac s, natura cata¬
strophes or the outbreak of an epidemic at the travel destination. It is important to note that
the term is not congruent with force majeure which had been the decisive criterion in the
former § 651 j( 1 )2 but rather with the term extraordinary circumstances used in Art. 5(3) EU
Flight Compensation Regulation (EC) 261/20043 which also include circumstances arising
from the travel organiser’s sphere of influence, e.g. a strike.4
IL Revocation by the travel organiser
4 The travel organiser may revoke the contract according to Sub. 4 1st St. if the number of
persons enrolled for the package is less than the minimum number stated in the contract or
if the travel organiser is prevented from the performance of the contract due to unavoidable,
extraordinary circumstances. In this case, even though there is a lack of conformity, the
traveller does not have to pay the agreed price but is entitled to no further claims.
§651i
Traveller’s rights in the event
of defects
(1) The travel organiser must provide the
travel package to the traveller free from travel
defects.
(2) ‘The travel package is free from travel
defects when it has the agreed quality. 2To the
extent that the quality has not been agreed,
the travel package is free from travel defects
1. if it is suitable for the use intended
under the contract, otherwise
2. if it is suitable for the customary use and
its quality is usual in travel packages of the
same kind and the traveller may expect this
quality in view of the type of travel package.
3lt is also a travel defect if the travel orga¬
niser does not perform or performs with an
unreasonable delay.
§651i
Rechte des Reisenden bei
Reisemängeln
(1) Der Reiseveranstalter hat dem Reisen¬
den die Pauschalreise frei von Reisemängeln
zu verschaffen.
(2) ‘Die Pauschalreise ist frei von Reise¬
mängeln, wenn sie die vereinbarte Beschaf¬
fenheit hat. 2Soweit die Beschaffenheit nicht
vereinbart ist, ist die Pauschalreise frei von
Reisemängeln,
1. wenn sie sich für den nach dem Vertrag
vorausgesetzten Nutzen eignet, ansonsten
2. wenn sie sich für den gewöhnlichen Nut¬
zen eignet und eine Beschaffenheit aufweist,
die bei Pauschalreisen der gleichen Art üblich
ist und die der Reisende nach der Art der
Pauschalreise erwarten kann.
^Ein Reisemangel liegt auch vor, wenn der
Reiseveranstalter Reiseleistungen nicht oder
mit unangemessener Verspätung verschafft.
1 BT- Drs. 18/10822 of 11.1.2017, p. 76.
2 See MüKo BGB/Tonner, § 651 j BGB mn. 7.
3 BT-Drs. 18/10822 of 11.1.2017, p. 76; Führich, Das neue Pausrl 1 •
Pauschalreiserichthnie (EU) 2015/2302 in deutsches Recht» NJVV 2017 ^wccht ~ Umsetzung der
4 BGH 21.8.2012 - X ZR 138/11, NJW 2013, 374. ’ ’ 2945, 2949-
1224
Fervers
Travellers rights in the event of defects
(3) If the travel package is defective, the
traveller may, provided the requirements of
the following provisions are met and unless
otherwise specified
1. under § 651 k( 1), demand relief,
2. under §651k(2), procure relief himself
and demand compensation for the necessary
expenses,
3. under § 65 lk(3), demand relief through
other travel senices (substitute performance),
4. under § 651k(4) and (5), demand costs
for necessary accommodation,
5. terminate the contract under § 6511,
6. enforce the rights resulting from a re¬
duction in the price of the package (§ 651m),
and
7. under § 65In, demand compensation, or
under § 284, demand compensation for un¬
successful expenses.
1-3 § 651i
(3) Ist die Pauschalreise mangelhaft, kann
der Reisende, wenn die Voraussetzungen der
folgenden Vorschriften vorliegen und soweit
nichts anderes bestimmt ist,
1. nach § 651k Absatz 1 Abhilfe verlangen,
2. nach §651k Absatz 2 selbst Abhilfe
schaffen und Ersatz der erforderlichen Auf¬
wendungen verlangen,
3. nach § 651k Absatz 3 Abhilfe durch an¬
dere Reiseleistungen (Ersatzleistungen) ver¬
langen,
4. nach §651k Absatz 4 und 5 Kostentra¬
gung für eine notwendige Beherbergung ver¬
langen,
5. den Vertrag nach § 6511 kündigen,
6. die sich aus einer Minderung des Reise¬
preises (§651m) ergebenden Rechte geltend
machen und
7. nach §65In Schadensersatz oder nach
§ 284 Ersatz vergeblicher Aufwendungen ver¬
langen.
A. Function
§ 651i clarifies that the travel organiser is obliged to provide the travel package without 1
any detects. The provision specifies the notion of detect in the context of a travel package and
gives an overview over the travellers rights in case of a defect. The provision is based on a
similar structure as 633. 634 and 434, 437.
B. Context
Under application of the previous legislative provision, the defect was only defined in the 2
former § 651c, which also regulated the traveller’s right to demand relief. The former^ 651c
stated that the travel organiser had to provide the travel package in such a way that it had the
warranted characteristics and was not impaired by faults. The terms warranted characteristics
and faults corresponded with the terms used in the former 459, 633. As these terms are no
longer used in the provisions concerning the purchase contract and the contract to produce a
work since the modernisation of the law of obligations in 2002, the German legislator has
seized the opportunity to adjust the terms in § 651 i to the modern terminology.* 1
C. Explanation
I. Uniform concept
The new § 65 li is (as well as the previous provisions) based on the so-called uniform 3
concept (Einheitslösung). This concept has been established by the BGH2 and means that if
the travel organiser does not provide the package at all or only partially, the travel package is
defective within the meaning of § 65li: the traveller has the rights enumerated in § 651(3)
instead of the rights arising from the general provisions. 2K0, 283 thus do not apply even if
it is impossible to provide the travel package. The uniform concept was also prevailing in
' BT-Drs. 18/10822 of 11.1.2017. p. 77.
1 BGH 20.3.1986 - VII ZR 187/85. N|W 1986. 1748.
Fervers
1225
§ 651 i 4-6 Division 8. Particular types of obligations
literature3 under the application of the former 651a et seq. and the legislator expressly
stated that this approach should be retained since it promoted legal certainty an Prac^
ability.4 The uniform approach also seems to comply with European law since rt.
Package Travel Directive defines the lack of conformity as a failure to perform or improper
performance of the travel services included in a package, a formulation which seems to inc u e
not only the improper but also the non-performance.5
IL Free of defects
4 Similar to § 434(1) and § 633(1), Sub. 2 first states that the travel package is free of defects
if it has the agreed quality (Sub. 2 1st St.) and then states that, where such an agreement
lacks, the travel is free of defects if it is suitable for the use intended under the contract
(Sub. 2 2nd St. No. 1) or if it is suitable for the customary use and its quality is usual in travel
packages of the same kind and the traveller may expect this quality in view ot the type of the
travel package (Sub. 2 2nd St. No. 2). It is important to note that these criteria correspond to
what would be the result of a completive interpretation of the contract (ergänzende
Vertragsa uslegu ng).
1. Agreement on quality
5 First, it has to be examined whether the parties have concluded an agreement on quality. If
the parties agreed on a certain (low or high) quality or even on the travel package having a
certain defect (negative Beschaffenheitsvereinbarung) it is irrelevant whether or not the travel
package meets the requirements laid down in Sub. 2 2nd St. An agreement on quality does not
require the travel organiser to show an explicit willingness in order to be liable.6 Therefore,
an agreement on quality can result not only from individual agreements but also from
websites, catalogues or brochures used by the travel organiser7 as well as from the informa¬
tion the travel organiser has to provide and which, according to § 651 d(3), become part of
the contract.8 The traveller may expect that a picture of the accommodation in the catalogue
is representative and that the actual accommodation more or less corresponds to the one in
the picture.9
2. Absence of an agreement on quality
6 If there is no agreement on quality, a defect of the travel package can for instance10 appear
during the transport of the traveller11 or the transport of the luggage.12 The accommodation
can be defective13 as well as the food.14 A defect can also result from dangers that are difficult
to notice for the traveller, e.g. a hidden step15, or generally from a violation of safety
obligations (Verletzung von Verkehrssicherungspflichten)16 as well as from the breach of
3 Staudinger BGB/Staudinger, Vor § 651c BGB mn. 17 with further references
4 BT-Drs. 18/10822 of 11.1.2017, p. 77-78.
5 BT-Drs. 18/10822 of 11.1.2017, p. 78.
6 See MüKo BGB/Tonner, § 651c BGB mn. 10.
7 Paulus, Das neue Pauschalreisevertragsrecht, JuS 2018, 647, 652
8 BT-Drs. 18/10822 of 11.1.2017, p. 78.
9 AG Köln 6.3.2008 - 134 C 419/07, BeckRS 2009, 7531; see also BT-Drs
with further references.
18/10822 of 11.1.2017, p. 78
10 For a comprehensive overview see MüKo BGB/Tonncr, $ 651c RC.tt 4
Teichmann, § 651c BGB mn. 2 et seq. 26 e‘ sc(b: h»uernIg RGB/
11 LG Kleve 17.8.2001 - 6 S 120/01, NJW-RR 2002, 1058.
AG Frankfurt a.M. 29.5.2001 - 29 C 2166/00 - 46, 29 C 2166/00- I SK 2002 (Hhnn
13 OLG Frankfurt a.M. 5.11.2001 - 16 U 9/01 III, 16 U 9/01, BeckRS 2001 ni A?? '
14 OLG Celle 9.12.2004 - 11 U 170/03, NJW-RR 2005, 425 (mn 36) ’ 2 '
15 OLG Dusseldorf 28.5.2002 - 20 U 30/02, NJW-RR 2003, 59.
16 BGH 2. 6. 2007 - X ZR 87/06, NJW 2007, 2549 (mn. 19 et seq )
1226
Fervers
Limitation period 1-3 § 65 lj
information duties.1 In any case, it is decisive whether the respective travel service meets
standard requirements which has to be examined from the perspective of the average
traveller.17 18
3. Non-performance and considerable delay
Sub. 2 3rd St. clarities - based on the uniform concept - that also the non-performance and 7
the delayed performance lead to a detective travel package with the legal consequences of
§651i instead of the application of 283, 311a, 286.19 As to the delay, it is additionally
clarified that the delay has to be considerable to result in a defect of the travel package, which
is in line with previous judicial decisions.20
§651)
Limitation period
’The claims by the traveller referred to in
§ 651 i(3) are subject to a two-year limitation
period. 2The limitation period commences on
the day on which the travel package was to
end under the contract.
§ 651)
Verjährung
’Die in § 65li Absatz 3 bezeichneten An¬
sprüche des Reisenden verjähren in zwei Jah¬
ren. 2Die Verjährungsfrist beginnt mit dem
Tag, an dem die Pauschalreise dem Vertrag
nach enden sollte.
A. Function
The provision regulates the limitation period for claims under § 651(3). As § 438(1) No. 3 1
does for the purchase of goods, § 65 Ij leads to a shorter limitation period in comparison with
the general limitation period laid down in §§ 195, 199. First, the limitation period is only two
years by contrast with § 195 that stipulates a general limitation period of three years. Second,
according to the 2nd St. the limitation period commences on the day on which the travel
package was to end under the contract and not at the end of the year in which the claim
arose as laid down in § 199(1).
B. Context
The provision replaces the former § 651g. There is no difference between the current 2
version of § 651) and § 651g(2). However, the former § 65lg(l) contained an additional cut¬
off period: the traveller’s claims had to be asserted by the traveller to the travel organiser
within one month of the contractually provided end of the travel package. After the end of
the period of time, the traveller could only assert claims if he was prevented from complying
with the period of time through no fault of his own. This additional cut-off period has been
deleted from the BGB due to the fact that the EU Package Travel Directive provides no
possibility for its implementation.
Additionally, it is important to note that (j 65 ly states that no deviation may be made to 3
the disadvantage of the traveller. Unlike the former §651m 2"d St., § 651y provides no
exception for the limitation period which means that no deviation is possible with regard to
the limitation period neither via standard nor via individually negotiated terms.
17 LG Frankfurt a.M. 28.3.200« - 2/24 S 139/07, 2-24 S 139/07, N|W RR 2008, 1638; see also BGH
17.1.1985 - VII ZR 375/83, NJW 1985, 1165.
18 MuKo BGB/Tonncr, § 651c BGB mn. 8.
'“'BT-Drs. 18/10822 of 11.J.2OI7, p. 78-79.
20LG Munster 28.11.1991 - 8 S 124/9); see also the references at MüKo BGB/Tonner, §<»5lc BGB
mn. 131 in footnote 748.
Fervers
1227
§ 651k Division 8. Particular types of obligations
„ , . ,, u tMVPi organiser was obliged to
4 According to the former §6(2) No. 8 BGB-InfoV the 651g(2). The BGB-InfoV,
inform the traveller about the limitation period laid down' . 15t St> Art 250 §§ 1-3
however, expired and the new information requirements in §
EGBGB do not contain such an obligation for the travel organiser.
C. Explanation
I. Two-year period
5 The limitation period commences on the day on which the travel package was to end
under the contract. Therefore, the actual termination of the travel is irre evan . n er e
previous legal system, the two-years-limitation-period did not apply i t e or^anls^r
had fraudulently concealed the defect of the travel package. Notwithstan ing t e act t at t e
former § 651g did not provide an exception for this case, the travel organiser w o a rea y
knew about the defect was not considered worthy of protection by a short limitation peno .
Therefore, § 634a(3) - which is based on the same reasoning - was applied by ana ogy
which meant that the general limitation period laid down in §§ 195, 199 applies. This
principle can also apply under the current § 65 Ij. Even though the EU Package Travel
Directive does not provide an exception for fraudulent concealment, Art. 14(6) states that the
limitation period for introducing claims under this Article shall not be less than two years
which means that the Member States are allowed to introduce a longer limitation period,
even if this period only applies to certain cases.
II. Calculation
6 §§ 186-193 apply for the calculation of the limitation period. The limitation period is
suspended according to §§ 203 et seq. while § 203 is of particular practical relevance.
According to § 203 the limitation period is suspended if negotiations between the traveller
and the travel organiser are in progress in respect of the claim or the circumstances giving
rise to the claim?
§ 651k
Relief
(1) ’If the traveller demands relief, the
travel organiser must remedy the travel de¬
fect. 2 1He can refuse the relief if it
1. is impossible, or
2. entails disproportionate costs, taking
into account the extent of the travel defect
and the value of the travel services affected.
(2) ’Without prejudice to the exceptions in
subsection (I) sentence 2, if the travel organi¬
ser does not provide relief within a reason¬
able period of time set by the traveller, the
traveller may himself provide relief and de-
§651k
Abhilfe
(1) 'Verlangt der Reisende Abhilfe, hat der
Reiseveranstalter den Reisemangel zu beseiti¬
gen. 2Er kann die Abhilfe nur verweigern,
wenn sie
1. unmöglich ist oder
2. unter Berücksichtigung des Ausmaßes
des Reisemangels und des Werts der betroffe¬
nen Reiseleistung mit unverhältnismäßigen
Kosten verbunden ist.
(2) Leistet der Reiseveranstalter vorbehalt¬
lich der Ausnahmen des Absatzes 1 Satz 2
nicht innerhalb einer vom Reisenden be¬
stimmten angemessenen Frist Abhilfe, kann
der Reisende selbst Abhilfe schaffen und Er-
1 Staudinger BGB/Staudinger, § 651g BGB mn. 44.
' V" “ 365'"2' NIW * *” ta"'2a “'ck<x;K »«>( •«»
mn.« n’"« " »>!•■ 1«;»«,,^, St,51j BGB
1228
Fervers
Relief
§651k
mand compensation for the necessary ex¬
penses. 2It is not necessary to set a period of
time if the travel organiser refuses the relief,
or if immediate relief is necessary.
(3) ’If the travel organiser may refuse to
remedy the travel defect according to
subsection (1) sentence 2 and the travel defect
concerns a substantial part of the travel ser¬
vices, the travel organiser must offer relief
through reasonable substitute services. 2lf
the substitute services have the consequence
that, in comparison to the travel package
originally owed, the package travel is not at
least of the equivalent quality, the travel or¬
ganiser must grant a reasonable reduction of
the price ot the travel package to the traveller;
the reasonableness is based on §651m(l)
sentence 2. 3The traveller may reject the sub¬
stitute services if they are not comparable to
the services agreed in the contract or if the
price reduction offered by the travel organi¬
ser is not reasonable. 4ln this case or if the
travel organiser is unable to offer substitute
services, § 6511(2) and (3) are to be applied
with the proviso that termination by the
traveller is not relevant.
(4) If the contract includes the traveller’s
transport to the place of departure or to
another place agreed by the parties (return
travel) and if this transport is not possible
due to unavoidable, extraordinary circum¬
stances, the travel organiser must bear the
costs for the traveller’s necessary accommoda¬
tion for a maximum of three nights and, if
possible, in accommodation that is of equiva¬
lent quality to the accommodation agreed in
the contract.
(5) The travel organiser may not rely on
the limitation of the time period to a max¬
imum of three nights under subsection (4) in
the following cases:
1. under directly applicable rules of the
European Union the service provider must
offer the traveller the accomodation for a
longer period of time or must bear the costs
thereof,
2. the traveller belongs to one of the fol¬
lowing groups and the travel organiser was
informed at least 48 hours of the start of the
package of the traveller’s particular needs:
a) persons with reduced mobility as de¬
fined in Article 2(a) of Regulation (EC) No.
1107/2006 of the European Parliament and of
satz der erforderlichen Aufwendungen ver¬
langen. 2Der Bestimmung einer Frist bedarf
es nicht, wenn die Abhilfe vom Reisever¬
anstalter verweigert wird oder wenn sofortige
Abhilfe notwendig ist.
(3) ’Kann der Reiseveranstalter die Beseiti¬
gung des Reisemangels nach Absatz 1 Satz 2
verweigern und betrifft der Reisemangel ei¬
nen erheblichen Teil der Reiseleistungen, hat
der Reiseveranstalter Abhilfe durch angemes¬
sene Ersatzleistungen anzubieten. 2Haben die
Ersatzleistungen zur Folge, dass die Pauschal¬
reise im Vergleich zur ursprünglich geschul¬
deten nicht von mindestens gleichwertiger
Beschaffenheit ist, hat der Reiseveranstalter
dem Reisenden eine angemessene Herabset¬
zung des Reisepreises zu gewähren; die Ange¬
messenheit richtet sich nach § 651m Absatz 1
Satz 2. 3Sind die Ersatzleistungen nicht mit
den im Vertrag vereinbarten Leistungen ver¬
gleichbar oder ist die vom Reiseveranstalter
angebotene Herabsetzung des Reisepreises
nicht angemessen, kann der Reisende die Er¬
satzleistungen ablehncn. ’In diesem Fall oder
wenn der Reiseveranstalter außerstande ist,
Ersatzleistungen anzubieten, ist §6511 Ab¬
satz 2 und 3 mit der Maßgabe anzuwenden,
dass es auf eine Kündigung des Reisenden
nicht ankommt.
(4) 1st die Beförderung des Reisenden an
den Ort der Abreise oder an einen anderen
Ort, auf den sich die Parteien geeinigt haben
(Rückbeförderung), vom Vertrag umfasst
und aufgrund unvermeidbarer, außerge¬
wöhnlicher Umstände nicht möglich, hat der
Reiseveranstalter die Kosten für eine notwen¬
dige Beherbergung des Reisenden für einen
höchstens drei Nächte umfassenden Zeitraum
zu tragen, und zwar möglichst in einer Un¬
terkunft, die der im Vertrag vereinbarten
gleichwertig ist.
(5) Der Reiseveranstalter kann sich auf die
Begrenzung des Zeitraums auf höchstens drei
Nächte gemäß Absatz 4 in folgenden Fällen
nicht berufen:
1. der Leistungserbringer hat nach unmit¬
telbar anwendbaren Regelungen der Europä¬
ischen Union dem Reisenden die Beherber¬
gung für einen längeren Zeitraum anzubieten
oder die Kosten hierfür zu tragen,
2. der Reisende gehört zu einem der fol¬
genden Personenkreisc und der Reisever¬
anstalter wurde mindestens 48 Stunden vor
Reisebeginn von den besonderen Bedürfnis¬
sen des Reisenden in Kenntnis gesetzt:
a) Personen mit eingeschränkter Mobilität
im Sinne des Artikels 2 Buchstabe a der Ver¬
ordnung (EG) Nr. 1107/2006 des Europä-
Fervers
1229
Division 8. Particular types of obligations
§ 651k 1-3
the Council of 5 July 2006 concerning the
rights of disabled persons and persons with
reduced mobility when travelling by air (OJ L
204, 26.7.2006, p. 1; L 26, 26.1.2013, p. 34)
and any person accompanying them,
b) pregnant women,
c) unaccompanied minors,
d) persons in need of specific medical as¬
sistance.
i ....nt« und des Rates vom
“ol" 2006 Ober * TO.n
schrankter M « iaii c i4\
26 7.2006, S. 1; L 26 vom 26.1.2013, S. 34)
und deren Begleitpersonen,
b) Schwangere, .
c) unbegleitete Minderjährige,
d) Personen, die besondere medizinische
Betreuung benötigen.
1
A. Function
The provision regulates the traveller’s right to demand relief in case of a defect. The right
to claim relief is the primary claim of the traveller in case of a e ect since rav^
right to provide relief himself (Sub. 2), the right to terminate the contract (s 6511) and the
right to reduce the price (§ 651m) only exist provided that the trave organiser as not
provided relief within a reasonable period of time set by the traveller. e provision rt er
specifies the travel organiser’s obligations in case relief is not possible.
B. Context
2
The provision implements Art. 13(3)—(8) of the EU Package Travel Directive and replaces
the former § 651c.
C. Explanation
3
I. Refusal to provide relief
The travel organiser must provide relief in case of a defect and may only refuse it if either
relief is impossible or if it entails disproportionate costs (Sub. 1). However, if the travel
organiser may refuse relief according to Sub. 1 2nd St., he is obliged to offer relief through
reasonable substitute services according to Sub. 3; in this respect there is no substantial
change compared to the previous legal system.1 This takes into account that the package
travel contract often contains precise specifications and that thus, relief would often be
impossible even though the traveller might have an interest in suitable alternative arrange¬
ments. If the substitute services have the consequence that, in comparison to the travel
package originally owed, the package travel is not at least of equivalent quality, the travel
organiser is to ensure a reasonable reduction of the price of the travel package to the traveller
(Sub. 3 2nd St.). Strict standards are to be applied in order to determine whether the travel
package is of equivalent quality. Whereas smaller deviations have to be accepted by the
traveller2, the travel package is no longer equivalent if the character of the agreed travel
package changes3, which has to be evaluated from the perspective of the trivellcr For
instance, the BGH he'd that a travel to an island on the Maldives was not eq iv lent to
“"■h" Mald,V“ ',Sbnd. *he ,ra” " Jn;™a»y « particular lsl nd due to
specific reasons that could no. be ,Bnored.< Add,„„„ally. ,he BÜH 1|u| ,,d.,t„,n
' The travel organiser could provide a suitable alternative arram-< mo„. i i i . fT.
as well, see MüKo BGB/Tonner § 651c BGB mn. 140 et seq " uni’cr the application ol § 6?k
2 MuKo BGB/Tonner, § 651c BGB mn. 142.
3 Staudinger BGB/Staudinger, 2016, tj 651c BGB mn 164
3 BGH 11.1.2005 - X ZR 11K/03, NJW 2005, 1047 (mn. 15).
1230
Pervers
Termination §6511
in a hotel which is different from the selected hotel is not equivalent even if the other hotel is
situated nearby and has a similar standard.5
II. Self-help
It the travel organiser does not provide relief within a reasonable period of time set by the 4
traveller or if the relief is refused by the travel organiser or if immediate relief is necessary,
the traveller may himself provide relief and demand compensation for the necessary
expenses. However, it is important to note that a notification according to § 65lo is not
sufficient since it is necessary that the traveller expressly sets a period of time. As to the
question whether immediate relief is necessary: there is no substantial change compared to
the previous legal system. For instance, according to Recital 34 EU Package Travel Directive
immediate relief can be necessary when, due to the delay of a bus provided by the organiser,
the traveller must take a taxi to catch his flight on time.6
III. Accommodation costs
According to Sub. 4, the travel organiser is to bear the extra costs for the traveller’s 5
accommodation if the agreed transport is not possible due to unavoidable, extraordinary
circumstances., but, in general only for a maximum of three nights. However, the traveller
may not rely on this limitation under the conditions laid down in Sub. 5; thus, if the traveller
belongs to one of the groups referred to in Sub. 5 No. 2 or, according to Sub. 5 No. 1, if the
service provider has to offer the traveller the accommodation for a longer period of time or
bear the costs thereof under directly applicable rules of the EU. In this regard, the EU Flight
Compensation Regulation is of high practical relevance7 since according to the CJEU an
operating air carrier may not rely on unavoidable extraordinary circumstances within the
meaning of Art. 5(3) in order to claim limitation of his duty to provide accommodation
specified in Art. 9(1) EU Package Travel Directive.8
§6511
Termination
(1) ‘If the package travel is substantially
impaired by the defect, the traveller may
terminate the contract. 2The termination is
admissible only after the travel organiser has
let a reasonable period of time set by the
traveller pass without having provided relief;
§ 651k(2) sentence 2 applies with the neces¬
sary modifications.
(2) ‘If the contract is terminated, the travel
organiser retains the claim to the agreed
travel package price with regard to the ser¬
vices performed and the travel services to be
performed according to subsection (3) for the
termination of the travel package; claims by
the traveller under § 651 i(3) nos. 6 and 7 are
unaffected. 2The claim by the travel organiser
to the agreed price of the travel package
§6511
Kündigung
(1) ‘Wird die Pauschalreise durch den Rei¬
semangel erheblich beeinträchtigt, kann der
Reisende den Vertrag kündigen. 2Die Kündi¬
gung ist erst zulässig, wenn der Reisever¬
anstalter eine ihm vom Reisenden bestimmte
angemessene Frist hat verstreichen lassen,
ohne Abhilfe zu leisten; §651k Absatz 2
Satz 2 gilt entsprechend.
(2) ‘Wird der Vertrag gekündigt, so behält
der Reiseveranstalter hinsichtlich der er¬
brachten und nach Absatz 3 zur Beendigung
der Pauschalreise noch zu erbringenden Rei¬
seleistungen den Anspruch auf den vereinbar¬
ten Reisepreis; Ansprüche des Reisenden nach
§ 65 li Absatz 3 Nummer 6 und 7 bleiben un¬
berührt. 2Hinsichtlich der nicht mehr zu er¬
bringenden Reiseleistungen entfällt der An-
5 BGH 21.11.2017 - X ZR 111/16, NJW 201«, 7«9.
6 See AG Stuttgart 23.1.1995 - 5 C «423/94: RRa 1995, 125 (mn. 17) as to the former § 65Id, BeckRS
1995, 7900.
7 See BT-Drs. I«/10«22 of 11.1.2017, p. «1.
MCJEU C12/11 McDonagh ECLI;EU:C:20l3:43.
Fervers
1231
Division 8. Particular types of obligations
§ 65111-3
lapses as concerns the travel services which
are no longer to be performed; the travel
organiser must reimburse to the traveller
payments already made.
(3) ’The travel organiser is obliged to take
measures necessitated by termination of the
contract, including, if the contract includes
transport of the traveller, to ensure without
undue delay return transport of the traveller;
the mode of transportation used for this
purpose must be equivalent to the mode
agreed in the contract. 1 2The travel organiser
bears the extra costs for the return transport.
Spruch des Reiseveranstalters auf den verein-
barten Reisepreis; insoweit bereits geleistete
Zahlungen sind dem Reisenden vom Re.se-
veranstalter zu erstatten.
(3) 'Der Reiseveranstalter ist verpflichtet,
die infolge der Aufhebung des Vertrags not¬
wendigen Maßnahmen zu treffen, insbeson¬
dere, falls der Vertrag die Beförderung des
Reisenden umfasste, unverzüglich für dessen
Rückbeförderung zu sorgen; das hierfür ein¬
gesetzte Beförderungsmittel muss dem im
Vertrag vereinbarten gleichwertig sein. 2Die
Mehrkosten für die Rückbeförderung fallen
dem Reiseveranstalter zur Last.
A. Function
1 Since the package travel contract is a continuing obligation (Dauerschuldverhältnis), the
traveller’s right to have the contract rescinded after its execution has commenced is not the
revocation but the right to terminate the contract. Whereas § 65 Ih regulates the traveller’s
right to revoke the contract prior to the commencement of the travel without any reason,
§ 6511 applies to the termination of the contract due to a lack of conformity. The provision is
applicable not only during the travel but also prior to its commencement.1
B. Context
2 The provision implements Art. 13(6) of the Package Travel Directive and replaces the
former § 65le and partly the former § 65Ij.
C. Explanation
3
The traveller may terminate the package travel contract if the travel is substantially affected
by the defect and if the travel organiser has let a reasonable period of time set by the
traveller pass without providing relief (Sub. 1). With § 651k(2) 2nd St. being applicable with
the necessary modification, according to Sob. 1 2-> St., the period of time is not necessary if
relief is refused by the travel organiser or if immediate relief is necessary. It is irrelevant
whether Che travel organiser has culpably caused the defect or no,? Other than under the
application of the former § 651e(3). the travel organiser retains his claims as to the services
performed and the .ravel services to be performed for the termination of the travel package
according to Sub. 2 and is no longer limited to a claim for compensation Thus the travel
organiser only loses his claims as to the trave services no Inno», , u , ..
to Sub. 3, the travel organiser is obiiged to tak. measu™ Z' in,Zb" Ü 'f
the contract, particularly to ensure the return transnort r term,na”on °
transport had been included in the package travel contract and ’raVe.llcr lf the Urn
to bear the extra costs. Thus, Sub. 3 sets out obligations for th . c traveI org'"i'ser also is
the contract has been terminated. Compared to the ° or^an‘ser cvcn
advantageous provision for the traveller since accordinc lcßlsla,ion’ $ul>- 3 *s an
costs for return transport were shared by the parties in r ormcr § 65 W2) 2'’d cxtra
/ P in case of a termination according to the
1 BGH 16.1.2018 - X ZR 44/17, NJW 2018, 1534 (mn hnTTT?
2 BT-Drs. 18/10822 of 11.1.2017, p. 82. ° ,hc former § G51 c.
1232
Fervers
Reduction of price 1-3 § 651m
former § 651j. With § 6511 being also applicable to a termination due to force majeure, the
traveller does not have to bear the extra costs for the return transport in this case.
§ 651m
Reduction of price
(1) lThe travel package price is reduced for
the duration of the defect. 2The reduction is
calculated in proportion of the price of the
travel package, as relation of the value of the
travel package free of defects with the actual
value, at the time when the contract was
entered into. 3To the extent necessary, the
price reduction is to be established by apprai¬
sal.
(2) ’If the traveller has paid more than
than the reduced price of the travel package,
the excess amount must be reimbursed by the
travel organiser. 2§ 346(1) and § 347(1) apply
with the necessary' modifications.
§651m
Minderung
(1) ‘Für die Dauer des Reiscmangels min¬
dert sich der Reisepreis. 2Bei der Minderung
ist der Reisepreis in dem Verhältnis herab¬
zusetzen, in welchem zur Zeit des Vertrags¬
schlusses der Wert der Pauschalreise in man¬
gelfreiem Zustand zu dem wirklichen Wert
gestanden haben würde. 3Die Minderung ist,
soweit erforderlich, durch Schätzung zu er¬
mitteln.
(2) ‘Hat der Reisende mehr als den gemin¬
derten Reisepreis gezahlt, so ist der Mehr¬
betrag vom Reiseveranstalter zu erstatten.
2§ 346 Absatz 1 und § 347 Absatz 1 finden
entsprechende Anwendung.
A. Function
The provision implements the principle of contractual balance. If the travel package is 1
defective, the travel package price is automatically reduced for the duration of the defect. If
the traveller’s claim is not satisfied, the travel organiser does not deserve the full travel
package price irrespective of whether the travel organiser is responsible for the defect or not.
B. Context
The provision implements Art. 14(1) EU Package Travel Directive. Even though Art. 14(1) 2
states that there shall be no price reduction if the travel organiser proves that the lack of
conformity is attributable to the traveller, the German legislator has not included such a
passage in § 651m arguing that according to § 651c the travel package is already not
considered defective if the lack of conformity is attributable to the traveller.1 Substantial
changes compared to the previous legal situation are not intended.2 The former § 651d(2) is
now included in § 65 lo.
C. Explanation
I. Automatic reduction
The travel price package is reduced automatically in case of a defect; in contrast to §§ 441, 3
634, no declaration by the traveller is required. Nor is it necessary that the traveller makes
notification of the defect. However, if the traveller culpably fails to make notification to the
travel organiser and if the travel organiser cannot provide relief for this reason, there is no
price reduction according to § 651o(2) No. 1.
1 BT-Drs. 18/10H22 of 11.1.2017, p. 83.
2 BT-Drs. 18/10822 of 11.1.2017, p. 83.
Fervers
1233
§ 651n 1-2
Division 8. Particular types of oblig<it‘o,is
II. Reimbursement
4
If the travel package price is reduced and the traveller has paid ac®„rjin'
r . . & . *• i tk.it ihn travel organiser cannot assert
rungsrechtlicher Anspruch)3 which means in particular that
that he is no longer enriched according to § 818(3).4
§651n
Damages
(1) Notwithstanding any reduction of price
or notice of termination, the traveller may
demand damages, unless the defect in the
travel package
1. is the fault of the traveller,
2. is the fault of a third party who neither
performs the package travel contract nor par¬
ticipates in the performance of the travel
senices encompassed by the package travel
contract, and was not foreseeabile or not
avoidable for the travel organiser, or
3. was caused by unavoidable extraordinary
circumstances.
(2) If the travel package is made impossible
or significantly impaired, then the traveller
may also demand appropriate compensation
in money for holiday leave spent to no avail.
(3) If the travel organiser is obliged to pay
damages, he must perform without undue
delay.
§651n
Schadensersatz
(1) Der Reisende kann unbeschadet der
Minderung oder der Kündigung Schadens¬
ersatz verlangen, es sei denn, der Reisemangel
1. ist vom Reisenden verschuldet,
2. ist von einem Dritten verschuldet, der
weder Leistungserbringer ist noch in anderer
Weise an der Erbringung der von dem Pau¬
schalreisevertrag umfassten Reiseleistungen
beteiligt ist, und war für den Reiseveranstal¬
ter nicht vorhersehbar oder nicht vermeidbar
oder
3. wurde durch unvermeidbare, außerge¬
wöhnliche Umstände verursacht.
(2) Wird die Pauschalreise vereitelt oder
erheblich beeinträchtigt, kann der Reisende
auch wegen nutzlos aufgewendeter Urlaubs¬
zeit eine angemessene Entschädigung in Geld
verlangen.
(3) Wenn der Reiseveranstalter zum Scha¬
densersatz verpflichtet ist, hat er unverzüglich
zu leisten.
A. Function
1 The provision provides the right to demand damages notwithstanding any reduction of
Pr™\nOt^e termi,na!ion-In contrast t0 ,he 8eneral principle in the BGB that, subject to
§ 253(2), only material damages are to be compensated, the traveller may also demand
approbate compensate in money for holiday leave spent to no avail. Thus. § 651 n(2) is of
considerable practical significance. * ”
B. Context
The provision implements Art. 14(2) and (3) EU Pack me Tr ., I rv • , . >
former § 651 f. Even though Art. 14 does not state exoresdv th. i ‘ *
right to demand compensation in money for holiday leav ' K ,ravcller sha11 havc 1 hc
with European law in this regard: The CJEU has hel I 1 ,o n<> ava'l> § f»51 n complies
Travel Directive 90/314/EEC, its Art 5 was to be in/ UIUtr ,'1e aPplication of the Package
IIUerPrcled as conferring, in principle, on
} BeckOGK BGB/Kramer, § 651m BGB mn. 172.
4 Staudinger BGB/Staudinger, § 651 d BGB mn. 9.
2
1234
Pervers
Damages 3-4 § 651H
consumers a right to compensation for non-material damage resulting from the non¬
performance or improper performance of the services constituting a package holiday.1 And
according to Recital 34 EU Package Travel Directive ‘compensation should also cover non-
material damage, such as compensation for loss of enjoyment of the trip or holiday because
ot substantial problems in the performance of the relevant travel services’.
C. Explanation
I. Lack of conformity
It is necessary’ that the travel package is defective within the meaning of 651 i(2). Due to the 3
uniform concept (Einheitslösung) § 651 n is the main provision for damages resulting from all
sorts ot detects, including breach of information duties (Informationspßichtverletzungen).2
IL Fault
According to the former § 65 lf( 1), the traveller could not demand damages if the travel 4
organiser could prove that the defect in the travel package resulted from a circumstance for
which he was not responsible. In principle, the new § 65In retains the fault-based-liability
but it is no longer sufficient that the travel organiser proves just absence of fault which would
have been sufficient under the application of the former § 65 If.3 Instead, the travel organiser
must prove that the lack of conformity' is either attributable to the traveller (Sub. 1 No. 1) or
attributable to a third party' unconnected with the provision of the travel services included in
the package travel contract and is unforeseeable or unavoidable (Sub. 1 No. 2) or is due to
unavoidable and extraordinary circumstances (Sub. 1 No. 3). Due to the structure of Sub. 1,
it is no longer possible to refer to § 276 as a general provision.4 5 However, the practical
differences between those concepts are rather small? The travel organiser was responsible for
fault of persons used to perform his obligation according to § 278 1st St. 2ndAlt., i.e. he was
responsible for the fault of service providers anyway. Additionally, if the travel organiser
takes on the obligation for providing a travel package to the traveller and the lack of
conformity is somehow attributable to his sphere of influence, it is hardly ever possible for
him to assert lack of fault. This becomes more clear by looking at the case-law:6 the travel
organiser is responsible if the luggage is delayed, lost or damaged.7 If there is a real danger
that the travel is made impossible or significantly impaired by force majeure, the travel
organiser must inform the traveller.8 The travel organiser is responsible if the luggage is not
transported free of charge contrary to a previous announcement.9 He must check the
accommodation facilities made available by the provider regularly even without any special
occasion.10 He is responsible if the hotel has been overbooked.11 In all these cases the travel
organiser cannot assert lack of fault neither according to §§ 276, 278 nor according to Sub. 1.
Likewise, in most cases where the travel organiser is not considered responsible within the
meaning of §§ 276, 278, he can also assert lack of fault according to Sub. 1: the travel
1 CJEU C-168/00 Leitner ECIJ:EU:C:2002:163.
2 LG Frankfurt a.M. 28.3.2008 - 2/24 S 139/07, 2-24 S 139/07, NJW-RR 2008. 1638; see also BGH
17.1.1985 - VII ZR 375/83, NJW 1985, 1165.
’ Führich, Das neue Pauschalreiserccht - Umsetzung der Pauschalreiserichtlinie (EU) 2015/2302 in
deutsches Recht NJW 2007, 2945, 2949.
4 See BeckOK BGB/Geib. § 65In BGB mn. 9.
5 Dissenting HK BGB/Staudinger, § 651n BC iß mn. 2.
6 Comprehensive overview at Staudinger BGB/Staudinger, § 65If BGB mn. 20 et seq.
7 LG Frankfurt a.M. 23.11.2006 - 2-24 S 286/05, 2/24 S 286/05 mn. II.
8 IG Frankfurt a. M. 29.10.1990 - 2/24 S 58/90, NJW-RR 1991, 313.
9 AG Bad Homburg 24.5.2006 - 2 C 1824/05, NJW-RR 2006, 1358.
,b HGH 25 2 1988 - VII ZR 348/86, NJW 1988, 1380.
11 AG München 21.2.2013 - 244 C 15777/12, BeckRS 2013, 12447.
Fervers
1235
§ 6510 Division 8. Particular types of obligations
organiser is not responsible for an unforeseeable terrorist attack, neither under aPP _
§ 27612 * nor according to Sub. 1 No. 2. He is not responsible if the travellerpas p s no
valid, which follows from both the application ot § 27615 and of Su . • e rave
organiser was not held responsible within the meaning of § 276 for t e e ° Ua es
from the safe if the safe met the local safety standard.14 In this case, it is i e y to assume at
such a theft would also be due to unavoidable and extraordinary circumstances wi in t e
meaning of Sub. 1 No. 3. Ultimately, it has to be clarified by the CJEU in w ic cases t e
meaning of Sub. 1 No. 3 deviates from § 276.
III. Notification by the traveller
5 Under the application of the former § 65If, the BGH had held that a prior demand for relief
or a notification by the traveller was necessary in order to claim damages.15 Whereas such a
notification is now not a condition of § 65In in the strict sense, it is, however, important to
note that, according to § 651o(2), the traveller cannot claim damages if he culpably fails to
make notice of the defect and if the travel organiser, for this reason, could not provide relief. In
practical terms this means that the immediate notification by the traveller according to § 651 o
(1) can, in general, be considered a de-facto-prerequisite for § 651n at least if relief is possible
and if the travel organiser does not already know about the lack of conformity.
IV. Legal consequences
6 The travel organiser must compensate the traveller for all material-damages such as the
costs due to damaged property16, the costs of medical treatment17, the costs ot the necessary
return flight18, and additional costs due to modified flight times19 provided that those result
from the lack of conformity. Additionally, the traveller may demand appropriate compensation
in money for holiday leave spent to no avail provided that the travel has been made impossible
or significantly impaired due to the defect. Such a compensation for non-materiai-damages is
an exception from the rule set out in § 253 which is why the application of the §§ 651a et seq.
can be very advantageous for the traveller. Determining whether the travel has been signifi¬
cantly impaired requires an overall analysis taking into account the purpose and specific
organisation of the travel as well as type and extent of the defect.20 Holiday leave is spent to no
avail within the meaning of the provision if the traveller has spent time without the possibility
to use it for the purpose stated in the contract. Thus, it is irrelevant whether the traveller
resumes work, makes another journey or recovers elsewhere.21
§6510
Notice of defect by the traveller
(1) The traveller must report any defect in
the package to the travel organiser without
undue delay.
§651o
Mangelanzeige durch den
Reisenden
(1) Der Reisende hat dem Reiseveranstal¬
ter einen Reisemangel unverzüglich anzuzei¬
gen.
12 LG Hannover 27.10.2004 -13 0 114/04, BeckRS 2004, 15075
” BGH 20.5.2014 - X ZR 134/13, NJW 2014, 2955 (mn. 15).
14 OLG München 26.4.1999 - 17 U 1581/99, BeckRS 2012, 23167
15 BGH 20.9.1984 - VII ZR 325/83, NJW 1985, 132.
16 MuKo BGB/Tonner, § 65lf BGB mn. 32 with further references
17 AG Bad Homburg 30.1.1997 - 2 C 2428/96-18.
” BGH 17.4.2012 - X ZR 76/11, NJW 2012, 2107.
19 AG Duisburg 7.1.2013 - 3 C 3175/12, NJW-RR 2013, 763.
<>nner.§651fBGB mn. 49.
neue Pauschalreiscvertragsrccht, JuS
20 BGH 14.5.2013 - X ZR 15/11, NJW 2013, 3170; MüKo BGB/T
21 BGH 11.1.2005 - X ZR 118/03, NJW 2005, 1047; Paulus, Das
2018, 647, 653.
1236
Fervers
Notice of defect by the traveller 1-2 § 6510
(2) Insofar as the travel organiser could not
provide relief as a result of a culpable failure
to notify according to subsection (1),the tra¬
veller is not entitled to
1. invoke the specific rights in § 651m, or
2. demand damages in accordance with
§ 651n.
(2) Soweit der Reiseveranstalter infolge ei¬
ner schuldhaften Unterlassung der Anzeige
nach Absatz 1 nicht Abhilfe schaffen konnte,
ist der Reisende nicht berechtigt,
1. die in §651m bestimmten Rechte gel¬
tend zu machen oder
2. nach §65In Schadensersatz zu verlan¬
gen.
A. Function
The traveller s obligation to give notice of the defect shall give the organiser the 1
opportunity’ to provide relief.1 In many cases the travel organiser will not be aware of a
detect of the travel package. Therefore, without a notification by the traveller he often could
not avoid a price reduction or at least keep the price reduction low. On the contrary, the
traveller shall not have the possibility to simply wait out the situation and assert claims
against the travel organiser afterwards.2 The traveller only loses his claims if he culpably fails
to make notification. This is due to the principle of contractual equivalence: if the travel
organiser only provides a defective travel package, he can only claim an accordingly reduced
price regardless whether he is responsible for the defect or not. An exception is only
appropriate if the traveller is responsible for the lack of contractual equivalence
B. Context
At first glance, this provision brings about a change: in the former legal framework only 2
§ 651d(2) contained a legal consequence if the traveller had culpably failed to make
notification of the defect. In this case, there was no reduction of price. According to the
new § 651o, the traveller is no longer entitled to assert all the claims laid down in § 651m and
§ 65In but only in so far as the travel organiser could not provide relief due to the lack of
notification. Therefore, on the one hand, the consequences seem to be more far-reaching for
the traveller since they do not only apply to the reduction of price. On the other hand, the
consequences seem to be less far-reaching since the traveller loses his claims only if the lack
of notification has actually been the cause for the fact that the travel organiser did not
provide relief. In fact, the changes are rather slight: for one thing, the courts required a prior
demand for relief or a notification by the traveller in order to claim damages for non¬
performance according to the former § 65If going beyond the wording of the provision,3
which means that contrary to the wording of the former legal framework the traveller’s
obligation to make notification of the defect did not only apply to the reduction of price.
Then again, it was acknowledged in case-law and literature that - contrary to the wording of
the former § 651d(2) - the reduction of price was made nonetheless if the travel organiser
had no possibility to provide relief anyway, or if the damage could not have been avoided by
relief4, or if the defect had become apparent towards the end of the travel without the travel
organiser running a local tour management.5 Likewise, a reduction of price was made
regardless of whether the traveller had made notification if the travel organiser had been
1 BT-Drs. 8/2343 of 10.5.1979, p. 10.
2 BGH 19.7.2016 - X ZR 123/15. NJW 2016. 3304 (mn. 15).
3 BGH 20.9.1984 - VII ZR 325/83, NJW 1985, 132.
4 BGH 20.9.1984 - VII ZR 325/83, NJW 1985, 132; Staudinger BGB/Staudinger, 2016, § 651d BGB
mn. 28 with further references.
5 See Staudinger BGB/Staudinger, 2016, § 651d BGB mn. 28 and MüKo BGB/Tonncr, § 651d BGB
mn. 12 with further references.
Fervers
1237
§ 651 p Division 8. Particular types of obligations
. i j •. 7 unification is dispensable in all
aware of the defect6 7 or if he had fraudulently concealed it. (hcse caseSt (|ie lack of
of these cases since it could not fulfil its purpose and therefore,„ • vi(|c rc|jcf. jt js
notice was not the cause for the fact that the travel organiser
exactly this consideration that has now been implemented (Su .
C. Explanation
3 The notification is not subject to formal requirements; there is no possibility f
organiser to stipulate a formal requirement due to § 651 y8 * 10 Tbe trave er las o i e
travel organiser or an agent of the travel organiser, such as the oca tour managemen
(örtliche Reiseleitung). Other than under the application of the previous ega sys em , i is,
according to § 651v(4) 1st St., also sufficient if the traveller makes notification to t le travel
intermediary. It is necessary that the traveller describes the defect in a substantiate way so
that the travel organiser can determine whether there is in fact a defect and ow re ie can e
provided.
§ 651p
Admissible limitation of liability;
crediting
(1) The travel organiser may by agreement
with the traveller limit his liability to three
times the travel package price for such da¬
mages which
1. do not constitute bodily injuries, and
2. were not caused by fault.
(2) If international conventions or statu¬
tory provisions based on such international
conventions apply to travel services and pro¬
vide that a claim for damages against the
service provider is incurred or may be as¬
serted only under certain conditions or with
certain restrictions or is barred under certain
conditions, then the travel organiser may also
invoke this in relation to the traveller.
(3) ’If the traveller has a claim against the
travel organiser for compensation or, in the
event of a price reduction, for reimbursement
of an amount paid in excess, the traveller
must allow to be credited against him the
amount that he has received due to the same
event as compensation or as reimbursement
owed to a price reduction in accordance with
international conventions or statutory provi¬
sions based on such international agreements
or in accordance with
§651p
Zulässige Haftungsbeschränkung;
Anrechnung
(1) Der Reiseveranstalter kann durch Ver¬
einbarung mit dem Reisenden seine Haftung
für solche Schäden auf den dreifachen Reise¬
preis beschränken, die
1. keine Körperschäden sind und
2. nicht schuldhaft herbeigeführt werden.
(2) Gelten für eine Reiseleistung interna¬
tionale Übereinkünfte oder auf solchen beru¬
hende gesetzliche Vorschriften, nach denen
ein Anspruch auf Schadensersatz gegen den
Leistungserbringer nur unter bestimmten Vo¬
raussetzungen oder Beschränkungen entsteht
oder geltend gemacht werden kann oder un¬
ter bestimmten Voraussetzungen ausge¬
schlossen ist» so kann sich auch der Reisever¬
anstalter gegenüber dem Reisenden hierauf
berufen.
(3) ’Hat der Reisende gegen den Reisever¬
anstalter Anspruch auf Schadensersatz oder
auf Erstattung eines infolge einer Minderung
zu viel gezahlten Betrages, so muss sich der
Reisende den Betrag anrechnen lassen, den er
aufgrund desselben Ereignisses als Entschädi¬
gung oder als Erstattung infolge einer Min¬
derung nach Maßgabe internationaler Über¬
einkünfte oder von auf solchen beruhenden
gesetzlichen Vorschriften erhalten hat oder
nach Maßgabe
6 MuKo BGB/Tonner, § 65Id BGB mn. 12.
7 Staudinger BGB/Staudmger, 2016, t; 65ld mn. 29.
8 See MuKo BGB/Tonner, § 651 d BGB mn. 7.
’BGH 22.I0.I9B7 - VH ZR 5/«7, N|W 19««, 4«H (mn. 13).
10 BeckOK BGB/Geib, § 65lo BGB mn. 9.
1238
Pervers
Admissible limitation of liability; crediting 1 § 65Ip
1. Regulation (EC) No. 261/2004 of the
European Parliament and of the Council of
11 February 2004 establishing common rules
on compensat ion and assistance to passengers
in the event ot denied boarding and of can¬
cellation or long delay of flights, and repeal¬
ing Regulation (EEC) No. 295/91 (OJ L 46,
17.2.2004, p. 1),
2. Regulation (EC) No. 1371/2007 of the
European Parliament and of the Council of
23 October 2007 on rail passengers’ rights
and obligations (OJ L 315, 3.12.2007, p. 14),
3. Regulation (EC) No. 392/2009 of the
European Parliament and of the Council of
23 April 2009 on the liability of carriers of
passengers by sea in the event of accidents
(OJ L 131, 28.5.2009, p. 24),
4. Regulation (EU) No. 1177/2010 of the
European Parliament and of the Council of
24 November 2010 concerning the rights of
passengers when travelling by sea and inland
waterway and amending Regulation (EC)
No. 2006/2004 (OJ L 334, 17.12.2010, p. 1),
or
5. Regulation (EU) No. 181/2011 of the
European Parliament and of the Council of
16 February 2011 concerning the rights of
passengers in bus and coach transport and
amending Regulation (EC) No. 2006/2004
(OJ L 55, 28.2.2011, p. 1).
2If the traveller has already received com¬
pensation from the travel organiser or an
amount has already been reimbursed to him
by the travel organiser as a result of a price
reduction, the traveller must allow to be cred¬
ited against him the amount that he has
received due to the same event as compensa¬
tion or as reimbursement owed to a price
reduction in accordance with international
conventions or statutory provisions based on
such international conventions or in accor¬
dance with Regulations stated in sentence 1.
1. der Verordnung (EG) Nr. 261/2004 des
Europäischen Parlaments und des Rates vom
11. Februar 2004 über eine gemeinsame Re¬
gelung für Ausgleichs- und Unterstützungs¬
leistungen für Fluggäste im Fall der Nicht¬
beförderung und bei Annullierung oder
großer Verspätung von Flügen und zur Auf¬
hebung der Verordnung (EWG) Nr. 295/91
(ABI. L 46 vom 17.2.2004, S. 1),
2. der Verordnung (EG) Nr. 1371/2007 des
Europäischen Parlaments und des Rates vom
23. Oktober 2007 über die Rechte und Pflich¬
ten der Fahrgäste im Eisenbahnverkehr (ABI.
L 315 vom 3.12.2007, S. 14),
3. der Verordnung (EG) Nr. 392/2009 des
Europäischen Parlaments und des Rates vom
23. April 2009 über die Unfallhaftung von
Beförderern von Reisenden auf See (ABI. L
131 vom 28.5.2009, S. 24),
4. der Verordnung (EU) Nr. 1177/2010 des
Europäischen Parlaments und des Rates vom
24. November 2010 über die Fahrgastrechte
im See- und Binnenschiffsverkehr und zur
Änderung der Verordnung (EG) Nr. 2006/
2004 (ABI. L 334 vom 17.12.2010, S. 1) oder
5. der Verordnung (EU) Nr. 181/2011 des
Europäischen Parlaments und des Rates vom
16. Februar 2011 über die Fahrgastrechte im
Kraftomnibusverkehr und zur Änderung der
Verordnung (EG) Nr. 2006/2004 (ABI. L 55
vom 28.2.2011, S. 1).
2Hat der Reisende vom Reiseveranstalter
bereits Schadensersatz erhalten oder ist ihm
infolge einer Minderung vom Reiseveranstal¬
ter bereits ein Betrag erstattet worden, so muss
er sich den erhaltenen Betrag auf dasjenige
anrechnen lassen, was ihm aufgrund desselben
Ereignisses als Entschädigung oder als Erstat¬
tung infolge einer Minderung nach Maßgabe
internationaler Übereinkünfte oder von auf
solchen beruhenden gesetzlichen Vorschriften
oder nach Maßgabe der in Satz 1 genannten
Verordnungen geschuldet ist.
A. Function
The provision tackles three aspects: (i) the question whether the travel organiser may limit 1
his liability by agreement, (ii) whether the travel organiser may invoke limitations arising out
of international conventions or statutory provisions based on such international agreements in
relation to the traveller and, (iii) if the traveller must allow to be credited against him the
amount that he has received as compensation in accordance with international conventions or
statutory provisions based on such international agreements or in accordance with European
regulations While the provision sets out rather strict limits for the general limitation of
liability the second and third question are resolved in favour of the travel organiser.
Fervers
1239
§651q
Division 8. Particular types of obligations
B. Context
2
» j /r\ pit D^Vim»Travel Directive. Sub. 1 replaces
The provision implements Art. 14(4) and (5) EU Pack. g . provision in the former
the former § 65 Ih whereas Subs 2 and 3 do not have a pi
§§ 651a et seq.
C. Explanation
I. Limitation of liability
3 If there are not any limitations in favour of the travel organiser arising out of international
conventions or statutory provisions based on such international agreements, t e possi i ity
for the travel organiser to restrict his liability in the contract, is rather imite . imitation is
only possible up to an amount of three times the travel package price and on y i t e amages
do not constitute bodily injuries and if they were not caused by fault. Thus, in contrast to the
former § 65Ih, it is no longer possible for the travel organiser to exclude his liability for
damages caused by slight negligence (leichte Fahrlässigkeit)} It is questionable if the remain¬
ing possibilities are of any actual use to the travel organiser since according to § 65In the
travel organiser is not liable anyway under the conditions of § 651n(l) Nos 1-3. The cases in
which there is not any negligence on the part of the travel organiser but at the same time the
conditions laid down in § 651n(l) Nos l-3are not fulfilled, are rare.1 2
IL Overcompensation
4 Sub. 3 serves to prevent an overcompensation of the traveller stating that the traveller must
allow to be credited against him the amount that he has received due to the same event as
compensation or as reimbursement owed to a price reduction in accordance with interna¬
tional conventions or statutory provisions based on such international agreements or in
accordance with the European Regulations listed in Sub. 3 2nd St. Nos 1-5. Under the
application of the previous legislation, the BGH had already held that a traveller’s right to
price reduction is a further compensation within the meaning of Art. 12 EU Flight
Compensation Regulation which means that a price reduction is to be deducted from a
compensation under the Regulation.3 Finally, Sub. 3 2nd St. tackles the contrary situation in
which the traveller has already received a compensation from the travel organiser and states
that in this situation the traveller must allow to be credi