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outlines of the law
Brox/Walker
General
law of obligations
45th edition
With cases and layout schemes
https://doi.org/10.17104/9783406758829-I
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OUTLINES OF LAW
––––––––––––
Brox/Walker · General law of obligations
https://doi.org/10.17104/9783406758829-I
https://doi.org/10.17104/9783406758829-I
General law of obligations
Established by
dr Hans Brox † Former

federal constitutional judge and full
professor at the
University of Münster
since the 28th edition continued by
dr Wolf Dietrich Walker

full professor at the
University of Giessen
45th, updated edition 2021
https://doi.org/10.17104/9783406758829-I
Suggested citation: Brox/Walker SchuldR AT § ... Rn. ...
www.beck.de
Print ISBN 978 3 406 75881 2

E-Book ISBN 978 3 406 75882 9
© 2021 Verlag CHBeck oHG

Wilhelmstrasse 9, 80801 Munich
Printing and binding: CHBeck Nördlingen
(address same as publisher)
Typesetting: Thomas Schäfer, www.schaefer-

buchsatz.de Cover design: Druckerei CHBeck Nördlingen
Printed on acid-free, aging-resistant paper (made from

chlorine-free bleached pulp)
https://doi.org/10.17104/9783406758829-I
Foreword to the 45th edition
The concept of this floor plan is to serve as a textbook

first entry into the general law of obligations and at the same time a
to enable efficient repetition. If you want to delve deeper into preparing
for the exam, you can get suggestions from the references to
further reading and important current decisions
especially the Federal Court of Justice.
In turn, the work was completely checked and updated to determine
whether there was a need for change. The meaning of the
Corona pandemic in connection with the debtor's right to refuse
performance and in the right to disruption of performance, in particular
in the event of the impossibility of performance and the omission of the
basis of business. On the planned changes to the BGB and
of the introductory law to the German Civil Code for the purpose of
implementing the EU directive for better enforcement and modernization
of the consumer protection regulations of the Union is also pointed out
to the extensive regulations on contracts for digital products, which are
to be located in the implementation of the directive on certain
contractual aspects of the provision of digital content and digital
services in the general law of obligations. Out
of the current case law incorporated, the decisions of the Federal
Court of Justice on the equalization of benefits in the case of claims
for damages in the VW diesel scandal should be mentioned as an example
calculation of the so-called small claim for damages
of performance and the Federal Labor Court on the requirement of fair
dealing on the basis of Section 241 (2) BGB. Furthermore
the new literature on the general law of obligations to the extent
as it corresponds to the concept of the book, incorporated or at least
proven by January 2021. My employees
I would like to thank the collaborators and attentive readers of the previous edition
for their helpful tips and suggestions.
Giessen, January 2021 Wolf Dietrich Walker
https://doi.org/10.17104/9783406758829-I
Generated by Cologne University and City Library on 11/13/2021, 23:31:56.
https://doi.org/10.17104/9783406758829-I
Table of Contents
List of abbreviations ................................................. ....................... XXIII

Bibliography .................................................. .......................... XXIX
1st chapter. Location and importance of the law of obligations
§ 1. Location and importance of the law of obligations ..................................... 1
2nd chapter. Concept and delimitation of the obligation
§ 2. Concept and delimitation of the obligation ........................ 7
3rd chapter. creation of debts
§ 3. Ways in which obligations arise ........................ § 4. Establishment of 21
obligations ........................ ............................................ § 5. Creation of pre- 28
contractual obligations ...................... 68
4th chapter. content of the obligations
§ 6. Determination of the content of the debt ........................................ ............ 76

§ 7. Principle of good faith ............................ .................... Section 8. Generic 82
guilt, elective guilt and power of substitution .................. Section 9. Money - and 91
interest debt ....................................... ........................ § 10. Reimbursement of 98
expenses, right of removal and obligation to provide information ........ 103

§ 11. Penalty ..................................................... ....................................... 109
§ 12. Manner of performance ........................................ ................... 115
Section 13. Debtor's right to refuse performance ................................ 127
5th chapter. cessation of obligations
§ 14. Fulfillment ........................................ ................................................ 139

§ 15. Deposit ..................................................... ........................................ 146
§ 16. Set-off ................................................ ........................................ 151
§ 17. Other reasons for expiry ........................................ ................. 160
§ 18. Withdrawal ................................................ ....................................... 170
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6th chapter. Consumer protection in consumer contracts and

special forms of distribution
§ 19. Consumer protection for consumer contracts and special

Forms of distribution ................................................ ................................ 185
7th chapter. liability of the debtor
§ 20. Responsibility of the debtor ............................................ ...... 220
8th chapter. Disturbances in the obligation § 21.
Overview of the disturbances in the obligation ........................ 239 § 22. Impossibility

of performance ........ .................................................. .. § 23. Delay in 242
performance ........................................ ...................... 274 § 24. Poor

performance ........................ .................................................. ........ 306 § 25. Violation
of duties to protect .................................... .................... 320 Section 26. Default of
payment by the creditor ............ .................................................. ..... 331 § 27.
Disturbance of the basis of the transaction .................................. ................ 337
9th chapter. liability for damages
§ 28. Overview of the requirements for compensation

saying ................................................ ................................................ 350 § 29.
Damage and injured party ..................................... ................ 355 § 30. Causing and
attribution of the damage ........................ ....... 371 § 31. Type and scope of
compensation for damages .................. ......... 385
10th chapter. Participation of third parties in the obligation
§ 32. Contract in favor of third parties ............................................ .................... 412
§ 33. Obligation with protective effect for third parties ........................ ....... 418 § 34.
Change of creditors ........................................ ........................................ 428 § 35.
Assumption of debt and assumption of debt ... ....................................... 443
11th chapter. majority of creditors and debtors
§ 36. Partial debtors and partial creditors ................................................ 454 Section

37. Joint and several debtors and joint creditors .................. 456 Section 38. Debtors
and creditors community .... ...................................... 474
Index of Paragraphs ................................................ ...................................... 479

subject index .......... .................................................. ..................................... 489
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Table of Contents
List of abbreviations ................................................. ....................... XXIII

Bibliography .................................................. ....................... XXIX
1st chapter. Location and importance of the law of obligations
§ 1. Location and importance of the law of obligations ..................................... 1
I. Term and legal regulation ........................................ 1

1. Term ................................................ ................................... 1
2. Legal regulation ................................................ ............ 2
II. Distinction from property law ........................................ 4
III. Importance ................................................. ................................ 6
§ 2. Concept and delimitation of the obligation ........................ 7
I. Term ................................................ ....................................... 7

1. Obligation in the broader sense .................................... 7
2. Obligation in the narrower sense .................................... 8th
II. Obligations of the debtor and right of claim of the creditor

Gers .................................................. ....................................... 8th
1. Obligations of the debtor ..................................... ........ 9

2. Creditor's right to claim ........................................ 14
III. Guilt and Liability ..................................................... ................. 15
1. Definitions ..................................................... ......... 15
2. Subject of liability ................................................ ....... 16
3. Guilt without liability ..................................... ............. 17
IV. Obligation and courtesy relationship ........................ 18
1. Delimitation ..................................... .......................... 18
2. Consequences of a courtesy ..................................... ....... 19
§ 3. Types of emergence of obligations ........................................ 21
I. Origination through legal transaction ........................................ 21

1. Creation through contract ..................................... ..... 21
2. Origination through unilateral legal transaction .................... 22
3. No occurrence due to unordered delivery or
other contribution ................................................ ................. 23
II. Creation by operation of law ..................................... ......... 24
1. Business contact ..................................................... ......... 24
2. Unlawful act ..................................................... ........... 25
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3. Unjust enrichment ........................................ 25

4. Management without a mandate ........................................ 25
III. Concurrence of legal business and legal
Obligations ..................................................... ................. 27
§ 4. Justification of debt contracts ............................................ ....... 28
I. Debt contract and freedom of contract ........................................ 28

1. Freedom of Contract and the Constitution ........................................ 29
2. Freedom of conclusion ..................................... .................. 30
3. Freedom of design ..................................................... ............... 33
4. Freedom of form ..................................... .......................... 35
II. Formation of the contract through general terms and conditions
conditions ................................................ ...................................... 39
1. Term ................................................ ................................... 41
2. Advantages and disadvantages of general terms and conditions ........................ 43
3. Inclusion in the contract ............................................ . 45
4. Interpretation of general terms and conditions and priority of individual 47
agreements 5. Content control ........................................ ....................... 48
6. Ban on circumvention ................................................ ................ 57
7. Legal consequences of non-inclusion or ineffectiveness
ability ................................................ ....................................... 57
8. Judicial assertion of the invalidity of
CONDITIONS ................................................. ................................... 59
9. Applicability of Sections 305 et seq. in special cases .................. 59
III. No factual contractual relationships ..................................... 63
1. Continuing obligations executed without an effective contract
holdings ................................................ ................................ 64
2. Utilization of services in mass transport .... 65
3. Claiming a service in the case of contradictory
Behavior ................................................. ....................... 66
IV. Pre-contracts ................................................ ................................ 66
1. Purpose ............................................... ................................... 66
2. Contents ..................................... ..................................... 67
3. Shape ................................................ ...................................... 67
4. Meaning ................................................ ............................. § 5. 67
Creation of pre-contractual obligations .................. .... 68
I. Legal regulation ................................................ ................. 69

II. Meaning ................................................ .................................. 70
III. Conditions for the emergence of a pre-contractual
obligation ................................................ ................. 71
1. Contract negotiations ..................................... ........ 71
2. Contract initiation ..................................... .............. 3. Similar business 71
contacts ................................ ........ 72
IV. Parties involved in the pre-contractual obligation .................. 73
1. Potential contractual partners ..................................... ... 73
2. Third parties ..................................... ..................................... 73
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§ 6. Determination of the content of the debt ........................................ ............ 76
I. Certainty of performance ................................................ ......... 76

II. Determination by a party or a third party ..................... 77
1. Determination by a party ........................................ 77
2. Determination by a third party ........................................ § 7. Principle of 80
good faith and faith ................................................ .. 82
I. Significance of § 242 1. .................................................. .............. 83

Good faith as a general legal principle ....... 83
2. Delimitation and scope of application ........................ 84
II. Individual use cases ................................................ ........ 86
1. Determination of the manner of performance .................. 86
2. Establishment of obligations in the contractual relationship ..................... 86
3. Modification of the contractual obligation to perform ..................... 88
4. Objection to the impermissible exercise of rights ..................... 89
§ 8. Generic guilt, elective guilt and power of substitution .................. 91
I. Generic guilt ..................................... .......................... 92

1. Term ................................................ ................................... 92
2. Delimitation ..................................... .......................... 93
3. Legal meaning ..................................................... ........... 93
4. Specification ................................................ ................... 94
II. Debt of choice ..................................... ................................ 95
1. Term ................................................ ................................... 95
2. Right to vote ..................................... .............................. 95
3. Impossibility ..................................... ...................... 96
III. Power of substitution ................................................ ................. 97
1. Term ................................................ ................................... 97
2. Debtor's power of substitution ..................................... 97
3. Creditor's power of substitution ...................................... 98
§ 9. Money and interest debt ........................................ ............................ 98

I. Debt of money ..................................... ................................. 99
1. Concept and content ........................................ .................. 99
2. Settlement ..................................................... .......................... 100
II. Interest Debt ................................................ .................................. 102
1. Term ................................................ .................................... 102
2. Creation ................................................ ............................ 102
3. Amount of interest ..................................................... .................... 103
§ 10. Reimbursement of expenses, right of removal and obligation to provide information ........ 103
I. Reimbursement of expenses ..................................... ................... 104
1. Expenses ..................................................... ..................... 104
2. Claim for reimbursement of expenses ..................................... 104
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II. Right of removal ................................................ ....................... 105

1. Prerequisites ..................................................... ................... 105
2. Exercise ................................................ ................................ 106
III. Obligation to provide information and accountability ..................... 106
1. Obligation to provide information ..................................... ................... 106
2. Duty of accountability ........................................................ 108
3. Obligation to submit an affidavit .. 108
§ 11. Penalty ..................................................... ....................................... 109
I. Meaning ................................................ .................................. 109

II. Term and delimitation ..................................... ............ 110
1. Term ................................................ .................................... 110
2. Delimitation ..................................... .......................... 110
III. Requirements ................................................. ..................... 112
1. Positive action ................................................ ....................... 112
2. Refrain ................................................ ....................... 112
IV. Relationship to performance and damages ........................ 113
1. Non-performance ..................................... ...................... 113
2. Improper performance ..................................................... ...... 114
V. Judicial reduction of sentence ........................................ .114
§ 12. Manner of performance ........................................ ................... 115
I. Debtors ..................................... ................................... 116
1. Performance by the debtor in person .................................... 116
2. Performance by a third party ........................................ 116
II. Creditors ..................................... .................................... 118
1. Payment to the creditor ................................................ ..... 118
2. Performance to a third party ............................................ ...... 118
III. Power ................................................. ................................... 119
1. Partial performance ..................................... ............................ 119
2. Wrong performance ................................................ ....................... 120
3. Performance subject to reservation ...................................... ....... 120
IV. Place of performance ..................................... ................................ 120
1. Term and meaning ........................................ .......... 120
2. Determining the place of performance ........................................ 121
V. Time of performance ..................................... ................................ 123
1. Term and meaning ........................................ .......... 123
2. Determination of the performance time ..................................... 124
3. Peculiarities when agreeing payment,
Inspection and acceptance periods according to § 271a ............ 125
Section 13. Debtor's right to refuse performance ................................ 127

I. Right of retention ................................................ ............. 128
1. Term and meaning ........................................ .......... 128
2. Requirements ..................................................... ................... 128
3. Exclusion of the right of retention ........................ 130
4. Effects ..................................... ............................ 131
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II. Plea of non-performance of the contract ..................................... 131 1.

Conditions .................................................. ................ 132 2.
Exclusion ............................ ................................................ 132 3.
Effects .................................................. ....................... 133
III. Pandemic-related right to refuse performance of the Ver
135 1. Prerequisites .................................. ................................. 136 2.
Exercising ............ .................................................. .............. 137 3.
Legal consequences ................................ ........................................ 137
§ 14. Fulfillment ........................................ ................................................ 139 I.

Prerequisites of fulfillment ..................................................... 140 1
Execution of the owed performance ................................ 140 2.
Performance in lieu of performance ...... ....................................... 142 3.
Dispensability of a demarcation ... ................................ 144 II. Effects of
fulfillment ........ ....................................... 144 1. Redemption of
Blame ................................................. ............. 144
2. Effect in the event of a majority of claims ..................... 145 3.
Obligations of the creditor .. ....................................... 146 § 15.
Deposit ...... .................................................. ................................ 146 I. Prerequisites
and procedures .................. ................................ 147 1.
Prerequisites .................. .................................................. 147 2.
Procedure ........................................ ................................. 148 II.
Effects ............ .................................................. ................. 149 1. Debtor’s
right of withdrawal ........................ ............ 149 2. Exclusion of the right
of withdrawal ................................ ..... 149 III. Self-help
sales ..................................................... .................... 150 1.
Prerequisites .......................... ........................................ 150 2.
Execution ...... .................................................. .............. 151 3.
Effects ................................ ....................................... 151 § 16. Set-
off .. .................................................. .................................. 151 I. Concept and
purpose .......... .................................................. ....... 152 1st
term ....................................... ............................................ 152 2.
Purpose .. .................................................. ....................... 153
II. Set-off situation ........................................ ...................... 153 1. Reciprocity
of claims ........................ ................ 153 2. Similarity of
claims ............................ ........... 154 3. Effectiveness of the
claims ................................ .......... 154 4. Maturity of the
counterclaim .................................. ......... 155 III. Statement of
offsetting ................................................ .......... 155 IV. Effect of set-
off .................................. .................... 156 1. Retrospective expiry of the
claims ..................... 156 2. Majority of claims .....................................................
.157
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V. Exclusion of set-off ..................................................... ..... 157

1. Exclusion by agreement of the parties ................................ 157
2. Exclusion by law ............................................ . 158
§ 17. Other reasons for expiry ........................................ ................. 160

I. Decree ................................................ .......................................... 160
II. Negative acknowledgment of debt ................................................ .. 161
III. Modification Agreement ................................................ ................ 162
IV. Reimbursement of debts ..................................... ........................ 162
V. Confusion ..................................... .................................. 163
VI. Impossibility, achievement of purpose, discontinuation of purpose ..................... 164
1. Delimitation ..................................... .......................... 164
2. Legal treatment ..................................................... ......... 165
VII. Expiry of the deadline or termination in the case of continuing obligations. 165
1. Expiration of the deadline ...................................... ....................... 166
2. Ordinary termination ..................................... ....... 167
3. Extraordinary termination ............................................ 168
§ 18. Withdrawal ................................................ ....................................... 170
I. Concept, effect and delimitation ........................................ 172

1. Term and legal regulation ........................................ 172
2. Effect on the debt relationship ..................................... 172
3. Delimitation ..................................... .......................... 172
II. Prerequisites ................................................ ....................... 173
1. Right of withdrawal ..................................... ...................... 173
2. Declaration of withdrawal ................................................ .............. 175
III. Exclusion of resignation ..................................................... ......... 175
1. No exclusion in the event of impossibility of return .... 175
2. Deadline for withdrawal ................................................ ..... 176
IV. Legal consequences ................................................ ................................ 176
1. Expiration of unfulfilled performance obligations ..................... 176
2. Return of received services and release
actual uses ................................................ 176
3. Value replacement instead of impossible return or withdrawal
gift ................................................ ...................................... 178
4. Compensation for undrawn uses and for uses
ments ................................................ .................................. 182
5. Fulfillment step by step ........................................ ........... 182
V. Ineffectiveness of withdrawal ................................................ ... 183
1. Repentance agreement ................................................ ........... 183
2. Possibility of offsetting ................................................ ... 183
VI. Sections 346 et seq. ......... 183
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6th chapter. Consumer protection in consumer contracts

and special forms of distribution
§ 19. Consumer protection for consumer contracts and special

Forms of distribution ................................................ ................................ 185
I. Overview of consumer protection in the German Civil Code ..................... 188
II. Special obligations and principles for all consumers
contract ................................................ .................................. 189
1. Information obligations of the entrepreneur ........................ 189
2. Limits for the agreement of fees ..................... 190
III. Consumer protection for off-premises ge
concluded contracts and distance contracts ............ 191
1st sense ................................................ ........................................ 191
2. Definitions ..................................... .......................... 191
3. Information obligations and consequences of breaching them ........ 196
4. Right of withdrawal ................................................ ...................... 197
IV. Customer and consumer protection for contracts in electronic
commerce and on online marketplaces .... 211
1. Technical means of customer protection (§ 312i) ................ 212
2. Information obligations towards consumers and
Protection of the consumer against cost traps in electronic
commerce ........................................ ............. 213
3. Planned: Information obligations for operators of online
marketplaces towards consumers (draft of a
§ 312k in conjunction with Art 246d EGBGB) ............................................ 214
V. Consumer protection when changing providers in the event of a permanent debt
conditions ................................................ ............................ 215
VI. Indispensability, prohibition of circumvention and burden of proof .......... 215
1. Indispensability ..................................... .................. 215
2. Ban on circumvention ................................................ ................ 216
3. Burden of proof ..................................... ................................ 216
VII. Planned: consumer protection for contracts via digital
Products ................................................. .................................. 217
1. Reason for the planned new regulation ..................................... 218
2. Systematic location ........................................ ........ 218
3. Contents ..................................... ..................................... 218
§ 20. Responsibility of the debtor ............................................ ...... 220

I. Liability for own fault ..................................................... 221
1. Breach of duty ..................................... ................... 221
2. Culpability ................................................ .......... 222
3. Form of debt ................................................ ....................... 223
II. Liability for third-party negligence ........................................ 229
1. Meaning of Section 278 ................................................ ............... 229
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2. Requirements ..................................................... ................... 230 3.

Substitution ........................... ....................................... 233 4. Differences between
Section 278 and Section 831 ........................ 234 III. No-fault
liability ..................................................... ...... 236 1. Other
provision ........................................ .......... 236 2. Content of the
obligation ...................................... ......... 236
8th chapter. disturbances in the debt relationship
Section 21. Overview of disruptions in the contractual relationship ..................... 239 I. Concept of
disruption in the contractual relationship ........ ...................... 239 II. Types of disruptions
in the contractual relationship ......... ........ 240 III. Legal
basis ................................................ .......... 241
IV. Presentation of the disturbances in the contractual relationship ..................... 242
§ 22. Impossibility of performance ............................................ ................ 242
I. Effects on the primary performance obligations ............ 244

1. Exclusion of the obligation to perform in the event of impossibility
(Section 275 (1)) ........................................ ............................ 245
2. Exclusion of the obligation to perform in cases of gross disproportion
moderate effort (§ 275 Para. 2) ..................................... 250
3. Exclusion of the obligation to perform if it is unreasonable
highly personal benefits (section 275 subsection 3) .................. 251 4. The claim
to the surrogate (section 285 subsection 1) ........ ........ 252 5. Exemption from the
obligation to provide consideration (Section 326) ............ 254 II. Compensation for
damages in lieu of performance ............ ................................ 259 1. Damages due to
subsequent impossibility
(§§ 280 para. 1, 3, 283) ...................................... ................... 260
2. Compensation for damages due to initial impossibility
(Section 311a (2)) ........................................ .......................... 265 III.
Reimbursement of expenses (§ 284) ................................................ ........ 267 1.
Meaning ........................................ ...................................... 268 2. Scope of
application ........ .................................................. 268 3.
Prerequisites ................................................ ..................... 269 4. Legal
consequence ........................ ................................................. 270 IV. Withdrawal
(Section 326 (5)) ........................................ ................... 271 1. In the event of poor
performance ........................ .................................. 271 2. In case of partial
impossibility ............ ................................................ 272 3. At Uncertainty about the
reason for non-performance ...... 272
§ 23. Delay in performance ............................................ .................... 274 I. Compensation for

damage caused by delay ........................ ..................... 276 1.
Prerequisites ........................ ....................................... 276 2. Legal
consequences ..... .................................................. ................. 285 II. Compensation
for damages in lieu of performance .................. ................. 289 1.
Prerequisites ........................ ..................................... 290
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2. Legal consequences ..................................... ....................... 295 III.

Reimbursement of expenses ..................................... ................. 297 IV.
Resignation (§ 323) ............................ ................................................ 297 1.
Prerequisites .................................................. ................ 297 2. Legal
consequences ........................ ........................................ 302 V. Other
consequences of the delay in performance . .......................... 303 1. Increased
liability in the event of default .................. .................... 303 2. Interest on the
claim for compensation in default ............ 304 3. Particularities in the case of
lis pendens ... ....................... 304
§ 24. Poor performance ........................................ .................................... 306 I. The

concept of poor performance and an overview of the statutory
provisions .. .................................................. ...................... 307 308
II. Scope of underperformance regulations III. Compensation for
damages instead of the (entire) service ........................ 309 1. Compensation for
damages due to a remediable performance man
gels ................................................ ....................................... 310
2. Compensation for damages due to irremediable performance
lack of ................................................ ................................ 313 IV.
Compensation for damages due to consequential damages ............ .............. 314
1. Requirements ................................ .................................. 315 2.
Compensable damage ........ ................................................ 315 V.
Reimbursement of expenses .................................................. ................ 315 VI.
Withdrawal (§§ 323 Para. 1, 326 Para. 5) ..................................... 316 1.
Withdrawal due to a remediable performance deficiency ..... 316 2. Rescission
due to an irremediable performance deficiency . 318
§ 25. Violation of protection obligations ................................................ ........... 320 I.

Overview of the legal regulation ........................................ 321 II. Violation of
the duty to protect in the contractual relationship ........ 322 1. Damages due to a
breach of duty under Section 280 (1) 322 2. Damages in lieu of performance
(Section § 280 para. 1, 3, 282) 322 3. Withdrawal (§
324) ................................ .................................. 324
III. Violation of the duty to protect in the pre-contractual obligation
nis ................................................ ....................................... 324 1. Damages
due to Breach of duty according to §§ 280 ................................................ ...................
Para. 1, 311 Para. 2 324
2. Compensation for damages instead of performance .................................... ..
329 3. Resignation ............................................ .................................... 329
§ 26. Creditor's default ........................................ .................................. 331 I.

Requirements ............ .................................................. ........ 332 1. Entitlement
to benefits ........................................ .................. 332 2.
Performance ............................ ................................. 332 3. Range of
services ............ .................................................. .. 333 4. Non-acceptance of
the service ........................................ ..... 334
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II. Effects ................................................ ................................. 334 1.

No exemption from benefits ............ ....................................... 334 2.
Exemption from liability ........ ................................................. 334 3.
Transfer of the risk of performance in the case of generic debts .....
335 4. Transfer of the price risk in the case of a mutual contract .....
336 5. Other effects .................. ........................................ 336
§ 27. Disturbance of the basis of the transaction ............................................ ..........

337 I. Legal regulation and meaning .................................. .. 338 II.
Requirements ............................................ .......................... 339 1.
Elimination of the objective business basis (section 313
(1)) .......... .................................................. ...................... 340 2.
Absence of the subjective business basis (§ 313 Abs.
2) .............. .................................................. .................. 343 III.
Legal consequences ................................................ ............................
343 1. Right to adjustment of the contract .................. ............... 343
2. Right to withdraw from the contract or to terminate the contract
of the contract ................................................ ..........................
344 IV. Differentiation from other legal institutions .................. ..........
346 1. Interpretation of contract ..................................... ...........................
346 2. Contesting errors ..................... ............................................
346 3. Impossibility .. .................................................. .................
347 4. Warranty rights ........................ ..........................................
348 5. Misuse of Purpose Condiction .... ........................................
348 6. Termination for good cause ... .................................. 349
§ 28. Overview of the requirements for compensation

saying ................................................ ................................................ 350
I. Facts .................................................. ............................... 351 II.
Unlawfulness ................ .................................................. ..... 352 III.
Responsibility ..................................................... .................. 353 IV.
Damage ............................ .................................................. ....... 354
§ 29. Damage and injured party ............................................ ................... 355 I.

Concept of damage ........................ ....................................... 356 II.
Types of damage ....... .................................................. .................. 357
1. Material and immaterial damage ........................ .... 357 2.
Normative damage ............................................ .................. 361 3.
Damage to performance and fidelity ........................ ......... 362 4.
Direct and indirect damage ........................ 363 III. injured
party ................................................ ............................ 364 1. Directly
and indirectly harmed party .................. ........... 364 2. Third-party
damage liquidation .................................. ................. 365
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§ 30. Causing and attribution of the damage ........................ 371 I.

Causing ...... .................................................. .................... 372 1. Theory of
equivalence .......................... ..................................... 372 2. Causalities that
justify and fill out liability
doing ................................................ ....................................... 373
II. Attribution ....................................... ............................... 374 1. Adequacy
Theory ............... .................................................. 375 2. Protective purpose of
the standard ........................................ ......... 376 3. Lawful alternative
behavior ..................................... 379 4. Hypothetical
causality ............................................ ....... 381 5. Attribution of damage-causing
action of
Injured himself or a third party ........................................ 384
§ 31. Type and scope of compensation for damages ........................................ 385 I. Nature
of damages ................................................ .............. 386 1. Production in
kind ................................ ................................ 387 2. Substitute
money ................ .................................................. .......... 389 II. Calculation of
damage ..................................... ............................ 393 1. Loss of
wealth .................. ............................................ 394 2. Loss of
profit . .................................................. ....... 395 3. Concrete and abstract
calculation of damage .................. 396 4. Equalization of
benefits .................. ............................................ 397 5. Special features when
replacing from old to new ............ 401 6. Reimbursement of pension
costs ........................ .................... 402 III. Contributory negligence of the injured
party ..................... 403 1. Significance ................... .................................................. .......
404 2. Requirements ........................................ ....................... 404 3. Legal
Consequences ................... .................................................. ... 410
10th chapter. Participation of third parties in the obligation
§ 32. Contract in favor of third parties ............................................ ................... 412
I. Types and delimitation ..................................... .............. 412

1. Species ..................................... ..................................... 412
2. Delimitation ..................................... .......................... 413 414
II. Legal relationships between the parties involved ........................
1. Cover ratio ..................................................... .............. 415 2nd value
date ................................ .................................... 416 3. Relationship between
promiser and third party ........ .416 III. Objections and pleas by the
promiser ........................ 417 IV. ....................................... 417 1. Default by the
promisee.... 417 2. Default by the promisor .................................. 417 3. Default by
the third party .................. ................ 418
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XX Table of Contents
§ 33. Obligation with protective effect for third parties ........................ 418 I. Significance and
legal basis ....... ..................................... 420 1.
Meaning ......... .................................................. ................. 420 2. Legal
basis ............................ ..................................... 421 II.
Requirements ......... .................................................. ........... 421 1. Closeness to
performance .................................... ................................... 422
2. The obligee's interest in protection or inclusion ..... 423 3. Recognizability for
the obligor ........................ ........ 424 4. Need for protection of the third
party ..................................... .... 424 III.
Effects ................................................ ............................... 425 1. Compensation for
damages ................ .................................................. .... 425 2. Objections by
the debtor ........................................ .. 426 IV.
Delimitation ............................................ .................................. 427 1. Contract in
favor of third parties .......... ........................................ 427 2. Third-party damage
liquidation ...... ................................................ 427 § 34. Change of
creditor ..................................................... ....................................... 428 I. Types of change

of creditor .................. .................................... 429 II. Concept, meaning and
special types of debt settlement
step ................................................ ...................................... 430 1st
term ........ .................................................. ....................... 430 2.
Meaning ..................... .................................................. ..... 431 3. Special
species ........................................ .......................... 431 III. Prerequisites for the
assignment ..................................................... 432 1 .
Contract ................................................ .................................. 432 2. Existence
of the claim .......... ....................................... 432 3. Transferability of the
claim . ........................................ 433 4. Determinability of the
claim .... ..................................... 435 IV. Effects of the
assignment ........ ................................................ 436 1 .Transfer of
claim ................................................ ..... 436 2. Transfer of ancillary and
preferential rights ..................... 436 3. Objections and objections by the
debtor ..... ............. 437 V. Protection of
debtors ................................ ...................................... 438 1. Ignorance of the
subrogation ...... ....................... 438 2. Set-
off ....................... ................................................. 440 3. Notice of Assignment
Own and presentation of documents .................... 441
§ 35. Assumption of debt and assumption of debt ............................................ .. 443 I. Term,

meaning and delimitation ..................................... 444
1. Term ................................................ ................................... 444
2. Meaning ................................................ ............................. 445 3.
Delimitation ................ .................................................. ...... 445 II. Prerequisites
for the discharging assumption of debt ........ 446 1. Contract between the new
debtor and the creditor .............. 446 2. Approved Contract between old and
new debtor 447 3. Special case: mortgage assumption ..................................449
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Table of Contents XXI
III. Effects of the liberating assumption of debt ..................... 450 1. Change

of debtor ..................... ....................................... 450 2.
Objections ... .................................................. ................ 450 3. Ancillary
and preferential rights ........................ ..................... 451
IV. ............................. 451 1. Term and reason .................. ......................................
451 2. Distinction from the guarantee ..... .................................. 452 3.
Effects ............ .................................................. ............. 453 V. Statutory
assumption of debt ................................ ...................... 453
11th chapter. Majority of creditors and debtors Section 36.
Partial debtors and partial creditors .................................. ..... 454 I. Partial

debtorship ........................................ .......................... 454 II. Partial
creditorship ..................... ....................................... 455
§ 37. Joint and several debtors and joint creditors ........................ 456 I. Joint and
several debtors ......... .................................................. 457 1. Creation of
the joint and several obligation ........................ 457 2. External
relationship with the creditor .................. ....... 461 3. Internal relationship
of the joint and several debtors ........................ 462 II. Joint and several
creditors .. .................................................. ......... 470 1. External
relationship towards the debtor ..................... 471 2. Internal relationship
of joint and several creditors ........ ........................ 472
Section 38 Debtor and creditor community ................................................ 474 I.

Debtor community ................................................ ............. 474 II.
Community of creditors ................................ ........................... 475 1. joint
ownership .................. ........................... 476 2. Fractional
creditorship ................... .................................. 476 3. Joint entitlement
to claims in the case of indivisible
other services (§ 432) ............................................ ............ 477
Index of Paragraphs ................................................ ..................................... 479

subject index ........... .................................................. ................................... 489
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https://doi.org/10.17104/9783406758829-I
List of abbreviations
aA .............................. different view
aaO ................ ............ at the indicated place
para. ........................... paragraph
AcP .... ....................... Archive for civilistic practice
aE ..................... ......... at the end
aF ............................... old version
AG ............... ............. Stock corporation
GTC .......................... General Terms and Conditions
GTC ...... ................ Law Regulating the Law of General
Terms and Conditions (cancelled)
AGG ......................... General Equal Treatment Act
AktG ..................... .... Old Stock Corporation Act. ............................
Alternative note ............ ............. Note AP .............................
Labor law practice arg. e .......................... Argument from
Art. ...................
Law of Obligations ......... Article
AT AS .............................. General
............................. General part

edition ................. ......... Edition
BAG .......................... Federal Labor Court

BayObLG ................ Bavarian Highest Regional Court BB
....................... Operations consultant
BBG .......................... Federal Civil Servants
Act Vol. .................... ......... Volume
edit. ........................ Edited add. .......................
Enclosure BeurkG ..................... Notarization
Act BGB .......................... Civil Code BGB-
InfoV .............. BGB information obligations -
Ordinance BGBl. ........................ Federal Law Gazette
BGH .................... ..... Federal Court of Justice BGHZ .......................
Decisions of the Federal Court of Justice in civil
things
BMJV ..........................
................ ........ Federal
Journal for
Ministry
banking
of Justice
and capital
and Consumers
market law BKR
Protection BRRG ....................... Civil Service Framework Act
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XXIV List of abbreviations
BS ................................ Special law of obligations

BSG ................ ........... Federal Social Court BT-
Drs. .................... Bundestag printed matter
BVerfG ............ .......... Federal Constitutional Court
BVerfGE ................... Decisions of the Federal Constitutional Court
or .............. ............. respectively
cic .......................... culpa in contrahendo

CR ................... .......... Computers and law
DAR ......................
.........................
.......German
The operation
car lawDB
ie .........
ders. .....................
...........................
That means
the same
this. ........................... same(s)

Diss. .......................... Dissertation
DNotZ .................... .. German notary
newspaper
magazine
DRiZ ......................... German judges'
EFZG ........................ Continued Remuneration Act

EG ........................ ...... European Community
EGBGB .................... Introductory Law to the Civil Code Inf. ............... ...........
Introduction Einl. ........................... Introduction EnWG ....... ................ Energy
Industry Act ErbR ............................ Inheritance law
EU ............................. European Union

CJEU ................. ...... Court of Justice of the European Communities
possibly ............................ possibly EWiR ........ ................ Decisions on
commercial law
f., ff. ........................... following (-er, -e, -it)

FamRZ ...................... Magazine for the entire family law
FernAbsG ................. Distance Selling Act (repealed)
Fn................................. Footnote
FS ................. ............. Festschrift
G ............................... Law
GBO ......................... land register regulations
acc. ..................... ...... according to
GenG ........................ Cooperative Law
GewO ....................... Industrial Code
GG .......................... Basic Law, if
applicable ................. ........... possibly
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List of abbreviations XXV
GmbHG ................... Law concerning limited companies

liability
basically. .......................... basically
GS ............................. Memoir
GSZ ........................... Grand Senate in civil matters
GVG ......................... Court Constitution Act
GWB ......................... Law against Restraints of Competition
Household goods regulation ............. Household goods regulation (repealed)

HausTWG ................ Doorstep Selling Revocation Act
and similar transactions (cancelled)
HGB ......................... Commercial Code
HintG ....................... deposit laws (of the countries)
hL .............................. prevailing doctrine
hM ....................... prevailing opinion
HO ............................ Deposit Rules (cancelled)
CourtyardsO ...................... Courtyard rules
HPflG ....................... Liability Act
MR ............................ Commercial law
HrefG ...................... Commercial Law Reform Act
Hs. ............................. half sentence
idF ............................. in the version

usually ....................... usually
in the narrower sense
iHv ............................ in the amount of
InsO .......................... Insolvency Code
iSd ............................. in terms of the
IuR ............................ IT and law
iVm ........................... in connection with
YES .............................. Legal worksheets

JArbSchG ................. Youth Employment Protection Act
JR ................................ Legal review
Legal sheets ................ Legal sheets
JurA .......................... Legal analyses
JURA ........................ Legal training
JuS ............................. Legal training
JZ ............................... Legal journal
LM ............................ Lindenmaier-Möhring, reference work of the Bun

ofcourt
LMK ......................... Lindenmaier-Möhring – Commented BGH law
speech
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XXVI List of abbreviations
Manm ....................... with note

maW .......................... in other words
MDR .................. ....... Monthly publication for German
MMRlaw......
.......................
.................. Multimedia
in my opinion,
and in
law
mymNopinion
............................
with proof Mot. .......................... Motives for drafting a Civil
Code
ches mwN ......................... with further evidence
NJW .......................... New Legal Weekly NJW-

RR ................. New Legal Weekly – Jurisprudence
Report
No. ................................ Number
NZA ................ ......... New journal for labor law
NZA-RR .................. New Journal of Labor Law – Case Law
report
NZM ......................... New magazine for tenancy and housing law
OHG ........................ General partnership

OLG ........................ ... Higher Regional Court
PBefG ....................... Passenger Transport Act

ProdHaftG ............... Product Liability Act
Prot. ...... .................... Minutes of the commission for the 2nd reading of
the draft of the Civil Code
RG ............................. Reich Court

RGZ .................. ........ Decisions of the Reich Supreme Court in civil
matters Margin. ............................. Margin number Rspr. ... .......................
Jurisprudence
p. ................................ page, sentence

p. ........... ..................... please refer
SAE ........................... Collection of labor law decisions
SGB .................. ......... Social Code Book SJZ .............................
Southern German Lawyers' Newspaper so-called ...... ...................... so
called(e, he, it)
special ax ................ Special
Supplement StGB .........................
Criminal Code str. ................................
disputed stRspr .................. ...... settled case law
StVG ......................... Road Traffic Act
StVO .............. ........... Road Traffic Regulations
StVZO ...................... Road Traffic Licensing Regulations
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List of abbreviations XXVII
TzBfG ....................... Part-time and Fixed-Term Act
u.................. and
etc................. ................ among other
things UKlaG ...................... Injunctive relief law
UStG ....... .................. Value Added Tax Act,
etc. ........................... and so continue under certain
circumstances ....................... under certain
circumstances UWG ................ ........ Law Against Unfair Competition
VerbrKrG ................. Consumer Credit Act (repealed)

VersR ........................ Insurance law (magazine)
cf. ................... .......... compare VO ............................
Ordinance Pream. .................... Preliminary remark
VuR ........................... Consumer and law
VVG .......................... Insurance Contract Act
VwGO ................... ... administrative court order
Currency Act .............. Currency Act

WG ......................... Exchange Act
WM .... ....................... Securities Notices
eg .............................. for example

ZEuP ......................... Journal for European Private Law
ZfA ...................
Journal for the ......... Journal
entire for labor
science law ZfPW
of private law ........................
ZGS ....... .................... Journal for the entire law of obligations ........................ ...
Journal for business law and insolvency practice ZIP quoted. .............................
ZPO quoted
.......................
ZJS ........... .....................
Code of Civil Procedure
Journal forpartly
legal studies
.............................. partly
ZVG ............ .............. Foreclosure Act ZVR .......................... Enforcement
law ....... .................... Journal of Civil Procedure ZZP
Paragraphs that do not state the law are those of the German Civil Code.
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https://doi.org/10.17104/9783406758829-I
bibliography
1. Textbooks, floor plans, basic courses and refresher courses:
Brömmelmeyer, General part of the law of obligations, 2014 (cited by Brömmelmeyer

DebtR AT)
Brox/Henssler, Commercial Law, 23rd edition 2020 (cited Brox/Henssler HandelsR)
Brox/Rüthers/Henssler, labor law, 20th edition 2020 (cited Brox/Rüthers/ Henssler ArbR)
Brox/Walker, general part of the BGB, 44th edition 2020 (cited Brox/Walker
BGB AT)
Brox/Walker, Special Law of Obligations, 45th ed. 2021 (cited Brox/Walker
fault R BT)
Brox/Walker, Erbrecht, 29th edition 2021 (cited Brox/Walker ErbR)
Brox/Walker, enforcement law, 11th edition 2018 (quoted from Brox/Walker compulsory
enforcement law)
Däubler, BGB-Kompakt, 3rd edition 2008 (quoted from Däubler BGB)
Eckert, General part of the law of obligations, 4th edition 2004 (cited by Eckert SchuldR AT)
Emmerich, The Law of Performance Disorders, 6th edition 2005 (cited Emmerich Performance
DisordersR)
Esser/Schmidt, law of obligations, vol. 1: general part, sub-volume 1, 8th edition 1995;
Volume 2, 8th edition 2000 (cited by Esser/Schmidt SchuldR I AT)
Fikentscher/Heinemann, law of obligations, 11th edition 2017 (cited Fikentscher/Heinemann
SchuldR)
Förster, General part of the law of obligations, 3rd edition 2015 (cited by Förster SchuldR AT)
Gernhuber, Manual of the law of obligations: The obligation relationship, 1989 (cited.
Gernhuber SchuldR-HdB)
Grunewald, Civil Law, 9th edition 2014 (cited by Grunewald BürgerlR)
HP Westermann/Bydlinski/Weber, Civil Code Law of Obligations, general part, 8th edition
2014 (cited Westermann/Bydlinski/Weber BGB-SchuldR AT)
Harke, General Law of Obligations, 2010 (cited by Harke SchuldR)
Hirsch, General part of the law of obligations, 11th edition 2018 (quoted from Hirsch SchuldR)
Joussen, Law of Obligations I – General Part, 5th edition 2018 (cited Joussen SchuldR
AT)
Kaiser, civil law, 12th edition 2009 (quoted from Kaiser BürgerlR)
Kittner, law of obligations, 3rd edition 2003 (cited Kittner SchuldR)
Lange, law of obligations AT, 5th edition 2018 (quoted from Lange SchuldR AT)
Larenz, textbook of the law of obligations, vol. I, 14th edition 1987 (cited Larenz SchuldR
AT)
Looschelders, General part of the law of obligations, 18th edition 2020 (quoted from Looschelders
DebtR AT)
Medicus/Lorenz, law of obligations I, general part, 22nd edition 2020 (cited by Medicus/Lorenz
SchuldR I)
https://doi.org/10.17104/9783406758829-I
XXX bibliography
Medicus/Petersen, civil law, 27th edition 2019 (cited by Medicus/Petersen

citizen lR)
Musielak/Hau, basic course BGB, 16th edition 2019 (cited Musielak/Hau GK
Civil Code)
Musielak/Mayer, BGB exam course, 4th edition 2019 (cited by Musielak/Mayer EK

Civil Code)
Oetker/Maultzsch, contractual obligations, 5th edition 2018 (cited by Oetker/

Maultzsch obligations)
Petersen, Exam-Repetitorium General Law of Obligations, 9th edition 2019 (cit.
Petersen debt R AT)
Schellhammer, law of obligations according to the basis of a claim, 10th edition 2018 (cited.
Schellhammer SchuldR AGL)
Schlechtriem/Schmidt-Kessel, law of obligations, general part, 6th edition 2005 (cit.
Schlechtriem/Schmidt-Kessel SchuldR AT)
Schmidt, E., The obligation, 2004 (cited Schmidt obligation)
Schmidt, R., General part of the law of obligations, 13th edition 2019 (cited by Schmidt
DebtR AT)
U. Huber, Manual of the Law of Obligations: Performance Disturbances, Vol. 1 and 2, 1999
(quoted from Huber SchuldR-HdB I)
Weiler, general part of the law of obligations, 5th edition 2019 (quoted from Weiler SchuldR AT)
Wörlen/Metzler-Müller, Law of Obligations AT, 14th edition 2020 (cited Wörlen/Metzler Müller
SchuldR AT)
2. Comments:
Bamberger/Roth/Hau/Poseck, Beck,scher online commentary on the Civil Code, as of 2019

(cited by BeckOK BGB/editor)
Dauner-Lieb/Langen, Nomos Commentary BGB, Vol. 2: Law of Obligations, Part 1 (§§ 241 -
610) and 2 (§§ 611 - 853), 3rd edition 20216 (cited NK-BGB/Edit)
Erman, Commentary on the Civil Code, Vol. 1, 16th edition 2020 (cited by Erman/editor)
Jacoby/v. Hinden, study commentary BGB, 17th edition 2020 (cited by Jacoby/Hin den/editor)
Jauernig, Civil Code, 18th edition 2021 (cited by Jauernig/editor)

Juris PraxisKommentar BGB, Vol. 2.1 Law of obligations §§ 241-432, 7th edition 2014 (cited
jurisPK-BGB/editor)
Munich Commentary on the Civil Code, Vol. 2 (§§ 241 - 310), 8th edition 2019; Vol. 3 (§§ 311
- 432), 8th edition 2019 (cited MüKoBGB/Editer)
Palandt, Civil Code, 80th edition 2021 (cited by Palandt/editor)

Prütting/Wegen/Weinreich, BGB commentary, 15th edition 2020 (quoted from Prütting/
Wegen/Weinreich/Editor)
RGRK, The Civil Code, Commentary, ed. by Reich Court Councilors and Federal Judges,
Volume II, 12th edition 1978 et seq. (cited by RGRK/Editer)
https://doi.org/10.17104/9783406758829-I
bibliography XXXI
Schulze/Dörner/Ebert/Hoeren/Kemper/Saenger/Scheuch/Schreiber/Schulte Nölke/
Staudinger/Wiese, Civil Code, Manual Commentary, 10th edition 2019 (cited HK-BGB/
Editor)
Soergel, Civil Code, parts of the law of obligations, 13th edition 2005 ff. Staudinger,
Commentary on the Civil Code, partial volumes on the general law of obligations,
2016 ff. (cited by Staudinger/editor)
3. Case collections and instruction books:
Balzer/Kröll/Scholl, The law of obligations exam, 4th edition 2015 (cited Balzer/Kröll/
Scholl law of obligations exam)
Becker, Contractual Obligations, 2002 (cited Becker Obligations)
Braun, The civil law case, 5th ed. 2012 (cited Braun civil law case)
Dauner-Lieb/Arnold/Dötsch/Kitz, Cases on the new law of obligations, 2002 (cit.
DADK debt R)
Fezer/Obergfell, Examination course on the law of obligations, general part, 9th ed.
2019 (cited by Fezer/Obergfell SchuldR AT)
Fritzsche, Cases on the Law of Obligations I - contractual obligations, 8th edition 2019
(cited Fritzsche SchuldR I)
Fritzsche, Cases on the Law of Obligations II - Statutory Obligations, 5th edition 2019
(quoted from Fritzsche SchuldR II)
Höland/Lode/Meyer, cases with solutions from the law of obligations, 2004 (cit.
HLM GuiltR)
Köhler/Fritzsche, Cases on the new law of obligations, 2002 (cited by Köhler/Fritzsche
faultR)
Köhler/Lorenz, Test your knowledge, law of obligations I, 22nd edition 2014 (quoted by
Köhler/Lorenz SchuldR I)
Kornblum/Stürner, Cases on General Law of Obligations, 8th edition 2017 (cit.
Kornblum/Stürner AllgSchuldR)
Martinek/Omlor, basic cases for the BGB for beginners, 3rd edition 2017 (cit.
Martinek/Omlor BGB for beginners)
Olzen/Maties, civil law exam teaching with case repetition, 8th edition 2015 (cited by
Olzen/Maties CivilR)
formulate mold, legal exams and homework correctly,
14th edition 2020 (cited mold exams)
Schwab/Löhnig, case training in civil law 1, 6th edition 2016 (cited Schwab/Löhnig case
training civil law)
Strauss/Büßer, BGB general part and law of obligations - cases and solutions,
2nd edition 2003 (cited by Strauss/Büßer BGB AT/SchuldR)
Sutschet, 20 problems arising from the law of obligations, general part, 8th ed. 2019
(cited by Sutschet SchuldR AT)
Werner, O./Werner, A., cases for beginners in civil law, 13th edition 2018 (cited by
Werner/Werner BürgerlR)
Wörlen/Schindler/Balleis, Instructions for solving civil law cases, 10th edition 2020
(cited Wörlen/Schindler/Balleis CivilR)
https://doi.org/10.17104/9783406758829-I
XXXII bibliography
4. Selected works on the 2002 reform of the law of obligations: Canaris,
Modernization of the Law of Obligations 2002 (cited by Canaris, Modernization of the Law of Obligations).
nization)
Dauner-Lieb/Heidel/Lepa/Ring (eds.), The new law of obligations 2002 (cit.
DHLR debtR)
Dauner-Lieb/Konzen/Schmidt (eds.), The new law of obligations in practice, 2002 (quoted from
Dauner-Lieb/Konzen/Schmidt Neues SchuldR)
Ehmann/Sutschet, Modernized Law of Obligations, 2002 (cited by Ehmann/Sutschet Neues
SchuldR)
Ernst/Zimmermann (eds.), civil law and the reform of the law of obligations, Tübingen, 2001, with
contributions to the general law of obligations by U. Huber, Dauner-Lieb, Hager (quoted from
Ernst/Zimmermann, civil law and the reform of the law of obligations)
Henssler/v. Westphalen, Practice of the reform of the law of obligations, 2nd edition 2003 (cit.
Henssler/v. Westphalia reform of the law of obligations practice)
Huber/Faust, modernization of the law of obligations, 2002 (quoted from Huber/Faust Schuld
RMod)
Kohte/Micklitz/Rott/Tonner/Willingmann, The new law of obligations – compact commentary,
2003 (cited by KMRTW-SchuldR/Bearbeiter)
Lorenz/Riehm, textbook on the new law of obligations, 2002 (cited by Lorenz/Riehm Neues
SchuldR)
Olzen/Wank, The reform of the law of obligations, 2002 (cited by Olzen/Wank of the law of obligations
reform)
Schmidt-Räntsch, The new law of obligations, 2002 (cited Schmidt-Räntsch Neues
faultR)
Schulze/Schulte-Nölke (eds.), The reform of the law of obligations against the background of
community law, 2001, with contributions to the general law of obligations by Canaris, Grigoleit,
Fleischer, Köndgen, S. Lorenz, Magnus, Mankowski, Heinrichs, Schmidt-Räntsch, Dörner ,
Micklitz, Ulmer (cited by Schulze/ Schulte-Nölke reform of the law of obligations)
Schwab/Witt (eds.), Examination knowledge on the new law of obligations, 2nd edition 2003
(cited by Schwab/Witt Examination Knowledge New DebtR)
Westermann, The Law of Obligations 2002 (quoted from Westermann SchuldR)
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1st chapter. Location and importance of the

law of obligations
§ 1. Location and importance of the law of obligations
Case a: V sells to K on April 1st. an antique cupboard for EUR 9,000. The closet 1
should be on 2.4. be delivered and paid for. In the night from April 1st to April 2nd.
D steals the cupboard, damages it during transport and then gives it to B. Who
can demand that B hand over the cupboard and that D claim compensation for the
damage? Who, if the closet only on the evening of 2.4. is stolen at K? "Rn. 1, 7
case b: In case a, after the conclusion of the sales contract with K, V sells the
cupboard for EUR 9,500 to K 1, who takes the cupboard with him immediately
and is also no longer willing to give it up. Rights of K? "Rn. 9
I. Concept and legal regulation

1. Concept
The law of obligations is that part of private law that deals with the
contractual relationship.
a) Law of obligations as part of private law. Private law regulates legal

relationships between individual equal legal subjects. It is therefore not a
matter of superiority and subordination, which is generally characteristic of
public law.
In case a, the obligations of V and K result from the purchase contract (§ 433),
i.e. from private law. The question of who is obliged to pay sales tax (= value
added tax) to the state is regulated by tax law, which is part of public law.
b) Obligations as an object of the law of obligations. An obligation is a legal 2

relationship based on which one person (= debtor) owes the other (= creditor)
something, ie is obliged to perform (Section 241 (1)) and/or to show
consideration (Section 241 (2)). . The obligation (debt, liability) of the debtor
results from the debt relationship as a special connection between persons
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2 1st chapter. Location and importance of the law of obligations
bigger to behave in a certain way. Dem can from view

the creditor's right (claim, claim) to that
behavior of the debtor. However, this is not mandatory
(for details " § 2 para. 4 ff.).
Examples: A contractually undertakes to give B a specific original painting (§§ 516, 518);
B can then demand that A transfer ownership of the picture. - The motorist K gets with his
vehicle as a result of carelessness on the pavement and injures the pedestrian F; this
can demand compensation from K for bodily harm and damage to property (§ 823).
2. Legal regulation
3 a) Regulation in the second book of the German Civil Code. The law of obligations is
second book of the Civil Code (§§ 241-853). The first seven
Sections with §§ 241-432 form the general law of obligations.
In the eighth section of this book the legislator has determined
Obligations that frequently occur in practical life are expressly
regulated (§§ 433-853; special law of obligations).
According to the otherwise observed systematics of the
BGB, the problems that arise with all or several of the individual
obligations are summarized and, in general, the law of
obligations precedes the individual obligations.
This effort to exclude what is common ("principle of exclusion") is shown above all in the
general part of the Civil Code: What for all books
of the BGB applies is regulated in the first book of the BGB.
Example: Section 433 requires a contract of sale. § 929 S. 1 requires for the
Transfer of ownership in addition to the handover a transfer agreement. As
a contract that applies in the law of obligations and property as well as in family and
inheritance law plays a role, results from the provisions of the general part (§§ 145 ff., 116
ff., 104 ff.).
But the law also goes within the framework of the law of obligations in its
Structure from the general to the specific.
Thus the second book of the Civil Code begins with the abstract determination of the
Section 241 (1) states that the creditor is entitled to demand performance from the debtor. It
depends on which service is involved in the specific case
according to the respective obligation (e.g. purchase, § 433; rent, § 535; etc.).
If X accidentally damages the crime novel borrowed from Y, so
he has to pay compensation to Y. But you are also liable for damages
the motorist who hits the road with his vehicle as a result of driving too fast
sidewalk and hits the Y, damaging his book. the
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§ 1. Location and importance of the law of obligations 3
Question as to what the claim for damages is aimed at (replacement of only the pages
that have become illegible? Delivery of a new book? Same content?
Delivery of another thriller? Payment of the purchase price? etc.),
arises equally in both cases. For this reason, these rules on compensation for damages
are excluded and dealt with first in Sections 249 et seq. Otherwise the legislature would
have had to repeat it for every obligation
senior
Does someone have a claim against someone else for payment of 300
EUR, the General Law of Obligations regulates in §§ 362 et seq. how this claim expires
(e.g. through fulfilment, offsetting with a counterclaim).
It does not matter what the reason for the claim is (e.g
Purchase, rental or work contract or from § 823).
b) Reform of the legal regulation on January 1st, 2002 by the 4

Law of Obligations Modernization Act. The legal regulation of
The law of obligations has been in effect since the BGB came into force on January 1, 1900
essentially remained unchanged as of December 31, 2001. The legislator
has the obligation to implement three EU directives in 2001, namely the
Consumer Goods Directive 1999/94/
EC of May 25th, 1999, the E-Commerce Directive 2000/31/EC of
8.6.2000 and the late payment directive 2000/35/EG dated
6/29/2000, taken as an occasion, which spread as being in need of reform
to fundamentally reshape the respected law of obligations. The German
Debt Law Modernization Act came into force on January 1st, 2002. It
has also led to far-reaching changes in the general law of obligations, in
particular the law on disruption of performance ("§§ 21 et seq.). Furthermore,
the previously independent consumer protection laws such as the law on
general terms and conditions,
the Consumer Credit Act, the Withdrawal Act
Doorstep selling, the Distance Selling Act and the Part-Time Housing Rights
Act are integrated into the Civil Code. As a result, the right for the
be made clearer for citizens and a fragmentation of the law prevented. Due
to the numerous changes
Jurisprudence and literature from the time before the reform of the law of
obligations are now only used as evidence for disputed issues with restrictions
be used according to current law.
The reform of the law of obligations was during its preparation and after its
entry into force of numerous, partly very critical opinions
accompanied and followed up by the literature (see the selected references specifically
to the reform of the law of obligations in the list of literature). That is
there was broad agreement in principle for the reform of the law of obligations. Criticism
was mainly leveled at the time pressure under which
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the reform project was implemented within a short period of time. multiple
it was feared that this would always be regarded as exemplary in terms of legal technology
BGB loses its inner cohesion due to the numerous changes and additions in very different
places. The numerous questions raised by the reform of the law of obligations have been
addressed in the literature and
analyzed and discussed so intensively by case law that the basic structure of the new law
of obligations is essentially considered to have been clarified.1 The practice
has in any case adjusted to the amended law of obligations in 2002. However, the
continuous insertion of numerous other consumer protection regulations in general (§§
312 ff.) and in particular
Law of obligations (§§ 675c et seq.) does not exactly contribute to making the BGB easier
to read and understand.
5 c) Also valid for obligations under the other books of the German
Civil Code. The general law of obligations also applies in principle
for such obligations arising from the other books of
resulting from the German Civil Code.
Examples: Claim of the recipient of the declaration against the one under Section 119
challengers (section 122); The finder's claim to a reward (§ 971); maintenance claim
against the direct relative (§ 1601); claim of
legatee against the heirs for performance of the bequeathed item (section 2174).
6 d) Applicability also for obligations according to other laws.

There are also numerous laws outside of the BGB, according to which
obligations arise. The rules of the general law of obligations also
apply to them, insofar as they are contained in these laws
nothing else is intended.
Examples: StVG, HPflG, LuftverkehrsG, ProdHaftG, HGB, WG, ScheckG.
II. Distinction from property law

7 The law of obligations deals with obligations, i.e. special
relationships between individuals. Property law, on the other hand,
does not regulate the legal relationship between one person and another
but organizes the relation of a person to a thing (e.g. property, right
of lien).
The law of obligations only gives the creditor a right to performance
against a specific person; this demand is therefore a relative one
1 An overview of the case law on the first five years of "new" debt
Lorenz NJW 2007, 1.
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§ 1. Location and importance of the law of obligations 5
right and can regularly only be violated by the debtor. Property law,
on the other hand, gives the owner of the right an absolute right; it
targets everyone. For example, the owner of a thing can demand that
the owner return it
(§ 985); furthermore, he can demand removal from the person who
impairs the property and, if further impairments are concerned, cease
and desist (section 1004).
In case a, K has on 1.4. with the conclusion of the purchase contract only a claim
acquired against V on transfer of ownership of the cabinet (§ 433 Para. 1 S. 1). V remains
the owner because the agreement in rem and the handover after
Section 929 sentence 1 have not yet taken place. He alone can therefore issue B's
demand a barrier (§ 985); stands against him for infringement of his property
a claim for damages against D (section 823 (1)). – Has K on 2.4. through
Agreement and handover (§ 929 sentence 1) from V acquired ownership of the cupboard,
then he is entitled to the claims mentioned (case a, 2nd question).
The (“dynamic”) law of obligations is aimed at changing the current 8th
state, the (“static”) law of property at its preservation. The demand

aims at fulfilment, the right in rem at
mastery of the matter.
The purpose of the purchase contract is to exchange goods (cabinet for money;
§ 433). The owner of the closet can do with it as he pleases and exclude others from any
interference (§ 903).
The BGB distinguishes between the contractual (= obligatory) 9

obligation transaction and the material (= in rem) disposal transaction
(principle of separation). The debt contract (e.g. purchase) does not
change anything in terms of property law. The change of
Assignment of a thing to a person only occurs through transfer of ownership,
pledge etc.
In case b, V can still transfer ownership of the cabinet to K 1
(§ 929 p. 1), although the cupboard had already been sold to K. K 1 is through the
Assignment of V owner of the closet. K only has a claim for damages against V instead of
performance (§§ 280, 283; "§ 22 marginal note 49 ff.),
because V no longer fulfills his obligation from the purchase contract with K
can; because V is unable to transfer ownership, since he has ownership on K 1
transferred. K regularly has no claim against K 1; only under
the strict requirements of § 826 (intentional immoral damage2) there is a claim for damages.
2 Brox/Walker SchuldR BT Section 47.
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10 Even with the purchases of everyday life, the

(legal) purchase contract is distinguished from the (property) transfer of
ownership of the purchased item and the coins,
although in practice the transactions often coincide in time.
Example: K wants from a street vendor who sells a sports newspaper

purchase a copy. Without saying a word, he gives him a euro. This includes the offer
to conclude a purchase contract for a copy that
Offer to agree on the transfer of ownership of the coin and
to see its delivery. The dealer also hands the K without a word
a copy of the newspaper, he thereby accepts the purchase offer and the offer to
transfer ownership of the money. At the same time, he makes an offer to A – in
fulfillment of the contract of sale – to transfer ownership of the
Newspaper, which K accepts upon receipt.
11 The effectiveness of the property law does not depend on the

effectiveness of the contractual transaction; the same applies vice versa
(principle of abstraction).
Dispositions made even without a valid binding transaction

have been, can be reversed according to §§ 812 et seq
III. importance
12 The law of obligations contains the essential regulations for the on
Business transactions aimed at meeting requirements in private and
economic area. This primarily concerns transactions aimed at the
manufacture and exchange of assets (e.g. contract for work, contract of
sale). The most important contract types
are regulated in the special law of obligations (§§ 433 ff.). The Law of Obligations
also aims to compensate for unjustified transfers of assets (§§ 812 et seq.)
and to compensate for damage to persons
and goods (§§ 823 ff.).
The general law of obligations also serves the stated aims
(§§ 241-432). Namely, it includes the general rules applicable to everyone
Contracts ("§ 3 Rn. 2 ff.) and for the legal obligations
(" § 3 para. 10 ff.) can be of importance. For example, it contains provisions
on the establishment and expiration of obligations and on the legal
consequences of a disruption in the
settlement of such relationships should occur.
3 Brox/Walker SchuldR BT §§ 39 et seq.
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2nd chapter. Concept and delimitation

of the obligation
§ 2. Concept and delimitation of the obligation
Literature: Dassbach, Facilitation conditions in case processing, JA 2018, 1

575; Hadding, obligations to perform and disruptions to performance under
“modernized” law of obligations, FS Konzen, 2006, 193; Hammen, The legal
nature of the favourable, FS 400 years JLU Giessen, 2007, 435; Meyer Pritzl,
Die Naturalobligation, Ad Legendum 2018, 132; Schulze, Non-enforceable
performance requirements in civil law, JuS 2011, 193; Schur, Performance
and Diligence, 2001; Witt, Active protection of the interests of the other party
as a debtor's obligation, NJW 2012, 3130.
Case a: A takes his colleague B to work every day in his car in exchange
for a share of the petrol costs. On a Monday, A is late. B demands that he
compensate him for his loss of earnings. " Paragraph 29
Case b: A promises B that he will take him to the rifle festival in the
neighboring town in his car. Later he changes his mind. B requests promotion.
" paragraph 30
I. Term
The law defines the concept of the obligation in two ways
sense related:
1. Obligation in the broader sense
An obligation in the broader sense is a legal relationship

between at least two persons, by virtue of which at least one
person is obliged to perform (§ 241 Para. 1) and/or to consider
(§ 241 Para. 2) ("§ 1 Rn 2).
What is meant is the legal relationship as an "organism" from
which a whole series of individual claims (= claims = obligations
in the narrower sense) and obligations can result.
In a broader sense, the term is used, for example, in the title
of the second book of the German Civil Code (“law of
obligations”), in § 273, paragraph 1 (“unless the obligations result in another
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8th
res results”) or in § 241 para. 2 (“The obligation may obligate…”).
Examples: Come from the organism “purchase” or “rental”.

various individual claims (cf. Sections 433 et seq. and Sections 535 et seq.). – A company
(§ 705) can be a particularly complex organism (e.g. contributory,
obligation to cooperate and make additional payments; right to profit distribution,
reimbursement of expenses, settlement credit, etc.).
2. Obligation in the narrower sense

2 The law is referred to as an obligation in the narrower sense
on a performance (§ 241 Abs. 1 S. 1), the individual contractual
Claim, i.e. the claim of the creditor against the debtor.
The subject of the service can be a positive action as well as a
omission of the debtor (section 241 (1) sentence 2).
Examples: Payment of the purchase price of EUR 9,000 (§ 433 Para. 2), the rent
of EUR 1,000 for one month (Section 535 (2)); Refrain from competing business.
3 Most of the time, the law uses the term in the narrower sense. When
e.g. the heading of the fourth section of the second book of the
BGB says the lapse of the obligations, this means the cessation of the
claim; because if the debtor effects the performance owed (section 362
(1)), eg pays the purchase price, then
only the claim in question expires, but not the obligation in the broader
sense (purchase agreement). In the scientific
On the other hand, the concept of a debt relationship is often discussed in
used in a broader sense. To describe the obligation
in the narrower sense, the terms “claim” or “claim” are used
"Advancement".
II. Obligations of the debtor and right of claim

creditor
4 Every obligation in the broader sense contains at least one
obligation of the debtor. This can correspond to a claim on the part of
the creditor.
The law assumes that contractual obligations only
commit to one-off services. For obligations that are aimed at longer-lasting or repeated
services (so-called continuous obligation
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§ 2. Concept and delimitation of the obligation 9
relationships), there are special provisions (e.g. tenancy, lease, loan relationship; custody;
employment and corporate relationship). The contracting parties can
also draw up other contracts for continuing obligations. This is eg at
the successive delivery contracts iSd § 510 para. 1 No. 3 the case in which the
total quantity to be delivered is not certain from the outset (e.g. beer delivery contract between the
brewery and the innkeeper1), special features apply here
(See, for example, "§ 17 Rn. 12 et seq.). However, such relationships are not permanent obligations
Contracts, according to which an overall service defined from the outset is merely
is to be provided in several parts or installments (so-called partial delivery contracts within the
meaning of Section 510 Paragraph 1 No. 1, e.g. contract for the delivery of a multi-volume
encyclopedia2 and so-called installment transactions within the meaning of Section 506 Paragraph
3, e.g. installment purchase3).
1. Obligations of the debtor
a) Primary Obligations. The obligation can give the debtor a 5
impose a series of duties. These can be divided into different

categories. However, no uniform terminology has emerged. In part,
between main obligations and
various other conduct, ancillary, protective or due diligence obligations.
The wording of Section 241 and the explanatory memorandum of the
law4 suggest that a distinction be made between obligations to perform
and obligations to protect (see the overview in " Marginal 15).
aa) Performance obligations are those obligations of the debtor,
to which a claim right of the creditor corresponds (cf. § 241
Paragraph 1 sentence 1). They are independently actionable. The performance
can consist of an action or an omission (section 241 (1) sentence 2).
Whether an obligation can be enforced by legal action is determined by the

Agreement or the law (e.g. "may require"). If there is no clear provision, it must be determined
through interpretation whether the authors of the law or the parties wanted the law to be enforceable.
(1) Main performance obligations are those performance obligations 6

which are essential for the specific obligation, give it its character. In
the case of contractual obligations, they result from the agreement
between the parties (possibly in conjunction with the statutory definition
for the respective type of business) and in the case of statutory
Obligations (alone) from the law.
1 See also Brox/Walker SchuldR BT § 18 para. 20.

2 Brox/Walker SchuldR BT § 18 para. 17.
3 Brox/Walker SchuldR BT Section 18 para. 6 et seq.
4 See Bundestag printed paper 14/6040, 125.
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10 2nd chapter. Concept and delimitation of the obligation
Examples: In the case of a purchase, the seller (by contract) is responsible for
transferring ownership and handing over the item in a defect-free condition (Section
433 (1) sentence 1 and sentence 2) and the buyer for paying the purchase price
(Section 433 (2)) Committed. In the event of unjust enrichment, the debtor is obliged
(by law) to return what was illegally obtained (Section 812(1)).
7 In a mutual contract, the main performance obligations of the two parts

are in an exchange relationship. Sections 320, 326 have special legal
consequences (details "Section 13 marginal number 12 ff. and "Section 22
marginal number 29 ff.).
8th (2) All other independently enforceable obligations can be described
as ancillary obligations. They can be related to the proper provision and
use of one's own main service (ie to the creditor's interest in performance),
but they can also pursue a different, independent purpose (e.g. protection
of the creditor's interest in integrity). Whether and to what extent they exist
depends largely on the specific obligation.
Examples of ancillary obligations related to the main service: Seller's obligation to

dispatch, store or insure the purchased item; Obligation to provide advice or to
provide operating instructions; Furthermore, information and accountability obligations
(cf. " § 10 para. 8 ff.).
9 Such information and accountability obligations are expressly mentioned in contract
law as the duties of the agent in Section 666. Numerous other provisions refer to this
(examples from the law of obligations: §§ 675 para. 1, 681 sentence 2; 713). The
general legal idea can be derived from these provisions that these obligations apply
to every debtor who takes care of third-party affairs. They must be independently
enforceable; because only when the debtor has provided information and accounted
for is the creditor in a position, for example, to demand that the debtor return what he
has received.
Examples of other ancillary service obligations: Buyer's obligation to purchase

according to § 433 Para. 25 (at least as a rule), obligations of the person entitled to
service (employer) for health care and protective measures from §§ 617, 618.
10 Ancillary service obligations can be contractually agreed. Whether that

is the case must be determined by interpretation (§§ 133, 157). Some
ancillary obligations are expressly mentioned in the law (see, in addition to
Section 666, e.g. Section 402, Section 379 (1) HGB). However, they can
also result from Section 242. After that, the performance is like this
5 See Brox/Walker SchuldR BT § 2 marginal number 20.
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effect as good faith with regard to the custom of traffic requires.
bb) The obligations to perform under Section 241 (1) are offset by the 11
obligations to protect, some of which are also referred to as other
obligations of conduct, due diligence, consideration or ancillary obligations.
They are addressed in Section 241 (2). According to this, the content of
the obligation can be divided into each part with regard to the rights
legal assets and interests of the other party. This
Unlike the performance obligations, obligations are not independently
actionable; because the beneficiary has no right to their observation (cf.
the wording of § 241 para. 2 [obligation of
Debtor] in contrast to that of Section 241 (1) [right to claim
of the creditor]). However, they are not without importance. In the event of
If they are breached, the beneficiary may have a right of withdrawal (§
324) or a claim for damages (§§ 280 Paragraph 1, 282) – as is the case
with the violation of performance obligations
("§ 19 para. 9a and § 25 para. 3 ff.).
The duty to protect primarily serves the interests of integrity 12
of the other part. He is to be protected from harm done to him
of the performance of the obligation. In particular, the contracting parties
must behave in the settlement of the obligation in such a way that the
legal interests (including the assets) of the other party are not violated.6
Examples: The master painter who is contractually obliged to rent an apartment

wallpapering must not only carry out this work professionally, but
must also ensure that at work the furniture of the client
not be damaged. – Anyone who has an animal with a communicable disease
sold, the buyer must at least point out the risk of infection if he realizes that the
buyer is not aware of the risk. - The spectator of a football game has an obligation
to avoid disruptive acts like that
Refrain from "rushing onto the pitch" during play7 or firing pyrotechnics8 . -
According to § 241 paragraph 2, a contracting party may
not demand anything from the other contracting party that is not owed (e.g. payment
a purchase price not yet due); it must also not have any design rights (e.g
resignation), which (lack of reason for resignation) does not exist.9
A gambling-addicted visitor to a casino applies for protection against himself
yourself a game suspension and if this is granted by the casino, this results in
6 BGH NJW 2008, 2245.

7 OLG Rostock NJW 2006, 1819 f.
8 BGH NJW 2016, 3715 para. 11 man Mäsch JuS 2017, 261.
9 BGH NJW 2009, 1262. On the liability for damages due to a violation of this
Obligatory see also "§ 20 Rn. 14 and "§ 25.
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out the casino's duty to protect, to monitor compliance with the gaming ban
as far as is reasonable.10 In the
transfer transactions to protect their customers, if they are aware of the
imminent economic collapse of the recipient of the transfer or the recipient
bank
or if, based on concrete evidence, she suspects that you
Customer is to be harmed by a criminal offense committed by another
participant in cashless payment transactions.11
However, the duty of care must not be overstretched. So
a bank customer has no contractual entitlement, taking into account Section
241 (2), that his bank in its forms
uses an all-gender language (eg the account holder; the customer).12
After the general
Language use and language understanding is covered by a grammatical
masculine personal designation of each natural gender (generic
masculine). Therefore, the use of forms with male personal designations
does not discriminate against female customers
their gender. A right to use a gender-fair
Language also does not follow from the general right of personality (Art. 2
Para. 1 in conjunction with Art. 1 Para. 1 GG) and also not from other
bases of claims.
13 The content and scope of such duties to protect may vary depending on Art
and intensity of the obligation may be different.
In Section 241 (2), the protection obligations are not specified in more detail. In front
when it was introduced on January 1, 2002, they were derived from §
242.13 The case groups formed by case law and literature can still be referred to
before being resorted to.
In the case of continuing obligations (e.g. tenancy or lease), the

Protection obligations more pronounced than in such transactions, the
exhaust themselves in a one-time exchange (e.g. purchase). They are of
greater importance in the case of contractual obligations with a strong personal
bond between the parties (e.g. corporate or employment relationship).
Labor law in particular imposes very far-reaching protective duties on

the parties. This is why one often speaks of the duty of care (of the
employer) and the duty of loyalty (of the employee). from these designations
however, no special legal consequences may be derived. It deals
10 BGH NJW 2006, 362.

11 BGH NJW 2008, 2245 (2246).
12 BGH NJW 2018, 1671 Rn. 50 mAnm Omlor JuS 2018, 575; see Bachmann NJW
2018, 1648.
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Rather, it is a duty to protect, albeit a particularly far-reaching one. The

Federal Labor Court14 has from the consideration obligations of § 241 para. 2
derived from the principle of fair negotiation. According to this, when concluding a
termination agreement with an employee regarding the termination of the employment
relationship, an employer may not, for example, claim insufficient language skills
or exploit a physical or mental weakness of the employee ("§ 19 para. 9a).
The acceptance of duties to protect does not imply the existence of 14

performance obligations. The debt relationship can also affect
limit such obligations within the meaning of Section 241 (2). We're talking about here
an obligation without primary performance obligations. Such a
arises in particular through the commencement of contract negotiations, the
initiation of a contract and similar business contacts (§ 311 Para. 2, cic, "§ 5 Rn. 4
ff.). An obligation limited to protective obligations can also exist in relation to such
Persons arise who should not themselves become contractual partners

(§ 311 Para. 3, "Rn. 9).
Duties to protect within the meaning of Section 241 (2) can also exist if the contract is
ineffective. However, it must always be checked whether the reason for invalidity is not
also the acceptance of an obligation limited to protective duties
(minority, lack of power of representation).
b) Secondary Obligations. Of the primary obligations discussed so far 15

the secondary obligations must be distinguished. They turn out differently
than those not directly arising from the contractual obligation. They can do much
more only as a result of the disruption of primary obligations (performance or
obligations to protect) arise. They either come alongside the primary obligation (cf.
Section 280 (1) and Section 280 (2)) or in place of it (cf.
Section 280 (3) and Section 346).
Examples: If K has a claim against V for the delivery of a truck by May 15 at the latest,
after the end of this day the
primary obligation to perform (on handover and transfer of ownership) the secondary
Obligation to compensate for the damage caused by delay (§§ 280 Para. 1, 2, 286; "§ 23
para. 2 et seq.). If the wagon is destroyed before delivery through the fault of V,
then the latter is obliged to pay damages instead of transfer of ownership (§§ 280
paras. 1, 3, 283; " § 22 margin no. 49 et seq.). - If the master painter scratches the
cupboard in the above example (" margin no. 12) as a result of carelessness, he must pay damages
pay due to breach of protection obligation (§§ 280 Abs. 1, 241 Abs. 2; "§ 25
para. 3 et seq.).
14 BAG NZA 2019, 688 mAnm Bachmann/Ponßen NJW 2019, 1969 and Anm Boemke
JuS 2019, 1204.
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overview
Obligations from the debt relationship
primary duties Secondary obligations
Example: Compensation (§ 280 Section 1) in

the event of a breach of a primary obligation
Obligations to perform Protection

(enforceable, Section 241 (1)) obligations (not enforceable, § 241 Para. 2)
Example: Notice of danger
Main performance obligations Ancillary performance obligations Example:
Purchase price payment (§ 433 Para. 2)
main performance related other

Example: Provision of information (§ 666) Example: Health care (§ 617)
16 c) Obligations. The so-called obligations are to be

distinguished from the obligations just described of each
party to the contractual relationship towards the other party.
This is about “duties to oneself”. They only exist in their own
interest. Therefore, the other party cannot sue them, and
they have no secondary claim for their infringement. Anyone
who meets them only has to put up with legal disadvantages
if they ignore them.
Examples: "Duty" to mitigate damage pursuant to Section 254 ("Section 31 para. 36 et seq.),
obligation to examine and report defects pursuant to Section 377 HGB.
2. Creditor's right to claim

17 a) Demand as relative right. As a result of the obligation,
the creditor can – as seen – have a claim against the debtor
(section 241 (1)), and only against him. Therefore, the right
of claim is referred to as a relative right (" § 1 marginal no.
7).
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The buyer of a cupboard that has not yet been handed over has no rights against
anyone who tampers with the cupboard. suits him
only a right of claim against the seller (§ 433 Abs. 1 S. 1). He
is also not authorized to use the cabinet without or even against the will of the
to get the seller out of his apartment.
b) Enforceability of the Claim. The legal system gives that 18

Creditors have the option of enforcing their right to claim against
the debtor with the help of the state. The creditor can
Suing a claim against the debtor and from the judgment that
upholds the lawsuit, pursue enforcement against him.
If the seller does not deliver the cupboard sold, the buyer can bring an action
against him with the application that the seller should be ordered to pay the price
To transfer and hand over the cabinet to the buyer. Will the lawsuit
approved by judgment and the seller still does not deliver, so has
the buyer has the option of instructing the bailiff to carry out the enforcement. The
bailiff takes the cupboard away from the seller and hands it over to the buyer (see §§
883 para. 1, 897 para. 1
ZPO).15 The declaration of agreement by the seller required for the acquisition of property
according to Section 929 is deemed to have been made when the judgment becomes final (Section 894
p. 1 ZPO).16
III. guilt and liability

1. Definitions
Debt is the debtor's obligation to pay (= being obliged = 19
liability = obligation to perform; "Rn. 4 ff.). In contrast, liability
means that the debtor is subject to the
forced access by the creditor (" para. 20 et seq.).
However, the term liability is not used uniformly. Be liable
is also used in the sense of “to owe” (e.g. Section 840 (1)). 17 Liability is also often
used to refer to having to take responsibility for any damage caused (parents are
liable for their children; cf. Section 832).18
15 Brox/Walker Compulsory Full Rules, paras. 1052, 1121.

16 Brox/Walker Compulsory VollstrR Rn. 1111 et seq.
17 Brox/Walker SchuldR BT § 51 para. 13 et seq.
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2. Subject of Liability
20 If the debtor is also liable for his debt, i.e. he is liable to the
is subject to the creditor's grip, the question arises as to what he is liable for.
a) Liability with all assets. He is usually liable

Debtor not – as in earlier legal systems – with his person,
but with his entire assets (unlimited financial liability).
If the buyer does not pay the purchase price of EUR 9,000, the seller can obtain
a judgment and use it to enforce enforcement in the
Operate the debtor's assets: The bailiff takes money in
the stated amount away from the debtor, or he seizes movables (e.g. a
piano and two carpets), auction the objects and satisfy out
the auction proceeds to the creditor. The enforcement court seizes
and transfers a debtor's claim against a third party (often
Wage claim against the debtor's employer) to the creditor
confiscation; the third party pays the attached claim to the attached pledgee. A
debtor's property is auctioned off by the enforcement court. Details of the various
enforcement options
result from the ZPO and the compulsory auction law. As an exception, certain
assets are not subject to compulsory enforcement, namely objects that cannot be
attached according to Section 811 (1) ZPO19 ( e.g
such as a table, chair, bed, work equipment) that the debtor absolutely needs to live on
needs, and the non-seizable claims according to §§ 850 ff. ZPO20 , such as
a certain part of the earned income; the subsistence level should dem
debtor and his family are preserved.
21 Unlimited financial liability then helps the creditor

not if the debtor no longer has any attachable assets. for
it is safer for the creditor if he has a right in rem to an object
for his claim (liability in property).
Example: A bank gives its customer a loan of EUR 10,000. To the
Security for the repayment claim (§ 488 Para. 1 S. 2) orders
customer of the bank a lien on a valuable piece of jewellery
(§§ 1204 et seq.), a mortgage or a land charge on his property
(§§ 1113 ff., 1191 ff.). If the customer does not pay back the money, the bank can
let the piece of jewelery or the property be auctioned off and get out of the
satisfy proceeds.
19 Brox/Walker compulsory full-scale regulation, paragraph 276 ff.

20 Brox/Walker compulsory full-scale regulation, paras. 539 et seq.
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Not only the debtor, but also a third party can grant the creditor
such a security interest in an object belonging to him. Then the third
party is not the debtor
creditor, but he is liable to the creditor with the object.
b) Liability with part of the property. Exceptionally liable 22
for the debt not the entire debtor's assets, but only one
independent assets of the debtor (limited asset liability).
Example: With the death of the testator, his assets and

also his debts to the heirs (§§ 1922 para. 1, 1967 para. 1).
So if the testator owed the G EUR 3,000, the heir is now the debtor
this liability. The entire property of the heir is liable for this debt,
i.e. his personal (own) assets and the previous assets of the
testator (= estate). However, the law gives the heir the option
agrees to limit liability for said debt to the estate (§ 1975).21
c) Liability with the person. Does the debtor have an act 23

undertake which depends exclusively on his will (e.g. provision of
information, a certificate), and he does not come to that
after, he can be stopped by the court with a penalty payment or
compulsory detention (§ 888 ZPO).22 In the rare cases of detention,
our law still recognizes a liability of the
debtor with his person.
3. Blame Without Liability

A debt without liability is given if, although dated 24
Debtor fulfilled, but performance not enforced by creditor
can be. Since the guilt is not enforceable, but anyway
is not enforceable, one speaks of imperfect or natural obligations, of
natural obligations. Does he
If the debtor has paid, however, he cannot do what has been done to fulfill it
to be reclaimed from the creditor because of unjust enrichment (§
812), since the claim existed.
These natural obligations played a role in common law. 25
Today, very different things are summarized under this term.23 In
some cases, this means not taking legal action
21 Brox/Walker ErbR Section 37 marginal nos. 1 et seq., 11 et seq.

1076 et seq.
23 See Schulze JuS 2011, 193.
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enforceable claims (a), but also in some cases cases in which there
is no liability at all (b).
a) Statutory Claims. The statute-barred claim is actionable. The

creditor also receives a winning judgment if the debtor
does not assert the defense of the statute of limitations (see Section 214 (1)). The
creditor can use the judgment to enforce enforcement. raises the
However, if the debtor rightly raises the objection of the statute of limitations, the
action is dismissed. – However, what has been paid to satisfy the statute-barred
claim cannot be reclaimed (Section 214 (2)). Despite the statute of limitations
Creditors are not prevented from seeking satisfaction from the pledged object if there
is a lien or a mortgage (section 216).
26 b) game, bet, matchmaking. From game, bet, matchmaking

cannot be sued; in these cases no guilt arises at all
(§§ 762, 65624). However, what has been paid cannot be reclaimed
(Sections 762 (1) sentence 2, 656 (1) sentence 2). Since there is no requirement, you can
a right of lien cannot be effectively created.
IV. Relationship of Obligation and Relationship of Complacency
1. Demarcation
27 In contrast to an obligation, a courtesy relationship does not create
an obligation to perform the promised courtesy.
When A invites B to a meal or party and B accepts the invitation

accepts with thanks, B is not entitled to the food, to participation in the
Fixed; A is not legally obligated, only socially obligated.
28 The delimitation of the complacency relationship from the contract of obligation
is theoretically easily possible: The debt contract consists of two
Declarations of intent, i.e. from expressions of will, which are based on generation
are directed to a legal effect. With the purely social ones
Agreements lack the will to legally commit themselves.
However, what is wanted in individual cases is not always easy to
determine.
In case b, the car should be taken along as a courtesy; B

so cannot request promotion to the Schützenfest. However, a courtesy trip will not
be provided if a share in the costs has been agreed
present (case a). This also applies if two work colleagues agree
24 Brox/Walker SchuldR BT § 29 para. 77, § 34 para. 4.
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that not everyone drives individually to their place of work, but takes turns taking
the other with them. But if an employee who
does not feel able to work, from his work colleague during working hours
brought home by motor vehicle, this is usually the case
a favor without any legal commitment on the part of those involved.25
The gratuitousness may be an indication of a mere courtesy. However, such 29

a conclusion is not mandatory, since the law also recognizes free contracts,
i.e. contractual obligations (e.g
gift, loan, commission, safekeeping free of charge). At a
In the particular interest of the person to whom a promise has been made,
there will usually be an obligation, eg taking the neighbor along to an
appointment that is important to him; case a).
In case a, A is obliged to transport. Is he culpable for violating them?

obligation, he must pay damages (compensation for loss of earnings) ("§ 31
para. 15 et seq.).
2. Consequences of a Favor
If there is a mere courtesy, there is no entitlement to performance (e.g. case 30

b) and also no entitlement to damages
default. However, it can be done despite the lack of a main obligation to perform
Protection obligations (cf. § 241 Para. 2) exist, the violation of which triggers
claims for damages (cf. on the obligation without primary
Obligation to perform ", para. 14). Claims based on the law (e.g. from tort) are
also possible.
A haulier helps his business friend as a favour

with a driver, so he is not for hiring, but for
committed to careful selection.26
If someone is picked up by a car driver as a courtesy,

one cannot conclude from this alone that there is a tacit contract excluding the
driver's liability. The driver can before the start of the journey
expressly agree on a disclaimer; However, it should be noted that a person who is
not legally competent cannot make such a contract effective
can close (cf. §§ 105, 108).
On the other hand, statutory liability regulations for contractual relationships

cannot simply be reduced to a complacency agreement.
25 BGH MDR 1992, 555.

26 Cf. BGHZ 21, 102 = BGH NJW 1956, 1313.
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transferred if the contractual and courtesy relationship are

similar.
The borrower who allows a third party to use the item without being authorized
to do so is liable for the damage caused by the third party (cf. § 603 sentence 2).
However, this does not apply to the transfer of use as a mere courtesy.27
27 BGH NJW 2010, 3087.
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§ 3. Types of origin of obligations
An obligation can be created through a legal transaction, through a commercial 1

contact or by operation of law.
I. Creation through legal transaction
According to Section 311 (1), a contract is regularly required to justify a

legal transaction (as well as to change the content) of an obligation; in
exceptional cases, a unilateral legal transaction is sufficient.
1. Creation by contract
A contractual justification of the obligation requires one another

corresponding declarations of intent (offer and acceptance; §§ 145 et seq.).
According to the obligations arising from the contract,

to distinguish:
a) Mutual Contracts. Mutual contracts exist when one party promises a 2

service precisely because the other party is also committed to a service. They
are also called synallagmatic (exchange) contracts because their main
performance obligations (" § 2 marginal number 6) are in the exchange
relationship.
Examples: purchase (picture against payment of EUR 5,000), exchange (horse

for car), rental contract (transfer of use against payment of rent), lease contract
(restaurant against lease), service contract (service as a temporary waiter for a
fee of EUR 400), Contract for work (repair of a car for a fee of EUR 300).
The special feature of these contracts is the mutual dependence of the

mutual main obligations to perform and to provide consideration. One party to
the contract can refuse to perform until the other party renders the consideration
(details:
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22 3rd chapter. creation of debts
§§ 320-322; " § 13 para. 12 et seq.). If one party does not perform or

not correct, it will possibly be entitled to the
Consideration influenced (§§ 323, 326; " § 22 para. 29 et seq. and " § 23
para. 67 et seq.).
3 b) Imperfect bilaterally binding contracts. Incomplete bilaterally

binding contracts exist, if only for
a part of the contract may be subject to performance obligations
but there is also an obligation for the other party to the contract
can. One speaks of random bilateral contracts.
Examples: In the case of an order, only the agent is necessarily obliged (§ 6621).
In individual cases, however, the customer may also be obliged
namely for reimbursement of expenses (§ 670); this is not a payment for the service
provided by the agent. The contract for safekeeping free of charge contains only one
obligation of the safekeeper (§§ 688, 690); but if the latter has incurred expenses, the
depositor must reimburse them (section 6932). subject of
loan agreement is the obligation to provide free use
(§ 5983); Obligations of the borrower can result from §§ 601 et seq.
4 c) Unilaterally binding contracts. Unilaterally binding contracts

exist when only one contracting party is required to perform
is obliged.
Examples: promise of donation (§ 518),4 guarantee (§ 765).5
2. Creation through unilateral legal transaction

5 In exceptional cases, an obligation can also be established by a
unilateral legal transaction. There are two examples of this
calls:
a) Claim. Claim (§ 657) is the publicly announced promise of a

reward for taking an action (e.g. newspaper advert: Black poodle
named Prince escaped.
Bringer gets 200 EUR reward.). The one who the
Taking action (bringing about success) has a claim
to the reward, even if he did not act with regard to the award
(section 657 old).

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§ 3. Types of origin of obligations 23
b) Legacy. Legacy (Sec. 1939) is that in a disposition 6

grant of a pecuniary benefit contained mortis causa,
which is not the appointment of an heir (e.g. will: X is my heir; V should
have my piano). For the legatee, the right
justified to demand the performance of the bequeathed object from the
complainant (§ 21746 ; in the example case, therefore, V according to the
death of the testator, a claim against X for transfer of title
pianos).
3. No occurrence due to unsolicited delivery or other

performance7
If an entrepreneur (Section 14) delivers movable property (Section 7

90) to a consumer (Section 13) or renders services of another kind (e.g
services) without being based on an order
an offer according to § 145 for the conclusion of a contract can regularly
be seen therein. This alone creates a contractual claim and
thus not establishing a contractual obligation (§ 241a
paragraph 1); rather, a declaration of acceptance is required for this.
§ 241a is not mandatory to the detriment of the consumer and finds
also applicable if its validity is to be circumvented by other arrangements
(section 241a (3)). On the other hand, § 241a applies
not in the case of the provision of unsolicited services to an entrepreneur;
here, a contract can come about through express or implied behavior of
the recipient (e.g. acts of appropriation).8
The definition of goods in § 241a as "movable property which is not due to
enforcement measures or other judicial
Measures are sold”, takes into account the terminology of the Consumer Rights
Directive 2011/83/EU of October 25, 2011.
Section 241a is only relevant in those cases in which, pursuant to Section 151, a
contract would come into being simply through the mere act of accepting the will – for
example through appropriation (signing the book) or use (of the dress). In a mere
silence of the offeree is namely
already according to general principles not to see the acceptance of a contract.
Despite Section 241a (1), the consumer has the option of
to declare acceptance of the offer to the entrepreneur expressly or implicitly (e.g. by
paying the purchase price).
6 Brox/Walker ErbR Section 27 para. 2 et seq.

7 In this regard, Köhler JuS 2014, 865, which advocates a guideline-compliant (restrictive) interpretation
§ 241a pleaded; on the other hand Jäckel/Tonikidis JuS 2014, 1064.
8 See Scherer NJW 2020, 3273.
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8th
An unordered service iSd § 241a paragraph 1 is also present if the
consumer instead of the ordered one of equivalent quality and price
performance is offered and he is advised that he is up for acceptance
is not obliged and does not have to bear the costs of the return.
The different regulation in § 241a paragraph 3 old version was effective as of
13.6.2014 deleted because it was not compatible with the Consumer Rights Directive.9
If the entrepreneur sends the consumer a
who wants to offer something of equal value in terms of quality and price remains with him
have no choice but to obtain the consumer's consent prior to shipment. Otherwise it is an
unsolicited service
Within the meaning of Section 241a Paragraph 1.
9 Section 241a (1) not only includes contractual but also statutory claims such as the
return of the item (sections 985, 812) or any use within the meaning of section 100
(sections 987 f., 818) and compensation for damages (sections 989, 990 or
§§ 311 paragraph 2, 280, "§ 25 para. 11 ff.). The consumer does not become the owner
of the thing, but can nevertheless deal with it as he pleases.
However, an exception applies according to § 241a paragraph 2 if the service is not for
intended for the recipient or in the erroneous notion of an order
has taken place and the recipient has recognized this or could have recognized this by
exercising the due diligence required in traffic ("§ 20 para. 14).
II. Creation by operation of law
10 Obligations can also be immediate without a legal transaction

arise by operation of law.10 Four important groups of facts
are regulated in the law of obligations:
1. Business contact
Pursuant to Section 311 (2), a non-primary obligation arises

Performance obligations, but with protection obligations according to § 241 paragraph 2
– the start of contract negotiations (No. 1),
– the initiation of a contract in which one party advises the other with
regard to a possible legal relationship
Part the possibility to influence his rights, legal interests
and interests granted or entrusted to him (No. 2),
– similar business contacts (No. 3).
11 If one of the parties violates his/her obligations under Section 241 (2),
he beyond the provisions of the law of torts (BS §§ 40 ff.) Scha
9 Bundestag printed paper 17/12637, 45.

10 See an introduction by Röthel JURA 2012, 362.
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be liable for damages, even if a contract has not yet been

concluded (liability from culpa in contrahendo; details: " § 25
para. 11 ff.).
Example: K would like to shop in department store V. There he slips on a banana
peel that the otherwise reliable employee A left lying there. Section 831 (1) sentence
1 does not apply here because of the possibility of exculpation of the V under Section
831 (1) sentence 2. There is no contractual connection between K and V; but there is
already an obligation of the business contact, due to which V is liable to K for damages
according to §§ 280 paragraph 1, 311 paragraph 2 in conjunction with § 278.
2. Tort The §§ 823 et

seq. determine an obligation to compensate for attributable 12
damage; the claim of the injured creditor is for compensation
for the damage caused unlawfully and culpably.11
Examples: Someone willfully breaks someone else's window panes. A driver drives
too fast on black ice, runs onto the pavement and injures a pedestrian.
3. Unjust enrichment If someone

has gained a pecuniary advantage at the expense of another 13
without a legal reason, this transfer of assets is to be reversed
according to §§ 812 ff.12
Examples: X's herd grazes in Y's meadow. This saves X feed costs and Y suffers a
loss of assets. This transfer of assets takes place without a legal basis (e.g. concession
agreement). – A transfers ownership of a picture to B. It later turns out that the contract
of sale on which it is based is void or has been destroyed by rescission. A can demand
retransfer of the picture from B according to § 812.
4. Business management without

a mandate If someone takes care of a business for another 14
without being commissioned by him or otherwise entitled to do
so, then a legal obligation arises from which obligations can
arise for both parties (§§ 677 ff.).13
11 Brox/Walker SchuldR BT §§ 44, 45.
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Example: A driver who takes a seriously injured person to the hospital at his
request can demand reimbursement of his expenses (travel expenses, first-aid
materials) from the injured person in accordance with Section 670; because a
contract (order) has come about between the two. However, a contract cannot
be concluded if the injured person is unconscious. The claim for reimbursement
of expenses results from the statutory obligation of the management without a
mandate (§ 683).
GoA
677
(§§
ff.)
law
by
manufactured
unfairly
812
(§§
ff.)
sided
one- enrichment
transactions
legal
Claim
657)
(§
–
Legacy
1939)
(§
–
823
(§§
tort
Act
ff.)
sided
one-
mandatory
Contracts
765)
518,
(§§
Business
(section
contact
311
(2))
creation
debts
of
obligatory
bilaterally
imperfect
contracts
tend
598,
(e.g.
688)
662,
be
§§
to
transaction
through
legal
contracts
mutual
535,
433,
(e.g.
631)
611,
§§
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III. Concurrence of legal transactions and

legal obligations
Legal and statutory obligations 15
can meet. A claim can therefore possibly be based on
several bases for a claim (so-called
claim basis competition). A claim for damages, for example,
can often be derived from the contract (because of poor
performance) and from the provisions on tort (e.g. due to
bodily injury or property damage).
Example: During an inspection of G's vehicle, master mechanic S adjusts
the brakes incorrectly. During the subsequent journey, G
therefore an accident in which he was injured and severely damaged the vehicle
will. G can claim his damages (medical expenses, loss of earnings, repair costs
for the vehicle) totaling EUR 10,000 from S. the
Claim is due to culpable poor performance of the work contract
as well as due to tort.
If there are several bases for a claim, then they must 16
all be checked. This applies both to the coincidence of a
legal and a legal obligation
even if there are several legal obligations at the same time
(e.g. due to tort and unjust enrichment).
In the case of the example, both contractual and legal claims must be
discussed. If it turns out, for example, that the contract for work is void
is, then the claim from § 823 paragraph 1 remains in any case, the no
contract required. – If the facts from which the accusation of fault arises are
disputed in a lawsuit between S and G, the claim can only be based on the
contractual basis for a claim if the facts of the matter cannot be elucidated,
because according to Section 280 (1) sentence 2 that
fault is suspected.
Has his journeyman X concluded the work contract with G for S and carried it through
improper work caused the accident, G can against X as well
also take action against S. However, there are only claims against X based on
tort (§ 823) and not based on a contract; because X has the work contract
not in his own name, but as a representative of S in his name. Contractual
partner of the G is therefore only S (§ 164 para. 1). This one has dem
G for a fault of X from contract (§ 278; " § 20 para. 23 ff.) and for own fault
from tort (§ 831 paragraph 1 p. 114) .
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But if S proves that he carefully selected and monitored X, then

a claim from tort (§ 831 Abs. 1 S. 2) lapses, while
his contractual liability remains unaffected.
17 The foregoing discussions have shown the importance of
investigate the basis of claims. Even the judge has questioned everyone
to think through future bases of claims. He may not take evidence about
disputed facts if the action has already been taken after another
norm is to be granted, the actual requirements of which are undisputed.
It would be wrong, for example, to take proof of G's claim against S for
reimbursement of the repair costs for the damaged vehicle as to whether S
who X has carefully selected (section 831 (1) sentence 2) if it is certain that a
valid work contract has been concluded between S and G; because of
§ 278, the claim can be granted on the basis of the undisputed facts. Without
examining the contractual claim, the judge would have
Legal dispute may have been wrongly decided, but at least the decision was
delayed and the parties caused unnecessary costs through the taking of
evidence.
§ 4. Justification of debt contracts
1 Literature: Hennemann/Nemeczek, The form requirement of contract

changes, ZGS 2011, 157; Hoffmann/Stegemann, The party autonomy in the
international law of obligations, JuS 2013, 207; Kaulbach, Type Compulsion
in the BGB?, JuS 2011, 397.
Case a: The waterworks refuses to supply a newcomer

water, the only pharmacy selling an essential drug, the only cinema allowing
admission. Rightly? " paragraph 10
Case b: V sells property to K in a notarial deed. Later poses
turns out that the installment payment agreement is not notarized. Since that
Property in the meantime ceded to K and K entered in the land register
is, V demands retransfer from K. " Paragraphs 21, 23
Case c: A undertakes in a written contract to give B his entire assets, including
all assets and liabilities, for a payment of EUR 30,000
transfer. Valid? What is the legal situation if A sells his assets in five years' time
in a notarial deed? " Paragraphs 15, 26
I. Contract of Indebtedness and Freedom of Contract
An obligation can arise from a contract (section 311 (1)).

The contract that establishes an obligation is referred to as
an obligation contract.
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§ 4. Justification of debt contracts 29
The conclusion of the contract usually avoids that a

party is burdened by particularly unfavorable obligations. the
Contracting parties pursue - especially in the case of mutual contracts ("§ 3
para. 2) - opposing interests: The seller e.g
wants to achieve the highest possible purchase price, the buyer against it
pay as little as possible. A contract is concluded when
both parties set back their goals and eventually settle on one
middle price agree. This adjustment regularly achieves fair outcomes in the
contract mechanism when both
parties are roughly equal in strength. That is why the legislature of
BGB based on the principle of freedom of contract.
Freedom of contract is constitutionally guaranteed and means that the
individual is free to decide whether and with whom to enter into a contract
(freedom of conclusion) and what the content of the contract is
agreed with the contractual partner (freedom of design).
1. Freedom of Contract and Constitution
a) Constitutional protection and limitations on contractual freedom. The 2

freedom of contract is included in the fundamental right to free personal
development (Art. 2 Para. 1 GG), since this
fundamental right that freedom of contract is a mandatory prerequisite. The
basic legal norms are not mere propositions, but immediate
applicable law (Art. 1 Para. 3 GG), to which the legislature is also bound.
He can only under the conditions of Art. 2 Para. 1 GG 3

limit freedom of contract. According to this provision, everyone has this
Right to free development of his personality, insofar as he does not
Infringes the rights of others and does not violate the constitutional order or
the moral code. Rights of others are enforced
practically does not violate the debt contract, since the contracting parties
only oblige themselves and not third parties to perform
be able. Contracts that violate the moral law are after
§ 138 paragraph 1 void. On the constitutional order within the meaning of Art. 2
Paragraph 1 of the Basic Law does not already include all laws that have
formally been passed; because then every restriction of the freedom of
development would be possible through a simple law. What is meant by this
is much more only those laws that are both formal and material
consistent with the Constitution, particularly the supreme
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basic values of the free democratic basic order

object.1
4 b) Significance of the constitution for the exercise of contractual

freedom. When exercising the freedom of contract existing thereafter
the parties are not bound by fundamental rights. The Fundamental Rights
should only protect the citizen from state power, but not
have a direct third-party effect in the relationship between citizens
(exception: Article 9(3) of the Basic Law). This view corresponds to the
classic theory of basic rights and the history of the origin of the Basic
Law.
If, for example, the principle of equality in Art. 3 GG only applies to the state, but not
binds the individual, then he is not prevented, for example, particularly favorable to
those contractual partners who share his political views
agree to the terms of the contract. On prohibited unequal treatment
According to the General Equal Treatment Act (AGG), see "Rn. 9.
5 Since the GG in its fundamental rights section also has an objective

system of values that applies to our entire legal system
is binding, the basic legal standards of value have an effect on the
so-called general clauses (e.g. Sections 138, 242, 826) indirectly affect
private law and thus the legal relationships between private individuals.
Dogmatically, this effect of fundamental rights is becoming increasingly relevant today
the protective order function of fundamental rights explained. After that is the
Legislators (alternatively the judges) are obliged to create precautions in
civil law to protect fundamental rights against contractual impairments,
especially if there is no approximate balance of power between those
involved.2
For example, a contract in which someone asserts their freedom of conscience is void
can buy. However, the nullity is not directly effected by the fundamental right under
Article 4.1 of the Basic Law; rather, it follows from Section 138 below
Consideration of the value of Art. 4 para. 1 GG.
2. Freedom of Agreement
6 a) meaning. The freedom to contract gives the individual the

opportunity to decide whether to enter into a contract at all and with
whom.
1 Cf. BVerfGE 20, 150 = NJW 1966, 1651.

2 BVerfGE 81, 242 (255 f.) = NJW 1990, 1469 (1470); 89, 214 (232); 98, 365 (395); BGH
ZIP 2013, 304 (306) (social balance of power required).
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He is free to sell his painting or not. He is not obliged

to accept the cheapest offer or the first offer from among several.
In certain cases, this principle is restricted by prohibitions and
orders to enter into transactions.
b) Prohibitions on conclusions. Completion bans are, for 7

example, the statutory employment bans. For example, young
people (between the ages of 15 and 18, Section 2 (2) JArbSchG)
may not be entrusted with certain dangerous or unhealthy work
(cf. Sections 22 et seq. JArbSchG). Contracts that violate such a
statutory prohibition are void under Section 134.
In certain cases, the validity of the contract is made dependent on government
approval. The contract is pending ineffective until approval; if the approval is refused,
it is void.
Example: Contract for the sale of agricultural or forestry property (Property

Transactions Act).
c) Closing Bids. Contract bids are laid down in a series of laws: 8th
The legislature requires acceptance of a specific contractual offer

(compulsory contract).
Examples: Section 22 of the Passenger Transport Act (Sartorius No. 950), Section
18 of the Electricity and Gas Supply Act (EnWG, Sartorius No. 830).
For certain companies, a contract may result from the prohibition

of discrimination in Section 20 (3) GWB. If the refusal to conclude
a contract is to be regarded as an unreasonable handicap or
different treatment and thus as discrimination within the meaning
of Section 20 (3) GWB, the prohibition of such discrimination
results in the requirement to conclude the required contract.
Furthermore, the freedom of contract is restricted by the General Equal Treatment 9
Act of August 14, 20063 (AGG) .4 This act implemented four EC directives5 against
discrimination in labor law and civil law. Due to the AGG, employers, suppliers of
goods or services, landlords and insurance companies are no longer free to choose
their contractual partners. In principle, the selection is not allowed
3 BGBl. I 1897; entered into force on August 18, 2006.

4 From the extensive literature, see Armbrüster/Wollenberg JuS 2020, 400.
5 Anti-Racism Directive 2000/43/EG of June 29, 2000; Framework directive 2000/78/EG from
27.11.2000; Equal Treatment Directive 2002/73/EG of September 23, 2002; Equal Opportunities
Directive 2004/113/EG of December 13, 2004.
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more for reasons of race or ethnic origin, gender, religion or belief, disability, age
or sexual identity (§§ 1, 2 Abs. 1 Nr. 1, 8 AGG). However

§§ 8-10, 20 AGG provide for exceptions.
In labor law, according to § 8 paragraph 1 AGG, a distinction is made according to one
of the above criteria is permissible if this represents an essential and decisive
occupational requirement (Asian waiter in a Chinese restaurant). A differentiation
according to age is permitted according to § 10 AGG,
if they are objective and reasonable and justified by a legitimate aim
(e.g. linked to a minimum level of professional experience and thus indirectly
also to age).
According to § 19 paragraph 5 AGG, such contracts are not subject to civil law
mentioned bans on discrimination, in which there is a special closeness or trust
between the contractual partners or their relatives
is justified (the homeowner rents a granny flat on the
self-occupied house). Apart from that, most of the bans on discrimination (apart
from race and ethnic origin) apply in accordance with Article 19 Paragraphs 1, 2
AGG only for mass transactions (e.g. with hotels, restaurants, department stores,
Rental companies) and insurance contracts under private law.
Even with these, corresponding distinctions are permissible in accordance with
§ 20 AGG if there is a factual reason for this (e.g. avoidance of danger, protection
privacy, support for typically underperforming groups).
10 In addition, an obligation to contract can result from §§ 826,

249: If the rejection of a contract offer satisfies the facts
an immoral damage, which according to § 826 for damages
obliged, it follows indirectly from this that there is an obligation to accept the
offer. Thus, case law has affirmed an obligation to contract if
someone has a monopoly position and therefore only with him
a contract can be concluded. It doesn't matter if it is
it is a corporation under public law or a company under private
law. Recently, rightly will not
on the monopoly position, but on whether there is a public
supply task that is in the general interest of
is to be obtained from the company (supply of vital
goods, case a: water, medication, not going to the cinema).
11 d) Sovereign dictated contracts. In the past, the law also

knew cases in which by act of sovereignty, i.e. not through
Declaration of intent to bring about the effects of a contract (so-
called dictated contracts).
Example: In the case of a divorce, the judge could, on the basis of the
31.8.2009 household goods regulation in favor of one of the divorced spouses
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justify a tenancy of the previous marital home (§ 5 of the former Household Council
Ordinance).
Here the contract principle was abandoned. Rather arose

by state act of sovereignty a legal relationship, which otherwise
was subject to the rules of private law (e.g. the rental agreement). The
dictated contracts played a role above all in times of forced management;
their importance has steadily decreased with the dismantling of the forced
economy.
The household goods regulation came into force on September 1st, 2009
§§ 1568a, 1568b and §§ 200 ff. FamFG replaced. According to Section 1568a
a spouse now has a right to transfer of the marital home,
and by virtue of the law, with the legal force of the court decision in the
apartment allocation procedure, he enters into that of the other
tenancy established by the spouse or he uses one of both
established tenancy alone. However, there is no longer a judicial legal
structure for the tenancy.
3. Freedom of design
a) Principle. The contracting parties are free to determine what the content 12
of the contract should be. So you do not need to select a type of contract that
is regulated by law (e.g. Sections 433 et seq.). This
Freedom of types in the law of obligations is explained by the fact that the
Debt contract regularly just about the interests of the contracting parties
himself goes. Where the interests of third parties are involved, the
There are limits to the design freedom of the parties.
Examples: Rights in rem can only be in the legally provided

Forms (ownership, right of lien, mortgages, land charges, easements) are established
(compulsory type in property law). – In the articles of association, the parties are
generally free to shape their internal relationship (between the parties); on the other
hand, are in the external relationship
(towards third parties) the legal provisions are generally mandatory.
In principle, the parties to the debt contract can agree 13

conclude an atypical contract, the essential element of which is not
of the regulated contracts (e.g. energy supply contract). Often
there is a mixed contract that contains the elements of different contract
types.
So the contract for a lunch in the inn consists of elements

the purchase (of the food), the rent (of the crockery) and the contract of service
(servicing).
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14 Even if the parties choose a certain type of contract,

they can waive individual legal rules.
Example: The law gives the buyer in the event of a defect in the purchased item
(§§ 434, 435)6 the rights from § 437. The buyer can give priority to supplementary performance
demand in accordance with Section 439 (Section 437 No. 1). If the deadline set for
subsequent performance has expired without result or if setting a deadline is
unnecessary in exceptional cases, the buyer can choose to withdraw from the contract
or reduce the purchase price (§ 437 No. 2) and claim damages or reimbursement of
expenses (§ 437 No. 3). However, the parties can agree, for example, that
withdrawal is excluded and the reduction should also be considered without an
unsuccessful attempt at repair by the seller. A contractual exclusion of warranty
rights is also possible (limit: §§ 444,
476 paras. 1, 3)7 .
14a The parties to international treaties can even agree which

national law should be applicable to the contract.
If you make use of this so-called freedom to choose the
law, you save yourself the often complicated search for the
Contractual relationship applicable legal system.8
15 b) Legal restrictions on freedom of design. Just
in exceptional cases, the freedom of design is limited by
mandatory legal provisions.
A contract that violates a legal prohibition or against good morals
ten is void (§§ 134, 138).
An obligation about the future property of a contracting party
or the estate of a surviving third party is void (see § 311b
Paragraphs 2, 4; Case c, 2nd question).
Sections 276 (3) and 444 prohibit certain to protect a contractual partner
Releases of Liability.
The provisions on the design of contractual obligations through general terms and
conditions also contain restrictions
of freedom of design (§§ 305 ff., "Rn. 28 ff.).
In addition, there are also numerous mandatory ones in tenancy and labor law
Provisions that are not waived to the detriment of the socially disadvantaged
(e.g. regulations on protection against dismissal, minimum vacation).

7 Brox/Walker SchuldR BT § 4 para. 31a et seq.
8 Hoffmann/Stegemann JuS 2013, 207.
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For the choice of the applicable law in international contracts in

EU area, the borders result from the European regulation on
the law applicable to contractual obligations (so-called Rome I VO).9
4. Freedom of form
a) Principle. In principle, any contract can be concluded informally. Oral 16

explanations are sufficient. A specific body movement is also sufficient if a
declaration of intent can be derived from it (e.g. raising a hand or nodding
the head as a
acceptance of an offer).
b) Compulsory form in exceptional cases. Exceptionally then 17

a formal requirement if it is provided for by party agreement or law.
aa) The contracting parties can determine the validity of the contract from
make the observance of a certain form dependent to a
to secure proof required later and/or a larger one
achieve legal clarity. If the form is not observed, the
Contract void in case of doubt (§ 125 Sentence 2).
bb) The law prescribes a form in specially named cases 18
of the contract or only one of the two declarations of intent. The legislative
reason for this is usually the preservation of evidence or the
Protection against haste.
If, for example, § 550 requires the written form for a rental agreement that is
concluded for longer than one year, this is primarily intended to provide evidence of
the content of the contract is secured; this is especially so when selling
of the rented living space is important for the purchaser, who assumes the rights and
obligations of the landlord instead of the landlord (section 566)10.
In the case of a guarantee agreement, only the guarantor's declaration of intent is required
Written form (§ 766 Sentence 1). This is to protect him from haste.
He does not need this protection if he fulfills the main obligation
has (§ 766 S. 3) or if he is a merchant (§ 350 HGB)11.
The law provides for special forms: the written form 19
(Section 126), the electronic form (Section 126a), the text form (Section 126b)
the public authentication of the signature (Section 129; protection against forgery
the signature) and the notarial certification (§ 128; cf. also
9 VO (EG) No. 593/2008 from 17.6.2008, ABlEU No. L 177/6.

10 Brox/Walker SchuldR BT § 12 para. 5 ff.
11 Brox/Henssler HandelsR para. 383.
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Section 127a). If the legally prescribed form is not complied with,

the contract is void (section 125 sentence 1).
20 c) Form of notarial certification. The General Law of Obligations writes

a notarial certification of the whole in three cases
Mandatory contract (§ 311b para. 1, 3, 5).
aa) Section 311b contains the most important formal requirement in practice
Paragraph 1 sentence 1 for such contracts that contain the obligation to
transfer ownership or to purchase a property. Meant
are therefore the obligatory transactions (e.g. purchase, exchange), not the
Disposal transactions (e.g. contract of transfer).
How ownership of the property is transferred results from property law (transfer
and registration, §§ 925, 873). What requirements
must be given so that the purchaser is entered in the land register as the owner, is
determined by the land register regulations (cf. §§ 13, 19, 20, 29, 39
GBO).
Not all obligatory transactions that refer to a property fall under § 311b
paragraph 1. For example, a rental or
Lease agreement for a property no obligation to transfer ownership or to
purchase the property. Therefore, an agreement with which the parties to
a property purchase agreement
Restricting the ability to use the property (e.g. prohibition
milk processing), form-free possible.12
21 The purpose of the formal requirement is to secure the evidence and to
protect against haste. Evidence can only be preserved if the entire
contract, including the obligations to perform in return and all ancillary
agreements, has been authenticated. It is not enough
that the notarised contract refers to non-authenticated installations (e.g.
building plans) (cf. §§ 13 Para. 1, 13a BeurkG).13
According to §§ 125 S. 1, 311b
Paragraph 1 sentence 1 void; then in case of doubt the entire contract is void
(§ 139, case b). In individual cases it can be against good faith
(see "§ 7) violated if a party on the formal nullity
vocation.14 According to case law, however, there are strict prerequisites
for this: the failure of the legal transaction due to the lack of form
must lead to a result that is relevant to the party concerned
is absolutely intolerable (e.g. threat to existence or particularly
12 BGH NJOZ 2020, 487 Manm Omlor JuS 2020, 564.

13 BGHZ 74, 346 = NJW 1979, 1496.
14 Cf. BGHZ 92, 164 (171) = NJW 1985, 1778.
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serious breach of duty of loyalty)15. If a lower than the verbal agreed

purchase price is recorded, for example because the parties
want to save real estate transfer taxes and fees in this way, so
is the notarized contract as a sham transaction (§ 117 Para. 1) and the
wanted due to lack of form (§ 311b Abs. 1 S. 1) void.
Section 311b (1) is intended to protect not only the seller but also 22
the acquirer. Therefore also requires the obligation to acquire
of a property, in particular a so-called prospective purchaser contract, in
which the buyer undertakes to accept a later offer to sell the
to accept the property seller, the notarial deed.
If someone authorizes someone else to conclude a contract for the sale of real
estate, the authorization itself does not require any form
(Section 167 (2)). However, if it is irrevocably granted, it must be notarized in
accordance with the protective purpose of Section 311b (1).
If, in the case of a non-formal sale or purchase contract, the parties 23

have declared their conveyance (§ 925) and the entry in the land
register has been made, then protection against
haste no more. Therefore, according to § 311b paragraph 1 sentence 2
Lack of form remedied by (valid) conveyance and registration.
With the transfer of ownership, the sale contract, which is not or not
fully certified, becomes effective in its entirety (including all
ancillary agreements) apply (case b). If a lower purchase price is
documented than the parties agreed upon, healing occurs
of the formal defect if the property is passed on to the buyer and the
latter is entered in the land register as the owner. the
The buyer is thus obliged to pay the purchase price that was only
verbally agreed.
§ 311b paragraph 1 sentence 2 heals according to the wording and meaning only the formal defect.
In the case of so-called doubly void contracts, other deficiencies in the causal
transaction, such as nullity due to the contractual incapacity of a contractual partner
or the ineffectiveness based on a general terms and conditions content check,
not healed.16 Furthermore, the transfer and registration do not lead to the conclusion
of a formally effective contract if the invalid offer to conclude the contract had already
expired due to a late declaration of acceptance pursuant to Sections 146, 148.17
15 BGH NJW 2004, 3331; 1998, 2350.

16 BGH ZIP 2016, 2069 para. 30 mAnm Riehm JuS 2016, 935.
17 BGH ZIP 2016, 2069 para. 29 et seq.
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24 The annulment of a property purchase agreement must be

notarized if the buyer has already become the owner of the property;
because then he is for the retransfer of the
obligated to property.
In other cases (e.g. if the conveyance has been declared and the buyer
has submitted an application for entry or a priority notice has been entered for him),
the contract can be canceled informally.18
25 bb) Contracts in which a contractual partner undertakes

to transfer his current assets or a fraction thereof or to encumber
them with a usufruct must be notarized (§ 311b para. 3). This
standard aims to protect
before haste.19 For the application of § 311b paragraph 3 it comes
depends decisively on whether, according to the will of the party, the assets as
such is to be sold. However, if the parties only want to transfer
individual items, the obligation contract is required
even if these objects are objectively the whole
represent assets of the seller.
The formal requirement relates to the obligation transaction, not the disposal
transaction. Fulfillment of the obligation contract becomes – different
as with § 311b paragraph 1 sentence 2 - the lack of form not healed. The law
knows no general principle of healing form defects, and
Special regulations such as Section 311b Paragraph 1 Clause 2 and Section 518 Paragraph 2 can be
special purposes does not apply to the non-formal transfer of assets
be applied.20 Items that have already been transferred can be demanded back
according to Section 812.
26 Section 311b (3) deals with the contract that requires a formal
form for the current assets. On the other hand, the commitment contract
on the future assets are void in any case (section 311b (2)).
The reason for this lies in the fact that no one gives up their earning
capacity and thus any drive to earn their own money
shall lose.21
In case c, 1st question, the contract is null and void according to §§ 311b paragraph 3, 125 sentence 1
(current assets); the nullity results from the second question
§ 311b paragraph 2 (future assets).
18 Rightly so Reinicke/Tiedtke NJW 1982, 2286; see also Pohlmann DNotZ 1993,
355; Eckardt JZ 1996, 934; different but BGHZ 83, 395.
19 months II, 188.
20 BGH NJW 2017, 885 para. 11 f.
21 months II, 186 f.
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cc) Section 311b (5) contains a further formal requirement for contracts 27
among future legal heirs about their inheritance or compulsory portion.
However, a contract of obligation regarding the estate of a third party who is still alive
is normally void (§ 311b Para. 4; the same applies to the contract
about the compulsory portion or a legacy from the estate of a still living
the third). No one should speculate on the death of another.22
In contrast, a need for such a contract is under

future legal heirs (sections 1924 et seq.) recognized by law.23
According to Section 311b Paragraph 5, this contract requires notarial
certification in order to ensure protection against haste.
Example: A son of the surviving testator needs money because he
wants to open business. Since an inheritance contract with the father cannot be achieved
he concludes a contract with his brother according to which the brother buys his future
inheritance from him. The contract has only obligations and none
hereditary significance. If the inheritance occurs later, the son must be his
Portion of estate transferred to his brother under Section 2033.
II. Formation of the contract by General

Terms and Conditions
Literature: Becker, The terms and conditions content control in entrepreneurial 28
business transactions from a teleological point of view, JZ 2010, 1098; Berger, For a
reform of the general terms and conditions law in business dealings, NJW 2010, 465; Berger/
Kleine, GTC design and transparency requirement, NJW 2007, 3526; Unadventurous,
Protection against fraudulent form contracts. Considerations for
Specification of the transparency requirement under general terms and conditions (§ 307 Para. 1 S. 2
BGB), AcP 216 (2016), 911; Blattner, Fitness Contracts – Effectiveness of
General terms and conditions for term clauses and extraordinary termination, MDR 2012,
743; Bloching/Ortolf, Written form clauses in the case law of the BGH
and BAG, NJW 2009, 3393; Eisenhardt, Summation of form-contractual
and negotiated renovation clauses, WuM 2013, 332; Hager, Basis des Deutschen
Verbraucherschutzes, JA 2011, 721; Hamann/Rudnik,
Form employment contracts under scrutiny, JURA 2009, 335, 486; hen,
"Touch obliges to buy" - a special case of the conclusion of a contract in
Self-service shop, JA 2017, 339; Hennrichs, The Control of General Terms and
Conditions, in: DHLR SchuldR 169; Jerger, control and
Invalidity of side price agreements, NJW 2019, 3752; Kappus, Content control of law-
restricting clauses, NJW 2003, 322; Koch, Effects of the reform of the law of obligations
on the design of general terms and conditions, WM 2002, 2137, 2217; ders., Terms and
Conditions clauses to shorten the
22 Cf. Mot. II, 182ff.

23 Cf. Prot. I, 456.
https://doi.org/10.17104/9783406758829-21
Limitation of claims for damages, MDR 2016, 61; Kötz, The protection purpose of the
general terms and conditions control - A legal economic sketch, JuS 2003, 209;
Long, interpretation, ambiguity rule and transparency clause, ZGS 2004,
208; Leuschner, Requirement and Limits of General Terms and Conditions Control, AcP 207
(2007), 491; ders., General terms and conditions control in entrepreneurial transactions, JZ 2010,
875; idem., The strictness of control of the general terms and conditions law, NJW 2016, 1222; rewarding/
Gietl, Basic cases on the law of general terms and conditions, JuS
2012, 393 and 494; Maier-Reimer, General Terms and Conditions in Legal Business
Transactions – The Federal Court of Justice over-tightens the screw, NJW 2017, 1; Maier-Reimer/
Niemeyer, company purchase agreement and general terms and conditions law, NJW 2015, 1713;
Renters, terms and conditions or individual agreements - the key legal point
“negotiated in detail”, NJW 2010, 3121; Müller/Schmitt, Extension Clauses in General
Terms and Conditions Control, NJW 2017, 1991; Neideck, The inclusion of general terms
and conditions in case processing, JA 2011, 492; Peter, liability clauses in general terms
and conditions, JURA 2015, 121; Petersen, Die
Inclusion of general terms and conditions, JURA 2010, 667; piper,
Developments and current issues of general terms and conditions law, NJW 2017,
913; idem., New law of obligations - new model in the law of general terms and conditions,
in: Dauner Lieb/Konzen/Schmidt Neues SchuldR 225; Renner, The "Nature of the Contract"
according to § 307 para. 2 no. 2 BGB, AcP 213 (2013), 677; Shepherd, conclusion of contract
including general terms and conditions
foreign native speakers, JZ 2003, 879; Schinkels, Worsening conditions due to modifying
extension clauses in continuing obligations, NJW 2015, 1473; Schmidt, General Terms and
Conditions Law in Case Processing, Ad Legend dum 2/2010, 95; ders., Liability for the use
of ineffective
General Terms and Conditions, WuM 2010, 191; i.e., inclusion
of general terms and conditions in business transactions, NJW 2011, 3329; i.e.,
Inclusion of general terms and conditions in consumer traffic, NJW 2011, 1633; Stoehr, Die
Determination of transparency within the meaning of Section 307 (1) sentence 2 BGB – A
plea for an empirical approach, AcP 216 (2016), 558; PW Tettinger, On the seller's options
for exemption from a defective item, AcP 205 (2005), 1; Thüsing, What are the special
features of the
Labor law?, NZA 2002, 591; Walker, The collective action under the Injunctive Relief Act
(UKlaG), in: DHLR SchuldR 183; Weick, reform of the law of obligations, transparency and
legislative technique, JZ 2002, 442; Wendland, Das
Law of the general terms and conditions in case processing, JURA
2018, 866, 2019, 41 and 2019, 486; v. Westphalen, After the reform of the law of obligations:
New limits for clauses exempting from liability and limiting liability, BB 2002, 209; ders.,
AGB-Recht in the first half of 2020, NJW
2020, 2225; Willems, Repayment in the form of a voucher in the event of consumer
revocation, NJW 2018, 1049; Wolf/Lindacher/Pfeiffer, AGB-Recht, 7th edition 2020.
Literature on the earlier AGBG: see evidence in the 34th edition.
The freedom to design the content of the contract is often

largely limited by general terms and conditions (GTC;
§§ 305 ff.) restricted.
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Since 1977, the right to general terms and conditions has been regulated in a separate law, the
General Terms and Conditions Act. As part of the reform of the law of obligations, the legislature also
adopted the substantive legal part of the General Terms and Conditions Act with effect from January 1, 2002
as well as other special laws integrated into the BGB (to adopt the
see the procedural provisions of the General Terms and Conditions Act in the UKlaG
" Margin 59). In terms of content, the integration of the General Terms and Conditions
Act only involves minor changes to the law in force before the reform of the law of
obligations. Apart from a few adjustments to individual provisions of the Civil Code that
were changed as part of the reform of the law of obligations, the earlier
Regulations of the AGBG largely adopted verbatim and in a few
regulations summarized. Therefore, for the interpretation of §§ 305 ff.
the case law issued on the earlier AGBG essentially still applies
be used. The classification of the regulations on general terms and conditions in the
general law of obligations was within the framework of
Reform of the law of obligations heavily disputed. The legislature has opted for this
Location and not decided for the general part of the Civil Code, because by
General terms and conditions should regularly deviate from the dispositive provisions of
the law of obligations. In the justification for the law24 , however, it is expressly made
clear that this location is not intended to limit the scope of application solely to debt
contracts,
only the focus of the scope should be emphasized
target. Sections 305 et seq. therefore also apply, for example, to contracts in the field of
property law or to unilateral legal transactions that are related to a contractual relationship.
1st term
The applicability of §§ 305 et seq. presupposes that it is about the design of a 29

contract through general terms and conditions. General terms and conditions are
all pre-formulated contractual conditions for a large number of contracts
Contracting party (user) of the other when concluding a contract
(Section 305 (1) sentence 1).
a) Terms of Contract. Contract conditions are to be understood as provisions

that are to become part of the contract. This can involve almost the entire content
of the contract or just individual parts of the contract.
Examples: A form contract such as the standard rental contract contains up to

to the specification of the rental property, the rent and the start of the rental period
all contract terms. – Make payment or delivery terms
only regulations on individual parts of the contract.
24 BT-Drs. 14/6040, 149.
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30 b) Pre-formulated for a large number of contracts. The contract

terms have to be pre-formulated for a large number of contracts
being. A "plurality" sets the intention of at least three times
Use prerequisite.25 Not required is that the conditions
are to be used with various contractual partners.26 Furthermore, it is
irrelevant whether the user himself, his interest group or a third party
set them up. That's why it's enough
out if a third party has pre-formulated the terms for a large number of
contracts, even if the contracting party drafting the clauses only intends
to use them in a single contract.27 It is
also regardless of whether the provisions are externally separate
form part of the contract or are included in the contract document itself,
what scope they have and in what font
they are written and what form the contract has (Section 305 (1) sentence 2).
In a notarial contract (e.g. pre-printed or using a PC

printed) terms or can refer to them themselves in the
Text of the notarial deed can be included. According to the BGH, general
terms and conditions should even exist if a notary takes clauses from a book
of forms and one party uses them unilaterally in their favour.28
31 c) Provided by the user. The terms of the contract must

Contractual partner provided by the user, i.e. imposed unilaterally
will. This is missing if the contractual conditions between
be negotiated in detail between the parties (section 305 (1) sentence 3).
According to the BGH, a negotiation only exists if
if the user does not comply with the provisions contained in his general terms and conditions
seriously puts it up for discussion and at least grants the negotiating
partner freedom to protect their own interests
the real possibility of being able to influence the content of the contract
terms.29 There can be no talk of this,
if the user considers the contract term as non-negotiable
represents, even if the contractual partner only concludes the contract
after a legal examination of the clause.30 The mere fact that the
contractual partner of the user can choose between two variants
25 BGH NJW 2002, 138.

26 BGH NJW 2004, 1454 f.
27 BGH ZIP 2005, 1604.
28 BGHZ 74, 210; critical: Stürner JZ 1979, 758; otherwise also: BGH NJW 1991, 843.
29 BGH NJW 1992, 2759 (2760) with further references; 2000, 1110, (1111 f.); 2002, 2388 (2389);
2010, 1131 (1132 f.); 2016, 1230 (1231 f.).
30 BGH NJW 2013, 856 f.
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is also not sufficient for a negotiated individual agreement

as long as there is no possibility of alternatively submitting and
implementing your own text proposals.31 In the case of extensive or
clauses that are not easy to understand also use "negotiation".
provided that the user informs the other party about the content
and teaches the scope of the clauses in detail.32
Come the parties in negotiating the terms of the contract
finally came to the conclusion that the usual terms of payment should be agreed upon
as appropriate for both parties
an individual agreement despite the pre-formulated text, since this
Text freely negotiated by both parties and not dictated by one party to the other.
Therefore, Sections 305 et seq. do not apply. Vice versa
does not result from a pre-formulated agreement provided by the user
thereby an individual agreement that at the request of the contractual partner
a text change is made, but this does not lead to a change in the
essential content of the clause.33 The user cannot exclusively present a negotiation
according to Section 305 (1) sentence 3
an individual legal agreement invoked, according to the clauses
"was seriously and extensively negotiated". 34 Otherwise, the protection could
of §§ 305 et seq. can easily be circumvented.
2. Advantages and Disadvantages of Terms and Conditions
The use of terms and conditions brings in particular for the user 32
Advantages, but also disadvantages, especially for the contractual partner
himself:
a) Advantages of general terms and conditions for the user. The user
expects several advantages from the drafting of the contract through pre-
formulated conditions. So have the terms and conditions when concluding
Mass contracts (especially large companies, banks and
insurance companies) a rationalization task. Identical terms of delivery
and payment for a large number of contracts concluded every day make
business transactions easier. Further
the terms and conditions serve to limit the risk of the user. This
is in particular through the pre-formulated agreement of a retention of
title, an exclusion of certain claims for damages
31 BGH ZIP 2018, 1123 para. 16.

32 BGH NJW 2005, 2543 f.
33 BGH NJW 2013, 1668 (1669); see also BGH NJW 2013, 1431 (1432) mNote
Schwab JuS 2014, 69.
34 BGH NJW 2014, 1725 (1727 f.).
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claims and a restriction of the rights of the contractual partner

achieved with poor performance. Finally, by terms and conditions at
such contractual relationships that are only inadequately regulated by law
(e.g. leasing contract, machine installation contract).
that mutual rights and obligations are always comprehensively regulated.
33 b) Disadvantages of general terms and conditions for the contractual partner. On the other
Page is not to be denied that the use of AGB for the
Contractual partners of the user entail serious disadvantages
can. There is no negotiation of the contractual provisions insofar as they
are stipulated in the General Terms and Conditions. The contractual partner is
although free in whether he has a contract with the user at all
concludes However, if he decides to do so, he must agree to the validity of
the General Terms and Conditions. He is practically forced to do this if he
needs the goods urgently and the user of the
AGB has a monopoly position. The same applies if he is under
can choose from several providers, but they make the terms and conditions
drawn up by their interest group part of the contract. it lies
suggests that the interests of those who formulate the GTC or of
taken over by its interest group are better protected in the general terms
and conditions than those of the contractual partner (e.g. favorable risk
distribution). It is not uncommon for the partner's rights to be reduced
unilaterally (e.g. exclusion of claims for damages). it's coming
added that a legally and commercially untrained partner
does not read the many provisions, often in very small print, or does not
recognize their meaning. Although formally the freedom of contract
even when agreeing on terms and conditions, it is
in the matter often a one-sided dictation of the user.
The contractual partner of the user, in particular the consumer, is to be
protected from these dangers by §§ 305 et seq. to
For this purpose, Sections 305 et seq. contain detailed regulations on
under which conditions general terms and conditions become part of a
contract, how they are to be interpreted and when their content is invalid.
§§ 305 ff. are not subject to the disposition of the contracting parties,
but are mandatory law.35
35 BGH NJW 2014, 1725 (1728).
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Insofar as §§ 305 et seq. do not contain any special regulations, the rest apply
the general rules on the interpretation (sections 133, 157) and validity (e.g. sections
134, 138) of declarations of intent.
3. Inclusion in the Contract
The terms and conditions are not legal norms such as collective agreements, which 34
the legislature has expressly assigned the character of a norm. the
The validity of the General Terms and Conditions is always based on a legal basis.
They only become legally binding when they become part of the content of the
individual contract through inclusion or a framework agreement
the are.
a) Inclusion agreement in individual cases. The inclusion agreement is not a 35

special legal transaction, but part of the
contract. It assumes:
aa) The user must expressly draw the other party’s attention to the GTC when
concluding the contract (section 305 (2) no. 1).
This also applies if earlier contracts were concluded
reference had been made to the AGB.36
A note after the conclusion of the contract (e.g. on the delivery note, the invoice)
is not sufficient, since it is an application for a contract change
the contractual partner does not have to accept. From a silence of
Partner or the acceptance of the service by him cannot be assumed to be an
acceptance of the change offer.
Exceptionally, if namely an express reference because 36

If the type of contract conclusion is only possible with disproportionate difficulties,
a clearly visible notice on the
Place of conclusion of the contract (§ 305 Para. 2 No. 1). This applies to contracts
of everyday life, where general terms and conditions are usually to be expected
are, but an explicit reference is hardly possible in practice.
Examples: transportation by tram; Motor vehicle guarding

stuff in a guarded parking lot.
bb) The contractual partner must be able to take cognizance of the content of the 37
General Terms and Conditions in a reasonable manner (§ 305 Para. 2 No. 2). Therefore
an objective standard must always be applied. The terms and conditions must
according to the type and size of the typeface for an average customer
easy to read and understandable without spending too much time
36 BGH DB 1986, 2074.
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be lich. When ordering via the Internet, it is sufficient if the provider's terms and
conditions can be called up and printed out via a clearly visible link on the order
page.37 However, if the user has a physical disability on the other party to the
38 contract, the possibility of gaining knowledge must not alone measured objectively
against the average customer. Rather, the physical impairment of the ability to
perceive must be adequately taken into account (cf. § 305 Para. 2 No. 2). Particular
attention should be paid to people with visual impairments. They require further aids,
such as handing over the terms and conditions in a form that enables them to take
note of them before the contract is concluded. In individual cases, this can be done
by handing it over in electronic or acoustic form or in Braille.38 If the user recognizes
that the customer is a foreigner who cannot understand the GTC, he must offer a
translation to have done. However, the customer can refrain from a translation and
even from acknowledgment.
39 cc) The contractual partner must agree to the applicability of the

General Terms and Conditions (§ 305 Para. 2 old version); consent
can be given expressly or impliedly.
If the user has expressly referred to the terms and conditions and the partner
concludes the contract without objecting to the terms and conditions, these are part
of the contract.
40 b) Framework Agreement. The framework agreement is an

agreement reached in advance by the contracting parties for a
specific type of future legal transaction on the validity of certain
general terms and conditions (section 305 (3)). This is intended to
save the parties having to agree on the applicability of the GTC each
time a new contract is concluded.
Example: When establishing bank details, the bank and its customer agree that
the bank's general terms and conditions shall apply to all future transactions.
41 aa) Such a framework agreement is only effective if the requirements

specified in Section 305 (2) are met (Section 305 (3)).
The bank terms and conditions only apply to future transactions if the bank
expressly refers to them, the bank customer can take note of them and agree to
their validity.
37 BGH NJW 2006, 2976 (2977).

38 BT-Drs. 14/6040, 150.
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bb) Only the validity of certain general terms and conditions can be 42
agreed, but not the general terms and conditions in their respective
version. Otherwise it would be up to the user to change the terms and
conditions unilaterally in his favor without the consent of the partner.
If the bank wishes to change its general terms and conditions over time, the changed
terms and conditions only become part of the contract under the conditions of Section
305 (2), i.e. in particular with the consent of the customer.
c) No surprise clause. Even if the requirements of Section 305 (2) and 43

(3) are met, a provision of the General Terms and Conditions does not
become part of the contract if it is so unusual under the circumstances, in
particular according to the external appearance of the contract, that the
user's contractual partner with it does not need to be calculated (section
305c (1)). This provision aims to protect the partner from surprises; he
should be able to trust that the terms and conditions are within the scope
of what is normally to be expected with such a contract.
Examples: K buys a coffee machine from V. According to the terms and conditions,
he also undertakes to purchase a certain amount of coffee each month. – Although the
front of a contract form says “duration one year”, the back contains a clause according
to which the contract period is automatically extended if it is not canceled by a certain
date.39 – A rental agreement form contains at the heading “offset, retention” includes a
clause according to which the no-fault liability of the lessor for initial defects in the
rented property (section 536a ( 1))40 is excluded.41
4. Interpretation of General Terms and Conditions and Priority of Individual Agreements
In contrast to the general rules, the normative interpretation of general 44

terms and conditions from the point of view of the recipient horizon does
not depend on the person of the specific contractual partner, but rather
on the recipient horizon of an average recipient. This is the consequence
of the fact that the terms and conditions are intended for a large number
of transactions.
According to Section 305c (2), doubts of interpretation are at the
expense of the user. This rule of customer-friendly interpretation42
39 See BGH NJW 1989, 2255.

41 BGH NJW 2010, 3152 (3153 f.).
42 BGH NJW 2012, 2337 (2340).
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however, only comes into play if it can be explained by interpretation

no clear result can be obtained.
45 According to § 305b, the priority of the individual agreement applies. This
provision always plays a role if a clause in the general terms and conditions in the
contradicts an individually negotiated agreement.
This is why, for example, the regulation in the general terms and conditions is changing,
according to which additional agreements to the contract are only effective if they are made in writing,
nothing about the effectiveness of an individually made verbal agreement; because this
overriding individual agreement is at the same time
the written form requirement set out in the General Terms and Conditions has been lifted.
5. Content Control
46 Sections 307-309 indicate the conditions under which
such terms and conditions that were effectively included in the
contract are invalid for reasons of content. The content control
regulated in these regulations is to be carried out for those provisions
in the general terms and conditions that deviate from or these legal regulations
supplementary regulations are agreed (Section 307 (3)). These are
most clauses. The only exceptions are purely declaratory clauses
that only repeat a legal regulation (correct in every respect),43 as
well as clauses on the determination of the
Main service and its price44 as well as the payment for a
legally not regulated, additionally offered special service,45
because these contents are not regulated by law at all, but are
negotiated.
Example: Loan processing fees and fees for all SMS TANs, too
if these are not used for a payment order at all, they are not
Consideration for a compensable service by the lender and thus
not part of the main service, but costs for activities that the
Lender provides due to legal obligations or in their own interest
(e.g. processing the loan application and checking the creditworthiness of the customer).
Clauses in the general terms and conditions of the banks about processing fees are therefore gem.
Section 307 (3) controllable side price agreements.46
47 Section 307 is the general clause of content control. The rule
only plays a role as a catch-all event if the clause
is not already ineffective according to §§ 308, 309. The listed in § 308
43 BGH NJW 2012, 2337 (2338).

44 BGH ZIP 2019, 1573 para. 19.
45 BGH NJW 2017, 3222 para. 20.
46 BGH NJW 2014, 2420 (2422 ff.); 2017, 3222 para. 26 et seq.
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listed specific clauses are not always invalid, can

but be ineffective in individual cases if they lead to an unreasonable
disadvantage for the contractual partner (therefore "prohibition clause
with evaluation option"). The clauses mentioned in § 309
are always ineffective.
It follows from the content of §§ 307-309 that these provisions
are checked in reverse order. It must first be examined whether the
clause under section 309 is always invalid. Only if
this is not the case, the question arises whether the clause under § 308
falls and is in any case ineffective in individual cases. Only if that too
is to be answered in the negative, it is ultimately a question of whether a violation of
the catch-all element of Section 307 is present.
a) Clause bans without the possibility of evaluation. Those in the 1547 48

Clauses listed in Section 309 are always invalid
without the need for a case-by-case assessment.
Examples: The disclaimer by the organizer of a horse show
for damage caused to visitors, participants and horse owners by light
Negligence of the organizer arise, violates § 309 No. 7 Buch st. a;48 because
according to this, liability for damage to life, limb or health caused by negligence
cannot be excluded in the General Terms and Conditions. From the
The same reason is also the regulation in the auction conditions
auction house, according to which the buyer is not entitled to any claims against the
auction house due to material defects, are ineffective; because this also includes
any claims for damages by the successful bidder in accordance with § 437 No. 3
due to bodily harm and damage to health due to a material defect, for which a
Liability according to Section 309 No. 7 Letter a in the General Terms and Conditions cannot be excluded
49 An inadmissible liability limitation according to this is also the time-limited
enforceability of such claims by shortening the statutory limitation periods.50 – In
the general terms and conditions of a furniture seller it says:
"Liability for damage that is not based on injury to life, limb or health is excluded,
unless the
Willful breach of duty by the seller or his vicarious agents
was committed.” This exclusion of liability for any non-intentional fault violates § 309
No. 7 letter b; According to this, liability for property damage cannot be excluded
even for grossly negligent breaches of duty.
47 No. 15 on inadmissible general terms and conditions clauses in work contracts was inserted by the
Law to reform the building contract law and to change the sales law
Liability for defects from April 28, 2017 with effect from January 1, 2018 (Federal Law Gazette I 969).
48 BGH NJW 2011, 139; also BGH NJW-RR 2015, 738 mAnm Riehm JuS 2015,
1036 for a disclaimer in the event of gross negligence in used car purchase terms and conditions.
49 BGH NJW 2013, 3570 mManm Schwab JuS 2014, 550.

50 BGH NJW 2013, 2584 (2585).
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getting closed. In the event of intentional or grossly negligent damage, the obligation
to compensate may not be limited to the current value of an item; because this can
be lower than the cost of a replacement purchase,
so that focusing on the current market value may constitute an inadmissible limitation
of liability.51 The
Clause in the furniture shipping terms and conditions of an online shop, according to which liability
for delays caused by a transport company involved is ruled out.52 – The clause in
the general terms and conditions of an airline company, according to which a
processing fee of EUR 50 per booking is incurred in the event of a returned direct
debit, constitutes a flat-rate damage charge that is ineffective under Section 309 No. 5
dar.53 The clause in the terms and conditions of a leisure pool operator, according to which the
loss of the wristband with chip, the full amount of the credit granted in it has to be
paid, violates § 309 No. 5 letter a, if damage
not to be expected at this level given the normal course of events
ist.54 – A shortening of the limitation period for all claims for defects in the
Terms and conditions of a used car contract violates § 309 No. 7 letter a and
b, if the claims mentioned there (e.g. damages due to culpable bodily injury or
damage to health or due to intentional or gross
negligent breach of duty) are not excluded; because the shortening of the limitation
period constitutes a (partial) exclusion of liability which is inadmissible under this
provision.55 – The following lump-sum damage clause in a motor vehicle purchase
agreement infringes this in the event that the vehicle is not accepted
not against § 309 No. 5 letter b: "If the seller demands damages, so
this is 10% of the purchase price. The compensation is to be set higher or lower if
the seller pays a higher price or the buyer pays a higher price
proves lower damage". 56 – Die by an Entrepreneur in one
Online registration form provided and provided by the customer (consumer)
The confirmation “I have read and printed out or saved the cancellation policy” that
must be provided by clicking on a tick in the control box violates Section 309 No. 12
Letter b and is therefore invalid; because according to Section 361 (3) the
entrepreneur bears the burden of proof
for the late declaration of revocation and thus for the proper revocation instruction
(cf. § 312d para. 1 sentence 1 in conjunction with Art. 246a § 1 para. 2
EGBGB), and the confirmation leads to a change in the burden of proof.57 – A
so-called exclusion clause in an employment contract, according to which claims from the
Employment contract lapse if not within a specified period
asserted in writing is ineffective according to Section 309 No. 13 Letter b. According
to this, advertisements and declarations that are opposite to the
51 BGH NJW 2013, 2502 (2503).

52 BGH NJW 2014, 454 et seq.
53 BGH NJW 2009, 3570.
54 BGH NJW-RR 2015, 690.
55 BGH NJW 2013, 2584 (2585).
56 BGH NJW 2010, 2122 et seq.
57 BGH NJW 2014, 2857 (2859 f.).
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Clause users or a third party are to be submitted, not to a stricter one

Form than the text form (§ 126b) are bound.
Section 309 No. 9 is to be based on a draft law by the federal government from
to be revised in December 2020. It is envisaged that the formal agreement of a contract
term of more than two years will be ineffective
is. A binding contract term of more than one year up to two years
shall also be ineffective if the contractual partner receives the same service
was not also offered with a shorter contract period. The tacit extension of the duration of a
contract for more than one year
should not be able to be effectively agreed in general terms and conditions, the one by more than
three months to a year only under strict conditions. Through this
is intended to prevent the consumer's freedom of choice by long
Terms (e.g. of mobile phone contracts) are restricted and it is made more difficult to switch.
b) Clause bans with the possibility of evaluation. All clauses listed in § 49

308 contain vague legal terms (e.g. “unreasonably long”, “sufficiently
specific”, “objectively justified
reason", "reasonable", "particular importance"). their existence
must be checked in each individual case with an assessment.
Examples: A delivery period of six months provided for in the general terms and conditions
can be unreasonably long in the sense of § 308 No. 1 when buying a piece of furniture,
while it may be common and permissible when buying a new car. – Agreed payment,
inspection or acceptance deadlines in general terms and conditions
according to § 308 No. 1a, 1b even be unreasonably long if they are not yet
according to § 271a are ineffective. – The clause of a mail order company to deliver a
replacement article of equal value if it cannot be delivered,
can make a right of change that is unreasonable for the consumer within the meaning of § 308
No. 4 included.58
c) General Clause on Content Control. Since the legal catalog of 50
impermissible clauses does not include all those that occur in practice
Clauses that are inadmissible for reasons of contractual justice
should contain, Section 307 establishes a general clause as a catch-all
provision. According to this, general terms and conditions are ineffective
if they unreasonably disadvantage the contractual partner of the user
contrary to the requirements of good faith (§ 307 Para. 1 Sentence 1). This is after
the case law when the user's own interests
abusively trying to assert themselves without right from the start
58 BGH NJW 2005, 3567.
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sufficiently consider the interests of his contractual partner

and to grant him an appropriate compensation.59
The Federal Court of Justice has assumed such an inappropriate disadvantage if, in
the case of an online dating service that was agreed and processed exclusively in digital
communication (i.e. without a personal signature), a contractual clause only contains a
provision for the termination of the
contract was requested by the consumer in writing (i.e. with a handwritten signature).60
Even those clauses that fall within the scope of §§ 309,

308 fall and are not objectionable according to these regulations,
may still be invalid under section 307.61
aa) In the two cases of Section 307 (2), in case of doubt, an
unreasonable disadvantage is to be affirmed:
(1) A provision of the General Terms and Conditions cannot be
reconciled with essential basic ideas of the waived legal regulation (§
307 Para. 2 No. 1).
Examples: The terms and conditions of a bank stipulate that the bank may charge the
customer for expenses if it acts on his behalf or in his presumed interest (in particular for
long-distance calls, postage). This indemnification clause is not compatible with the basic
idea of §§ 670, 683,
according to which the representative or the managing director without an order only such
He can demand reimbursement of expenses that he may consider necessary under the
circumstances.62 It is therefore ineffective according to Section 307 (2) No. 1. The same
applies to clauses in the general terms and conditions of banks regarding processing fees
such activities that the credit institution in its own interest or due to
of legal obligations.63 – If the general terms and conditions of a building society provide
that a loan fee contrary to the legal model of § 488
Paragraph 1 sentence 2 is to be paid regardless of the term of the loan and with
their general administration costs of the building society are to be passed on to the
customer, this is a deviation from an essential one
Basic idea of the legal regulation, through which the customer is unreasonably
disadvantaged.64 – General terms and conditions of savings banks are also ineffective,
according to which the heir of a customer only proves his entitlement by presenting a
certificate of inheritance and it is at the discretion of the savings bank
59 BGH NJW 2016, 2800 (2801); 2016, 1230 (1232); 2013, 856 (858); 2012, 1431 mwN;
BGH NJW 2013, 2502 (2503 f.).
60 BGH NJW 2016, 2800 (2801). A violation of § 309 No. 13 played at the time of
Decision not yet relevant, because in the then version of this standard still
written form was allowed.
61 BGH ZIP 2018, 1067 para. 17.
62 BGH NJW 2012, 2337 (2338).
63 BGH NJW 2014, 2420 (2427 ff.).
64 BGH NJW 2017, 1461 para. 31 et seq.
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occasionally to waive the submission of a certificate of inheritance; because of that

the heir is forced, even in the case of undisputed succession or simpler
Possibility of proof (e.g. public will) to carry out the costly and time-consuming certificate
of inheritance procedure.65 – The formal extension of the six-month limitation period of
Section 548 in a lease
should in the opinion of the BGH even then because of incompatibility with the
Basic ideas of this provision according to § 307 paragraph 1 sentence 1, paragraph 2
no. 1 be ineffective if they are "symmetrical" for both the claims of the landlord
(§ 548 Para. 1) as well as for the claims of the tenant (§ 548 Para. 2) agreed
66 Such an aggravation of the statute of limitations is not objectively justified
and contradict the legislative concern to ensure legal certainty quickly. – According to
the terms and conditions of a broker, the right to a broker’s fee should arise regardless
of the broker’s service. violates this clause
not against one of the special rules contained in §§ 308 f., but against the
General clause of § 307. According to the legal model of brokerage law
the origin of the salary entitlement depends on the desired contract being concluded
through the agent's verification or mediation (section 652).
Any deviating terms and conditions are invalid (§ 307 Para. 2 No. 1); then applies
according to § 306 paragraph 2 ("Rn. 56) the legal regulation of § 652. - A preclusion
period in an employment contract, according to which a claim expires if it
not asserted in writing within less than three months from the due date
is made is because of the short deadline with essential basic ideas
of the statutory statute of limitations.67 – The price adjustment clause of a gas supply
company, according to which the company may adjust customer prices if the purchase
prices change, is disadvantageous
unreasonable for the contractual partner if there is no obligation to adjust downwards
with lower procurement costs.68 – The general terms and conditions of the supplier are one of
kitchen to be built into him stipulate that "the purchase price is to be paid at the latest
upon delivery of the items without any deductions". That's not with
§ 64169 , according to which the orderer of a work only then
should be obliged to pay when the work is completely produced.70
– An essential basic idea of the legal regulation is that a
Liability for damages usually only exists in the event of fault; Therefore
a clause in general terms and conditions that also includes liability for loss through no fault of one's own
a thing founded, because of violation of § 307 paragraph 2 No. 1 ineffective sam.71
65 BGH NJW 2013, 3716 (3719).

67 BAG NJW 2006, 795 (797) (additional case of Section 307 Paragraph 2 No. 2).
68 BGH NJW 2009, 2662 (on this BVerfG NJW 2011, 1339); 2009, 2667 (2670); 2010, 993; other
decisions on invalid price adjustment clauses in energy supply contracts: BGH NJW 2010, 2789;
2010, 2793; 2011, 1342.
69 See Brox/Walker SchuldR BT § 25 para. 3.
70 BGH NJW 2013, 1431 (1432) man Schwab JuS 2014, 69.
71 BGH NJW-RR 2015, 690 (691).
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51 (2) A provision of the GTC restricts essential rights or

Obligations arising from the nature of the contract in such a way that the
Achieving the purpose of the contract is at risk (§ 307 Para. 2 No. 2).
In particular, the general terms and conditions must not lead to an erosion
of the main performance obligations of the parties to a mutual contract.
Examples: In the general terms and conditions of a security company, liability for
negligently inadequate guarding excluded. This jeopardizes the proper fulfillment
of the security contract, jeopardizing the purpose of the contract. The BGH has
the same with a formal
Exclusion of claims for damages by the tenant against the landlord
accepted; because the main obligation of the landlord to maintain
of the rented property for contractual use should not be violable without sanctions
even if the lessor is only slightly negligent.72
52 (3) Further examples (partly still on § 9 AGBG, the predecessor of the
§ 307) from the case law: Employment contract: Payment of a performance bonus
"to the exclusion of any legal claim" (should be an unreasonable deviation from
the principle "pacta sunt servanda").73 A double one
Written form clause, according to which deviating contractual agreements of the
require the written form and also the waiver of the written form requirement
must be in writing, according to the case law of the Federal Labor Court74
an unreasonable disadvantage of the contractual partner; because she can
give the wrong impression that it is also an oral one
Individual agreement contrary to § 305b ("Rn. 45) ineffective. As a result, the
Contracting parties are prevented from asserting rights which
he is entitled to based on an individual oral agreement. the
BGH75 left open the effectiveness of a double written form clause;
in any case, the clause takes precedence over the individual agreement
§ 305b ineffective. Car purchase: Exclusion of the agreed used car guarantee if
the recommended inspection and maintenance work is not carried out
be carried out, regardless of the causation of the damage;76 Car rental: linking
the due date of claims for damages to inspection of police investigation files.77
On the other hand
it is not an unreasonable disadvantage if the exemption from liability granted to
the renter of a motor vehicle is made dependent on the fact that
he calls the police in the event of an accident.78 Car washes: Limitation of liability
to intent and gross negligence;79 broadband cable connection
72 BGH NJW 2002, 673.

73 BAG ZIP 2007, 1673 et seq.; different but BAG NZA 2009, 310.
74 BAG NZA 2008, 1233; 2009, 316; see also OLG Rostock NJW 2009, 3376.
75 BGH NJW 2017, 1017 para. 16 et seq. Man Emmerich JuS 2017, 1024.
76 BGH NJW 2014, 209 (211); NJW 2011, 3510 (3512 f.); 2008, 214 f.
77 BGH NJW 1994, 1788.
78 BGH NJW 2009, 3229.
79 BGH NJW 2005, 422 (424).
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contract: No unreasonable disadvantage if the cable connection customer

is obliged to issue a direct debit authorization for the collection of the
monthly usage fee;80 Guarantee liability: Form-based extension of liability
beyond the credit limit;81 Fitness studio: Effective
Clauses on tacit extension of the contract,82 24-month contract83 and
obligation to pay despite not using the studio;84 cable connection
companies: 20-year contract;85 bank: fees
for non-execution of standing orders and transfers as well as for
Return of checks and direct debits due to insufficient funds86 and for the
administration of exemption orders87 and for the processing and monitoring
of attachment measures;88 customer credit cards: relocation of the
risk of abuse on the customer regardless of his fault;89
Rental contract: Prepayment clauses in residential rental contracts90 and
rigid schedule for cosmetic repairs, regardless of the actual
Need for renovation;91 Two-year termination clause in the rental agreement
about a room rented by a student;92 partnership agency contract: term
extension clause;93 TV subscription contract:
Price adjustment clauses if the reason for the price increase cannot be
verified and the price adjustment is also possible to obtain an additional
profit;94 Insurance conditions: Unrestricted right
of the insurer, premiums, tariffs and other insurance contract
Modify rights and obligations.95
This list is only an example. A number that can hardly be overlooked
other cases are documented in the comments on § 307.
bb) An unreasonable disadvantage can also result from the fact that the 53
provision is not clear and understandable (§ 307
Para. 1 p. 2). This provision regulates the so-called transparency requirement for
general terms and conditions. In general terms and conditions, the rights and
obligations of the contractual partner should be transparent, correct and
determined by means of an appropriate design and suitable wording of the contractual conditions
80 BGH NJW 1996, 988.

81 BGH BB 1995, 1705.
82 BGH JZ 1997, 1007.
83 BGH NJW 2012, 1431.
84 BGH NJW 1997, 193.
85 BGH NJW 1997, 3022.
86 BGH NJW 1998, 309.
87 BGH NJW 1997, 2752.
88 BGH NJW 1999, 2276.
89 BGH NJW 1991, 1886.
90 BGH NJW 1995, 254.
91 BGH NJW 2004, 2586; see also NJW 2005, 425 and 1188 as well as NJW-RR 2009,
656.
92 BGH NJW 2009, 3506.
93 BGH NJW 1999, 276.
94 BGH NJW 2008, 360 et seq.
95 BGH NJW 1998, 454.
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and presented as clearly as possible.96 From the wording of the

§ 307 para. 1 sentence 2 (“can arise”) follows that a violation of
the ban on transparency does not automatically render the
Clause leads, but only if in individual cases due
after careful consideration of all circumstances, an unreasonable
disadvantage for the contractual partner can be established. This
is to be affirmed if there is a risk that the contracting party due to the
opacity prevents him from asserting his rights.97
Examples of violations of the transparency requirement: In a TV subscription

contract, the entrepreneur reserves the right to increase the price because of the
unspecified "increase in provision costs" before, without
to regulate the conditions and the scope of a price increase in more detail.98
– The one agreed by a gas supply company with its customers
Gas price adjustment clause, according to which the gas price changes if there is a
change in the general tariff prices, is not transparent because of the scope
of the price change (full or percentage transfer of the tariff change or
utility company's right to set prices) is not sufficiently clear
is.99 Equally non-transparent is a contract adjustment clause from which price
adjustments and “essential contractual provisions” are excluded;100
because the legal layman cannot see which regulations are hidden behind them. –
The coupling of the express contractual commitment of the
employer to pay a Christmas bonus of a certain amount every year,
with the proviso that the payment is voluntary and does not justify any
Legal claim is contradictory and contradictory according to the case law of the BAG
violates the requirement of transparency.101 – The shortening of the statute of limitations
in general terms and conditions when buying a used car is not transparent if, on the one
hand, it does not relate to claims for damages and, on the other hand, it is contradictory
but should also include all claims due to breach of the obligation to rectify defects.102
– A so-called severability clause with the content “to the extent permitted by law
permissible" violates the requirement of comprehensibility if the
legal situation is not seriously doubtful.103
96 Basically BGHZ 106, 42 (49) = NJW 1984, 232 f.

97 BGH NJW 2015, 2244 (2245) Manm Gutzeit JuS 2016, 354 and Pottgiesser EWiR
2015, 543; NJW 2007, 3632.
98 BGH NJW 2008, 360 (361).
99 BGH NJW 2009, 578 f.
100 BGH NJW 2016, 2101 (2103 f.).
101 BAG NZA-RR 2009, 576 (577).
102 BGH NJW 2015, 2244 (2245 f.).
103 BGH NJW 2013, 1668.
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6. Circumvention Prohibition
Since many clauses are prohibited by law according to Sections 307 et 54

seq
Provisions for the design of legal obligations
can be circumvented by general terms and conditions. This is intended to prevent the
circumvention ban in Section 306a. The regulation takes effect as soon as it is available
of the objective facts; an intention to circumvent is not required.
Example: The turnover of goods is not determined by sales contracts, but by

Articles of association regulated, as §§ 305 et seq. for articles of association
do not apply (section 310 (4) sentence 1). Since the regulations on the general
terms and conditions are circumvented by this contract design
according to § 306a, §§ 305 et seq. do apply.
7. Legal consequences of non-inclusion or ineffectiveness
a) Validity of the rest of the contract. What legal consequences 55

otherwise arise for the contract if the GTC either do not
were effectively included in the contract or are invalid in terms of content is
regulated in § 306. According to § 306 paragraph 1 remains in principle
the rest of the contract (i.e. without the relevant General Terms and Conditions) is effective.
This is a deviation from § 139, according to which partial nullity
generally leads to total nullity. An exception applies according to
Section 306 (3) if adherence to the contract without the ineffective clause
for one contracting party (in case of doubt for the user)
would represent an unreasonable hardship because of the omission
of the General Terms and Conditions would significantly change the balance of the contract.
Then the contract as a whole is void. In such a case, the contractual partner
of the user can claim damages due to a pre-contractual breach of duty in
accordance with §§ 280 Paragraph 1, 311 Paragraph 2
to be entitled
Example: A contractual additional payment clause in the event of an increase in

value of the property sold occurring after the conclusion of the contract
according to § 307 as ineffective. If the seller signs the contract of sale without
but would not have concluded such a clause is not according to Section 306 (3).
only the additional payment clause, but the entire contract is ineffective.104
Section 306 (1) also applies if only part of a general terms and conditions
clause is ineffective. If the clause is divisible and without the ineffective one
104 BGH NJW-RR 2002, 1136 f.
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part is still understandable and makes sense, the clause remains in place
Otherwise effective.
Examples: A two-stage forfeiture clause is contained in a pre-formulated contract.

Thereafter, claims from the contract expire if they are not asserted in writing within
three months of the due date and
In the event of a refusal, a complaint can be filed within two weeks of the refusal.
Although the second stage of the forfeiture clause (action within
two weeks after rejection) too short and because of inappropriate
Discrimination according to § 307 paragraph 1 sentence 1, paragraph 2 number 2 is ineffective, the
First stage clause (enforcement within three months after due date) effective.105 –
A dentist uses formal
Declarations of consent by the patient to an assignment to a billing company and a
further assignment to a credit institution. These are
two that can be separated in terms of content and that can be understood individually
Regulations that are the subject of a separate effectiveness check
can.106
56 b) Filling of gaps by applying legal regulations

or supplementary contract interpretation. If a contract because of the
Invalidity of AGB becomes incomplete, is the resulting
Gap to be filled in accordance with Section 306 (2) by applying the
statutory provisions. For example, an unreasonably long delivery time
(§ 308 No. 1) replaced by such a delivery time, which results from the
circumstances (cf. Section 271 (1)). The usual delivery times for the
respective object of purchase can be used.
A gap filling through supplementary contract interpretation

is only considered in exceptional cases if suitable statutory
Regulations are not available and a deletion without replacement of the
clause the contractually agreed balance of
Performance and counter-performance completely unilaterally in favor of the customer
moves.107
57 c) No valid reduction. On the other hand, there is

Terms and Conditions no valid reduction, after which an inadmissible
Clause with what is just permitted according to the wording of the law
content would be effective; otherwise the user of inadmissible terms and
conditions would not take any risk at all.
105 BAG NZA 2008, 699 f.

106 BGH NJW 2014, 141 et seq.
107 BGH NJW 2019, 2602 para. 18; 2010, 298 (302); 2010, 3505 (3507); 2011, 1342 (1345);
BVerfG NJW 2011, 1339 (1341).
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8. Judicial assertion of the ineffectiveness of general terms and conditions
a) Individual legal protection. Each contractual partner can in one 58

Individual legal dispute assert the invalidity of the general terms and
conditions used against him by asserting rights from the contract himself
sues or objects to claims arising from the contract
resists, in each case citing the invalidity of the basis
laid terms and conditions. These are then examined incidentally by the court.
In addition, each contractual partner can file a declaratory action
assert the invalidity of the general terms and conditions.
b) Legal protection through class action lawsuits under the UKlaG. Because it 59
especially consumers who are affected by general terms and conditions
lack of willingness to sue due to the risk of litigation, admits that
Injunctive Relief Act (UKlaG) also applies to certain associations
right to take legal action against ineffective General Terms and Conditions.
Consumer protection associations with legal capacity are entitled to sue (§§ 3 Para. 1
No. 1, 4 UKlaG), legal associations for the promotion of commercial
interests (section 3 (1) no. 2 UKlaG), chambers of industry and commerce
and chambers of crafts (section 3 (1) no. 3 UKlaG). You can refrain from
using and recommending (e.g. professional or interest groups) invalid
General Terms and Conditions, the recommender
also sue for revocation of the recommendation (§ 1
UKlaG). The rules of the Code of Civil Procedure and some of them apply
to the court proceedings in such legal disputes
deviating rules according to the UKlaG (§§ 5 ff. UKlaG). The Judgments
in such a class action procedure have an increased broad effect insofar as
everyone takes part in this procedure
non-participating contractual partners of a user to the judgment
determined ineffectiveness of a clause used against him (§ 11 UKlaG).
9. Applicability of §§ 305 et seq. in special cases
The scope of application of Sections 305 et seq. is restricted in accordance 60

with Section 310 for various special cases (to be checked in advance in a
closed examination), but expanded for consumer contracts.
a) Use by an entrepreneur or a legal entity under public law. If general

terms and conditions apply to an entrepreneur, a legal entity under public
law
or a special fund under public law
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according to Section 310, paragraph 1, there are the provisions on inclusion

of general terms and conditions (§ 305 Para. 2, 3) and about special clause prohibitions
(§§ 308 No. 1, 2-8 and 309) not applicable. On the other hand finds one
Content control according to the general clause of § 307 also takes place here
(Section 310 (1 ) sentence 2).108
61 b) General Supply Conditions. On contracts of electricity, gas, district

heating and water supply companies with so-called special customers
(customers who are not based on a legal basis, but on the basis of freely
agreed contracts
are supplied), §§ 308 and 309 do not apply, as far as the supply conditions
are not to the detriment of the customer
deviate from ordinances on general conditions for the corresponding supply
of tariff customers (§ 310 Para. 2). Sense:
Special buyers should not be better off than tariff buyers
more
62 c) Consumer Contracts. Since a natural person as a consumer is regularly

inferior to the company in contract negotiations in the private sector, according
to § 310 Para
are protected from unfair clauses by §§ 305 et seq.
if not all the requirements are met, which are to be placed in the General Terms and Conditions
are.
63 aa) The prerequisite of Section 310 (3) is the existence of a consumer
contract between an entrepreneur within the meaning of Section 14 and a
Consumer iSd § 13. The entrepreneur must at the conclusion of the
Legal transaction in exercise of his commercial or self-employed
act professional activity. On the consumer side, the purpose
of the conclusion of the contract cannot be attributed to the commercial or
self-employed professional activity. What type of contract
it is an individual case is irrelevant.
64 bb) The legal consequences of Section 310 (3) in the event of a consumer
contract are that Sections 305 et seq. apply with the following special features:
(1) The General Terms and Conditions are also deemed to have been provided by the entrepreneur if
they were actually provided by a third party (e.g. a notary, broker, architect)
(Section 310 (3) No. 1). This is a deviation from Section 305 (1) sentence 1.
108 BGH ZIP 2016, 474 (ineffectiveness of the limitation of offsetting

liability to a commercial tenant).
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Only if the terms and conditions are introduced into the contract by the consumer himself
(e.g. the rental agreement is based on a rental agreement form at the suggestion of the
consumer), the consumer is not worthy of protection, so §§ 305 et seq. do not have to be
observed.
(2) The interpretation rule of § 305c paragraph 2, the legal consequences of 65

§ 306 in case of non-inclusion or ineffectiveness as well as §§ 307-
309 on content control apply to pre-formulated contract terms even if they
are only used once
Use are intended and as far as the consumer due
the pre-formulation could not influence its content
(§ 310 Section 3 No. 2). This is also a deviation from § 305
Paragraph 1 sentence 1. Furthermore, the priority of the individual agreement according to § 305b applies
(“Rn. 45) also for pre-formulated one-off conditions in consumer contracts,
although Section 310 (3) No. 2 does not refer to Section 305b;
because this is a general principle of law.109
(3) When assessing whether a clause unreasonably disadvantages the 66
consumer, not only a generalizing, over-individual consideration is to be
made (§ 307); rather they are den
accompanying the conclusion of the contract, i.e. the specific individual
circumstances must be taken into account (section 310 (3) no. 3).
Example: The surprise of the partner at the conclusion of the contract speaks for itself
an ineffectiveness.
d) Contracts in the field of inheritance, family and company law as well 67

as collective labor agreements. To
§ 310 paragraph 4, §§ 305 et seq. do not apply to contracts
in the field of inheritance, family and corporate law. In these areas, pre-
formulated contract terms should be used anyway
be rare. In addition, as a rule, the user is not superior to the respective
other contracting party.
Likewise, §§ 305 et seq. do not apply to collective agreements (between 68
Employers' associations or employers on the one hand and trade unions
on the other), works agreements (between
employer and works council) and service agreements (between
agency and staff representation). In the case of such collective
agreements, special protection for one side is not required.
In contrast, Sections 305 et seq. are generally applicable to employment contracts 69

between the employer and the individual employee (Section 611a) (Section 310
109 BAG NZA 2017, 58 para. 35.
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Para. 4 p. 2). Such content control in labor law was in any case already in place
before this regulation came into force
performed. However, the special features applicable in labor law should be
adequately taken into account. Therefore, in particular with the
Clauses falling under § 309 without the possibility of evaluation can always be
checked as to whether they are exceptionally effective contrary to the statutory
provision due to the special interests involved in the employment relationship.
Example: In the form of an employment contract, contrary to § 309 No. 6, a

Contractual penalties can be agreed in the event that the employee does not start
his employment in breach of contract and thus withdraws from the employment contract
110 The same applies if the contractual penalty is agreed in the event of premature
termination of the employment relationship through an invalid self-resignation by the
employee.111 A special feature of labor law is that the employer is entitled to
Provision of the agreed work according to § 888 paragraph 3 ZPO not in the
Enforce enforcement methods and, in the absence of proof of concrete damage, in
most cases also cannot claim for damages. Without a contractual penalty, the
employee could therefore violate his contractual duty to work without being penalized.
However, such can also
in principle permissible contractual penalty agreements in the event of ambiguity
the amount of the penalty for violating the transparency requirement of Section 307
Para. 1 S. 2 ("Rn. 53) be ineffective.112
In the case of clauses with the possibility of evaluation within the meaning of § 308, the special features
of labor law when filling in the vague legal terms of these
standard are taken into account. Section 310 (4) sentence 2 was already the cause
of numerous disputes because of its vagueness.113
Checking the effectiveness of general terms and conditions
I. Applicability of §§ 305 et seq. (§ 310)

II. Existence of General Terms and Conditions (§ 305 Para. 1)
1. Terms of Contract
2. Formulated for a large number of contracts (exception for
Consumer contracts: Section 310 (3) No. 2)
3. Provided by the user (is fictitious in the case of consumer
contracts: Section 310 (3) No. 1); does not exist if contractual
terms have been individually negotiated (section 305 (1) sentence 3)
110 BAG NZA 2004, 727 et seq.

111 BAG ZIP 2018, 1045 para. 16.
112 BAG ZIP 2018, 1045 para. 17 et seq.
113 See e.g. BAG NZA 2004, 727; 2005, 1053; NJW 2005, 1820; see also Mu
KoBGB/Basedow § 310 para. 135 et seq.
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III. inclusion control

1. Inclusion in individual cases (Section 305 (2))
a) Express notice or clearly visible notice (section 305 (2) no. 1)
b) Possibility of gaining knowledge (§ 305 Para. 2 No. 2)

c) Consent of the contractual partner (§ 305 Abs. 2 aE)
2. Inclusion through framework agreement (Section 305 (3))
3. No surprise clause (Section 305c(1))
IV. If applicable: Interpretation of the General Terms and Conditions
1. Doubts of interpretation to the detriment of the user (§ 305c

paragraph 2)
2. Priority of the individual agreement (§ 305b)

V. Content control (if opened in accordance with Section 307 (3))
1. Clause prohibitions without the possibility of evaluation (§ 309)
2. Clause prohibitions with the possibility of evaluation (§ 308)
3. General clause on content control (§ 307)
III. No actual contractual relationships
Literature: Baer-Kaupert, Obligation based on socially typical behavior, 1970; Erman, 70

factual contractual relationships or business management without commission, NJW
1965, 421; Esser, Thoughts on the Dogmatics of
"actual obligations", AcP 157 (1957), 86; Main, About factual
contractual relationships, 1941; Kellmann, Obligations from a socially typical
behavior, NJW 1971, 265; Lambrecht, The doctrine of the factual contractual
relationship, 1994; Lehmann, factual contractual relationships, NJW 1958, 1; Si mitis,
The factual contractual relationships, 1957; Wieacker, declaration of intent
and typical social behavior, FS OLG Celle, 1961, 263.
Contracts come about through offer and acceptance

(§§ 145 et seq.). In contrast, meant a doctrine founded by Haupt
about factual contractual relationships that contractual obligations can arise in certain
cases even without corresponding declarations of intent solely through purely factual
behavior. With this construction one wanted a legal transaction
Justify success without declarations of intent, because the application of non-

contractual rules (tort, unjust enrichment, business management without a mandate)
cannot be justified
considered appropriate. Three cases in particular were involved, viz.
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Litly about continuing obligations executed without an effective

contract, about the use of services in the modern
mass transport and the use of a service
simultaneous rejection of a contract.
The doctrine of the factual contractual relationships finds no support
in the law and sometimes leads to inappropriate results.
It is no longer seriously represented today. All mentioned
Cases can be solved without them.
1. Continuous obligations executed without an effective contract

71 A case group of actual contractual relationships were those without
effective contract executed continuing obligations. With these
does the obligation consist of ongoing behavior (e.g. transfer of use)
or recurring services (e.g. monthly rental payments, daily work
performance). Is a continuing obligation based on a null and void
from the outset or
If the contract is canceled with effect ex-tunc and services have
already been rendered in the meantime, a reverse transaction for the
past is often hardly possible.
Example: If the employment contract is retrospectively destroyed by contestation
already performed cannot be undone
be made. A claim for value replacement (§ 818 Para. 2) is then not
given if the employer does not enrich by the work performance
or the enrichment has since ceased (Section 818 (3)). the
other benefits rendered by the employer during the performance of the employment
relationship, such as the granting of holidays and continued payment of wages
Illness have occurred without legal reason.
Since the legal claims, in particular the right to enrichment, lead to

inappropriate results here, for the time
of the execution of the employment relationship, a de facto contractual
relationship is constructed from which contractual claims then arise
should.
In the example case, according to this teaching, the employee had all rights under
the employment contract until the nullity was contested or asserted
and duties. He needed the continued payment of wages, if any
not repayable in the event of illness and none for vacation taken
to pay compensation.
72 In order to arrive at such results, the doctrine of

actual contract but not. Because the legislature the special
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Problems of the completed permanent legal relationships not seen

has, for example, when contesting errors (e.g. through teleological
Reduction of § 142 para. 1) ex-nunc destruction assumed
so that contractual claims are given until they are contested
are.114 On the other hand, the contract is due to lack of legal capacity
of a party or because of fraudulent misrepresentation, the went
Doctrine of the factual contract too far, because according to it also for the
contractual obligations could arise for the party who is not legally competent
and contractual rights could arise for the fraudulently deceitful party; here is the
Applicability of contract law is inappropriate due to the special need for
protection of the non-contractual capacity and the lack of protection of
the deceiver. Corresponding as for accomplished
Employment relationships also apply to completed partnerships,
if the partnership agreement is invalid. rightly speaks
In such cases one does not speak of the factual, but of the faulty
employment or company relationship. However, an agreement – even if
it is incorrect – must exist in order to be able to apply contract law. Lack
of any agreement or standing
contrary to the reasons for ineffectiveness of an application of contract
law, the exchanged services are in spite of all difficulties
to be reversed according to §§ 812 et seq.
2. Use of mass transport services

In modern mass transport, public services (e.g. gas, water, electricity, 73
transport) are often used
made use of without corresponding declarations being made. The
considerations result from tariffs. the
The doctrine of the factual contractual relationship meant that such a
claim must, according to its socially typical meaning, produce the legal
consequences of a legal transaction (obligations arising from socially
typical behavior). After that it was necessary
no declaration aimed at legal success; A lack of legal capacity played no
role, a challenge should be ruled out.
Appropriate results can also be obtained in such cases without

achieve this lesson. This regularly leads to the conclusion of a contract
required implied declaration of intent of the person performing the service
takes up, are available. Who a bus or a tram
114 Details: Brox, The Restriction of Error Claims, 1960, 233 ff. (271 ff.).
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board, knows that by doing so he is making a declaration of intent to

conclude a contract of carriage against payment. This is the only way to
understand his behavior from the point of view of the recipient horizon. Furthermore
In such cases, the doctrine of a factual contractual relationship
violated the value of the Civil Code aimed at protecting the
incompetent; because they made it possible for about one
child could be held liable for fulfillment based on his factual
conduct. That being said, no reason is given there for the public
utility providers
to be treated legally differently than other contractual partners.
3. Claiming a service in the event of contradictory Ver

keep
74 Finally, the doctrine of the factual contractual relationship does

not need to be used even if someone
accepts the service offered to him and at the same time refuses
to conclude a contract. School example is the case where a motorist
told the attendant of a metered parking lot that he wanted to
park, but do not have a guard and therefore refuse to pay.115 In
this case, too, there is not only one
factual behavior, but an implied declaration of intent by the
driver before; because his behavior does not admit of any other interpretation
as the conclusion of a chargeable security contract, and
his contradicting declaration (protestatio facto
contraria) is irrelevant.
IV. Preliminary Agreements
75 Literature: Henrich, lecture, option contract, priority contract, 1965; Rit Zinger, The
preliminary contract in notarial practice, NJW 1990, 1201; K Schmidt,
Enforcement of pre-contractual obligations, DNotZ 1990, 708.
1. Purpose
If there are still actual or legal obstacles to the conclusion of a

debt agreement, the parties want each other
but are already obligated to conclude a debt contract in the future,
a preliminary contract can be considered for them. doing so
115 BGHZ 21, 319 = NJW 1956, 1475.
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it is a contract by which for one or both parties the

Duty is established, another contract under the law of obligations, the
Main contract to conclude (obligation to conclude).
If the obligated party refuses to enter into the main contract,

sue the other party for conclusion, ie for submission of a corresponding declaration
of intent; the declaration of intent is deemed to have been made when the judgment
becomes final (Section 894 ZPO).
2. Content
Since from the preliminary contract sued for the conclusion of the main contract 76
can be, the judge must be able to understand the content of the
main contract from the preliminary contract. Therefore have to
the provisions of the main contract from the preliminary contract at least
be determinable (on the determinability of the service: " § 6 para. 1 ff.).
3. Shape
If the main contract requires a form to protect against haste (e.g. Section 311b 77
(1)), this legislative reason also applies
for the preliminary contract. On the other hand, it is only possible with the formal requirement
to preserve evidence, the preliminary contract does not need this
shape to be closed.
4. Meaning
In practice, the preliminary contract is not of great importance: since the person 78
entitled to it must first sue for the conclusion of the main contract and only
can then assert the rights from the main contract, the parties usually prefer a different
route. Eg K wants from V after his vacation
buying a car, he achieves this goal more easily than with a preliminary contract by
having V make him an irrevocable offer to sell him now, which he can later accept or
reject. Instead, the parties should have concluded the sales contract and the
be able to set the due date for the benefits at a later date. in the
It must therefore be examined on a case-by-case basis whether the contracting
parties only have the obligation to conclude a main contract or whether they are not directly
wanted to justify rights and obligations resulting from this.116
116 BGH NJW 1962, 1812.
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§ 5. Creation of pre-contractual
obligations
1 Literature: Bergjan, The liability from culpa in contrahendo at the letter of

Intent, ZIP 2004, 395; Dassbach, Pre-contractual information requirements, JA
2016, 325; Finn, On the liability of experts for incorrect valuations towards third
parties, NJW 2004, 3752; Frassek, Scope of liability of a contractual advisor and
inclusion of third parties in the scope of protection
pre-contractual obligations – BGH, NJW-RR 2003, 1035, JuS 2004, 285;
Hauck/Blaut, The (quasi) contractual liability of platform operators,
NJW 2018, 1425; Keller, Obligation and Legal Disclosure, 2007;
Kersting, Information liability of third parties: trust in reliability, JR 2008,
312; Leyens, Expert liability: Compensation for financial losses in a three-person
relationship under civil law, JuS 2018, 217; Lieb, Culpa in contra hendo and third-
party liability, in: DHLR SchuldR § 3 C; Lorenz, basic knowledge –
Civil law: Culpa in contrahendo (§ 311 II, III BGB), JuS 2015, 398; Reischl,
Obligation of “business contact” through acts of favor, FS Musielak, 2004, 411;
Schumacher/Valeska, Culpa in contrahendo and
Expert liability according to the new law of obligations, ZGS 2002, 450; Schwab,
Basic cases of culpa in cotrahendo, guardian liability and contract with
Protective effect for third parties under the new law of obligations, JuS 2002, 773,
872; Thei sen, Legal consequences of a claim for damages from culpa in contrahendo,
NJW 2006, 3102.
Writings from before the reform of the law of obligations: Crezelius, Culpa in
contrahendo of the representative without power of representation, JuS 1977, 796; dahm,
Pre-contractual third-party protection, JZ 1992, 1167; Gottwald, Liability for culpa
in contrahendo, JuS 1982, 877; Herrmann, The guardian liability of wealth-caring
professions, JZ 1983, 422; Horn, Culpa in Contrahendo, JuS 1995, 378;
Jhering, Culpa in contrahendo, JherJb 4, 1; Dear, culpa in contrahendo and
Legal freedom of decision, FS Medicus, 1999, 337; physician,
Claims to the interest in performance from fault in contract negotiations, FS Herm.
Long, 1992, 539; Michalski, The legal institute of the culpa
in contrahendo (cic), JURA 1993, 22; Picker, Positive claim violation and culpa in
contrahendo, AcP 183 (1983), 369; Reinicke/Tiedtke, Obligations to pay damages for
culpa in contrahendo after termination of contract negotiations without good reason,
ZIP 1989, 1093;
Tiedtke, The content of the claim for damages from culpa in contrahendo due to lack
of information, JZ 1989, 569; M. Weber, Liability
for prospective contract conclusion, AcP 192 (1992), 390.
Case a: K, who wants to buy a car from V, does so with the inspected car
vehicle for a test drive. Through the fault of the V, the car breaks down in a lonely
area on the way. K has to take a taxi back
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§ 5. Creation of pre-contractual obligations 69
have it delivered and pay high travel expenses. Compensation claims against V?
"Rn. 2, 5
Case b: The homeless man K goes to V's department store to warm up there.
There he is slightly injured by a falling shelf that an employee of V has not properly
secured. K demands from V Compensation." Rn. 6, 7 Case c: K goes with his
underage child M to a department store to "rummage around". K slips on the
improperly cleaned floor and injures himself. Does V have to pay compensation?
What is the legal situation if M slips and injures himself? " paragraph 7, 13
Case d: V commissions the expert D with the valuation of his property. In his
report, D negligently assumes that the value is too high. This tempts the K to make
an unfavorable purchase.
rights of the K? " paragraph 11
Case e: V, acting as K's representative, is negotiating with the owner E about the
purchase of his property. On the basis of false information, he causes E to sell below
value because he then wants to buy the property from K himself at this price on the
basis of a preliminary contract. " paragraph 12
I. Legal regulation
Pursuant to Section 311 (2), an obligation with obligations
pursuant to Section 241 (2) (duties to protect) can also arise at
a pre-contractual stage. This provision was included in the
German Civil Code as part of the debt law reform with effect
from January 1, 2002.1 However, this only created a positive
provision for a legal institution that had previously been known
under the keyword “culpa in contrahendo” (cic) as a central legal
institute of German civil law was recognized as customary law.
Thus, the idea that there may also be pre-contractual obligations for which liability
can be considered, was expressed in numerous individual provisions (e.g. §§ 122,
179; §§ 307, 309 old version; §§ 523 para. 1, 524 para . 1, 600, 694) experienced a
concrete design. In the earlier § 11 No. 7 AGBG, a clause in the AGBG was
expressly declared invalid in which liability for gross negligence was excluded "for
damages resulting from the breach of obligations during contract negotiations".
However, Section 311 (2) does not comprehensively regulate the legal institution
of the cic. Only the requirements for the creation of a pre-contractual obligation are
listed here. The provision only applies to the content and scope of the obligations
established hereby
1 BT-Drs. 14/6040, 162 f.
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the reference to Section 241 (2) a statement. From this it can be seen that this is an
obligation without primary performance obligations, in which there are only obligations to
protect.
II. Meaning
2 The pre-contractual obligation arises precisely without a
contract and is therefore part of the statutory obligation; however,
it partly has the effects of a contractual obligation. This can be
seen, among other things, from the systematic position of Section
311 (2) in Section III on “obligations arising from contracts” and
from the heading of Section 311 “obligations relating to legal
transactions and obligations similar to legal transactions”. This is
also the meaning of the pre-contractual obligation. In such cases,
in which the application of §§ 823 ff. on tortious acts alone does
not lead to appropriate results, it can form the basis of a claim
for damages for breach of duty according to § 280 paragraph 1
in conjunction with §§ 311 paragraph 2, 241 paragraph 2 being.
In case a, K has no contractual claims for damages against V because a contract has
not (yet) been concluded. Even according to §§ 823 et seq., K cannot demand reimbursement
of the taxi costs from V, since V has violated neither an absolute legal interest of K (§ 823
Para. 1) nor a protective law (§ 823 Para. 2), nor against K's immorality has harmed (§
826). If, on the other hand, V and K had concluded a sales contract before the start of the
test drive, a claim for damages for breach of a duty to protect could be considered. However,
it would be inappropriate if V's liability for a breach of the duty to protect depended on
whether the contract was (accidentally) concluded before or after the test drive. An identical
solution to both cases is achieved by the fact that, according to Section 311 (2), the
obligations under Section 241 (2) to take into account the legal interests, rights and interests
of the other party already exist at the stage before the contract is concluded.
3 Even if the damaging action is one of the elements of § 823,

but it is carried out by an auxiliary person, a claim for damages
against the principal is only justified if this person as a vicarious
agent in the performance of the service caused the damage and
the principal did not have the proof of exoneration succeeds (§
831).2
If K was physically injured by the employee of V during the test drive before the
conclusion of the contract (§ 823), a claim for damages is excluded
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against V if the latter proves that he is not at fault in the selection and monitoring of
the employee (§ 831 Para. 1 Sentence 2).3 But it was
already concluded the purchase contract, V is responsible for the fault of the employee
without the possibility of exculpatory evidence (§ 278;
" § 20 para. 23 et seq., 42). Here, too, liability would depend without § 311 (2).
of the principal depends on whether a contract has already been concluded or
not.
The results in the two sample cases have always been

felt to be inappropriate, especially since regardless of the time of the
A special relationship exists between the parties involved after the conclusion
of the contract, in which the legal assets, rights and interests of each party
are exposed to an increased degree to the influence of the other party.
III. Conditions for the creation of a

pre-contractual obligation
Section 311 (2) regulates the conditions under which a pre- 4
contractual obligation with mutual duties to protect arises.
Any "social contact" in the sense of a mere one is enough for this
spatial proximity not sufficient; it must rather be a business contact.
Such arises according to § 311 paragraph 2 only in
following three cases:
1. Contract Negotiations
According to No. 1, a pre-contractual obligation arises with the 5
Initiation of contract negotiations. This legal relationship
Contract negotiations end when the negotiations are finally broken
off or when the negotiations result in a contract being concluded;
from then on there is a contractual obligation.
In case a, the fact that K carries out a test drive with the vehicle he has selected
indicates that he is already in contractual negotiations with V.
2. Contract initiation
The obligation of contract initiation mentioned in No. 2 has 6
lower requirements than those of the contract negotiations.
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Here it is sufficient for an entrepreneur to open his business

premises to customers in order to give potential customers the
opportunity to contact them for the purpose of concluding a contract,
and for a prospective customer to enter the business for this
purpose. As a result, he exposes his legal interests, rights and
interests to an increased extent to the entrepreneur's ability to exert influenc
This condition is met, for example, when someone enters a department store
with the intention of buying something there (not in case b). It can also be assumed
that a contract is being initiated if a customer brings his car to a repair shop and
asks to be checked whether a repair is still economically worthwhile.4
3. Similar business contacts Similar

7 business contacts within the meaning of No. 3 can be spoken of
at an even earlier stage in which a contract is not yet initiated, but
is to be prepared.
No. 3 forms a catch-all event for such contractual obligations that
are not already covered by No. 1 and No. 2. It is only necessary
that by establishing contact with the aim of perhaps concluding a
contract or otherwise doing business with the other party, this is
given an increased opportunity to influence the legal assets, rights
and interests.
In case c, it is irrelevant whether there is a purchase agreement between V and K

later or at least should be. The customer does not even need to have a concrete
intention to conclude the contract. Rather, it is sufficient for a business contact if he
wants to find out more about the offer in order to then decide on the conclusion of a
contract. However, such a potential legal relationship is necessary. In case b,
entering a department store solely for the purpose of warming up is not a “business”
contact. A liability for damages on the part of V can only be considered if the
prerequisites for a tortious act (Section 823 in the event of one's own breach of a
duty to ensure public safety5 or Section 831 with the possibility of exoneration in the
event of a tortious act by a vicarious agent6 ) are met.
4 BGH NJW 2017, 3586 para. 11.

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IV. Parties involved in the pre-contractual obligation

1. Potential contractors
A pre-contractual obligation exists in principle between those parties 8th
who would have become contractual partners if the contract had already
been prepared, initiated or negotiated (e.g. the operator of the department
store and the
prospective buyer who was injured by a fallen shelf in a department
store).
2. Third
Even before the new regulation of the pre-contractual obligation in 9

Section 311 (2), it was generally recognized that, in addition to the
contractual obligation, a contractual obligation existed between one of
the parties involved and a third party who was not himself
to become a party to the contract can arise. From this the third party can
be both entitled and obliged. That's since
1.1.2002 in § 311 Abs. 3 S. 1 expressly regulated in the law. However,
not much has been gained with this; because the prerequisites for the
contractual obligation to the third party are
not regulated by law, but must be taken from the rules established by
case law. Essentially
it concerns the following case groups:
a) When claiming special trust. In Section 311(3). 10

On p. 2, the case is mentioned as an example where the third party
claims a high degree of trust when initiating the contract
and thereby significantly influence the contract negotiations or the
conclusion of the contract.7
Example: The used car dealer who sells a car only as a

acts as an intermediary or as a representative of the owner, is liable to the buyer,
if this because of the special expertise of the dealer on his
information and advice trusted.
b) Trustee Liability. Section 311 (3) sentence 2 also applies to cases of 11

so-called trustee liability. It is about the liability of experts and other
persons providing information who (without self-interest
7 Cf. already from the time before the reform of the law of obligations BGH DB 2002, 1879 with further references
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at the conclusion of the contract) make a decisive contribution to the conclusion

of the contract through their statements, because a negotiating partner relies on their
Expertise, objectivity and neutrality leaves.8
In case d, there is no contract between the property buyer K and the expert D, but
according to Section 311 (3) sentence 2 there is an obligation,
because K was significantly influenced by D's (incorrect) expert opinion when concluding
the contract with V. Due to the culpably false information on the property value, D has
committed a breach of duty,
which lead to a claim for damages by K pursuant to §§ 280 Paragraph 1, 311 Paragraph 3,
241 para. 2 can lead. The same result will not have the partial
Application of the legal institution of culpa in contrahendo, but according to the
Rules of the contract (between V and D) with protective effect for third parties (K)
(see "§ 33) achieved.
The liability of the trustee does not go further than that of the
Contracting party (e.g. the seller of a motor vehicle), on whose behalf the
trustee (e.g. a motor vehicle expert) becomes active. So stick with it
a material defect in the purchased item, the seller as a contracting party does not
have to do so due to the priority of supplementary performance (§§ 437 No. 1, 439)9
Compensation for damages can also be paid by the seller
administrator (the motor vehicle expert) cannot be claimed for
damages.10
12 c) If the third party is interested in the conclusion of the contract. For a long time
the liability of a third party from cic is recognized if, for example, he is
representative for a contracting party or as a broker in the conclusion of
a contract and does not claim any special trust, but has a considerable
self-interest in the
conclusion of contract; this self-interest must go beyond a mere
commission interest, and the third party must act “in its own right, so to
speak” (qualified self-interest)11.
In case e, V was not a contracting party when the contract was concluded with E,
but only representatives of the K. He was, however, at the negotiated
Purchase price for the property just as interested as the buyer himself, because
he was entitled to purchase at the price negotiated with E on the basis of the preliminary
contract with the buyer.
8 Bundestag printed papers 14/6040, 163; BGH NJW-RR 2011, 462 (463).
10 BGH NJW-RR 2011, 462 (463 f.) Manm Schinkels LMK 2011, 315341.
11 BGH DB 2002, 1878 (1879); ZIP 1988, 1577; NJW 1990, 506.
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This case of the third party's own liability from cic is not
covered by the non-conclusive § 311 para. 3 sentence 2, but the
Fundamentally recognized by Section 311 Paragraph 3 Sentence 1. The
prerequisites mentioned for the inclusion of the third party (as it were in their own
thing active) have been developed by case law even before the guilt legal
reform.
d) Protection obligations in favor of third parties. When including 13

Third parties on the creditor side are concerned with cic's legal institution
with protective effect for third parties. The protected third party does not need
to be able to do business.
In case c, it was clear when entering the department store that it was not the
minor child M, but at most K, who would become a party to a purchase contract
should. But if the protection obligations of the V from the pre-contractual
Have an obligation with K also extended to M, this can because of the
damage suffered against V.
Whether the legislator really considers the inclusion of third parties in the
scope of protection of a contract in the regulation of Section 311 (3)
eye is not entirely clear; but the wording of the rule
captures this case. The factual requirements for extending the scope of
protection of a pre-contractual obligation to a third party can be found in the
case law on this
Legal institution from the time before the reform of the law of obligations (details:
"§ 33 marginal number 6).
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The content of the individual obligation arises from the

agreement made or directly from the law. on this is
to be dealt with in more detail below. The question of whether
the
Debt has expired, for example, through fulfillment (see "§ 14) or there is a
disruption in the contractual relationship (see "§§ 21 et seq.) and therefore about
the debtor is liable for damages (e.g. "§ 22 para. 49 et seq.).
§ 6. Determination of the content of the debt
1 Literature: Hromadka, The Employer’s Right to Determine Benefits,

DB 1995, 1609; Joussen, The design right of third parties according to § 317 BGB,
AcP 203 (2003), 429; Kähler, Injunctive relief against algorithmic
Wrong decisions, NJW 2020, 113; Kronke, On the function and dogmatics
the performance determination according to § 315 BGB, AcP 183 (1983), 113; Rieble/Gut
fried, Specification Purchase and Civil Code Law of Obligations, JZ 2008, 593.
Case a: The shareholders A and B, who dissolve their company and that
want to divide assets equally among themselves, agree that A will
to make distribution. What can B do when he starts distributing
disagree? " paragraph 6
Case b: What is the legal situation if C is to carry out the distribution? To
B does not agree with the distribution and causes C to undertake another dispute. Does
A have to put up with the new division? " Paragraphs 11, 12
Case c: What applies if B asserts that A has fraudulently got C about the
Value of the assets deceived and therefore a wrong distribution was made? He wants
to challenge C's statement. Can
also challenge C? " paragraph 12
I. Certainty of Performance
In the case of a contractual obligation, the content of the service must

determined or at least determinable. Because to an indefinite
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§ 6. Determination of the content of the debt 77
ten performance, the debtor cannot be convicted, and a

Enforcement is not possible.
Obligations under the law of obligations are often not determined in
detail by the parties, e.g. if regulations on the type,
The subject, place or time of the service is missing. A debt
is nevertheless effective if the content of the service changes
can be determined, so it is determinable. There are many ways to do this
to use objectively established circumstances for the interpretation, e.g
when purchasing, the retail or list price, when purchasing securities, the
market value. In addition, legal rules apply (cf. e.g
§§ 269, 271 para. 1, 311c, 612 para. 2, 632 para. 2).
Example: If a car is given for repairs, the remuneration is usually not fixed in advance. However,
the usual remuneration has been agreed
(Section 632 (2)).
The content of the guilt can also be determined by the fact that a
other debt obligation is referred to (cf. e.g. in the
guarantee on the main liability).
II. Determination by a party or a third party

The parties can specify the content of the contract in more detail 2
but also expressly leave open and agree upon conclusion of the contract
that the detailed design of the contract by one party (§§ 315 f.;
"Rn. 3 ff.) or by a third party (§§ 317 ff.; "Rn. 10 ff.).
target. A legally specially regulated subsequent determination of
performance by a party exists in the case of the agreement of a generic
("§ 8 marginal number 1) or optional debt ("§ 8 marginal number 8). In
these cases, the content of the service is not yet in place when the contract is concluded
completely solid; however, it should be determined according to the
agreement of the parties before the obligation is fulfilled. If, on the other
hand, the parties only want to agree later on the determination of the scope
of the service, then there is still no contract (section 154).
1. Determination by a Party
a) Beneficiary. The determination of performance or 3
individual modalities can be given to both the creditor and the

be reserved for debtors (section 315). For mutual contracts there
the law is an interpretation rule: if the payment for a service is not
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78 4th chapter. content of the obligations
determined, is entitled to determine who is to demand the payment (§

316).
4 It should be noted, however, that in many cases the consideration can
be determined by interpretation even if there is no express provision (cf.
"Rn. 1): then §§ 315 f. are not applicable.1 On the other hand, the
consideration is after taxes or fees below
to determine only minimum and maximum amounts,
the person entitled to the claim can set the consideration within these
limits according to §§ 315 f.
For example, the doctor can be within the framework of the medical fee schedule
assess fees; an application of §§ 612 paragraph 2, 632 paragraph 2 would
not sufficient to determine the remuneration.
Examples of a creditor's right to determine: the “Price

subject to change” or “Price adjustment under certain conditions”, time of delivery of
the goods (on call).
Examples of a debtor's right to make determinations: the employer's promise to

have its workers insured; Determination of Legacy Benefit under Section 2156.2
5 b) Determination by declaration of intent. The determination is made

through a legal declaration of intent by the entitled party. the
Declaration is irrevocable like any declaration of intent that is part of a
contract has become; it requires no form, even if the contract
itself or the promise of performance requires a specific form. The general
rules on nullity and voidability apply.
6 c) Determination at reasonable discretion. The purpose is

unless otherwise agreed, to be made at reasonable discretion
(§ 315 para. 1; case a). If it does not correspond to this, it is not binding
for the contractual partner (section 315 (3) sentence 1). The determination
must then be made by judgment (section 315 (3) sentence 2); this
It is also possible if the determination is delayed.
The determination is made by the court itself, not by
the contracting party on the instructions of the court.
The person entitled to determine is therefore entitled to discretionary powers; it is

therefore not only a single “correct” result is conceivable. Only when the
If the limits of reasonable discretion are exceeded, the determination is made
1 BGHZ 94, 98 (101) = NJW 1985, 1895.

2 Brox/Walker ErbR § 27 para. 21.
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to replace the court and not if the court considers a different determination to be correct.3 There is
a dispute as to whether the contractual partner is obliged to make the determination.4 This question
cannot be answered in general. Whether such an obligation exists must be determined by 7

interpretation in the individual case, but it will usually be affirmed if the contractual partner is
interested in the execution of the contract. The disputed issue is relevant to any consequences of
default (Sections 280 (1), 2, 286; 280 (1), 3, 281; 295). With the lawsuit pursuant to Section 315 (3)
sentence 2, the legislature wanted to open up a simple way of having the content of the contract
determined;5 without this provision, an action would have to be taken under general procedural law
to have the provision made and enforced accordingly (cf. Sections 887 , 888 Code of Civil
Procedure)6 . Under special conditions, the contractual partner can even bring about the due date
himself.7
d) Discretionary Determination. If the parties have agreed 8th
that the determination should be made at the discretion (at will)

of a party, Sections 315, 316 shall not apply.
When examining whether the parties have agreed on equitable or free discretion, the wording
of the contract alone should not be taken into account; the agreement of equitable discretion is to
be assumed as a rule (cf. § 315: "in doubt"); eg in the clause "Price subject to change".
If, on the other hand, it turns out that the parties wanted free discretion or discretion, the question
always arises as to whether there is an effective contract at all:8 If the creditor is allowed to decide
at his discretion, nullity can apply because of § 138 (gagging of the debtor; e.g. determination of the
purchase price by the seller); if the debtor is free to make the determination, the debtor may not be
sufficiently bound (e.g. determination of the purchase price by the buyer).
If there is an effective right of determination based on free 9
discretion, in the event of inequity there is no action under

Section 315 (3) sentence 2, since the court in this case may not
make a decision based on reasonable discretion. The provision
is only non-binding if a violation of §§ 134, 138 can be assumed.
If it is delayed, the normal legal options are available for an
obligation to determine (for making the determination, § 888
ZPO, or for damages). According to the will of the party, in individual cases
3 BGHZ 41, 280 = NJW 1964, 1617; BGH NJW-RR 1991, 1248.
4 Cf. MüKoBGB/Würdinger § 315 para. 40, 42 mN
5 Mot. II, 192.
6 In addition, Brox/Walker compulsory full-scale regulation, para. 1065 et seq.
7 See BGH NJW 1983, 2934.
8 Cf. Erman/Hager BGB § 315 para. 18.
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an ineffectiveness according to § 319 paragraph 2 ("Rn. 15) can also be

assumed if the parties have regarded the provision as a condition (§ 158
paragraph 1).
2. Third Party Determination

10 The parties may also agree that a third party - or
several third parties – determine the service content (§§ 317 et seq.); This
often happens when special expertise is required for this determination, but at
the same time a neutral and trustworthy person is to decide on the contractual
obligations.
In the case of a real contract in favor of third parties ("§ 32 para. 2), the third party beneficiary
is not a party to the contract. However, he is still not considered a third party within the meaning of
§ 317 viewed because he is entitled as a contractor, the agreed
to demand performance (section 328 (1)). On the right to determine the performance of
Third-party beneficiaries therefore not § 317, but § 315 applies
11 a) Content of the determination right. According to the wording of § 317

the determination of the service must be left to the third party; this also includes
the determination of only one performance modality.
Example: A and B conclude a purchase contract for a painting with the

Agreement that C should determine the purchase price and the place of performance;
see also case b.
Frequently, a third party is not supposed to supplement a missing contractual

provision, i.e. to design the previously indefinite contract, but an existing one
that can only be determined by the uninitiated
Determining the content of the contract or specifying facts that are only indirectly
are important for the content of the service (so-called arbitration experts
in the narrow sense).
So is the third arbitrator, if in the example the parties as

Purchase price have agreed the estimated value plus a surcharge and
the third party determines the estimated price or if, in case b, the third party C is to
value the items.
The provisions of §§ 317 et seq. apply accordingly to the agreement of an

arbitrator's opinion, so that a clear separation, which can be difficult in individual
cases, is not necessary.
However, the arbitrator within the meaning of Sections 1025 et seq. ZPO must be distinguished from this.
The arbitrator shall replace the court for the parties in dispute
9 BGH NJW-RR 2003, 1355.
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make a binding decision on the legal relationship; §§ 317 et seq. are not applicable.
The manner of expression of the parties is not decisive for the demarcation,
but the function of the third party desired by the parties:
The arbitrator only establishes factual elements, so that the decision on the claim is
reserved for the court, during which
Arbitrator finally decides the legal relationship between the parties.10
b) Determination by declaration of intent. The determination of 12

Third parties are made by declaration to one of the contracting parties (§
318 Para. 1); it is irrevocable (case b). A challenge is based on error, threat
or fraudulent misrepresentation
possible; however, according to § 318 para. 2, the right to challenge is only available to
contracting parties.
The third party should not be able to contest because he has no interest in
contesting11 (case c). The avoidance must also take place in the cases of section 123
immediately after knowledge of the reason for avoidance (section 318 (2) sentence 2).
c) Determination at reasonable discretion. In case of doubt, the third party 13

must make the determination at his reasonable discretion (§ 317
Paragraph 1). Its determination is not binding on the parties if
it is obviously unreasonable. The determination is then made by judgment
(Section 319 (1) sentence 2). The compared to § 315 (non-binding
even in the case of unfairness) different regulations express that regularly
when determined by a third party
the guarantee of correctness is more likely than in the determination
by a party. It should only then the judicial decision to the
The declaration of the third party shall take the place of the third party's standard
of good faith in a gross manner that is immediately recognizable to the
impartial, competent assessor.12
A determination by judgment is also made if the third party 14
cannot or does not want to make the determination or delays it (§ 319
Para. 1 p. 2). This regulation corresponds to the usual intention of the parties:
If a third party is to make a reasonable decision, come
it depends not so much on the person of the decisive person as on
the factuality of the decision. Therefore, in his place
the court make the determination.13
10 BGHZ 6, 335.
11 Prot. I, 471.
12 conspr; cf. BGH NJW 1958, 2067; 1991, 276; see also Looschelders SchuldR AT
§ 11 para. 12 et seq.
13 Prot. I, 468 f. against the draft, Mot. II, 193, who wished to assume invalidity.
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15 d) Determination at will. The parties can also agree that the third
party decides at its own discretion. Then a determination by judgment
is out of the question; because the parties attach decisive importance
to the determination of the third party. If the third party does not make
the determination or delays it, the contract is ineffective (§ 319 Para.
2).
The third party is generally not obliged to submit the declaration unless he has
assumed a corresponding obligation; in this case he could be stopped to submit the
declaration according to § 888 ZPO.
In the event of obvious unfairness, the provision is not non-binding

– contrary to § 319 Paragraph 1; only in the event of a violation of §§
134, 138 is the contract void.
16 e) Determination by several third parties. If the determination is to

be made by several third parties, they must agree (Section 317 (2)). If
this is missing, the consequences are the same as if no determination
had been made (cf. " para. 15). When determining a sum (e.g.
purchase price), on the other hand, there is the possibility of forming
an average sum from the sums of the different views ( § 317 para. 2);
a provision is thereby achieved in a simple way.14
§ 7. Principle of good faith
1 Literature: Beater, general clauses and case groups, AcP 194, (1994), 82; Canaris,
Liability in good faith in German private law, 1971; Gernhuber, § 242 BGB - functions
and facts, JuS 1983, 764; Greiner/Baumann, Treu und Faith - a "piece of legislation
left open" and its application in the recent case law of the BAG, Ad Legendum 2020,
297; Kegel, Forfeiture, Contract and Trust, FS Pleyer, 1986, 513; Knops, Creditor's
statement and debtor's confidence as forfeiture requirements, NJW 2018, 425; Mader,
Abuse of Rights and Improper Exercise of Rights, 1994; Ohly, General Clause and
Judge Law, AcP 201, (2001), 1; Pawlowski, Constitutional requirements for the
interpretation of § 242 BGB?, JZ 2002, 627; Petersen, The limits of permissible
exercise of rights, JURA 2008, 759; Rösler, Malice in the Law of Obligations, AcP 207
(2007), 564; Singer, The Prohibition of Contradictory Behavior, 1993; Teichmann,
secondary obligations from good faith, JA 1984, 545, 709; ders., Venire contra factum
proprium - A partial aspect of abusive legal action, JA 1985, 497; Stauder, The
Forfeiture of Legal Positions under Civil Law, 1995; R. Weber, Development
14 months II, 194.
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§ 7. Principle of good faith 83
and extension of § 242 BGB to the "royal paragraph", JuS 1992,

631.
Case a: S owes G the repayment of a loan of EUR 1,000.

He wants his commitment after a long morning pub crawl
pay off at 2:00 a.m. at G. Can G refuse the acceptance without thereby in
default of acceptance (§§ 293 et seq.)? " paragraph 8
Case b: V sells his bakery in view of the favorable location
a high purchase price to K. Shortly thereafter, V, in the next building, decides
to open a new bakery. " paragraph 10
Case c: S wants to pay G a debt of EUR 1,000. In the
G's apartment turns out that S brought one euro too little with him
has. G then refuses to accept the money with reference to § 266.
" Paragraph 15
Case d: G demands payment of damages from S before the expiry of the limitation
period and at the same time threatens to sue. S agrees to negotiate
about the amount of the claim. On the advice of the G, he must
If you now sue for the claim because it will soon become statute-barred (cf. Section 214 (1)), S replies
that he will not raise the objection that the statute of limitations is statute-barred in the process. When
the negotiations fail, G files suit. S asserts the claim
has now become statute-barred. " Paragraph 16
I. Meaning of Section 242
1. Good faith as a general principle of law

According to Section 242, the debtor is obliged to effect the
performance in good faith with regard to customary practice
require it. Even if the provision is based on its wording
applies only to the debtor and defines his obligation to perform
in more detail, its scope of application is by no means exhausted.
On the contrary, jurisprudence and science have developed the
general legal idea from Section 242 in conjunction with Sections
133, 157 that everyone in exercising their rights and fulfilling their
Duties to act in good faith, ie to the legitimate
interests of the other party must be taken into account. The bid
Consideration therefore applies not only to the debtor, but also
to the creditor.
Section 133 relates to the interpretation of the individual declaration of intent, Section 157,
on the other hand, to the interpretation of the contract that has been concluded, while Section 242
according to its wording, only refers to the debtor's obligation to perform,
regardless of whether it is based on contract or law.
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The principle of good faith is a general clause. He

dominates the entire legal life and, beyond the law of obligations,
gains importance wherever there is a special legal relationship
between several people. He thinks so too, for example
in property law, in public law and in procedural law.
2. Delimitation and scope

2 a) good faith and equity. The meaning of § 242
would be thoroughly misunderstood if one saw in it a general
norm of equity that allowed the judge to disregard legal
assessments in order to arrive at a result that he felt to be fair.
Would the judge's principle
act in good faith in this way, then he would offend against you
Fundamental principle of the constitution, according to which he is
bound by law and justice (cf. Art. 20 Para. 3, 97 GG). Besides, none would be
Legal certainty is more guaranteed because the judicial decisions
would not be foreseeable.
3 b) good faith and legal development. Nor does § 242 contain a
general authorization for a judicial one
Legal development for reasons of equity. The legislature is
primarily responsible for solving new legal problems. the judge is
also authorized to fill in gaps in the law by developing the law; in doing
so, however, he is always bound by the assessments of the legislature
bound by existing provisions, which he has to transfer to
unregulated but similar cases. Since § 242 itself
needs to be specified by other legal assessments
("Rn. 5), it is not very suitable for providing usable standards for
filling gaps in the law.
The principle of good faith is therefore not intended to
independently create new legal institutions; his task is
rather, primarily in the already existing legal propositions or
To shape legal relationships more closely according to their meaning and purpose
or to show the limits of a formally given legal position.
4 c) Subsidiarity of good faith. To apply

of § 242 not to reach hasty judgments of equity
always be checked first whether the (possibly to be applied analogously
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denden) special legal regulations according to their sense and purpose

enable an appropriate solution to the specific case. In the
in most cases this will be affirmative and therefore a
Relying on the general principle of good faith
superfluous. Only if, exceptionally, it turns out that the (also
analogous) application of the law because of the special nature of the
specific case one or the other part in an obviously unfair,
disadvantaged in a way that contradicts the meaning of the legal
relationship, a balance of interests can be brought about as a last resort
via Section 242. The principle of good faith has insofar
only of secondary importance.
d) Specification through legal assessments and customary practice. 5
Section 242 does not contain a ready-made rule for what is true in a particular case
and faith corresponds. In order to be applied, this general clause needs
to be specified in more detail. Legal interest assessments, which have
found expression in other standards, offer important clues. Worth
mentioning here
not least the value decisions of the Basic Law. A further help in fulfilling
this general clause is the common practice to which Section 242
expressly refers. Below is the im
To understand traffic actually prevailing practice, according to the
procedure in a large number of similar cases. The most important
The commercial customs of merchants are an example of a custom
e) Justification in individual cases. Only if you look at the determination 6

What the principle of good faith requires in individual cases, these
different legal aspects are taken into account, arbitrary accidental results
can be prevented. The application of Section 242 also requires a detailed
analysis in each individual case
Justification that shows that and according to which legal
criteria, the conflicting interests of those involved are weighed against
each other.
1 § 346 HGB; Brox/Henssler HandelsR No. 16 et seq.
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II. Individual Use Cases

7 Case law and literature have constantly endeavored to classify the individual
problems that arise when applying Section 242 and to group them into specific
case groups in order to achieve a certain degree of legal certainty when
handling this general clause. However, the rules developed in the process only
offer a first point of reference and must then be checked in each individual
case to determine whether they do justice to the special interests of the specific
situation in life. Without claiming to be even complete, some areas of application
of the principle of good faith are to be shown here.
1. Determining the manner of performance

8th According to its direct scope of application, Section 242 is decisive for how
a contractual or legal obligation is to be fulfilled. Even without a special legal
regulation, the debtor can be prevented in good faith from performing at a
certain time or at a certain place
gene.
In case a, it is not compatible with Section 242 that S wants to repay the loan to G
at 2 a.m. (performance at an inopportune time). G can refuse to accept the money
without being in default of acceptance (see Section 26).
2. Establishment of obligations in the contractual relationship

9 The principle of good faith also applies to the
interpretation. This already follows from § 157.
For example, if K has bought an evening dress from V, then V is obliged, even
without any special agreement, to pack the purchased dress so that K can transport it
home undamaged.
There is room for a supplementary interpretation of the contract where the

parties have not taken into account a current or future circumstance that is
important to them when forming their will, so that their agreement is incomplete.
The principle of good faith is an important benchmark when filling this
contractual gap. The point to be taken is how the parties, given fair and
reasonable consideration of all the circumstances, especially the
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mutual interests, settled the point that remained open

ten.
a) Obligations in the contractual obligation and similar 10

legal special connections. Within the framework of contractual relationships,
the parties are bound in good faith to enable the contract to be implemented
in a meaningful manner and to the other
part from avoidable damage. The supplementary
Contract interpretation therefore often leads to the justification of contractual
Ancillary performance and protection obligations within the meaning of § 241 Para. 2 (" § 2
Rn. 8 ff.), which can be directed to an action or omission. to
above all, care, maintenance, information or
Obligations to notify ("§ 2 para. 11 et seq.). Whether and to what extent
such obligations arise cannot be answered generally;
The special features of the respective contractual relationship and the
considerations of the parties relevant to its conclusion are always decisive.
In case b, the supplementary interpretation of the contract, for which Treu und
Faith play a role (cf. § 157) to the fact that V is not the second bakery
may open; because the parties assumed when assessing the purchase price that K
should retain V's customer base.
The justification of contractual obligations with the help of the principle

of good faith is particularly effective in the event of a breach of these
obligations and a claim for damages based thereon
according to Section 280 (1) ("Section 25 para. 3 et seq.).
Section 242 may also give rise to obligations for those involved in other special
legal relationships, such as a relationship under family law
result. So there was a long discussion about whether the so-called false father was a
Daughter who has successfully challenged his paternity, from the one with him
married mother of the daughter basically information about the person of the
producer can demand if he wants to take recourse against him because of the
maintenance paid to his daughter. The BGH has derived such a right to information
from § 242.2 The BVerfG3 has in another
If this case law is declared unconstitutional. By such
The right to information becomes inadmissible in the general right of personality
of the mother according to Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG
intervened. This includes the right to have sexual relations with a specific partner
don't have to disclose. But the BVerfG expressly pointed out
2 BGH NJW 2014, 2571 f.

3 BVerfG NJW 2015, 1505 para. 23 et seq.
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pointed out that against the justification of claims for information in special connections
on the basis of the general clause of § 242 constitutionally
in principle there was nothing to object to.4
11 b) Obligations in the post-contractual obligation. Also after

the termination of a contractual relationship can result from § 242
subsequent obligations result (so-called culpa post contrahendum). It
are contractual ancillary obligations that are aimed at performing or
refraining from an action after the main obligations have been fulfilled.
Examples: Providing truthful information from the previous employer

to the employee's current employer; Toleration of a moving sign when relocating the
medical practice after the end of the lease;
Granting the patient access to medical records.5
12 c) Obligations in the pre-contractual obligation. With reference to

the principle of good faith, the case law long before the reform of the
law of obligations for the time
of the contract negotiations, the existence of certain due diligence and
Obligations to provide information accepted, their culpable violation
triggers a liability for damages (culpa in contrahendo; "§ 25
para. 11 et seq.). Today, this pre-contractual obligation has
§ 311 paragraph 2 a legal basis. When determining the
However, obligations can still be based on the principle of good faith
and faith to be resorted to.
3. Modification of the contractual obligation to perform

13 The doctrine of the absence or omission of the
Business basis, which was developed primarily in the period after the
First World War to replace existing contractual relationships
drastic economic changes during the inflationary period
to be able to adapt. Since the reform of the law of obligations, the prerequisites
and the legal consequences in the event of a disruption to the basis of the business
have been regulated in Section 313 (details: " Section 27). For the question of how the
Adaptation of a contract to the changed circumstances is to take place,
but is based on the hypothetical will of the parties despite this provision
and thus also on the principle of good faith (cf.
§ 157) to fall back.
4 BVerfG NJW 2015, 1505 para. 39.

5 Cf. BGHZ 85, 327 (339).
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4. Objection to Improper Exercise of Rights

Section 242 gives rise to the general one in addition to Sections 226 and 826 14
Principle that any exercise of rights contrary to good faith is inadmissible.
This principle is used here to
to limit one's given formal legal position, regardless of whether
these are, for example, claims rights, design rights or objections
acts. It should be noted, however, that Section 242 is not used for this purpose
be allowed to prevent any legal prosecution that is perceived as unfair,
because otherwise more or less clear law would take the place of the law
considerations of equity would arise. The objection of inadmissible
The exercise of rights can therefore only take effect in exceptional cases.
The case law also has certain case groups here

impermissible exercise of rights. The following are particularly worth mentioning:
a) Abuse of rights. Exercising a right is dishonest 15

and therefore inadmissible if it is not intended to realize the interests
protected by contract or law, but that
is used improperly. The assumption of an abuse of rights requires a
careful and comprehensive examination of all relevant circumstances
of the individual case and must be limited to special exceptional cases.6
In case c, G is acting in an abusive manner if he refuses to accept the EUR 999

because of the insignificant remaining amount of EUR 1. On the other hand
the bidder in an eBay auction is not acting in an abusive manner,
if he is looking to fulfill a contract concluded by way of an internet auction
contract of sale or compensation for non-performance, although
there is a gross mismatch between his bid (starting bid of EUR 1) and the value of
the object of purchase (over EUR 5,000) .7 The possibility of a “bargain” is
characteristic of such auctions, and the
The seller is aware of this risk by choosing a low starting bid
one.
b) Contradictory behavior. The beneficiary may have a right 16

not assert this if it would contradict his previous conduct (“venire contra
factum proprium”).
6 BGH NJW 2015, 548 (549) man Dastis JURA 2015, 376 and note Riehm JuS 2015,
355
7 BGH NJW 2015, 548 f. Manm Dastis JURA 2015, 376 and note Riehm JuS 2015,
355
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In case d, S cannot successfully raise the defense of the statute of limitations. Then
the debtor's appeal to the statute of limitations is contrary to good faith and ineffective
if the creditor from the entire behavior of the debtor for
this recognizable trust has drawn and was also allowed to draw, the
The debtor will not assert the defense of the statute of limitations.8 This does not apply
only if the debtor intentionally discharging the creditor
who held the lawsuit; on the contrary, breach of trust can also exist
if the debtor objectively through his behavior - be it unintentionally
– caused the action not to be brought in time.9
If a customer is untruthful when ordering online

ticks a pre-formulated confirmation that he has called up the cancellation
policy and printed it out or saved it, it is him
not always denied in good faith, his appointment later
to revoke and compliance with the revocation period (§ 355 para. 2
S. 1) to justify that he had not received a formal cancellation policy.
Ticking such a pre-formulated confirmation has no legal effect ("§ 4
marginal number 48 and "§ 19
Rn. 31), so that the contractual partner does not raise the objection
of the impermissible exercise of rights.10
17 c) forfeiture. A special case of contradictory behavior

is the forfeiture. A right is forfeited, ie it can without becoming statute-barred
to be no longer be exercised if the beneficiary over it
has not asserted it for a long time and the current assertion proves to
be unreasonable for the opponent (disloyal late
assertion). A longer passage of time (moment of time) alone makes
the exercise of rights is not yet inadmissible; otherwise they would
Statutory statute of limitations by § 242 any meaning
lose. In addition, there must always be special circumstances
(circumstances) which make the late assertion of the right appear
dishonest.11 A breach of good faith
is to be assumed above all if the opponent was allowed to conclude
from the behavior of the person entitled that he was not exercising his rights
will exercise more and he has actually adjusted to it.
For example, was the landlord V entitled to the tenant M without notice
cancel, then he can no longer exercise this right if he remains inactive for several
months despite being aware of the reason for the cancellation.
8 BGH WM 1991, 739.

9 BGH DB 2014, 479 (480).
10 BGH NJW 2014, 2857 (2859 f.).
11 BGH NJW 2018, 1390 para. 9; NJW 2016, 3720, paragraph 25.
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§ 8. Generic guilt, elective guilt and power of substitution 91
d) Malicious Conduct. The creditor violates good faith and 18

Believe when he demands a performance that he would have
to repay to the debtor immediately for another reason ("dolo
facit [or: agit], qui petit, quod statim redditurus est").
Example: M sues against V based on a preliminary contract for the conclusion of a rental
agreement. However, it is already certain that V will terminate the lease for important reasons
reason can terminate. Here M strives for a legal position, which he immediately
have to give up again.
§ 8. Generic guilt, elective guilt and

power of replacement
Literature: Bartels/Sajnovits, The role of procurement in generic purchases, JZ 2014, 1

322; Blum, Specification of the generic debt for the underage creditor, JuS 2018, 838;
Canaris, The Importance of the Transition
Risk of consideration within the framework of § 243 II BGB and § 275 II BGB, JuS
2007, 793; Gruber, The threatening end of piece debt, JZ 2005, 707; Faucet,
The Civil Replacement Power, 2011; Samhat, The Bearing of Perils
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after specification in the modernized law of obligations, JURA 2013,

1003
Case a: The farmer L owes the trader H 50 hundredweight of his oat harvest.
According to the agreement, L sends the oats by rail to H on his
costs down. On the way, the grain spoils as a result of an accident. H required
50 quintals of oats from L." marginals 1, 5, 6
Case b: The horse dealer P has the horse for the farmer B of his choice
Max or the horse Frieda sold. P had always kept his horses with B.
When Max dies from food poisoning caused by B's negligence, chooses
this the other horse. P thinks he doesn't have to do more. " Paragraph 8, 13
Case c: What is the legal situation if P sold the horse Max to B,
but it is reserved for B to take the horse Frieda? " Paragraph 16
Special cases of an indefinite but determinable performance

content are generic and elective debts; of the electoral debt is the
to distinguish substitution authority.
I. Generic Debt
1st term
A generic debt exists if the service owed is only
is determined according to general characteristics (generic characteristics).
Examples: 3 hundredweight potatoes, 1 VW Golf. If K orders a radio of a certain
brand from V according to the catalogue, he lets him choose the radio
Device of this brand, the delivery of which fulfills the contract of sale.
The characteristics of the genus from which the work is to be performed depend on
the party agreement. The more characteristics are defined, the
more the scope of the genus is limited.
If the debtor is to deliver 100 liters of wine, he can fulfill this with Rhine or Moselle
wine, for example. If, on the other hand, 100 l Niersteiner vintage 2019 is agreed, it must
the debtor deliver wine of this variety and vintage.
A generic debt also exists if the party agrees that the item
owed is to be taken from a certain quantity (stock debt, limited
generic debt).
Example: 50 hundredweight of oats from this year's harvest (case a); differently against
when the entire harvest is sold, since no selection is made anymore
can be.
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2. Demarcation
A piece debt exists if the item owed is specifically determined 2
according to individual characteristics (special characteristics).
(species guilt).
Examples: This painting, this used VW, the riding horse Max. Der
Debtors of such a thing can only comply with this specific thing.
It depends on the agreement between the parties whether there is a generic or a
piece debt. On the other hand, the distinction between justifiable and unjustifiable things
must be based on objective standards (size, number and weight,
§ 91) to meet. Reasonable things are often generic debts, non-justifiable things individual
debts; but these pairs of terms need not coincide.
Examples: The new VW Golf chosen during the inspection is a

justifiable thing, but part fault. Is A obliged to B any
Selling property of a certain size and condition, then it is indeed a non-fungible (because
it is not moveable - § 91) thing,
but still a generic guilt.
3. Legal Meaning
The debtor of a class debt is not obliged to deliver specific items 3
from the class. Rather, he can
select things that are worthwhile and do not need to offer the most valuable
ones. It is only held according to § 243 paragraph 1, those of an intermediate nature
and quality (cf. also § 360 HGB: "Medium commercial goods
type and quality")1.
Another regulation can be found, for example, for the loan agreement in § 607
Paragraph 1 sentence 2 (things of the same kind and quality)2 and for the generic legacy
at § 2155.3
If the delivered item is of inferior quality, then no 4

contractual performance, and the obligee can make the performance
deny; as a buyer, however, he can also accept the service
and assert the rights from §§ 437 et seq.
While the debtor of a piece debt according to § 275 para. 1 of 5
his obligation to perform due to impossibility
becomes free if the impediment to performance is limited to the
item specifically owed (e.g. the sold picture is destroyed;" § 22
1 Brox/Henssler HandelsR No. 366.

2 Brox/Walker SchuldR BT § 17 para. 8, 63 et seq.
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Margin no. 3), the debtor of a generic debt is only released when
the whole genre no longer exists (eg: there is no Niersteiner
2019 more) or if it has already become one through specification
Partial debt has become (§ 243 Para. 2; "Rn. 6), the fulfillment of which
is impossible.
Even if, for example, the debtor's entire warehouse is destroyed by fire
the debtor's obligation to perform remains; he must then
procure the corresponding pieces of the genre. On the other hand, there is only one
limited generic debt (case a), the debtor is released from the performance
free when the entire supply, in this case the entire oat harvest of the L, has gone
under.
4. Specification
6 The debtor who is obliged to pay from a class has
an interest in turning the generic debt into a partial debt
is, so that in the event of a sinking, section 275 (1) intervenes. The
debtor can limit his debt to the number of items to be paid by specifying
it. This specification
according to Section 243 (2), occurs when the debtor has done what
is necessary for him to perform.
It decides what the debtor has to do in detail
according to the agreement made. It is therefore primarily a matter of
whether the debtor is obliged to deliver the thing to the creditor
bring it, send it to him or only make it available for collection
(On the obligation to bring, send and collect: " § 12 marginal no. 12 et
seq.). In the case of the obligation to collect it is necessary, but also sufficient,
that the debtor the pieces intended for the creditor from the
Species separated and notified the creditor.
In case a, there was an obligation to send. Place of performance should be the place of residence of L
remain (Section 269 (3)). The service action of the L was therefore, in addition to
providing the grain, also sending it. With these actions, L has that
has done what is necessary on his part to effect the owed service, so
that specification has occurred. Through the demise of the grain is
he has been released from his obligation to perform (Section 275 (1)). In the mail-
order business, too, there is a basic obligation to send, so that concretization with
Handover to the transport person occurs.4
4 BGH NJW 2003, 3341; aA OLG Stuttgart NJW-RR 1999, 1576.
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If the specification has occurred, it also binds the debtor. 7

He should not be able to reverse them;5 this should prevent
the debtor from speculating at the expense of the creditor.
However, the creditor is acting in bad faith if he refuses without
reason to accept something of equal value.6
If the debtor wants to deliver the ordered 50 centners of oats to the creditor and if
he cannot find him, the specification has occurred. However, the creditor has no claim
to this oat if the debtor delivers the 50 hundredweight to another customer (section
242). The debtor cannot then refer to the specification either.
II. Electoral Debt
1.
Definition An optional debt exists when several different 8th
services are owed in such a way that only one or the other is
to be effected (section 262). In contrast, a generic debt refers
to one of several similar performance options. The obligation
to vote can be based on a legal transaction or the law.
Examples of legal obligation to choose: B undertakes to transfer ownership of one

or the other horse (case b); the testator suspends an electoral legacy (§ 2154)7 .
Example of statutory voting obligation: Section 179 (1).
2. Right to vote
a) Holder and exercise of the right to vote. The right to 9

choose can be granted to the creditor or the debtor (e.g. by
contract, by testamentary arrangement or by law). In case of
doubt, the debtor has the right to vote (section 262). The
election is made by declaration to the other party (Section 263 (1)).
5 months II, 12, 74; Prot. I, 287; cf. BGH NJW 1982, 873; Looschelders SchuldR AT § 13
18 f.
6 Erman/Ulber BGB Section 243 para. 18; MüKoBGB/Emmerich § 243 para. 31 et seq.; against one
Binding of the debtor: Medicus/Petersen BürgerlR Rn. 262 mN.
7 See Brox/Walker ErbR § 27 para. 20.
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10 b) Legal consequences after exercising the right to vote. With the

choice of service, this is deemed to be owed from the outset (Section
263 (2)).
11 c) Legal consequences of not exercising the right to vote. The

party entitled to vote is not obliged to vote. If the person entitled to
vote does not exercise his or her right to vote, a distinction must be
made as to whether the creditor or the debtor has the option:
aa) If the creditor entitled to vote delays the election, the debtor
can set a reasonable deadline for this (section 264 (2) sentence 1).
After the unsuccessful expiry of this period, the right to choose is
transferred to the debtor (section 264 (2) sentence 2). bb) If the debtor
12 entitled to vote does not exercise his right to vote, he does not lose
it. Rather, the creditor must sue for one or the other performance of
the debtor's choice to be effected.
Action: The defendant is convicted, after his choice to the plaintiff
to deliver the horse Max or the horse Frieda.
If the debtor does not make the choice by the time enforcement
begins, the creditor can direct enforcement to one performance or the
other (Section 264 (1), 1st
Hs.). As long as he has not received the performance in whole or in
part, the debtor can still exercise the right to choose by fulfilling his
obligation by performing a thing (§ 264 Paragraph 1, 2nd Hs.).
If the creditor has obtained a judgment that corresponds to the above-mentioned

claim, he can instruct the bailiff, for example, to pick up the horse Max from the debtor.
However, he remains entitled to hand over the horse Frieda to the bailiff. However, the
debtor cannot avert enforcement against the horse Max with a mere literal offer.
3. Impossibility If
13 the choice has not yet been exercised and one of the services is
impossible, then the obligation is limited to the other services (§ 265
Sentence 1). The restriction to the services that are still possible only
does not apply if the non-voting part is responsible for the impossibility
(§ 265 Sentence 2).
Since in case b the non-voting debtor P is not responsible for the impossibility, the
obligation is limited to the living one
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Horse Frieda (§ 265 S. 1). Irrespective of this, B is obliged to pay damages for the
dead horse. If, on the other hand, the horse Max were through
If P dies through his fault, B would still have his right to vote (§ 265 Sentence 2).
He would therefore have the option of either demanding the horse Frieda or,
instead of the horse Max, claiming damages instead of performance.
III. power of replacement
1st term
A power of replacement (alternative authorization, facultas alter 14
nativa) exists if only one service is owed and another is provided by
the debtor in its place (power of replacement
of the debtor) or requested by the creditor (authorization to substitute
of the creditor) can become. In contrast to election debt
So here from the beginning only one service is owed; another
but can be requested as an alternative without the consent of the other party
or be provided in lieu of performance. The regulations about the
Electoral debt therefore does not apply.
2. Debtor's power of substitution

A power of replacement of the debtor can be contractually agreed 15
or result from the law.
A contractually agreed power of replacement of the debtor can exist if it is agreed
when buying a new car that the seller
accepts the purchaser's old car in part exchange for a certain amount, offsetting
this against the purchase price. Then the buyer is not obliged to
but entitled to give the old car as part of the consideration.8
Such a replacement power was temporarily no longer agreed. Most of time
the car dealer wanted to avoid sales tax (full taxation
of interim sales) do not purchase the old car, but sell it in the name or at least for
the account of the customer. After however
since 1990 § 25a UStG only subject the price difference to sales tax,
tax reasons no longer stand in the way of a replacement power.9
In many cases, the law provides the debtor with the right to make substitutions
before, e.g. the entitlement to pay money instead of the service (§§ 251 Para. 2
p. 1, 528 para. 1 p. 2).
8 BGHZ 46, 338; 89, 128.

9 Jauernig/Stürner BGB §§ 364, 365 para. 2.
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Since only one service is owed, the debtor will

Impossibility exempt from performance (§ 275), even if he could still
provide the replacement service (unlike in the case of optional debt, § 265
p. 1; " paragraph 13).
3. Creditor's Substitution Authority

16 Is there a contractual or statutory power to replace the
creditor, he can use another instead of the owed service
- usually also predetermined - require (case c).
Examples: The creditor can sell Pfandbriefe instead of paying back money
long. Legal cases: §§ 249 paragraph 2 sentence 1, 340, 843 paragraph 3.
In contrast to the election debt with a voting right of the

The obligor can offer the owed performance to the obligee in the case
of the power of replacement and thus cause the obligee to default in
acceptance (other than Section 264 (2)). If the debtor accidentally
becomes unable to perform, he does not need the compensation
provide because the power to replace ceases to exist when the service
owed ceases to exist (exception in Section 251 (1)).
In case c, B can no longer demand the horse Frieda if that alone
owed horse Max has been received.
§ 9. Money and interest debt
1 Literature: Bezzenberger, The ban on compound interest, WM 2002, 1617;

Freitag, The monetary debt in European private law, AcP 213 (2013), 128;
Herresthal, The End of Money Debt as So-called Qualified Send Debt,
ZGS 2008, 259; Heyers, legal nature of the debt and transfer – what are the
consequences of the case law of the ECJ for the national
right to pull?, JZ 2012, 398; Kähler, On the Demythification of Monetary Debt,
AcP 206 (2006), 805; Kirchhoff, The ban on value security clauses in
new price clause law, DNotZ 2007, 913; Martens, Basic Cases on Money
and monetary debts, JuS 2014, 105 and 200; Omlor, Digital Payments,
JuS special issue FinTech/2019, 289; Schwab, monetary debts as debts to be brought?,
NJW 2011, 2833; Spiegel, basic cases of virtual money, JuS special issue
FinTech/2019, 307.
Case a: A has granted B an 8% loan of EUR 30,000 that cannot be terminated for a
period of five years for the purchase of furniture. When
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§ 9. Money and interest debt 99
B wants to repay the same amount plus interest, A demands a higher amount
because the currency has depreciated. " paragraph 1
Case b: Can B prematurely terminate the loan agreement because he
can get cheaper loan? " paragraph 12
I. Debt
1. Concept and content
The most common object of an obligation is the obligation to make a
monetary payment. Money is both a measure of value for achievements
and goods as well as legal tender.
If a certain amount of money is owed, the creditor has means of
payment in valid currency in the amount of the nominal amount
(Nominal amount), regardless of which
purchasing power of this amount (“euro = euro”; case a).
In addition to the monetary debts by a certain nominal amount 2
are specified, there are liabilities to be fulfilled in money, the scope of
which depends on the value of an object or property (e.g. claims for
damages and compulsory portions; so-called
value debts). As long as these debts are not in a monetary amount
are expressed, they are not affected by fluctuations in value.
Example: S smashed a window worth EUR 150 and

therefore to pay damages (section 823 (1)). When a new one is inserted
this already costs 165 EUR. S has to pay this amount.
Since the creditor of a nominal amount debt runs the risk of being 3
economically disadvantaged if the currency depreciates, the
Parties often provide a guarantee of value (e.g. calculation of the rent
according to the respective level of a specific civil servant salary). Such
Value protection clauses were to protect the German currency
subject to approval before inflationary developments until December 31,
1998 under the conditions of the then Section 3 Currency Act.
This regulation was introduced by the law introducing the EUR1
repealed, so that the previous approval requirement on 01/01/1999
has been omitted. According to Section 1 of the Price Clause Act, it is still possible today
nor the amount of money owed by price or value
be determined by other goods or services associated with the
1 Federal Law Gazette I 1998, 1242 (1253).
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agreed goods or services are not comparable. from

this ban there are numerous in §§ 2 et seq. Price Clause Act
exceptions.
4 Nevertheless, especially in the case of long-term monetary debts,
sticking to the nominal amount can lead to unfair results due to the
constant depreciation of money, if not the payment obligation
adapted to the changed circumstances.
Examples: The agreed remuneration for a long-term supply contract does not come
close to covering the production costs as a result of currency depreciation
of the supplier. The maintenance obligation entered into or the agreed pension
obligation is no longer sufficient to cover the living expenses
of the beneficiary to the extent desired by the parties.
An adjustment of contractual monetary debts can, among other things,
due to the changed circumstances according to § 313 (disruption of the
business basis) (" § 23 para. 10). There are others
special legal regulations that serve this purpose.
Example: According to § 16 of the law to improve company pension schemes

(BetrAVG), the employer has to adjust the
to check ongoing company pension benefits and to make decisions about them at our
reasonable discretion.
2. Settlement
5 Whether monetary debt is viewed as a special case of generic debt
must be denied.2 Regardless of the classification of the
The following should be noted:
a) Specification. The passing of risk through concretization

is regulated in § 270 deviating from § 243 paragraph 2 ("§ 8 Rn. 6). Since
after the debtor in case of doubt the money at his risk
Place creditors at their place of residence.
6 b) Type of money owed. § 243 paragraph 1 does not fit for a

money debt; for here we are not dealing with objects of a "medium kind and
goodness". Rather, money is owed in the agreed amount
Currency.
aa) If the debtor then has a domestically payable and in
to pay an amount of money expressed in domestic currency, so
he can determine with which individual bills (ten,
2 Cf. Looschelders SchuldR AT § 13 para. 32; MüKoBGB/Grundmann § 245 marginal note 85.
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§ 9. Money and interest debt 101
Hundred, five hundred euro note) he fulfill his obligation

wants, if only the total sum is reached in terms of amount. the
The creditor is not entitled to request a different division of the total
amount.
bb) For domestic currency expressed in a currency other than the euro 7
Payable monetary debts (value date debts) are § 244 para. 1 dem
Debtors have the right to pay even in euros if the parties fail
have expressly agreed otherwise (e.g. through the “effective” clause).
The conversion is based on the market value at the time of payment at
the place of payment (section 244 (2)).
c) Payment in book money. A monetary debt is often due today 8th
Payment in book money fulfilled.
Examples: transfer from an account of the debtor to an account of

Creditor or - if processing via the online payment service provider PayPal or Amazon
Pay has been agreed - by one set up there
Debtor's account to be credited to PayPal or Amazon
creditor's pay account;3 sending a check; Deposit from
money to the creditor's account.
In any case, book money is to be treated like money if the

creditor (e.g. by specifying an account on his invoice).
agrees to the payment of book money. In addition, will
one with today's importance of cashless payment transactions
regularly deem the debtor authorized to carry out a monetary debt
to fulfill book money, unless a different will of the
creditor is recognizable for the debtor. Once the credit
made on the creditor's account is fulfilled; because the creditor can
dispose of the credited amount from the time of the crediting (and not
only from the point at which the crediting is notified). This also applies
to an unconditional credit on a
creditor's virtual PayPal account.4
d) No exemption from performance due to impossibility. It is generally 9

accepted that the debtor of a monetary debt is fully responsible for his
or her financial capacity. He will
3 On this type of payment processing via PayPal BGH NJW 2018, 537 mAnm Om lor JuS 2018, 379;
for payment processing via Amazon Pay when purchasing via the
Amazon Marketplace platform and the revival of the purchase price claim
if the seller's Amazon account is charged back due to a successful
Amazon A-to-z guarantee application BGH ZIP 2020, 1465 mAnm Omlor JuS 2020, 787.
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is not released from its obligation to perform due to insolvency (“one has
to have money”). If the parties have agreed on payment in a specific
(domestic or foreign) type of coin, the debtor is not released even if this
type of money is no longer in circulation; he is obliged to perform as if a
coin type had not been determined (section 245). There is a monetary
debt here with the ancillary provision on the type of service; if this type
of money can no longer be used, only the ancillary provision is omitted.5
II. Interest Debt
1. Term
10 Interest is the remuneration for the transfer of capital, calculated
according to fractions of the capital and the duration of the transfer
sung.
Therefore, there is no interest, for example pensions, since there is no provision
of capital, or dividends, because they are not measured according to fixed fractions
of a capital, but according to the respective profit.
The capital and thus the interest consist regularly in money; it

but other justifiable things can also be considered.
2. Occurrence
11 of interest debts can be based on a statutory order or on a contractual
agreement.
Examples of statutory interest arising: reimbursement of expenses (section 256),

default (section 288), litigation (section 291). – Example of contractual interest:
interest-bearing loan (section 488 (1) sentence 2, (2)).
The interest debt always presupposes an effective capital debt.

Once the interest claim has arisen, it occurs independently alongside the capital
debt and can therefore, for example, be independently assigned or attached; it is
subject to the regular statute of limitations of Section 195 (but note Section 217: If
the capital debt is statute-barred beforehand, the interest debt is also statute-barred).
5 months II, 14
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§ 10. Reimbursement of expenses, right of removal and obligation to provide information 103
3. Amount of interest
a) Legal interest rate. The legal interest rate 12

is regularly not subject to any restrictions (limit: § 138)6.
The borrower is protected by law (Section 489) by allowing him to terminate the loan
under certain conditions; then he has the opportunity to conclude a new, cheaper
contract (case b).
b) Legal interest rate. If the parties have not agreed on a specific 13

interest rate, the statutory interest rate applies. This is regularly 4%
(Section 246), and 5% for commercial transactions by merchants
(Section 352 HGB).7
c) Compound Interest. The parties can subsequently determine that 14

interest in arrears should earn interest again. On the other hand, an
agreement made in advance that due interest should bear interest is
void (prohibition of compound interest, Section 248 (1); cf. Section 289
sentence 1 for statutory interest). The different treatment of the prior
and subsequent agreement on compound interest can be explained
historically.8 The ban on compound interest does not apply to savings
banks, banks, certain credit institutions (§ 248 Para. 2) and current
accounts (§ 355 HGB).9
§ 10. Reimbursement of expenses, right of removal and obligation

to provide information
Case a: A takes care of his neighbor B's dog while he is on vacation. 1

Later he demands from B EUR 50 plus 4% interest as reimbursement for the feeding
costs, EUR 30 for medicines paid out and EUR 60 in order to be able to pay the
veterinary bill sent to him. " Paragraphs 3, 4, 5
Case b: M, who had floor heating installed in his rented apartment, wants to take it
with him when he moves out. Landlord V wants to prevent this. " paragraphs 6, 7
Case c: E was inherited solely by his daughter T. His son S would like to demand the
compulsory portion from T (cf. § 2303)1. However, he cannot calculate it because he
does not know the estate and its value. " Paragraphs 9, 13
6 See Brox/Walker SchuldR BT § 17 para. 13 et seq.

8 Cf. Mot. II, 196 f.
9 reasons: cf. Prot. I. 47.
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The law stipulates in various places that the debtor must reimburse
expenses, tolerate the removal of an item and provide information. §§ 256
et seq. contain some general provisions on how such duties are to be
fulfilled.
I. Reimbursement of expenses
Literature: Beuthien, performance and expenditure in the triangular relationship - limits

of action in the double interest, JuS 1987, 841; Bischof, The Claim for Exemption, ZIP 1984,
1444; Görmer, The Claim for Liberation, JuS 2009, 7; K. Schreiber, claims for reimbursement
of expenses, JURA 1997, 442.
1. Expenses The
2 definition of the term has been left to science and jurisdiction.2
Expenditures are understood to be voluntary sacrifices of property. The
voluntariness distinguishes them from the damage, which represents an
involuntary loss ("§ 29 para. 1). The rules on expenses apply accordingly
to the voluntary assumption of a damage risk.3
Material-related expenses are mentioned in the law as uses (e.g. in §§ 459, 601, 994 et
seq.).
2. Claim for reimbursement of expenses
3 a) Legal Basis. The claim for reimbursement of expenses can

be agreed or result directly from the law.
Important legal provisions: § 670 (agent), § 693 (custodian; case a), § 970 (finder), §
1835 paragraph 1 (guardian), § 1908i paragraph 1 sentence 1 in conjunction with § 1835
paragraph 1 (custodian ), § 2124 para. 2 (prior heir), § 683 (managing director without
commission), § 539 para. 1, 536a para. 2 (tenant), § 601 para. 2 (borrower), § 1049 para. 1
(beneficiary) , Sections 994 et seq. (Owner). In these cases, the expenses are in the interest
of someone else.
4 b) Obligation to pay interest. Interest is to be paid on the amount spent

from the time it was spent (section 256 sentence 1).
In case a, the claim for reimbursement of the costs for feed and medicine results from §
693. The claim for interest follows from § 256 sentence 1, the amount of interest from § 246.
2 months II, 541; Prot. II, 369.

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The obligation to pay interest does not apply for the period for which
the beneficiary retains the benefits or fruits of the object on which the
expenses were made without remuneration (cf.
§ 256 sentence 2). According to Section 256 sentences 1 and 2, the obligation to pay interest should
always apply to the person who benefits.
If, for example, the usufructuary of a property has made use of it, too
which he was not obliged to, he can be replaced by the owner according to § 683
require (§ 1049 para. 1). Since he has the uses of the property, comes
interest on the claim according to Section 256 sentence 2 is only considered if he
has to return the property to the owner after the end of the usufruct (section 1055 (1)).
c) Duty of Indemnification. If the expenditure in receipt 5

a liability existed, the person entitled to compensation can be exempted
demand from this obligation (details: § 257).
In case a, A has concluded a treatment contract with the veterinarian. He
owes the fee to the doctor as a contracting party. Had he already paid
would he be able to demand compensation from B under Section 693. Since he hasn't
has paid, he cannot demand payment of the EUR 60 per se from B, but he can demand
payment to the veterinarian (= exemption from liability) (§ 257
p. 1).
II. Right of Removal
Written by: Baur/Wolf, claims for enrichment in the case of erroneous performance 6
on someone else's fault - the non-owner's right to take away, JuS 1966, 393.
1. Requirements
Does anyone in their own interest in the way expenses
made someone else's thing that he has combined his own thing with
it, he would at least like that in cases where he doesn't have any
entitled to a claim for reimbursement of expenses, may separate this
item from it again. In any case, he has the right to do so if he is still the
owner of the connected item. But if he has lost his property through
connection (§§ 946 f.) with the property of another, because his property
become an essential part (§§ 93 f.) of the foreign main thing
is, the law gives him a right of appropriation in important cases:
Section 459 sentence 2 (reseller), Section 539 paragraph 2 (tenant; case b), Section 581 paragraph 2
(Lessee), Section 601 (2) sentence 2 (borrower), Section 997 (owner), Section 1049
(2) (beneficiary), Section 1216 (2) (lien), Section 2125 (2) (pre-inheritance).
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2. Exercise
7 The exercise of the right of removal should not result in any disadvantage
for the other party. Therefore, the entitled person must restore the third-party
item to its previous state at his own expense (§ 258 Sentence 1). If he has
already given the third-party thing back to the other person, the latter must
allow it to be taken away (section 258 sentence 2): the entitled person may
therefore not practice self-help; rather, he has an actionable claim to toleration
of the removal. However, the other party can refuse permission (= objection
precedent) until the entitled party has provided security for the damage
associated with the removal (section 258 sentence 2; section 232).
In case b, M has a right of removal (Section 539, Paragraph 2).4 However, he

must restore the old condition, for example, have the damaged walls plastered
(Section 258, Sentence 1). If he has already moved out, V must accept the removal;
but he only needs this if M has provided security for the damage incurred (§ 258
Sentence 2), eg by depositing a corresponding amount of money (§ 232). If M has
no legitimate interest in removing the built-in heater, V can avert the right to remove
it by paying appropriate compensation (Section 552 (1)).
III. Obligation to provide information and accountability
8th
Literature: Büttner, enforcement of information and accounting titles, FamRZ
1992, 629; Lüke, The right to information in civil law, JuS 1986, 2; Schilken, Claims
to information and presentation of matters in substantive law and in procedural law,
JURA 1988, 525.
1. Obligation to provide information
a) Legal basis. Often someone cannot assert their rights because they are
not familiar with certain processes or evidence.
This ignorance could be remedied by someone who has the relevant
knowledge providing it. However, not everyone who knows about a fact that is
significant for someone else is obliged to provide information about it.
9 aa) The law does not provide for a general obligation to provide information.
This obligation can result from a contract or, in individual cases, from the law.
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Contractually agreed information obligations can be main (e.g. information contract)

or ancillary obligations (e.g. obligation to disclose the manufacturing costs when
selling at the manufacturing price). is actually
information has been provided, but it must not be concluded from this alone that there
is a willingness to commit.5
Examples of statutory information obligations: § 666 (agent), §§ 681 sentence 2,

666 (manager without mandate), §§ 713, 666 (partner), § 1379 (spouse), § 2027
(owner of an inheritance), § 2314 (inheritance; case c).
bb) It is also based on the principle of good faith 10

(§ 242) to derive an obligation to provide information if the following
requirements are met:6
(1) A special legal relationship must exist between the parties.
Examples: contractual legal relationship, statutory legal relationship

Establishing a business contact or in tort.
(2) The person requesting the information is excusably not in the 11

able to obtain the necessary information without the involvement of
the other part.
Accordingly, the supplier of the goods has no right to information against a later
purchaser if the supplier provides information about his customer
can receive7 or if he is culpable for an earlier possibility of information
has not noticed.8
(3) The person claimed must be able to 12

to provide the information.
The amount of work required for the information must be reasonable.9
b) Information in the form of an inventory. Any person who has to 13

hand over a set of items or to provide information about the existence
of such a set is obliged to submit an inventory to the entitled person
(section 260 (1)).
Examples: He who mistakenly considers himself the heir has the real heir
to hand over the inheritance items (§§ 2018 et seq.). The heir must list the individual
items in the claim; because only then will the bailiff later know what to collect from the
debtor. So that the heir to it
5 BGH NJW 1989, 1029 for the - incorrect - instructions for use by the manufacturer.
6 conspr; RGZ 108, 7; BGHZ 95, 288.
7 See BGH NJW 1980, 2463.
8 See BGH WM 1959, 208; NJW 1990, 1358.
9 Cf. BGHZ 81, 25.
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able, he can request the inheritance owner to submit a list of the items belonging to
the inheritance (section 260 (1); broadly section 2027 ( 110)). – In case c, S can,
based on its right to information (Section 2314 ( 1))11 , request an inventory (Section
260 (1)) from T.
and then calculate the amount of his claim to a compulsory portion.
14 c) Consequences of refusal to provide information. Will the obligation to provide information

not fulfilled, the creditor can sue for fulfilment. upon grant
Incorrect information will result in claims for damages
Breach of duty according to § 280 para. 1 into consideration ("§ 25 para. 3 ff.,
11ff.).
2. Duty of Accountability
15 A special case of the obligation to provide information is the obligation to
render accounts.
This obligation can also be based on a contract or law.
The law orders them, for example, in §§ 666 (agent), 681 sentence 2 (managing
director without commission), 713; 1214 para. 1 (lien holder), 1840 and 1890
(guardian), 1908i para. 1 sentence 1 (custodian), 2218 (executor).
Above and beyond the individual cases regulated by law, there is

an obligation to account wherever someone deals with third-party affairs
concerned.12
If there is an accountability, then the obligated party has to
Compile legitimate income and expenses in an orderly manner
and to submit the relevant documents (Section 259 (1)).
3. Obligation to submit an affidavit

16 Is there reason to believe that the inventory or
the information in the invoice is not given with the necessary care
have been made, the beneficiary can request submission of a
corresponding affidavit (section 260 (2) or
§ 259 paragraph 2), unless it is a matter of lesser
meaning (section 260 subsection 3 or section 259 subsection 3).
This affidavit is to be distinguished from the one that

the debtor has to pay in the execution (§ 802c ZPO).13
10 See Brox/Walker ErbR § 33 para. 17 et seq.

11 See Brox/Walker ErbR § 32 para. 24.
12 conspr; cf. BGH NJW 1979, 1305 mN.
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§ 11. Penalty 109
§ 11. Penalty
Literature: Gottwald, On the law of contractual penalties - a critical view 1

over the fence, FS Söllner, 2000, 379; Hess, The Contractual Penalty, 1993; v.
Koppenfels, Contractual penalties in labor law after the modernization of the law of obligations,
NZA 2002, 598; Leder/Morgenroth, The contractual penalty in the form employment
contract, NZA 2002, 952; Ostendorf, contractual penalty and liquidated damages as
instruments for drafting contracts, JuS 2015, 977; Reichenbach, contractual penalty
for the employee in breach of contract, NZA
2003, 309; Tilp, The law of contractual penalties, JURA 2001, 441; Walker, Die
Contractual penalty in the athlete's employment contract using the example of the licensed
soccer player, FS Röhricht, 2005, 1277.
Case a: Contractor U makes a commitment to the client

H, the detached house on 1.10. to hand over turnkey; According to the contract, he
should pay EUR 200 for each day that the deadline is exceeded. Since that
house can only be occupied ten days later, H and his family must
stay in the hotel for as long as possible, store your furniture and order another
transport company. Overall, he suffers damage of EUR 2,500
however, he can only provide proof of EUR 1,600. What can H ask for? " Paragraphs
1, 14, 15
Case b: U denies not having completed the house on time; Alternatively, he asserts
that he is not at fault for exceeding the deadline. " paragraph 10
Case c: In case a, a daily penalty of EUR 5,000 is agreed. At eight

argued in the process that the penalty was too high. " Paragraph 16
I. Meaning
The parties to a contract can agree that the debtor in the
event of non-performance, untimely performance or any other
breach of duty pays a certain amount of money (section 339) or a
another service (§ 342) has to be rendered to the creditor. Such
Agreement gives the creditor leverage: The
In order to avoid a contractual penalty, the debtor will make
every effort to properly fulfill his obligation. However, the
agreement of a contractual penalty offers the creditor one more
Another advantage: He needs when the debtor has a contractual obligation
violated not to prove the damage suffered in detail, but can in
any case demand the contractual penalty as the minimum
damage (cf. §§ 340 para. 2, 341 para. 2; case a). Therefore
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Agreements on contractual penalties in the case of non-competition

clauses and other obligations to cease and desist are particularly
common. Even in cases where monetary damages cannot be claimed
(e.g. in the case of immaterial damage; cf. Section 253 (2)), it is
possible to agree on a monetary payment as a contractual penalty.
In the general terms and conditions, the user cannot be promised
payment of a contractual penalty in the event of non-acceptance or
delayed acceptance (details: § 309 No. 6).
II. Concept and delimitation
1. Term
2 Contractual penalty (= contractual penalty) is a conditional liability
agreed between creditor and debtor; The condition is the non-fulfilment
or improper fulfillment ("Rn. 14) of another obligation (= main
obligation). If this condition occurs, the debtor is obliged to pay the
contractual penalty. Since this is intended to secure the main obligation,
it depends on its existence (Accessory nature of the contractual
penalty).
2. Demarcation
3 The contractual penalty is to be differentiated from a number of
similar manifestations:
a) Independent promise of punishment. The independent promise

of punishment is also a conditional promise of performance, but does
not depend on a main obligation: Without being obliged to do
something, someone promises someone else a performance in the
event that they fail to do something (which they are not owed). To
speak of a penalty here makes little sense; because someone who is
not obliged to behave in a certain way (action or omission) commits no
wrong if he behaves differently.
The fact that such an independent promise of punishment is legally
possible results from Section 343 (2). It is used to secure social and
other non-binding promises.
Example: Ms X, who wants to break her husband's smoking habit, is promised EUR 10
for each cigarette he smokes.
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§ 11. Penalty 111
b) Club penalties. Club penalties that are imposed in the event of a 4

breach of membership obligations based on the club's statutes are not
contractual penalties according to hM.1 They are based on the
member's submission to the statutes and not on a contract.
c) Operating Penalties. Penalties that are imposed for violations of 5

the company regulations (e.g. agreed between the employer and the
works council) (e.g. smoking or alcohol ban) – often by a “company
court” – are based on a contractual basis (employment contract,
company agreement, collective agreement).2 They However, they do
not serve to secure claims under the law of obligations, but rather to
ensure compliance with the collective order.
d) forfeit money. The repentance differs from the contractual penalty 6

in that it is not a penalty for non-performance or improper performance,
but serves to buy withdrawal from the contract (cf. § 353; " § 18
marginal number 34).
Example: K buys a picture from V. The parties agree that K can withdraw from the
contract within 14 days against payment of a penalty of EUR 50. The resignation is only
effective if K pays the EUR 50 with the declaration of resignation at the latest (details: "
§ 353).
e) Bonus. The additional task that hardly ever occurs today is the 7
performance of a contractual partner to confirm the conclusion of the
contract (§ 336 Para. 1). The bonus thus provides proof that the
contract has come about; anyone who claims otherwise must prove it.
Sections 336-338 contain further interpretation rules.
Example: F hands over to the cleaner she is looking for for her household
at the end of the job interview a 20-euro note (earning money).
f) Lump sum compensation. If flat-rate damages are agreed, the 8th
creditor should not have to prove the damage in the event of a claim
for damages.3 Unlike the contractual penalty, the agreement does not
serve as a means of exerting pressure on the fulfillment of the main
obligation.
Flat rate clauses in general terms and conditions are only permissible if the flat rate
does not exceed the damage to be expected in the normal course of things.
1 BGH ZIP 2003, 343; NJW 1956, 1793; Palandt/Ellenberger BGB § 25 para. 13.
2 Details: Brox/Rüthers/Henssler ArbR Rn. 307 ff.
3 Cf. BGHZ 49, 89.
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increases and the customer is allowed to prove that the damage did not occur or is
significantly lower than the flat rate (cf. § 309 No. 5).
III. requirements
9 The forfeiture of the contractual penalty shall be in addition to the corresponding
agreement precedes a valid principal obligation (§ 339: “his
obligation"). "Forfeiture" within the meaning of Section 339 is not a subset of trust
and faith (see "§ 7 Rn. 17), but means entry here
the circumstances that entitle the creditor to the contractual penalty
demand.
So if the principal obligation is null and void for any reason (e.g
Sections 125, 134, 138), the promise of punishment is also invalid. That applies to itself
when the parties agree on the penalty clause although they are aware of the invalidity
of the principal obligation (section 344). It should be prevented
that the fulfillment of an ineffective main obligation is practically enforced by a
(effective) promise of punishment.
Incidentally, a distinction must be made as to whether it is the

The main obligation is an owed act or omission:
1. Positive action
10 If the contractual penalty is promised in the event that the main obligation
is not met or is not met in an appropriate manner, the
Penalty forfeited if the debtor is in default (section 339 sentence 1;
§ 342). Debtor's default means culpable non-performance despite an
existing obligation to perform (missing in the event of impossibility of performance,
§ 275 para. 1), due date of the claim and reminder (dispensability of the
reminder according to § 286 para. 2, 3). According to this, the forfeiture of
the contractual penalty primarily presupposes that the debtor is at fault,
unless the parties have agreed otherwise.
In case b, U must prove that he (timely) fulfilled (§ 345) or him

is not at fault (section 286 (4)). If he fails to do so, he is obliged to pay the contractual
penalty.
2. Refrain
11 If an omission is owed, the forfeiture occurs with the

infringement (section 339 sentence 2; section 342). Despite this to the bare
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§ 11. Penalty 113
Violation of the wording attached, the whole hM assumes that the

contractual penalty also presupposes that the debtor is at fault in the
event of omission.4 Something else only applies if the penalty is
promised independently of fault. The creditor bears the burden of proof
for the violation (§ 345 old version).
IV. Relationship to Performance and Compensation
12
The relationship between the claims for performance, damages and
contractual penalties is problematic. The law distinguishes according to
whether the penalty for non-performance or improper performance is
promised:
1. Default
a) Fulfillment or contractual penalty. The obligee cannot demand

performance and contractual penalty at the same time; he only has the
right to choose between the two (Section 340 (1) sentence 1). If he
declares that he is asking for the penalty, then the claim for performance
is excluded (Section 340 (1) sentence 2). Reason: Requesting
punishment is a simplified way of claiming damages; Compensation for
damages due to non-performance and performance are mutually exclusive.
If the buyer first sues for the performance of the contract of sale (delivery of the
goods sold), he can change the claim during the process so that instead of performance
he now demands payment of the agreed penalty. Because a change from a claim for
performance to a penalty is possible; it is not excluded in § 340. However, if K accepts
performance, he loses his right to the contractual penalty.
b) Contractual penalty as minimum damage. The creditor cannot 13
demand compensation for the entire damage in addition to the contractual

penalty; because the penalty is a special form of damages.
The creditor is able to demand the contractual penalty as the minimum
amount of his damage (§ 340 Para. 2 Clause 1) without proof of damage.
If the damage is higher than the contractual penalty and the creditor
wants to claim the damage exceeding the contractual penalty (§ 340
para. 2 sentence 2), he must in this respect meet the general requirements
4 Eg BGH NJW 1972, 1893; Palandt/Grüneberg BGB § 339 para. 15; different still
the conception of the historical legislator, Mot. II, 278.
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Gen of a claim for damages (e.g. § 280), in particular the

Amount of damage, claim and prove.
If the promise of punishment does not consist of a monetary payment (e.g. transfer of ownership
of a picture), Section 340 (2) is excluded by Section 342: The obligee
only has the choice between damages and punishment.
2. Improper Performance
14 Improper performance occurs when the debtor performs late or poorly.
a) Fulfillment in addition to contractual penalty. Is one for such a case

Contractual penalty promised, it can be demanded in addition to the fulfillment
(Section 341 (1)). Because here the punishment does not take the place of the
fulfillment; it is only intended to ensure the correctness of the fulfillment
(case a). However, if the obligee has accepted the performance as fulfillment,
he is only entitled to the penalty if he
has reserved the right to do so upon acceptance (section 341 (3)).
Section 341 (3) cannot be completely waived by general terms and conditions.5
15 b) Contractual penalty as minimum damage. In relation to punishment

and compensation for damages applies as stated for non-performance (§§ 341
para. 2, 342; "Rn. 12 et seq.).
In case a, there is a claim for damages of EUR 2,500. The contractual penalty is 10
× EUR 200 = EUR 2,000. This amount can be demanded as minimum damage without
proof of damage. the further one
Claim for damages of EUR 500 is not enforceable because H is not in
able to prove the extent of the damage.
V. Judicial reduction of sentence

16 If the penalty imposed is disproportionately high, it can be reduced to an
appropriate amount by court order at the request of the debtor (Section 343 (1)
sentence 1). This is one
rare case in which the law gives the judge the power to shape a contract.
Since the inexperienced and careless contractual partner is to be protected,
the provision is
not required by agreement of the parties. The protection doesn't work
if the debtor has already voluntarily paid the fine
5 BGHZ 85, 305.
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§ 12. Manner of performance 115
(Section 343 (1) sentence 3) or if he was a merchant when the contract was concluded
(§ 348 HGB).6
In assessing reasonableness, the judge has to consider all the
circumstances of the case, not just the financial interest (Section 343(1)
p. 2) and to make a decision based on due discretion.
In case c, Section 343 may only be applied if U is not a merchant

(§ 348 HGB). However, the promise of punishment by a merchant can, according to § 138
be void.
The reduction also applies to the independent promise of punishment (§ 343
paragraph 2); according to case law, however, it should not be applicable to flat-rate
damage claims.7
§ 12. Manner of performance
Literature: Becker, Impossibility in Medical Law, RW 2013, 123; Bernhard, debt to be 1

collected, debt to be sent, debt to be brought - effects on place of jurisdiction, specification
and transfer of risk, JuS 2011, 9; Böffel, The coherence of debts to be sent and mail-
order sales according to § 447 BGB, JA 2017,
818; Heckel, Claim and objection in the new default law, JZ
2012, 1094; Herresthal, The timeliness of performance when fulfilling monetary debts,
ZGS 2007, 48; ders., The end of money debt as
so-called qualified sending obligation, ZGS 2008, 259; Kohler, Maturity in Consumer
Goods Purchases, NJW 2014, 2817; Kupfer, The contractually agreed performance time
in exam processing, JuS 2019, 518; Meier, The Performance and
the place of performance of the monetary debt, JuS 2018, 940; Schwab, debts as
Debts?, NJW 2011, 2833; Unberath/Cziupka, The place of performance
Subsequent performance, JZ 2008, 867.
Case a: The housemaid employed in A's household wants three days of

stay away from work and sends her sister. A refuses the sister
to employ and to pay wages for the three days. " paragraph 2
Case b: S pays the claim to X, who presents him with a receipt from G
des G. It later turns out that the receipt was a forgery. How is the
Legal position if the receipt is genuine but stolen from G by X
was? " paragraph 8
Case c: S wants to pay G only EUR 70 of the EUR 100 owed. G

rejects the acceptance and later demands interest on arrears in addition to the EUR 100
for the entire amount. " paragraph 9

7 BGH NJW 1970, 29 (32).
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Case d: Architect K in Cologne orders goods for his office at V in Hamburg according to
the catalog “free delivery”. Since the goods are lost on the way, K demands another
delivery; V rejects this and demands the purchase price. Rightly? Where does V have to
sue for the purchase price? " Paragraph 16
Case e: S wants a loan a month before the agreed date
repay. G refuses. " Paragraph 19
The right debtor must provide the right service to the right creditor in
the right place at the right time. If these conditions are met, the obligation
of the debtor expires as a result of fulfillment (§ 362 Para. 1; "§ 14 Rn.
10 ff.). If, on the other hand, even just one of these conditions is missing,
the creditor can refuse performance without thereby in creditor's default
(sections 293 et seq.; see section 26); the debtor is then regularly in
default (§ 286; " § 23 para. 9 et seq.).
I. Debtor
2 If the debtor does not have to perform in person due to the special
nature of the obligation, a third party can also perform in his place and
thus release him from the obligation (section 267 (1) sentence 1).
1. Performance by the debtor in person

It is clear whether the debtor must perform the performance personally
from the agreement made or from the law.
Examples: §§ 613 sentence 1; 664 para. 1 sentence 1; 691 p. 1; 713. - In case a, A can
reject the substitute (§ 613 Sentence 1: "in case of doubt to be performed in person"); she
is not in default of acceptance (cf. § 26 para. 5) and does not have to pay wages for the
three days (cf. § 615)1.
However, the creditor is free to do so, even in the case of personal performance
obligation of the debtor to accept the performance of a third party.
2. Performance by a Third Party

3 As a rule, the creditor does not care who the performer is; then a
third party can also perform the service (section 267 (1) sentence 1).
The third party must do the service but with the recognizable
1 Brox/Rüthers/Henssler ArbR Rn. 227.
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provide the will to fulfill the debt of another.2 Consent

of the debtor is not required. The legal status of the third party
is assessed differently in § 267 and § 268.
a) Creditor's right of refusal. According to Section 267 (2), the 4

Creditors refuse performance by the third party if the debtor objects.
However, he is not prevented from accepting the service anyway. When
creditors and debtors disagree so
agree, the performance of the third party can be fended off without
that the creditor is in default of acceptance.
If the third party pays with the will to pay off the third-party debt, then so
the claim expires. Whether he then receives a claim for compensation
against the debtor depends on the legal relationships existing between them
(e.g. mandate, management without mandate, enrichment).
The third party didn't want to stop because he mistakenly thought he was the debtor
pay the debt of the real debtor, but a supposedly own one
pay off the obligation, the third-party debt does not expire. Here comes a claim of
the third party against the creditor for unjust enrichment
under consideration.3
The third party can only effectuate the service effectively, e.g
Monetary debt only through payment, not through deposit, set-off (arg. e §
268 para. 2).4
b) Third party's right of redemption. In Section 268 the law strengthened for 5
certain cases in which the third party has a personal interest in the service,
its legal status.
For example, is the G due to a claim against S at his
Land the first mortgage and he pursues the foreclosure
(Foreclosure of the property), the mortgagee (D) must
second mortgage worry that he will lose his mortgage. Will D go to
avoiding enforcement, pay S's debt, S
object according to § 267 paragraph 2 and G refuse the service. To that
prevent, § 268 paragraph 1 sentence 1 gives the D a right of redemption.
The right of redemption of the third party presupposes that the creditor
is enforcing an item belonging to the debtor and grants the third party a right
in rem (e.g. usufruct,
2 BGH NJW 1986, 251; 1986, 2106.

3 Cf. Brox/Walker SchuldR BT § 40 para. 1 ff.
4 whole hM; cf. Looschelders SchuldR AT § 12 para. 9; MüKoBGB/Krüger § 267 para. 14.
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mortgage, lien). Furthermore, the third party must run the risk of losing
a right to the object as a result of the enforcement. According to Section
268 (1) sentence 2, a threatened loss of possession is also sufficient.
Example: D lives as a tenant in S's detached house. G leaves it

foreclosure. D runs the risk of losing possession because the acquirer
can terminate the tenancy (§ 57a ZVG)5.
6 Under these conditions, the legal status of the third party in

Improved in three respects compared to § 267: The debtor can
on the one hand do not contradict; the creditor must therefore always
accept. On the other hand, the third party can not only through payment,
but also by deposit or set-off (§ 268
paragraph 2). Finally, the claim does not expire when the third party
fulfills it; rather, it is transferred to the third party (section 268 (3)
sentence 1; statutory subrogation, section 412; "section 34 para. 1).
This subrogation cannot be asserted to the detriment of the creditor
Example: G has a claim against S secured by a mortgage of

10,000 euros. The tenant D satisfies under the conditions of § 268
the G in the amount of EUR 7,000. As a result, the G's claim goes in
Amount of EUR 7,000 on D above (§ 268 Para. 3 Sentence 1); the same goes for the
Mortgage (§§ 412, 401). G's mortgage of EUR 3,000 ranks ahead of D's mortgage
of EUR 7,000 (section 268 (3) sentence 2). Reason: G
should not be harmed by the fact that a third party pays in part. If so
EUR 4,000 are to be distributed after a later auction, G
EUR 3,000, D only EUR 1,000.
II. Creditors
1. Performance to the creditor
7 The debtor regularly has to pay the creditor himself;
this performance extinguishes the obligation (§ 362
paragraph 1; "§ 14 para. 1 ff.) or, if rejected, leads to default by the
creditor (§§ 293 ff.; see "§ 26).
2. Performance to a Third Party

8th The payment to a non-creditor is always effective in relation to the
creditor if the creditor agrees to it
5 Brox/Walker coercive full law Rn. 947.
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or if he subsequently approves them (§§ 362 Para. 2, 185)6; because in these

cases the creditor is not worthy of protection.
In order to protect the debtor, the law stipulates in some places that, in
exceptional cases, the debt also expires if payment is made to a third party.
– According to Section 370, the bearer of a receipt is deemed to be authorized to

receive the service. Here the debtor is to be protected in his trust in the receipt
issued by the creditor. This also applies if the receipt has been stolen from the
creditor (case b, 2nd question). The situation is different if the receipt was forged;
because then the creditor did not initiate the legal appearance (case b, 1st
question).
The debtor also does not deserve any protection if he is aware of circumstances
that conflict with the acceptance of such an authorization (section 370 old).
– According to Section 407 (1) after a claim has been assigned, the new creditor
must allow the debtor’s performance to the old creditor to apply against him,
unless the debtor is aware of the assignment at the time of performance (further
details: “Section 34 marginal no. 23).
– If the debtor does not pay to the heirs of his creditor, but to a third party to whom
a certificate of inheritance was wrongly issued, the claim also expires with effect
against the real heirs (section 2367).7
III. power
1. Partial performance
According to Section 266, the debtor is not entitled to partial performance. 9

This provision aims to avoid harassment of the creditor. He can refuse partial
services without being in default of acceptance. The offer of partial services
does not prevent the debtor being in default with regard to the entire service
(case c).
However, there are exceptions to the principle of Section 266: Partial services are
permitted if they have been agreed (e.g. installment purchases) or the law permits
them (e.g. Art. 39 Para. 2 WG; Art. 34 Para. 2 CheckG; Section 757 ZPO ; § 187
InsO).
Section 266 is a protective provision in favor of the creditor. It cannot

therefore be concluded from it that the creditor does not demand partial performance
6 Cf. BGHZ 87, 156.

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can. Often only a partial amount is sued in order to save court and legal fees.
In individual cases, the refusal of a partial service can be based on the principle of
good faith (§ 242) (e.g.: the debtor pays, and it
only a very small amount is missing; " § 7 para. 15).
2. Misperformance
10 The debtor can only be released through the right performance. he delivers
anything other than what has been agreed, the obligation expires
only if the creditor agrees (Section 364(1)). To the
Performance in lieu of performance and on account of performance" § 14 para. 6 ff.
3. Service subject to change

10a A performance subject to repayment is not the correct (owed)
performance.8 The creditor must expect that he will have to return what has
been paid, so that he cannot deal with the subject of the payment as he
pleases
performance can proceed.
IV. Place of performance
1. Term and meaning

11 Only performance at the right place releases the debtor from his obligation.
Performance at the wrong place entitles the creditor to refuse; he is not in
default of acceptance, but the debtor is in default.
Place of performance – also called place of performance in the law (e.g. in

§§ 447, 448, 644 para. 2) - is the place where the performance act
must be provided. This must be distinguished from the place of success,
ie the place where the performance success occurs. Both can come together
(like guilt to collect, guilt to deliver), but also fall apart (like guilt to send).
12 a) Debt to collect. The creditor must pay the debtor

fetch; he only needs the service to be picked up by the
keep creditors ready. The place of performance and effect is at the debtor’s
place of residence (Section 269 (1) and (2); the norm by law).
8 BGH NJW 2012, 1717 mManm Schwab JuS 2012, 937.
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b) obligation to deliver. The debtor must pay the creditor the performance 13
bring. The place of performance and effect is at the creditor's place of residence
(exceptional case).
c) guilt. The debtor must pay the creditor the performance 14

send. Place of performance and place of success fall apart. The place of performance
is at the debtor's place of residence; there he must be active. The place of success
is at the domicile of the creditor; there he steps
Performance success (main examples: monetary debt, § 270, "§ 9 marginal number 5;
Mail order purchase, § 447)9.
2. Determination of the place of performance
a) Normal case. Unless, in exceptional cases, a mandatory statutory provision 15

(e.g. § 374 [place of deposit]) intervenes,
the place of performance primarily according to the agreement of the parties; in
secondly, it is to be inferred “from the circumstances, in particular from the nature of
the obligation”; otherwise is on
domicile of the debtor at the time the obligation arose (section 269 (1)).
The interpretation, taking into account the custom of the day, often results in one
tacit party agreement on the place of performance. For example, they are
Fulfill obligations arising from a purchase in a grocery store regularly in the store.
Repair work owed on a building is there
to execute. However, an agreement on the place of performance does not come
about because, for example, the seller informs the buyer after the conclusion of the contract
sends an invoice with the note: Place of fulfillment is Cologne; in this
only an offer to change the contract can be seen, which requires acceptance by the
contractual partner.
If the place of performance depends on the domicile of the debtor, 16

in the case of debts from the commercial enterprise according to Section 269 (2) on the location
of the commercial establishment of the debtor, this is the case
about debts. This means that in a contract from which
both contracting parties are obligated (e.g. in the case of a mutual contract), there
are different places of performance for the debts of the two contracting parties.
From the agreement that the debtor bears the costs of the shipment (e.g. "free
delivery"; case d), it cannot be concluded that there is an obligation to deliver (Section
269 (3)). Also in mail order
9 Brox/Walker SchuldR BT § 3 para. 19 et seq.; Looschelders SchuldR AT § 13 para. 14.
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del, the seller assumes no obligation to deliver.10 In case of doubt

here, too, the domicile of the debtor is the place of performance; the
The debtor is obliged to send (delivery obligation) and has to bear the shipping costs.
In case d, the goods travel at the risk of K (§§ 269
para. 3, 447). For this reason alone, the application of Section 447 is not in accordance with Section 475
Para. 2, 3 p. 211 excluded because K sells the goods as an entrepreneur (§ 14
Para. 1) has ordered and therefore no consumer goods purchase exists. V is from
of the service and retains the right to the purchase price. In the absence of any other
agreement, Cologne is the place of performance of the purchase price debt; there must V
sue him (§ 29 ZPO).
17 b) Place of performance in the case of monetary debts. Monetary debts are provided
nothing else has been agreed, according to the prevailing view up to now
special form of debts to be sent (section 270 (1), 2, 4): the debtor's place of
residence (or place of commercial establishment) is the place of
performance; however, the debtor is responsible for shipping at his own expense
Committed. The peculiarity of this guilt is that
that the money travels at the risk of the debtor (section 270 (1)). When
So the money does not reach the creditor, the debtor must
pay again (exception from § 243 para. 2; "§ 8 para. 6). That is why one
speaks of a qualified sending obligation.
On the other hand, it is questionable whether, in addition to the risk of
loss, the risk of delay should also be borne by the debtor. If the money
arrives despite timely sending (timely transfer or deposit).
the post office or a bank) arrives late with the creditor, so has nach
the prevailing view is that the debtor is not responsible for this; then
with the timely sending he has done everything from him
can be requested. Section 270 (1) only burdens the debtor
risk of loss, not delay. Although it comes
according to the case law of the ECJ, at least in the case of bank transfers
in business transactions, for the timeliness of the service
indicates whether the creditor received the amount of money on time.12 The
also corresponds to Art. 3 of the Late Payment Directive 2000/35/
EC of June 29th, 2000, with the reform of the law of obligations on January 1st, 2002
should be implemented (" para. 4). In order to avoid contradictions,
according to a partially represented view, this should also be done outside
of business transactions apply to all monetary payments, so that the
Money debt no longer as qualified send debt, but as mo
10 BGH NJW 2003, 3341; aA OLG Stuttgart NJW-RR 1999, 1576.

11 Brox/Walker SchuldR BT § 7 marginal number 4b, 4d.
12 ECJ NJW 2008, 1935.
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to be classified as a qualified obligation to bring.13 But this view has

not prevailed. The BGH14 expressly refused to impose the risk of
delay on the debtor in the case of monetary debts, especially since
no consequences of default arise even within the scope of the
directive if the debtor is not responsible for the default in payment.
Thus, according to hM15 , the classification of the monetary debt as
a qualified sending debt remains.
The debtor should not be burdened by a change of domicile (branch) of the creditor
after the formation of the debt relationship. Therefore, the creditor bears the resulting
additional costs of the transmission; if the risk increases, this (entirely) passes from
the debtor to the creditor (section 270 (3)). The provision in Section 270 (4), according
to which the provisions on the place of performance (usually the debtor's place of
residence) remain unaffected, merely means that the place of jurisdiction for the place
of performance pursuant to Section 29 ZPO is at the debtor's place of residence.
V. Time of performance
1. Term and meaning

The performance time is understood as the point in time at which 18
the debtor is allowed to render the service, and on the other hand the
Date of maturity, in which therefore the debtor pay at the latest
got to.
If the debtor is already allowed to perform, the creditor is in default

of payment if he does not accept it (§§ 293 et seq.; see "§ 26). Only
when the debtor has to perform can the creditor demand performance;
the debtor culpably performs despite the due date and reminder not,
he is in default (§ 286; see " § 23 marginal note 9 et seq.); according
to section 286 (3), this also applies if the debtor fails to pay a
monetary claim 30 days after the due date and receipt of an invoice
(or an equivalent request for payment).
In case of doubt, a determination of time means that the creditor 19
cannot demand performance before the time, but the debtor can
effect it beforehand (section 271 (2)).
13 For example Herresthal NZM 2011, 833 (838); Palandt/Grüneberg BGB § 270 para. 1; here
to 43rd edition
14 BGH NJW 2017, 1596 paras. 23-37.
15 Erman/Artz BGB § 270 para. 9; Looschelders SchuldR AT § 12 para. 20; MüKoBGB/ Krüger § 270
para. 1, 17.
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If an interest-free loan has been granted in case e, the creditor normally has no
legitimate interest in having the money in the first place
gets back on the agreed date, especially since the debtor does not
is entitled to deduct interim interest (section 272).
However, the determination of the time may also have been made in
the interest of the creditor. Then the rule of § 271 para. 2 applies that
the debtor can bring about the performance beforehand.
If case e is an interest-bearing loan, the debtor may not repay it beforehand
because the creditor will suffer a loss of interest
would. The borrower only has an extraordinary right of termination under strict
conditions (section 490 (2) sentences 1 and 2)16; even then must
but he pays a so-called prepayment penalty to the lender
The determination of the time can only be in the interest of the creditor:
He should be able to demand performance earlier, but before that
don't need to accept.
Example: The depositor can request the deposited item to be returned from the
custodian at any time, even if a period of storage has been specified
(§ 695).
20 Does the determination of time belong to the content of the service in such a way that
non-compliance renders performance impossible,
there is an absolute fixed transaction ("§ 23 para. 63).
2. Determination of the time of performance
21 The performance time results from the party agreement and the
circumstances of the respective legal relationship; in the absence of other
indications, the creditor can demand performance immediately and
the debtor effect them immediately (section 271 (1)).
When buying consumer goods (a consumer buys a movable thing
by an entrepreneur, Section 474 ( 1) sentence 1)17 the creditor can if
a performance time has not been agreed or results from the circumstances that
Deviating from Section 271 Paragraph 1, do not demand performance immediately, but only
immediately (without culpable hesitation, Section 121 Paragraph 1) (Section 475 Paragraph 1 Clause 1).
The entrepreneur must then hand over the item no later than 30 days after the
conclusion of the contract (section 475 (1) sentence 2). The same applies to payment by the

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Consumers.18 However, both parties are entitled to effect their performance immediately
(section 475 (1) sentence 3).
In the case of loan agreements, it is often agreed that the repayment must be made
a certain time after termination (e.g. after one month).
Here the performance time is initially indefinite; she will with access the
notice of termination at the contractual partner.
3. Peculiarities when agreeing payment, inspection and acceptance

deadlines in accordance with Section 271a
Literature: Ackermann, innovations by the law to combat 22

of late payment in business transactions, DB 2014, 1919; Verse, The Law
on combating late payment in commercial transactions, ZIP 2014, 1809.
The agreement of the parties on the time of performance within the

meaning of Section 271 (1) also includes the agreement on payment
deadlines as well as inspection and acceptance deadlines. For such agreements acc.
Section 271a19 Special features.
a) Sense of § 271a. The provision serves to implement the EU Default 23

in Payment Directive (RL 2011/7/EU).20 It restricts contractual freedom
when agreeing on the service period. Through this
more payment discipline in corporate business transactions should be
ensured in order to improve liquidity, competitiveness and
To improve the profitability of companies.21 Deadline agreements that
violate Section 271a Paragraphs 1-3 are invalid
but the validity of the contract is otherwise unaffected (§ 271
paragraph 4); the obligation to pay the fee is then due immediately in accordance with
Section 271 (1).
b) Requirements and legal consequences of Section 271a. According to paragraph 1 24

S. 1, 2 may be the performance time agreed for a payment claim
iSd § 271 paragraph 1 in principle no more than 60 days after receipt of
the consideration or the later receipt of an invoice
or request for payment. This maximum period can also
not be circumvented by an agreement that bill
cannot be submitted before a certain period of time has expired. the
Agreement of a longer period is only effective if it is expressly
18 BT-Drs. 17/12637, 69 f.
19 Inserted by the law to combat late payment in commercial transactions of July 22,
2014 with effect from July 29, 2014, Federal Law Gazette I 1218.
20 OJ L 48 of 23.2.2011, 1st
21 BR-Drs. 154/14, 5.
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Lich (not just implied) and not gross for the creditor
is unfair. When examining gross inequity are the extent
the disadvantage for the payer and the legitimate interest of the
debtor of longer periods to be taken into account.22 Gem.
Paragraph 2 is the maximum period allowed for public clients
generally limited to 30 days and even in the case of a deviating express
agreement to an absolute limit of 60 days.
25 If a claim for payment only after acceptance or inspection
of the consideration is to be fulfilled, according to paragraph 3, the agreed
Generally no longer than the deadline for acceptance or inspection
30 days from receipt of the consideration or later receipt of an invoice.
Again, the agreement is one
longer period only effective if it is expressly made and for
is not grossly unfair to the creditor.
26 c) Scope of application of Section 271a. Those provided for in paragraphs 1-3

Restrictions on contractual freedom when agreeing on payment, acceptance
and inspection periods apply equally to
Individual agreements as for general terms and conditions. deadline agreements
However, terms and conditions are already subject to strict content control
according to § 308 No. 1a, 1b; Therefore, Section 271a is primarily relevant
for individual agreements. The regulation applies according to § 271a
Para. 5 No. 1 not for the agreement of advance payments
and installment payment agreements (at least two payments on
the entire claim for payment); According to the will of the legislature, these
options should be retained for the parties. From a personal point of view,
paragraphs 1-3 apply primarily to business transactions between
entrepreneurs, but not to contractual obligations,
where the debtor of the payment claim is a consumer
(§ 271a Paragraph 5 No. 2). In favor of the consumer can also
longer periods can be agreed. On the other hand, stands on the debtor side
an entrepreneur and, on the creditor side, a consumer
Section 271a application, so that the consumer is protected from payment
periods that are too long.23
27 d) Relationship to other regulations. Other Restrictions

for agreements on payment, acceptance or review periods are not
superseded by Section 271a Paragraphs 1-3, but remain
22 BR-Drs. 154/14, 12.

23 BR-Drs. 154/14, 17.
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§ 13. Debtor's right to refuse performance 127
be unaffected (§ 271a Para. 6). This applies, for example, to a content check
of agreements in general terms and conditions (§ 308 No. 1a, 1b). The agreements
of deadlines that do not exceed the maximum limits of Section 271a Paragraphs 1-3
are not always effective, but only when
if they also comply with the general regulations.
§ 13. Debtor's right to refuse performance

Literature: Derleder/Karabulut, Debtor default and rights of retention of the 1
general law of obligations, JuS 2014, 102; Henkel, The Exclusion
the right of retention (§ 273 BGB) after termination of employment, ZGS 2004, 170;
Kaiser, objection of uncertainty by the person obliged to perform in advance
according to § 321 I BGB, NJW 2010, 1254; Schmidt-Kessel/Möllnitz, Corona
Contract Law – Special Rules for Consumers and Small Businesses,
NJW 2020, 1103; Schur, The linking of mutual services, JuS
2006, 673.
Case a: The client A sues the agent B from § 667

Release of the picture that B got for A. But B wants A's
have reimbursed costs (EUR 20) incurred in obtaining the picture (section 670).
What should he do in the process? What's the verdict? As
will it be enforced? " Paragraphs 2, 3, 5, 10, 11, 13
Case b: since G refuses to issue a receipt, S holds what is owed
Money back. G believes that S has no right of retention, since the claim to the
receipt (Section 368) only arises when S has paid. " paragraph 4
Case c: A and B have swapped coats in an inn. A demands his coat from B, but
is not willing to put on someone else's coat
to return B. " paragraph 5
Case d: K sues V for transfer of ownership of the picture sold. v makes
claims that K has not yet paid the purchase price of EUR 500, which K denies.
How does the judge judge? " Paragraphs 14, 18
Case e: What is the legal situation if it turns out in case d that EUR 400 has
been paid? " Paragraph 15
The debtor in turn has a claim against the creditor

to, then the debtor has a legitimate interest in his
to withhold performance until he has also been satisfied because of his
claim. For this reason, the law gives him the right to refuse performance
in certain cases. This is about that
Right of retention according to § 273 and the objection of the unfulfilled
contract according to § 320.
There are also rights to refuse performance for other reasons.
After the statute of limitations has expired, the debtor is entitled to demand payment
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refuse (§ 214 Para. 1).1 The same applies if the service requires a grossly
disproportionate effort (§ 275 Para. 2; "§ 22 Rn. 18 ff.) and if
it is unreasonable for the debtor to provide a personal service (§ 275 Para. 3; "§ 22
Rn. 22 et seq.). In all cases, these are objections. They do not lead to the loss of
the claim. Only if the debtor appeals to the objection, he is entitled to refuse
performance.
The claim is then unenforceable.
I. Right of retention
1. Term and meaning

2 According to Section 273 (1), the debtor who is entitled to a due
counterclaim from the same legal relationship has the right to
to refuse performance until the performance due to him is rendered
will.
This right of retention follows from the principle of trust
and faith (§ 242). If the claim and counterclaim are the same (e.g. G
can demand EUR 100 and S EUR 20), this helps
Set-off (§§ 387 ff.; see "§ 16), so that the debtor only
still has to fulfill the remaining claim (80 EUR). This possibility
but separates in the case of claims that are not of the same type (case a: money against
picture) off. Therefore § 273 grants the debtor an objection under
certain conditions. This gives him security for his own claim and is at
the same time an indirect means of coercion to enforce his claim.2
2. Requirements
3 a) Reciprocity of Claims. Each of the two persons must
have a claim against the other (reciprocity). Included
It doesn't matter whether the claims arise from contract or statute
arise and whether they are of a contractual or real nature. Section 273
does not apply, however, to the services in the exchange relationship in the
case of a mutual contract ("§ 3 marginal number 2).
In case a, the right of retention not only applies if A
claims under the law of obligations (§ 667), but also if
he sues as the owner from § 985.
1 Brox/Walker BGB AT § 31 para. 12, 24 et seq.

2 months II, 42.
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b) Maturity of the counterclaim. The debtor's claim 4

must be due (section 273 (1)). Otherwise, the creditor could
only assert his claim if he already had the counterclaim
fulfilled before the due date.
However, it is sufficient for the counterclaim to become due upon fulfillment of the
claim (case b)3. – If the counterclaim is due,
but in the meantime already statute-barred, a right of retention becomes thereby
not excluded; The prerequisite is, however, that the statute of limitations is still
had not occurred when the creditor's claim arose (section 215).
Maturity is not necessary for the right of retention due to compensation for use
according to § 1000.
c) Connectivity of Claims. The creditor's claim and 5

the counterclaim of the debtor must be based on the same legal
relationship (section 273 (1)). This is intended to exclude a
right of retention due to a counterclaim that
has nothing to do with the claim. On the other hand, the same
legal relationship is not only to be affirmed when it comes to
claims from one and the same contract (as in case a). Much more
case law allows it to suffice if there is a natural and economic
connection between the claims (a uniform living relationship)4.
Have seller and buyer fulfilled the contract of sale and then arises
its nullity, the purchased item must be returned and the
purchase price to be repaid (section 812); each party has a right of retention. – In case
c there is a uniform life process, so that B the
Refusing to hand over someone else's coat until you have handed over your own
can. – Even with an ongoing business relationship, one affirms a connection,
even if the claims stem from different contracts.
§ 273 para. 2 sees a connection with claims for return 6

specified if the debtor has a counterclaim due due
uses of the item or due to damage caused by the item.
Thus, the finder of a lost dog can assert a right of retention against the owner's
claim for surrender because of the feeding costs (section 970).
3 BGHZ 73, 319; 116, 244.

4 Cf. BGHZ 92, 196; 115, 103.
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However, if the person obliged to surrender the object has

intentionally committed tort (e.g. theft),
it is not equitable if he had a right to refuse performance because
of a counterclaim (section 273 (2) old).
The commercial right of retention does not establish any connection
in advance (§ 369 HGB).5
3. Exclusion of the right of retention

7 The right of retention may be contractual or by law
be excluded (§ 273 Para. 1: "unless the obligation to the contrary
results").
Example of legal exclusion: After the power of attorney has been deleted, the authorized
representative has no right of retention to the power of attorney
to (§ 175); this is intended to prevent misuse of the certificate.
The contractual partner's right of retention can neither be excluded nor restricted in
general terms and conditions (cf. § 309 No. 2b).
Furthermore, the assertion of the right of retention may violate

good faith.6
Example: The debtor of a claim for surrender invokes a
A claim for reimbursement of expenses, which he only obtained through the unjustified
refusal to return the goods.7 On the other hand, it is not sufficient for a buyer to exclude
the right of retention if the purchased item only has minor defects. Rather, the buyer can
accept the
Refuse the purchased item until the defect has been remedied.8
8th
If the exercise of the right of retention has a result equivalent
to offsetting, it is then excluded
if offsetting would be inadmissible9 (e.g. § 394, " § 16 para. 16).
9 Since the right of retention pursues a security purpose, the
Creditors prevent the exercise of the right by providing security
(Section 273 (3) sentence 1), although the law does not consider a guarantee to be
sufficient security (Section 273 (3) sentence 2). Beyond Section 273 Paragraph 3 Clause
1, the right of retention must apply everywhere according to its purpose (security purpose).
be excluded where the debtor's counterclaim is already secured (e.g. through a mortgage).

6 BGHZ 92, 194.
7 BGH NJW 2004, 3484.
8 BGH ZIP 2016, 2420 para. 32.
9 BGH NJW 1987, 3254 (3255).
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4. Effects
The right of retention only gives the debtor a suspensive objection 10
(section 274 (1)), not a right to satisfaction like the commercial right of
retention (section 371 HGB)10.
The judge may only consider the right of retention if
if the debtor invokes it (§ 274 Para. 1: assertion). in the
Case a, the debtor must face the claim for surrender
of the picture, that he still had to get 20 EUR from the order,
which is why he retained the picture. If he does not raise the objection, so
he is sentenced to hand over the picture without restriction, himself
if it follows from the plaintiff's submissions that he still has EUR 20
owes.
If the debtor raises an objection in the process, this does not lead 11
to dismiss the action, but only to the “concurrent” conviction (Section
274(1)).
In case a, the verdict is: “The defendant is sentenced, the picture … to the
To release the plaintiff step by step against payment of EUR 20 …” The creditor
can enforce this judgment if he offers the debtor the EUR 20 at the same time. If
the debtor with the acceptance of the money in
default (§§ 293 et seq.), his right to concurrent performance (§ 274
paragraph 2; cf. also §§ 726 Section 2, 756 ZPO)11.
II. Plea of Unperformed Contract

For the reciprocal contract ("§ 3 para. 2) the law contains in 12
§§ 320-322 a special right to refuse performance. Because of the
close dependency between performance and counter-performance, it
should be ensured that no contractual partner has to provide the service without
receive compensation at the same time. This is intended to secure the
debtor's claim to consideration and put pressure on the
creditors are exercised to perform according to the contract.12 The
essential difference to the right of retention of § 273 exists
in that the creditor is not entitled to avert the debtor's right to refuse
performance by providing security (section 320 (1) sentence 3).

11 Brox/Walker compulsory full-scale regulation, paragraph 171 et seq.
12 BGH ZIP 2016, 2420 para. 23.
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1. Requirements
13 a) Mutual Contract. There must be a mutual contract (section 320 (1)

sentence 1). If it is already missing (e.g. order; case a),
are not §§ 320 et seq., but § 273 may be applicable.
14 b) Mutual benefits. the ones owed

Benefits must be mutual
(Section 320 (1) sentence 1). This is only the case if, according to the
party's will, the performance of one is the consideration for the consideration of the
should be to others (synallagmatic connection between performance and
Compensation; case d).
Example: The lease is a mutual contract. In the reciprocal relationship are the obligation to
provide use and to pay the rent, but not the obligation to reimburse expenses and the obligation
to
Return of the rental property at the end of the rental period.
15 c) Maturity of the counterclaim. The counterclaim must be due; their

statute of limitations, on the other hand, excludes the right of the debtor
not from (cf. "Rn. 4).
If the counterclaim has already been partially fulfilled, the
Debtor regularly withholds performance in full because of the part still
outstanding (arg. e § 320 para. 2; case e).
2. Exclusion
16 a) Obligation of the debtor to perform in advance. In the event of an obligation to perform

Debtor's right under Section 320 is excluded (Section 320 (1)
p. 1 aE).
Such an obligation can be agreed (e.g. in the case of installment purchases,

Clauses such as "payable after receipt of the goods", "cash against invoice"). In order to
the person obliged to perform in advance has waived the objection under Section 320. For
some types of contract, the law assumes that a contractual partner has an obligation to perform
in advance (e.g. landlord, Section 579; employee, Section 614; contractor,
§ 641).
However, the person obliged to perform in advance must be protected

if it becomes apparent after the conclusion of the contract that his counterclaim
endangered by the lack of performance of the other part
will. The provision of § 321 secures him in that despite him
gives his obligation to perform in advance a right to refuse performance until
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the counter-performance is effected or security (including a guarantee)

is provided for it.
For the right to refuse performance, it is sufficient if the endangerment
of the counterclaim on a merely temporary impediment to performance
on the part of the party entitled to advance performance.13 This follows from Section 321 (2).
According to this, the person obliged to perform in advance has a right of withdrawal if the other
does not pay the owed consideration within a reasonable period of time
provides or provides security. That doesn't change if the other
part becomes productive again after the deadline has expired.
b) good faith. Consideration cannot be refused if the refusal would 17

violate good faith. This can be considered if the remaining part of the
service is relatively insignificant (section 320 (2)). Furthermore, can
the debtor does not rely on Section 320, which is expressed

means that he himself does not want to stick to the contract. Namely,
section 320 has the function of enforcing the owed consideration. the
The provision therefore presupposes that the person who invokes it
for its part is ready to perform.14 But even if one contractual partner
finally rejects the performance of the other, Section 320 is excluded
out. In the event of a justified refusal, he must rather bring about a
final regulation of the contractual relationship, for example by
breach of duty withdraw from the contract or claim damages
instead of performance required.
In terms and conditions, the right of the contractual partner of the user from § 320
cannot be effectively excluded or restricted (section 309 no. 2 letter a).
3. Effects
a) In the process. Only if the debtor refers to this in the process 18

right to refuse performance, the judge can and must do so
consider. The law designed the right from § 320 as an objection. If it
is raised, it will lead to a conviction in Zug
by train (Section 322 (1)). See the regulation on the right of retention
("margin no. 11); Section 322 (3) refers to enforcement
to § 274 paragraph 2.
13 BGH NJW 2010, 1272 (1274); Critical to Kaiser NJW 2010, 1254.
14 BGH ZIP 2013, 1729 (1730).
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In case d, it depends on whether K can prove that he paid the purchase price
has already paid. If he succeeds in providing proof (e.g. through a receipt), V becomes
convicted of transfer. If he doesn't succeed, there will be step-by-step conviction.
19 In the case of a contractual partner's obligation to perform in advance, this can, if

the other part is in default of acceptance (§§ 293 et seq.), after performance
sue for receipt of consideration (Section 322 ( 2))15. Execution from the
judgment also takes place in accordance with section 274 (2); then
Section 322 (3) also applies to Section 322 (2).
20 b) Substantive-legal. In terms of substantive law, the debtor comes
as long as the debtor is not in default (§§ 286 ff.; "§ 23 para. 9 ff.), such as
the right to refuse performance exists; the debtor needs it
therefore not to be asserted.16 One rightly concludes this from the close
connection between performance and consideration. It suits him too
not prevent the law from procedural reasons in
litigation requires the objection to be raised. So there is a delay
if the creditor issues a reminder ("§ 23 para. 9 et seq.) and is willing and
able to render his own service.17
Section 273, on the other hand, requires an assertion to avoid default by the debtor;
because only in this way will the creditor be able to exercise the right
averted by providing security. He does not have this option in the case of an objection
under Section 320 (Section 320 (1) sentence 3).
15 Cf. BGH ZIP 2002, 576.

16 HM; see BGH NJW-RR 2003, 1318; Looschelders SchuldR AT § 15 para. 2; palandt/
Grüneberg BGB § 320 para. 12.
17 RGZ 126, 280; see also BGH NJW 1966, 200.
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Debtor's right to refuse performance
Right of retention (§ Plea of Statute of limitations
273) unfulfilled contract (Section 214) grossly

1. Mutual claims (section 320) 1.
2. Mutual contract
Maturity of the obligations in
counterclaim 3. the 2nd
Connectivity Mutual
theNo
right
exclusion
of retention
4. of relationship
(Section 273 (1)) 3. Maturity of the
counterclaim No disproportionate
exclusion 4. effort; Unacceptability in the c
– Obligation of the
debtor to perform
in advance (section
320 (1) sentence 1)
– Good faith
in the event
of insignificance
(Section 320
(2))
III. Pandemic-related consumer right to refuse

performance in the case of significant continuing obligations
A temporary right to refuse performance was added to Art. 21

240 EGBGB on April 1, 2020 due to the COVID-19 pandemic
by the "Act to Mitigate the Consequences of the COVID-19
Pandemic in Civil, Insolvency and Criminal Procedure Law"18 .
According to this, consumers whose household income was
reduced or collapsed due to the pandemic and who were
therefore no longer able to meet their payment obligations
had a benefit from April 1 to June 30, 2020 for certain
permanent obligations that are indispensable for adequate public service
18 Law of March 27, 2020, Federal Law Gazette I 569.
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right of refusal. This period has long since expired. but

its prerequisites and legal consequences should nevertheless be
presented briefly, because in the case of the ongoing or renewed
Pandemic in the future, there will be a need for one again at any time
right to refuse performance can arise.
1. Requirements
22
With such a right to refuse performance, the rights and freedoms
protected by fundamental rights, such as those from Art. 2
Para. 1 GG derived contractual freedom intervened. Also will
through a right to refuse performance due to inability to pay
the principle that is otherwise applicable in the law of obligations “One has to
have money” (“Section 8, para. 9, Section 22, para. 8) has been breached.
Therefore, the right to refuse performance cannot be granted without restrictions. It was
subject to the following conditions:
23
a) Consumer Agreement. The right to refuse performance stood
basically only consumers (and under certain conditions also micro-
entrepreneurs; Art. 240 § 1 Para. 2 EGBGB).
It therefore had to be a matter of services in connection with a consumer
contract within the meaning of Section 310 (3) ("Section 4 marginal no. 62 et seq.).
This contract had to be concluded before March 8th, 2020. In the case of contracts
concluded after this point in time, the legislature went
assuming that they were aware of a profound impending at that time
Changes in economic life were closed, so that the consumer did not have to be
protected by a special right to refuse performance.19
24
b) Significant continuing obligation. The right to refuse performance
did not apply to all consumer contracts
only in the case of significant continuing obligations. These are acc.
Art. 240 § 1 Para. 1 Clause 3 EGBGB, those that are required to
provide services of reasonable general interest. In order to
are contracts for the supply of electricity and gas, for
telecommunications services and (insofar as governed by civil law) contracts
about water supply and disposal.20
Rental, lease and loan agreements were not included (Art. 240 § 1
Para. 4 No. 1 EGBGB). For them, the law contains special regulations that
19 BT-Drs. 19/18110, 34.

20 BT-Drs. 19/18110, 33.
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Particular law of obligations.21 Claims under employment contracts were also

expressly excluded (Art. 240 § 1 Para. 4 No. 2 EGBGB). The legislator assumed
that labor law is flexible enough to adjust mutual benefits appropriately in times of
crisis.22
c) Pandemic threat to the debtor's reasonable subsistence. 25

The consumer was only entitled to refuse performance if he
could not provide the service without jeopardizing the
reasonable means of subsistence for himself and his family.
This impediment to performance had to be based on
circumstances that can be attributed precisely to the spread
of infections with the SARS-CoV-2 virus (COVID-19 pandemic).
was.
d) No exclusion due to unreasonableness for the creditor. 26

The right to refuse performance was excluded if its exercise
was unreasonable for the creditor (Art. 240 § 1 Para. 3
Sentence 1 EGBGB). However, this was only to be assumed
if the economic basis of the creditor's business was endangered.
If the right to refuse performance was excluded because it was unreasonable for
the creditor, the debtor had the right to terminate the contract (Article 240 § 1
Paragraph 3 Clause 3 EGBGB). This should give him the opportunity to free himself
from his contractual obligations.
2. Exercise
The right to refuse performance had to be asserted by the 27
debtor. He therefore had to expressly invoke the right to refuse
performance and, in principle, also prove that he was unable
to perform precisely because of the COVID-19 pandemic. This
was particularly important when the creditor questioned the
causality between the inability to perform and the COVID-19
pandemic.23
3. Legal Consequences
The exercise of the right to refuse performance meant that 28

the creditor was unable to enforce his claim for the period
affected. Enforcement of the agreed services
21 Brox/Walker SchuldR BT § 13 para. 12 ff., 34 and § 17 para. 23 ff., 36, 60.
22 BT-Drs. 19/18110, 35.
23 BT-Drs. 19/18110, 34.
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tion was excluded. At the same time, the right to refuse performance
prevented secondary claims (e.g. pursuant to Section 286 Para. 1
for default, pursuant to Section 281 Para. 1
to damages instead of performance) or a right of withdrawal of the
creditor according to § 323 paragraph 1.
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When the obligation expires, a distinction must be made as
to whether the obligation expires as a whole, i.e. with all rights
and obligations, or only an individual obligation. The reason for
expiration of the entire obligation is, for example, termination
(see "§ 17 marginal number 15 et seq.). An individual debt
expires through fulfillment (see "§ 14), deposit (see "§ 15), set-
off (see "§ 16) and decree (see "§ 17 para. 1). A special feature
arises in the case of withdrawal (see "§ 18): Although individual
rights and obligations also expire, not all legal relationships
between the parties.
lapse of
obligation
Fulfillment set up Behind Expiry of the Miscellaneous:

(§ 362) laying deadline or – waiver (section
statement (§ 389) (§§ 378, termination 397 (1)) –
383) (e.g. §§ 542, negative
paragraph 1, acknowledgment
620 paragraph of debt (section 397 (2))
2, 626) – Contract
(Section 311 (1))
– confusion –
impossibility –
achievement of
purpose – loss
of purpose
§ 14. Fulfillment
Literature: Avenarius, The crediting of partial services to several 1

Claims in the absence of a repayment provision, AcP 203 (2003), 511;
Dräger, transfer to an account other than that specified by the creditor –
Compliance effect as a direct path to appropriate results, MDR
2012, 1009; Gernhuber, Fulfillment and its surrogates as well as extinction
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140 5th chapter. cessation of obligations
of obligations for other reasons, 2nd edition 1994; Looschelders/Erm,

The fulfillment - dogmatic foundations and current problems, JA 2014,
161; S. Lorenz, basic knowledge of civil law: fulfillment (§ 362 BGB), JuS 2009,
109; Mussler/Bloch, Fulfillment and surrogates for fulfillment, JuS 2000, 729; Spiegel,
basic cases of virtual money, JuS special issue FinTech/2019, 307.
Case a: The mentally ill A has contracted with B to wallpaper one

room. Although he papers the room perfectly, B doesn't want to
pay the agreed price because the legally incompetent A does not have the contract
can fulfill. " paragraph 3
Case b: S persuades G to pay instead of the EUR 500 owed from the loan
accept TV. Later it turns out that the device was stolen
or is defective. That's why G now demands payment of 500 EUR again.
" paragraph 6
Case c: S owes a remaining purchase price of EUR 4,000 plus EUR 1,000 in
interest and costs. He pays EUR 1,000 and determines with reference to § 366
Para. 1 that the purchase price claim should be partially repaid. G leans
accepting the money. legal consequence? " paragraph 12
I. Conditions of Fulfillment
1. Execution of the owed service
Fulfillment is effecting the performance owed (§ 362
Paragraph 1).
a) Occurrence of performance success. It's not enough for fulfillment

assumes that the debtor has done everything necessary to do so.
Not to this performance action (e.g. sending the purchased item to
the buyer), but the occurrence of the performance success (e.g. the
buyer's ownership and possession of the purchased item) is decisive.
This is the only way the interest of the creditor can be realized.
So if the debtor has done everything for the owed transfer of ownership of the thing,
but if the creditor does not accept, the debt will not be repaid. The law
in such a case, takes into account the special interests of the debtor through the rules
on default by the creditor (see "§ 26).
2 b) Proper performance. As a rule, fulfillment only occurs if the right

debtor renders the right service to the right creditor at the right place.
To that and to the
Exceptions: "§ 12 para. 1 ff.
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§ 14. Fulfillment 141
A service provided only subject to reclaim

has no fulfillment effect (see already "§ 12 Rn. 10a). Such a
This is the case, for example, if the debtor pays on the basis of a judgment that
is not yet legally binding in order to avert enforcement, but against the judgment
lodges an appeal and, if successful, wants to demand back the service. The
obligee may refuse the offer of such performance,
without being in default of acceptance (§§ 293 et seq.; see "§ 26). The debtor
cannot end the debtor's default by making a performance subject to reservation.
The creditor can reject such a performance and then has
continue to be entitled to interest on arrears.1
c) Fulfillment contract or actual performance. Questionable 3

is whether a special performance contract is required for performance
is. Since the law answers the question of the legal nature
left to the fulfillment of science,2 reigns here too
still fighting today.
aa) The (older) contract theory assumes in every case except one
actual performance of the service nor a performance contract,
i.e. an agreement that the service will be fulfilled.
Accordingly, a legal transaction should not only be required for fulfillment

if the debtor's obligation to a legal transaction (e.g
transfer of ownership of the thing sold), but even if only
an actual act (e.g. performance of a service or work contract;
Case a) or an omission (e.g. entering a property).
will.
bb) Today's dominant theory of the real impact of performance3 4

always only focuses on the achievement of performance success
through the performance action that corresponds in a recognizable
way to the owed one.
This view is consistent with the wording of Section 362 (1), which does not
provide any indication that an agreement of will is required. From § 366
Paragraph 1 ("Rn. 11) follows rather that an agreement of will for the fulfillment
effect is not required. It is also not clear why in the case of a purely
1 For the whole BGH NJW 2012, 1717 mAnm Schwab JuS 2012, 937.
2 months II, 81.
3 Larenz SchuldR AT § 18 I 5; Looschelders SchuldR AT § 17 para. 19 f.; MüKoBGB/Fetzer § 362
para. 10 et seq.; Staudinger/Olzen BGB Before §§ 362 et seq. marginal nos. 10, 14; BGH NJW 1991,
1294; 1992, 2698; in principle also BGH NJW 2007, 3488 (3489), which, however, makes the
fulfillment effect dependent on additional circumstances in exceptional cases
which result in the unambiguous assignment of the service to a specific obligation.
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Actual action or omission to fulfill an agreement and thus the legal capacity of the
debtor is required.
Although no declarations of intent are required for fulfillment

are, performance towards a creditor with limited contractual capacity cannot
be effected by performance to the creditor. For the
Fulfillment is not only legally advantageous for minors.
By fulfilling his claim expires namely. According to hM, he is therefore not
responsible for receipt.4 The claim of the minor can only be made through
performance to him with the consent of his
legal representative or by performance to them.
The same applies to the performance of a legally competent person for whom a
guardian has been appointed and a reservation of consent for the area of asset
management has been arranged.5
5 cc) According to the theory of the final effect of performance,

In addition to the actual performance of the service, the service provider must
also specify the purpose.
As justification, it is pointed out, among other things, that in the law of unjust
enrichment the decisive factor is the one pursued with the performance
Purpose arrives6 and the debtor has doubts about a purpose
at the purpose of the service. But it only follows that
the debtor can determine the purpose of the performance; fulfillment occurs
even without such a purpose of the debtor, what also from
Section 366 (2) is to be derived.
2. Performance in lieu of performance

6 If the debtor renders a service other than what is owed,
the obligation only expires if the obligee accepts it as performance
(performance in lieu of performance; Section 364 (1)).
a) Liability for defects in the case of performance in lieu of performance. If

the item or claim given in lieu of performance is associated with a property or
If there is a defect in title, the obligee has the rights that a buyer would have
(section 365; case b). He can therefore primarily subsequent performance
to demand. After unsuccessfully setting a deadline, he can reduce
4 BGH NJW 2015, 2497 (2498) man Walker/Weis WuB 2015, 518; MüKoBGB/Fetzer
Section 362 para. 15 with further references; Palandt/Grüneberg BGB § 362 para. 4; aA still Harder JuS 1977,
149 (151 f.).
5 BGH NJW 2015, 2497 (2498) man Walker/Weis WuB 2015, 518.
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withdraw or claim damages (section 437).7 If he withdraws,

then, according to hM, he only has a claim to the re-establishment of the
original claim, which has expired under Section 364 (1).
The liability for defects of the sales law should be based on the wording of § 365 and
of the history of origin8 intervene even if the original
The claim is based, for example, on a promise of donation in which liability for defects
is limited (cf. §§ 523 f.). This result is appropriate
unilaterally binding contracts.9 In any case, it is possible that not
mandatory regulation of § 365 to be waived, which will probably often be determined
by interpretation.10
b) Distinction from performance on account of performance. Performance 7
on account of performance is to be distinguished from performance in lieu
of performance (section 364 (1)). In the first case, the assumption of a
other than the performance owed, the contractual relationship expires. In the
case of performance on account of performance should despite the performance
the obligation to remain in place with any collateral.
The creditor is to be satisfied by realizing the object rendered to him; only
then does it expire
Blame.
Whether performance is desired in lieu of performance or performance on account 8th
of performance must be determined by interpreting the agreement between the parties

will. Becomes one of these instead of the specific thing owed
only a few different ones are paid by the debtor and accepted by the
creditor (e.g. a different bicycle instead of the one owed).
of approximately the same value), this speaks for performance in fulfillment
instead of. Should the creditor of a pecuniary claim sell the item delivered
by the debtor in accordance with the agreement in order to obtain his
Money to come has been paid on account of performance.
For one case, the law gives a rule of interpretation: Accepts 9
the debtor for the purpose of satisfying the creditor
towards a new liability, it should not be assumed in case of doubt that he
will assume the liability in lieu of performance
(Section 364 (2)). The first liability then only expires when the newly
assumed liability is settled.
7 Details: Brox/Walker SchuldR BT § 4 para. 40 et seq.

8 months II, 83.
9 Appropriate Looschelders SchuldR AT § 17 para. 27 f.; Soergel / Schreiber BGB § 365
Paragraph 2.
10 Staudinger/Olzen BGB § 365 para. 12.
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Main example: The debtor of a money claim (e.g. from a purchase contract)
gives the creditor a check. In case of doubt, it is not to be assumed here (cf.
Section 364 (2)) that the creditor thereby relinquishes his purchase price claim
want; he accepts the check on account of performance. The purchase price claim
expires only when the check is cashed.
3. Dispensability of a demarcation
9a If the fulfillment effect occurs regardless of whether it is
to a direct effect of the performance (§ 362 para. 1), to a
If a performance is in lieu of performance (Section 364 (1)) or a
performance in lieu of performance (cf. Section 364 (2)), a distinction is
not necessary. The BGH11 expressly left open which of these
Cases where there is an agreed repayment of a monetary debt by using
the online payment service provider PayPal.
In any case, fulfillment occurs as soon as the amount of money paid by
the buyer to PayPal is unreservedly transferred to the seller's PayPal account
is credited and he can freely dispose of it.
II. Effects of Fulfilment

1. Eradication of Debt
10 The debt is extinguished by fulfillment (section 362 (1)).
If the obligee refuses to accept the performance because it is not the one owed
or because it is incomplete, then general rules must be followed
the debtor prove that it is the right performance. Did the creditor
on the other hand, if the service is accepted as fulfillment, this speaks for proper
fulfillment. For this reason, Section 363 reverses the burden of proof: in this case,
the creditor is obliged to provide evidence of incorrect or incomplete performance.
The expired guilt can be reinstated by agreement of the parties

be re-established.
If, for example, in the case of an agreed payment transaction via the online
payment service provider PayPal, the amount of money paid in by the buyer
PayPal account of the seller is unconditionally credited, so that this
can freely dispose of the amount, the purchase price debt thereby expires.12
If thereafter the buyer according to the agreed PayPal guidelines he
11 BGH NJW 2018, 537 marginal note 18 Omlor JuS 2018, 379.
12 BGH NJW 2018, 537 para. 19.
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successfully claims buyer protection and therefore the seller account

charged back again, this does not automatically lead to the retrospective omission
of the fulfillment effect. However, by arranging a PayPal payment, the contracting
parties tacitly agree that the purchase price claim, which has initially expired through
crediting the seller's PayPal account, should be re-established after a chargeback
due to a successful buyer protection application.13
2. Effect in the event of a majority of claims
If the debtor is obliged to make similar payments to the same creditor 11

from several contractual obligations, and is that sufficient
Done not paid to pay off all debts, the question arises,
what debt will be paid. The determination by the debtor in the performance
is primarily decisive (section 366 (1)); to a
The creditor's consent is irrelevant.
The power to determine repayment constitutes a benefit for the

debtor. The reason for this is his voluntary performance. In contrast, the debtor
does not have the right to determine the repayment pursuant to Section 366 (1).
against whom enforcement is being pursued or whose claim assigned as security is
being used.14
Section 366 (1) applies mutatis mutandis if the creditor originally only
has a claim against the debtor, but of that
assigns a portion to one or more other creditors. if now
the debtor, unaware of the partial assignment, accepts partial performance
provides the previous sole creditor, he can - as soon as he of the
Partial assignment knowledge - in accordance with Section 366 (1)
subsequently exercise his repayment determination right.15 This must be
Legal thoughts of § 121 gehen.16 immediately after gaining knowledge
Only if the debtor makes no or no effective (e.g. late) provision does

the law establish a ranking (Section 366
Paragraph 2: due - less certain - more troublesome17 - older - proportionate).
This order is based on what the legislator assumes is the reasonable will
of the parties. It therefore does not apply
if it obviously contradicts this will.18

14 BGH NJW 2008, 2842 (2843).
15 BGH NJW 2006, 2845 (2846 f.).
16 BGH NJW 2008, 985 (986).
17 BGH NJW 2004, 405 (407).
18 BGH NJW 1969, 1846; JZ 1978, 313.
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12 If, on the other hand, it is only a question of a main service,

Interest and costs exist, the debtor makes a determination
off (case c). Rather, § 367 Para. 1 regulates the order (costs - interest -
main requirement). In case c, the creditor can because of the provision
refuse acceptance by the debtor (section 367 (2)) without being in default of
acceptance. On the other hand, if he accepts without reservation, will
one can assume that § 367 is contractually waived. One
Section 497 (3) sentence 1 for the consumer loan agreement contains a provision that
deviates from Section 367 (1).19
3. Obligations of the creditor
13 a) Issuance of a receipt. At the request of the

to issue a receipt to the debtor (section 368 sentence 1) so that the
debtor can prove fulfillment if necessary.
If the debtor has a legal interest in a special form
the receipt (e.g. erasable receipt for land register entries,
cf. Sections 1144, 1167, Section 29 GBO) the receipt must be issued in this form
at the request of the debtor (Section 368 sentence 2). – The cost of the receipt
the debtor has to bear and advance regularly (details:
§ 369). – To protect the debtor in the case of performance to the bearer of a
genuine receipt: Section 370; " § 12 para. 8.
14 b) Return of a promissory note. The creditor is obliged

any issued promissory note on the claim to the
to return the debtor (details: Section 371). Reason: Since possession
of the promissory note is an indication of the existence of the debt,
the creditor no longer remains in possession after the debt has
expired.
§ 15. Deposit
1 Literature: Brechtel, The deposit due to creditor uncertainty

(§ 372 S. 2 BGB), JuS 2017, 495; Bülow/Schmidt, deposit order,
4th edition 2005; Firm, The deposit for security purposes and
of fulfillment, JA 2009, 258; Small, debt discharge by deposit.
Practical problems of the procedure and peculiarities in the enforcement, MDR
2016, 1181; Regenfuss, The debtor's protection against uncertainty about the
identity of the creditor, JA 2017, 81 (161); Return home, cancellation of the deposit
regulations, Rpfleger 2010, 1.
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§ 15. Deposit 147
Case a: G does not accept the valuable Siamese cat owed by S. S, who wants
to go on vacation, thinks of deposit. "Rn. 3 case b: G demands payment of the
owed EUR 300 from S. This means that the debt has been repaid by deposit,
especially since he has waived his right of withdrawal from G." Rn. 10 case c: How
can S in the case a get rid of the cat without G being entitled to demand anything
else from him? " paragraph 11
I. Requirements and Procedures

1. Requirements
According to §§ 372 et seq., the debtor can deposit an object
owed for the creditor with a public body (depository) if there is a
reason for deposit and the thing is capable of being deposited.
The debtor is entitled to deposit, but not obliged. However, an obligation to

deposit can exceptionally arise from an agreement or law (e.g. § 432 Paragraph 1
Clause 2).
a) Reason for filing. There is a reason for deposit if the obligee 2

is in default of acceptance (section 372 sentence 1) or if the
obligor for another reason relating to the person of the obligee
or as a result of uncertainty about the person of the obligee that
is not based on negligence is not liable cannot or not with
certainty (§ 372 Sentence 2).
Examples: The creditor cannot be found or is incapacitated. The debtor knows
that the claim has been assigned multiple times and, without negligence, is unsure
who is entitled to it now. There is uncertainty about the priority relationship between
attachment and assignment of the claim.1 It is sufficient if the debtor has justified,
objectively understandable doubts about the creditor.2 The debtor may, however,
be obliged to obtain legal advice first; in any case, he must (if available) involve
his own legal department.3 – The parties can extend the filing authority by means
of a corresponding agreement.4
b) Depositable item. Only money, securities and other 3

documents as well as valuables can be deposited (section 372
sentence 1).
1 BGH Rpfleger 2005, 320 f.
2 Cf. BGHZ 7, 302; 27, 241; World Cup 2004, 1976 (1977 f.).
3 BGH NJW 2003, 1809 (1810).
4 See BGH VersR 1993, 108.
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Examples of valuables: ring, chain, watch, precious stone. Always has to

but the thing is suitable for deposit; this is not the case with animals
(case a). In the event of unsuitability, a self-help sale may be considered (§ 383; "Rn. 11;
special rule for commercial purchases: § 373 HGB5 ).
2. Procedure
4 §§ 372 et seq. regulate only the private law side of the Hinterle
tion, namely the prerequisites and the effects.
The procedure was essentially settled until November 30, 2010
according to the deposit order (HO) of 1937. This was
Effective as of December 1, 2010.6 The filing laws (HintG) of the federal
states have taken their place, of which the
most are largely identical. Only the HintG of Bavaria is
structured and numbered differently. Orientate the HintG of the countries
based on the content of the earlier HO. The following regulations are available on
example of the Hessian HintG:
The depository is the district court (§ 1 HintG), which is mentioned here in the context
the administration of justice becomes active. If it orders acceptance at the request of the
debtor (Section 7 HintG), it issues an administrative act. money goes with
the deposit into the ownership of the judicial tax authorities (§ 11 Para. 1 HintG).
In the case of securities and other documents as well as valuables, the
Depositor owner (cf. § 13 HintG). A custody relationship under public law arises in favor
of the creditor. The latter can apply for the release (details: §§ 21 ff. HintG). The right of
the creditor
regularly expires at the end of 30 years after receipt of the notification of deposit (details:
§ 382).
5 Has the debtor because of uncertainty about the identity of the creditor
If several persons (pretenders) deposit and claim the deposited object, the entitlement
must be clarified in the process between the pretenders. The true creditor has one against
the rest of the pretenders
Claim from § 812 paragraph 1 sentence 1, 2nd case to give up the "blocking position", ie on
Consent to the payment (cf. § 21 or § 22 in most HintG of the
countries).7
6 If the creditor needs a declaration from the debtor as proof of entitlement to receive, he
can request one from the debtor (section 380). When
the debtor is only obliged to pay against performance by the creditor,
he can make the obligee's right to receive dependent on the effect of consideration
(section 373).
5 Brox/Henssler HandelsR para. 389 et seq.

6 Law of November 23, 2007, Federal Law Gazette I 2614 (2616).
7 Still to HO: BGHZ 35, 169.
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§ 15. Deposit 149
The debtor must deposit with the depository of the place of performance; he is
also obliged to notify the creditor of the deposit immediately, unless this is impractical.
If he does not fulfill these obligations, he must compensate the creditor for the
resulting damage (section 374). Since the deposit is made for reasons relating to the
person of the creditor, he must generally bear the costs of the deposit in relation to
the debtor (section 381).
II. Effects
With the deposit (or with the posting; § 375) different effects occur, 7
depending on whether the debtor still has a right of withdrawal or not.
1. Debtor's right of withdrawal
As long as the debtor still has the right to take back the deposited item
(Section 376(1)), the debt is not paid off by the deposit (Arg. e Section 378);
however, he can refer the creditor to the deposited item (Section 379 (1);
delaying objection, which must therefore be put forward by the debtor in the
legal dispute).
The creditor bears the risk of reimbursement (section 379 (2)). If the thing
perishes at the depository, the debtor is not only released from his obligation
to perform (§ 275), but he also retains the right to the consideration (e.g.
purchase price; exception to § 326). The debtor does not have to pay any
interest or provide compensation for benefits not drawn (section 379 (2)).
However, if he takes back the deposited item, the deposit shall be deemed not
to have taken place (section 379 (3)); the consequences of the deposit are
eliminated with retrospective effect (e.g. the creditor does not bear the risk, the
debtor is obliged to pay interest).
The debtor's right of withdrawal as an organizational right cannot be attached and 8th
cannot be exercised during the insolvency proceedings against the debtor's assets
without the consent of the creditor (section 377).
Reason: The creditor has already acquired a right that should not be impaired by
other creditors of the debtor.
2. Exclusion of the right of withdrawal
a) cases. The debtor loses his right of withdrawal in three cases (section 9
376 (2)): if he relies on the right of withdrawal from the
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waived if the creditor declares acceptance to the depositary or if a

final judgment is presented to the depositary declaring the deposit
lawful.
10 b) effect. If the debtor's right of withdrawal is excluded, then the

deposit, like the performance, has the effect of discharging the debt
(§ 378; performance surrogate).
However, the creditor does not thereby become the owner of the
deposited item. In the notification of the deposit to the creditor (section
374 (2)), an offer of transfer of ownership by the debtor (sections 929,
931) can regularly be seen. This is accepted by the creditor's
declaration of acceptance to the depository, which is the debtor's
messenger.
In case b, the waiver has not been declared to the depository. So S still has the
right of withdrawal. The guilt is not extinguished; However, S can refer G to the
deposited amount (section 379 (1)).
III. self-help sale
11 If the item owed cannot be deposited (cf. § 372), a self-help sale

(§§ 383 et seq.) can be considered for the debtor. The proceeds from
this can then be deposited (section 383 (1) sentence 1; case c).
1. Requirements
a) Deposit requirements. First of all (apart from the depositability of

the owed thing) according to § 383 paragraph 1 the conditions must
be met that would entitle the deposit.
The self-help sale, like the deposit, is permissible in three cases:

default of acceptance by the creditor, impossibility of performance for
another reason relating to the person of the creditor or impossibility
due to excusable uncertainty about the person of the creditor (section
383 (1)). In the two last-mentioned cases, however, the spoilage of
the item must be feared or the storage must be associated with
disproportionate costs (section 383 (1) sentence 2).
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§ 16. Offsetting 151
12
b) threat of auction. Also, a threat
of the auction (Section 384 (1)). It may only be omitted if the
thing is exposed to spoilage and with the postponement
there is a risk associated with the auction (Section 384 (1)) or if
is impractical (Section 384 (3)).
2. Execution
13
The law provides two ways:
The public auction is regularly carried out at the place of performance by a bailiff,
another official authorized to conduct auctions
or a public auctioneer (§§ 383 Para. 1-3, 156, 450 f.).
The debtor must inform the creditor of the auction without delay, unless this is
impractical (Section 384 (2), (3)). Does he injure them?
obligation, he makes himself liable for damages (section 384 (2)).
If the thing has a stock exchange or market price, there is also a private sale
Consider sale at current price by authorized person
(§ 385).
3. Effects
14
If the mandatory provisions mentioned are observed in the
case of a self-help sale, then the effects that have been
described for the deposit of a depositable item occur with the
deposit of the proceeds (§§ 383 Para. 1 Sentence 1, 378 f.; "Rn 10).The
Creditors are not heard, the auction has too little
rendered. He also has to bear the costs of the auction or
private sale, unless the debtor has deposited it
takes back proceeds (section 386).
In the case of unlawful self-help sales, the obligation remains
exist.
§ 16. Offsetting
Literature: Coester-Waltjen, Die Aufrechnung, JURA 2003, 246; Gernhuber, 1

Fulfillment and its surrogates as well as the expiration of obligations for other reasons,
2nd edition 1994; Heller, The Exclusion of Offsetting, AcP 207 (2007), 456; Höhn/
Kaufmann, The offsetting in the
Insolvency, JuS 2003, 751; Kesseler, Protection against offsetting for claims assigned
as security, NJW 2003, 2211; Lieder/Illhardt, Limits of offsetting, JA 2010, 769;
Lorenz, basic knowledge - civil law: offsetting
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(§§ 387 ff. BGB), JuS 2008, 951; v. Olshausen, powers of objection and set-off in the
case of statute-barred claims for defects, JZ 2002, 385; ders., For offsetting in the
case of a majority of claims, in particular for the burden of proof
in these cases, FS Picker, 2010, 629; Schwarz, Contributing to debtor protection
the offsetting of assigned claims, AcP 203 (2003), 241.
Case a: A has a purchase price claim of EUR 500 against B, and B has
a claim for repayment of a loan of EUR 500 against A. B
wants to "get rid of" both of them. " Paragraphs 1-6, 8
Case b: What is the legal situation if, in case a, the purchase price claim is time-
barred? " paragraph 7
Case c: The minor B counts up. Later the parents approve it.
Is the set-off effective? " paragraph 10
Case d: In case a, A demands the amounts given up until B's statement of offsetting
falling interest rates. " paragraph 12
Case e: X, who urgently needs EUR 5,000, commissions Y to make jewelry for him
for sale. Y does that, then counts on one he is entitled to against X
claim and gives X the remaining balance
from 20 EUR. " Paragraph 14
Case f: The employer does not pay the employee wages because he
a counterclaim against the wage claim. How is it,
if the employee has received advance payments of the corresponding amount?
" Paragraph 16
I. Concept and purpose
1st term
Set-off is the cancellation of two opposites
similar claims by means of a declaration of intent that must be
received.
In case a, B (as well as A) can make a unilateral declaration to the
others cause the claims to expire.
The prerequisite is a certain offsetting situation (§ 387;

" Rn. 4 ff.). If two claims can be offset against each other,
so they do not expire automatically; so that they expire (§ 389), requires
it is a statement of offsetting of one part against the other (§
388; " Rn. 10 f.).
This (unilaterally declared) set-off is not special from that in the Civil Code
regulated but legally possible (§ 311 Para. 1) agreement to set off the mutual claims
(offsetting agreement).1
1 Cf. MüKoBGB/Schlueter Section 387 marginal number 51.
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2. purpose
a) Repayment relief. Offsetting as a surrogate for fulfillment 2

corresponds to a practical need. Through them, the Hin
and fro the benefits are avoided.
In case A, B would have to pay A the 500 EUR without the possibility of offsetting
(from the purchase contract) and A send B the 500 EUR (from a loan).
b) private enforcement. As long as someone can offset needs 3

he does not have to worry that his debtor cannot pay.
By offsetting, he can “collect” his own claim.
In case a, B can sit back and watch as A becomes insolvent; he can still - even in
insolvency proceedings over A's assets (cf.
§§ 94 ff. InsO) – offset. Without the possibility of offsetting, B would have to
procure an enforcement title (e.g. judgment, enforcement order) against A and use it
to carry out compulsory enforcement (e.g. attachment by bailiffs or by attachment and
transfer order). He can save himself all this by offsetting.
II. Offset situation

Offsetting is only possible if the following four requirements are 4
met:
1. Reciprocity of Claims
The claims must be between the same persons:
Each of the participants must be both creditor and debtor of the
other (section 387).
Usually the claim of the offsetting opponent against which the other
offset, as the main claim (liability claim) and the claim, with
which he offsets is referred to as a counterclaim (active claim).
The debtor cannot therefore offset a counterclaim that he is

entitled to against a third party; however, a deviating agreement
between several creditors and debtors is possible.2
In case a, B could not offset if his debtor was not A, but

about his father would be.
2 BGHZ 94, 132 (135).
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An exception to the requirement of reciprocity is contained in § 406

(" § 34 para. 29 f.).
A third party who is not the debtor of the offsetting opponent can
do not offset (exception: § 268 paragraph 2; " § 12 marginal number 6).
2. Similarity of the claims The principal

5 and counterclaims must be of the same kind in terms of their subject
matter (Section 387). This means that only generic debts are eligible
for offsetting (main case: money for money, but also, for example,
potatoes of a certain variety against potatoes of the same variety).
In case a, B could not offset if his counterclaim was for the delivery of potatoes
worth EUR 500. Claims for payment and debt discharge are not of the same kind.3 In
the event of dissimilarity, a right of retention ("§ 13 para. 2 ff.) comes into consideration.
6 Similarity does not require: – The

same amount of claims.
In case a, B could also offset if he only had a counterclaim of EUR 400. A's main
claim of EUR 100 would then remain (§ 389).
– Connectivity (legal context) of the claims.

In contrast to the right of retention (§ 273: "from the same legal relationship"; " § 13
para. 5 f.), the claims can (as in case a) come from completely different legal
relationships, so that there is no connection.
– Identity of the place of performance or delivery (Section 391 (1)).

However, if the place of performance and the time of performance are contractually
determined, it must be assumed in case of doubt that the offsetting of a claim for
which a different place of performance exists should be excluded (section 391 (2)).
3. Effectiveness of the claims Both

7 claims must exist. If a claim (e.g. due to a lack of form, immorality)
has not arisen, offsetting is not possible.
3 conspr; BGHZ 47, 157.
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However, the principal requirement need not be enforceable (arg. e

§ 390).
In case b, B does not have to meet A's purchase price claim if he
asserts the defense of the statute of limitations. But he can fulfill them;
therefore he can also count.
The counterclaim must not only exist, but also be enforceable and 8th
free of objections (section 390).

In case a, B could not offset if his claim was time-barred.
If offsetting were possible, he would "collect" his statute-barred claim without A being
able to invoke the statute of limitations.
Exception: Section 215. The statute of limitations on the counterclaim

does not exclude offsetting if it was not yet statute-barred at the point
in time when it could first be offset against the main claim. Here the
law does not refer to the point in time of the declaration of offsetting,
but to that of the offsetting situation.
4. Maturity of Counterclaim
The counterclaim must be due. If the creditor could set off a claim 9
that is not yet due, his claim would be satisfied at a time when it does
not yet need to be satisfied.
The main requirement does not have to be due yet, but it must be
achievable. If the debtor can fulfill this before it is due (section 271 (2)),
he must also be able to repay his debt before it is due by offsetting it
against a counterclaim.
III. statement of offsetting

The effect of the set-off only occurs if a set-off declaration is 10
submitted to the other party in the case of an existing set-off situation
(section 388 sentence 1). This is a declaration of intent that needs to
be received. They shape the legal situation (the claims expire). The
offsetting party disposes of his claim.
Therefore, the declaration requires full legal capacity. It not only brings the minor
a legal advantage (section 107); because he loses
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his counterclaim. As a unilateral legal transaction, it is therefore ineffective without

the consent of the legal representative (section 111); even the approval of the legal
representative cannot make it effective (case c).
11 The statement of set-off cannot be subject to one condition

or a time determination (§ 388 Sentence 2). Ground:
The purpose of offsetting is primarily to create clear relationships in the
interest of the recipient of the declaration; he should know where he is.
However, contingent offsetting is allowed in the process. Example: The
The plaintiff demands that the defendant be ordered to pay EUR 500 from a sales
contract. Respondent contends that the complaint should be dismissed and contends that
The purchase contract was not concluded at all, and in any case the purchase price
claim was time-barred. Alternatively, he calculates with a counterclaim
tort (traffic accident). In doing so, the defendant wants the action to be dismissed
primarily because of the non-existence of a contract or because of the statute of
limitations. Only if that is not possible does he want to “sacrifice” his counterclaim so
as not to be convicted.
Here the defendant calculates only in the event that the court
otherwise considers the complaint to be well-founded. Section 388 sentence 2 does not preclude, however, since
it is a permissible so-called legal condition. The possibility of one
Auxiliary offsetting in the process is also recognized by the legislature.4
IV. Effect of offsetting
1. Retroactive Expiration of Claims

12 Insofar as the claims cover each other, they expire at the point in time at
which they were suitable for offsetting (section 389). The law thus does not
refer to the point in time of the declaration, but to that of the offsetting
situation (as
the two claims were offset against each other for the first time). This
retroactive effect is also based on an economic perspective (at that time the
claims could already be “offset”).
Therefore, from the offsetting position onwards, no more interest can be paid
be requested (case d); From then on, a delay is no longer possible.
Subsequent changes are irrelevant (e.g. later assignment,
§ 406; later statute of limitations for the counterclaim, Section 215;
subsequent confiscation of the principal claim, § 392).
4 Cf. Mot. II, 108; Prot. I, 224; also § 45 para. 3 GKG (Schönfelder, Deutsche Ge
set, No. 115).
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On the other hand, if someone has paid without knowing about the possibility of
offsetting, he cannot demand back what has been paid in accordance with § 813;5 because
he has not paid any non-debt, since only the declaration of offsetting leads to the
cancellation of the claim.
2. Majority of Claims
If the party setting off or the opposing party has several claims, 13
the party setting off can determine which claims are to be offset
against each other (section 396 (1) sentence 1; cf.
for the fulfillment of Section 366; " § 14 para. 11).
If such a provision is not made together with the offsetting
declaration, or if the offsetting opponent objects
immediately, Section 366 (2) shall apply accordingly (Section 396
Para. 1 p. 2).
If the main claim consists of the main performance, interest and costs
according to § 396 paragraph 2, the provisions of § 367 (" § 13 para. 12) apply
accordingly.
Has someone only sued for a partial amount (e.g. because they want to save costs
or because he is due to the balance with a set-off by the
debtor anticipates), he cannot prevent the defendant from straight against
offsets the partial amount claimed.6 This does not harm the plaintiff
wrong; for his part, he should have offset before filing an action and sued for the
remaining balance. If he has not done so, stay for
after offsetting by the defendant, he has the option of "pushing in" the remaining
amount in the process (§ 264 No. 2 ZPO) by one
to avoid dismissal.
V. Exclusion of set-off
1. Exclusion by Agreement of Parties
Creditors and debtors can opt out of set-off 14
agree (§ 311 Para. 1, freedom of contract).
If the service is agreed at a specific time and place, an exclusion of offsetting is to
be assumed in accordance with Section 391 (2); because then one has to assume that
the creditor attaches importance to actual performance. The debtor who claims
otherwise
must prove it (“when in doubt”).
5 months II, 109, 832; AWT 120, 280; 144, 93.

6 conspr; BGHZ 56, 314.
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Whether an exclusion of offsetting is intended must be determined by the interpretation of the

agreement to be determined. In the contract clauses “effective” or “net
Cash against invoice and shipping documents” is such an exclusion.7 It
can also be tacitly agreed. This is often the case with the order
(Case e) or a fiduciary relationship. The jurisprudence
excludes offsetting in good faith (§ 242).8
A provision in GTC by which the contractual partner of the user
the authority to offset against an undisputed or legally established claim is
ineffective (§ 309 No. 3); that applies
also in commercial transactions (§ 307)9.
Since a contractual prohibition on offsetting leads to a final loss of claims
of the other party in the event of subsequent financial collapse of one party,
one party regularly violates good faith,
if they rely on the prohibition on offsetting despite their own insolvency
calls.10
2. Exclusion by Law
15 a) Principal claim in tort. The main claim comes from

a tortious act committed intentionally, the
Debtors of this claim, however, do not offset (§ 393). who
intentionally committed a tort shall not be included in the
benefit from the offset option; he should actually
pay damages.
According to hM, the offset against a main claim is intentional

tort, even if the counterclaim is based on an intentionally committed tort.11
It is disputed whether this applies to mutually intentional torts
Actions that – such as a fight – are based on a uniform fact of life, an

exception must be made.12 The BGH rejects
such an exception. Otherwise, the existence of a uniform life process would
always have to be checked, and that would lead to unacceptable legal
uncertainty.13
7 BGHZ 14, 61.

8 BGHZ 14, 342.
9 BGHZ 92, 312 (316), still on § 9 AGBG; MüKoHGB/K. Schmidt before § 343 marginal number 38.
10 BGH NJW 1975, 442; 1984, 357; World Cup 1991, 733.
11 RGZ 123, 7.
12 Such as Deutsch NJW 1981, 735; approving, inter alia, the 33rd edition (2008) of this work,
§ 16 para. 15.
13 BGH NJW 2009, 3508 with proof of the opinion; approving Looschel
ders SchuldR AT § 18 para. 13.
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b) Main claim that cannot be attached. Against a non-seizable 16

Principal claim cannot be offset (section 394 sentence 1); Which
Claims cannot be seized results from §§ 850 ff. ZPO.14
Main examples: Attachment of wage and maintenance claims. sense of
Ban on garnishment is to the creditor of such a claim and his
family to get the subsistence level. Therefore, insofar as the on
invoice as private enforcement inadmissible. On the other hand, against one in itself
non-seizable maintenance claim can be offset against a claim for damages that
originates from an intentional tortious act committed in the context of the maintenance
relationship (e.g. the maintenance creditor has the intention of damaging the
maintenance debtor, this
not informed of his increased income). Here the objection of fraudulent intent opposes
the prohibition on offsetting in Section 394. However
the subsistence level must remain for the person entitled to maintenance.15
In case f, the offsetting of the employer is only effective insofar as it
relates to the part of the salary that is not subject to garnishment. If the employer has
paid wage advances, no offsetting is required in this respect; because with the advances
he has already fulfilled the wage demand (prematurely).
c) Seized Principal Claim. If the principal claim is confiscated 17

(pledged), the debtor cannot set off against it (section 392).
The seizure prohibits the debtor from fulfilling the claim; so also
needs a set-off
retire However, the debtor is protected, ie he can offset if the
claims were offset against each other before the confiscation
(more precisely: § 392 old version).
d) Main claim under public law. Set-off against a main claim 18
of the federal government, a state, a municipality or a municipal
association is excluded if it is
is not the same fund (section 395). The tax authorities are only
privileged here for bureaucratic reasons.
Prerequisites for offsetting
I. Set-off situation (Section 387)

1. Mutual Claims
2. Similarity of Claims
3. Validity of Claims
14 In addition, Brox/Walker compulsory full-scale regulation, para. 539 et seq.

15 BGHZ 123, 49.
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4. Maturity of Counterclaim
5. Satisfiability of the main requirement
II. Declaration of offsetting (Section 388)
III. No exclusion of offsetting
1. By party agreement
2. By virtue of law
a) Principal claim from intentional tort (Section 393)
b) Principal claim that cannot be attached (Section 394)

c) Seized principal claim (Section 392)
d) Main claim under public law (Section 395)
§ 17. Other reasons for expiration
1 Literature: Gernhuber, The fulfillment and its surrogates, as well as the extinguishing of
the obligations for other reasons, 2nd ed. 1994; Klein schmidt, The waiver in the law of
obligations, 2004.
Case a: G writes to S that he hereby waives the outstanding one

remainder of the purchase price. S replies that he considers it beneath his dignity to
to get something from G as a gift. Later, G demands payment; S appeals
to the waiver. " paragraph 1
Case b: A and B conclude on the assumption that B owes his purchase price
have fulfilled towards A, a contract which states, among other things: "A acknowledges that
that his claim against B from the purchase contract of 1.2. no longer exists". Later it turns
out that the demand still existed. right
of the A? " paragraph 2
Case c: G has a claim of EUR 500 against S. G dies and is taken over by S
inherited alone. Following the order of the estate administrator, the estate administrator
demands payment of the EUR 500 from S. S thinks the claim has expired.
" paragraph 7
I. Decree
Remission is a contract by which the creditor's claim against the debtor

is set aside (Section 397(1)). The creditor
cannot unilaterally waive his claim under the law of obligations (case a).
However, one becomes guilty in the silence
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§ 17. Other reasons for expiration 161
ners can often see an implied declaration of acceptance of a

corresponding waiver offer by the creditor, since the waiver
only benefits the debtor. However, strict requirements must be
met for the acceptance of an impliedly declared waiver; if the
obligee accepts partial performance, it cannot be inferred from
this alone that he sees it as a declaration by the obligor that he
no longer wants to provide further performance and agrees to
it.1
The decree is a contract of disposal; for by it the right of the creditor is abolished.
It is an abstract contract, i.e. detached from the underlying transaction (often a
donation contract). If this is void, the validity of the decree is not affected; the
creditor has a claim to enrichment for the re-establishment of the claim. However,
the parties can make the effectiveness of the release agreement dependent on
the effectiveness of the causal transaction.
The claim expires with the conclusion of the waiver agreement

(section 397 (1)). If the contracting parties want to cancel the
entire obligation, this is a termination agreement.
II. Negative Admission of Guilt

The claim also expires if the creditor acknowledges by 2
contract with the debtor that the claim does not exist (section
397 (2)). This negative acknowledgment of debt is also a
contractual waiver of claims; in contrast to the positive
acknowledgment of debt (section 781), it does not require any
form.
Two cases can be distinguished:
– The obligee enters into the contract with the intention of
definitively canceling the debt. This is to be assumed if he at
least reckons with the possibility that the guilt exists. This is
a waiver in the form of a negative acknowledgment of debt.
Since this acknowledgment of debt is an abstract contract of disposal, a claim

to enrichment (§ 812 Para. 2, 1) of the creditor can be considered under the same
conditions as for the waiver.
1 BGH NJW-RR 1996, 237; reluctant to interpret it as a decree

BAG NJW 2008, 461.
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– The parties assume that there is no guilt and want to

only notice this. If there is guilt contrary to the ideas of the parties, it
is extinguished; but the creditor has
a claim for unjustified enrichment according to § 812 para. 2, 1 for re-
establishment of the claim (case b).
III. amendment contract

3 A contract between the creditor and the debtor can
obligation to be modified. This results from the principle of freedom of
contract (section 311 (1)). The modification can be one
Main obligation to perform (e.g. reduction of the purchase price, rent
increase) or an ancillary obligation to perform (e.g. shortening or
extension of a certain notification period). If a claim is reduced, there is
a partial waiver ("marg. 1), i.e
an injunction, before. If an existing claim is extended (e.g. increase in
the purchase price) or a new claim (e.g
agreement of interest) is justified, this change of content
a commitment deal.
Since the debt is only modified, the security rights reserved for it remain intact and
the debtor can continue to take action against the old one
blame existing objections and objections.
IV. Debt Relief

4 If the obligation is not changed by contract, but
canceled and replaced by a new one, there is a debt replacement
(debt conversion, novation). Their admissibility follows
from the freedom of contract (section 311 (1)).
Example: K owes V the purchase price from a purchase contract. Both

agree, canceling the purchase contract, that K pays the purchase price in the future
should owe as a loan (so-called agreement loan).2
Since the old obligation has been completely replaced by the new
one, the security rights for the old obligation expire. Likewise, objections
from the old contractual obligation are no longer permissible.
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In the example, V loses a lien created for the purchase price claim. Against V's loan
claim, K can no longer invoke the defect in the purchased item.
Whether the parties meant a debt conversion is to be determined 5

by interpreting the agreement. Because the creditor does not want
to give up existing securities without further ado and the debtor
does not want to lose objections and defenses without reason,
the parties usually do not want compensation for their debts, but
rather an amendment contract ("Rn. 3).
The most important case of debt conversion: In current account transactions, the 6
individual claims of the parties are lost when the merchant has determined the balance
at the end of the year and the customer has confirmed it. To ensure that the creditor
does not lose his security, agreements are made from the outset that his rights should
also apply to future claims (cf. also § 356 HGB)3. If an error has been made to the
detriment of one party when calculating the balance, this party has a claim under
Section 812 Paragraph 2, 1.
V. Confusion
Confusion is the coincidence of claim and guilt 7

one and the same person. The claim expires regularly.
Examples: The creditor inherits the debtor or the debtor inherits the creditor (case
c). The claim is assigned to the debtor. Two stock corporations are merged; one has
a claim against the other.
However, the claim does not expire if the rights of others are
involved.
Examples: A third party has a lien on the claim. If after the succession an
administration of the estate is ordered or the estate insolvency proceedings are
opened, the personal assets of the heir and the estate are legally separated – primarily
in the interest of the estate creditors – with retroactive effect to the succession (§
1976); in case c, the administrator of the estate can demand payment from S.4
3 Brox/Henssler HandelsR para. 356 f.

4 See Brox/Walker ErbR § 39 para. 1 et seq.
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VI. Impossibility, achievement of purpose, loss of purpose
1. Demarcation
8th If the owed performance success can no longer occur ver
may be due to one of the following reasons:
a) impossibility. The performance of the debtor is not (or no longer)

renderable (inevitability of the performance).
Example: The seller cannot assign the sold painting to the buyer
and handed over because it was burned or stolen.
9 b) Achievement of purpose. Although the performance action of the

debtor is possible, it cannot bring about the success of performance
because this has already occurred without the debtor doing anything.
Example: Before the deep-sea tug ordered arrives, the ship that ran onto a
sandbank is freed again.
Achievement of purpose differs from impossibility in that the debtor is

willing and able to perform the performance; only the fulfillment of the
obligation by the debtor becomes meaningless because the contractually
stipulated purpose of the debt has arisen in a different way. In contrast
to impossibility, the creditor's interest is satisfied when the purpose is
achieved.
Achievement of purpose does not already exist when the further
purpose ultimately pursued by the creditor with the contract is achieved
in another way, but only when the owed performance has been achieved.
Example: Before the commercial agent K, who needs a car to carry out his job,
receives the car purchased from V, his uncle gives him a car as a gift. This satisfies
K's interest in a car. A case of achievement of the purpose does not exist, since V
can bring about the success of the service (transfer and handover of the purchased
car).
10 c) loss of purpose. The debtor could perform the performance action,

but the object on which the performance owed is to be performed has
ceased to exist.
Example: When the tugboat arrives, the ship has sunk.
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2. Legal Treatment
The impossibility is regulated in detail in the law ("§ 22 11

para. 3 et seq.).
The achievement of the purpose and the end of the purpose have not been
seen by the legislature. The interests involved are the same as in the case of
impossibility. Because it makes no difference to the obligation to perform if, for
example, the operation is omitted because the patient
died (impossibility) or because he is otherwise healthy
has become (achievement of purpose). Therefore, in the case of the achievement
of the purpose and the cessation of purpose, § 275 is to be applied accordingly
that the debtor is released from his obligation to perform.
The creditor would then be released from the obligation to provide
consideration in accordance with section 326 (1). In some cases, that would be
unfair, especially if the debtor has already taken preparatory or even executive
actions. Do you see this as
partial services, the claim for consideration remains in the corresponding amount
(calculation according to Section 441 (3)) (Section 326
Paragraph 1 p. 1, 2nd ms.; " § 22 para. 33). Otherwise, to be completed
the gap in the law apart from Section 326 (1) also Section 326 (2) or Section 645
Paragraph 15 must be taken into account.
In the example, the shipowner must give up to the useless tugboat

pay the corresponding part of the remuneration and reimbursement of expenses. That's possible
taken from Section 645 (1); the non-existence of the substance must be equivalent
to the defectiveness of the substance dealt with there.6
VII. Deadline or termination at

continuing obligations
Literature: Diekmann/Lube, premature termination of a "fitness studio contract", 12

MDR 2016, 69; v. Hare, termination without notice and warning
under new law, NJW 2002, 2278; Oetker, The long-term obligation and
its termination, 1994; Ramming, interactions in the requirements of the statutory
rights of termination and withdrawal according to general
Law of Obligations (§§ 314, 323, 324 BGB), ZGS 2003, 113; M. Stürner, The
Termination of Continuing Obligations for Good Reason According to § 314 BGB,
JURA 2016, 163; Wackerbarth, Extraordinary termination of permanent obligations
and warning – Contradictory in § 314 BGB new version,
in: Dauner-Lieb/Konzen/Schmidt New DebtR 159.

6 st.; Palandt/Retzlaff BGB § 645 para. 8.
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Continuing obligations can - if they are for a specific

time are agreed - by expiry of the deadline, also by ordinary
or terminated by extraordinary termination. you are
characterized in that it is not based on a one-off exchange of services, but on
longer-lasting or repeated ones
services are tailored. The total scope of services
depends on the duration of the legal relationship.
Examples: rental, lease, loan, service (employment), custody, partnership;

Factoring, franchising, legal relationships based on a
vending machine installation, beer delivery, publishing or insurance contract.
1. Deadline
13 Fixed-term continuing obligations end with a calendar-based deadline upon

expiry of the agreed time. This is the case, for example, for the tenancy in
Section 542 Paragraph 2 and for the employment relationship in Section 15 Paragraph 1
TzBfG expressly regulated in this way, but also applies to other limited ones
continuing obligations. However, this effect only occurs
if the limited legal relationship has not already expired before the deadline
by termination agreement or by effective extraordinary
Termination ("paragraph 19 et seq.) has been terminated and if it is not despite
expiry of the period was extended by the parties (cf. for the tenancy § 542
paragraph 2; for the employment relationship § 15 paragraph 5 TzBfG).
14 Furthermore, the termination due to the expiry of the deadline presupposes
that the fixed-term agreement is effective. In this respect, formal requirements
may have to be observed (cf. § 550 sentence 1 for the tenancy and § 14
Para. 4 TzBfG for the employment relationship). Above all, through a
Limitation does not circumvent any existing legal protection against dismissal
that would apply in the event of termination of the respective legal relationship.
Therefore, the agreement of a fixed-term rental agreement is only possible
under the conditions
of § 575 and that of a fixed-term employment contract only under
the requirements of § 14 TzBfG permissible. In the event of a breach of this,
the legal relationship is deemed to have been concluded for an indefinite
period (§ 575 Paragraph 1 Clause 2 for the tenancy; § 16 Paragraph 1 Clause 1 TzBfG
for the employment relationship), so that the expiry of the ineffectively agreed
period does not lead to the termination of the legal relationship.
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2. Ordinary Termination
a) Requirements. Ordinary termination can either 15

stipulated by law (e.g. Sections 542 (1), 568, 573 et seq. for the rental
relationship; Sections 620 (2) and 621 et seq. for the employment
relationship) or contractually agreed. From these regulations or
Agreements then result in the conditions for the termination, in
particular whether the termination requires a form (e.g
§§ 568 para. 1, 623) and which notice periods must be observed
(e.g. §§ 573c, 622, 624). In individual cases, it must always be checked
whether the ordinary termination is not due to special legal regulations
is excluded.
Examples: The ordinary termination of an employment contract is according to § 9
MuSchG for pregnant women, mothers and women after a miscarriage up to
Four weeks after childbirth or miscarriage as well as acc.
§ 15 KSchG excluded for works council members. For other employees, restrictions
on dismissal apply, in particular under the KSchG.
The possibility of ordinary termination can also be contractually 16

waived. So the agreement is a temporary one
Long-term obligation to be interpreted as a rule that after
the parties will not be able to give ordinary notice of termination during
the period (cf. for the fixed-term employment contract
§ 15 paragraph 3 TzBfG).
b) Legal Consequences. Termination not only leads to termination 17

individual obligations, but to terminate the continuing obligation as a
whole. It has a different effect than a challenge (§ 142
Paragraph 1) not ex-tunc, only ex-nunc. In the case of ordinary
termination, the relevant termination date is the expiry of the
Notice period.
The termination does not lead to a reversal of the 18
Services already exchanged in the past. Sections 812 et seq. do not
apply because of the ex-nunc effect on the
exchange of services in the past there is a legal basis; only advance
payments on the after the termination has taken effect
lapsed period are to be reversed under enrichment law.
In contrast to withdrawal, there is also no reversal obligation; Sections
346 et seq. ("Section 18 para. 15 et seq.) do not apply. There will
simply no longer be any main service obligations in the future. In
individual cases, however, ancillary services and
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Duties to protect even after the legal relationship has ended

exist.
Examples: After termination of a contract caused by notice

Employment relationship (§ 620 Para. 2) no longer need the employee
to show up for work and the employer to stop paying remuneration. However, if
agreed, the employee may be subject to a contractual non-competition clause.
Conversely, the employer can claim benefits based on an agreed company pension
scheme
be required. – The landlord can, after the end of the tenancy
by notice (§ 542 Para. 1) demand the return of the rented property
(Section 546 (1)) and does not require the tenant to use the rented property
to grant more. For this, the tenant is no longer required to pay a
rent obligatory. The landlord may, for example, be obliged to provide another
to create utility bills or a temporary time one
Notice of moving on the mailbox to be tolerated.
3. Extraordinary Termination
19 a) Requirements. The extraordinary termination of a
A continuing obligation is possible either on the basis of special
provisions for the respective legal relationship or under the conditions
of Section 314. It cannot by party agreement
be excluded.
aa) There are special regulations for extraordinary termination
in particular for the money loan (§ 490), the tenancy
(§§ 543, 569), the service and employment relationship (§ 626) and for
the company relationship (section 723). You close the application of the
§ 314 (also with regard to the period of § 314 paragraph 3) from.7
20 bb) Those continuing obligations whose extraordinary
Termination is not regulated by special law, after the since
1.1.2002 valid § 314 from each part of the contract for good cause
terminated without observing a period of notice. This applies, for
example, to the franchising, vending machine installation, beer supply,
heat supply and publishing contract.
21
(1) An important reason exists according to § 314 paragraph 1 sentence 2 if
the terminating party, taking into account all the circumstances of the
on a case-by-case basis and taking into account the interests of both parties
Continuation of the contractual relationship until the agreed termination
(in the case of a fixed-term continuing obligation) or until Ab
7 BGH NJW 2016, 3720 paras. 14 et seq., 24 (on Sections 543, 569).
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after a period of notice (in the case of ordinary termination).

can be expected.
This requirement corresponds to that of Section 626 (1) for the extraordinary
termination of employment relationships. There is already one for this
long-standing, constantly evolving jurisprudence of labor courts, which can also be
used when interpreting section 314. The important reason should also be checked in
two stages,
as is customary with § 626: The first step is to check whether circumstances
are present that are "in themselves suitable" to an extraordinary termination
justify. If the answer is yes, in a second step a weighing of interests is carried out,
taking into account all the circumstances of the individual case
taken.
Typical examples are crimes against the other contractual partner, even 22
if they (such as insults, bodily harm) with
have nothing to do with the exchange of services. come further
Serious breaches of duty by a contractual partner such as
persistent refusal to perform as an important reason. In this case, before
the notice of termination is given, a deadline for remedial action or a
warning must be set without success
pronounced (§ 314 Abs. 2 S. 1). Such a deadline is
§ 314 para. 2 sentence 2 as in the case of withdrawal ("§ 22 para. 62 f.) in the cases
of § 323 Para. 2 dispensable, e.g. if the other contracting party seriously
and finally refuses to provide consideration (§ 323
Paragraph 2 No. 1). It is also dispensable if there are special circumstances
justify the immediate termination (section 314 (2) sentence 3).
A disturbance of the business basis entitles according to § 313 paragraph 3 to 23
extraordinary termination if a contract adjustment is not possible
or is unreasonable (on the relationship between disruption of the business basis and
extraordinary termination "§ 27 para. 21).
On the other hand, the mere fact that the customer of a fitness studio changes his place
of residence for work-related reasons can result in an extraordinary termination of the contract
Gym contract not justify, especially since this reason alone from the
sphere of the customer and can be influenced by him.8
(2) The beneficiary can request extraordinary termination in accordance with 24

§ 314 para. 3 only within a reasonable period of time after he has become
aware of the reason for termination. After expiration
this notice period without notice of termination
it can be assumed that the person entitled to give notice of termination
8 BGH NJW 2016, 3718 para. 13 mAnm Riehm JuS 2017, 783.
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establishment of the legal relationship up to the expiry of the period to be

observed in the event of an ordinary termination is reasonable.
In contrast to Section 626 (2), in which there is a notice period of two weeks for the
extraordinary termination of an employment relationship
is determined, the legislature has in § 314 given the difference of the
affected continuing obligations deliberately on the determination of a
uniform notice of termination waived.9
25 b) Legal Consequences. The extraordinary termination also ended

the continuing obligation with effect for the future. If you
is declared as a termination without notice, this effect takes effect immediately.
Contrary to the wording of § 314, which is too narrow in this respect, an
extraordinary termination can also be accompanied by a social expiry period
to be pronounced. This may even be necessary if
ordinary termination by law or by agreement
is excluded and the extraordinary termination only to the
takes the place of an otherwise conceivable ordinary termination.10 In
this case, the legal relationship does not end until this expiry period has
expired.
§ 18. Withdrawal
1 Literature: Arnold, The new law of the consequences of withdrawal, JURA 2002, 154;
Bartels, Value and damage claims in the right of withdrawal, AcP
215 (2015), 203; Bassler/Büchler, The Reform of the Right of Withdrawal, AcP 214
(2014), 888; Beck, The withdrawal from the vehicle purchase contract and its procedural
Implementation, NJW 2018, 29; Benicke, Duty to compensate for the value in the new
Right of withdrawal in the event of consumption and sale, ZGS 2002, 369; Dastis/
Hoeren, Calculation of compensation for use in the rescission of vehicle purchase
contracts, NJW 2019, 2430; Döll, problems with refunds when withdrawing,
2011; Eichel/Fritzsche, skimming off profits in the return obligation relationship,
NJW 2018, 3409; Forst, About the purpose, facts and legal consequences of Section 346
Para. 3 sentence 1 no. 3 BGB, ZGS 2011, 107; Hager, The Right of Withdrawal, in:
DHLR debt R § 5; Herresthal, Compensation for damage caused by delay when
withdrawing from the contract, JuS 2007, 798; ders., The value and damage claim
upon resignation, FS Musielak, 2004, 195; Honsell, Risk of loss and liability privilege
according to § 346 BGB, FS Picker, 2010, 363; Jaeger, The Legal Consequences
withdrawal from contract after legal acquisition of ownership, AcP 215
(2015), 533; Kaiser, The legal consequences of resignation in the law of obligations
9 BT-Drs. 14/6040, 178.

10 NK-BGB/Krebs § 314 para. 52.
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§ 18. Withdrawal 171
form, JZ 2001, 1057; Kamanabrou, liability of the person entitled to withdraw

Decline in Received Power, NJW 2003, 30; Klink, The Binding
to explanations of solutions, ZJS 2008, 102; Kohler, monetary claim after resignation
in the case of disposable disposal of what has been performed, AcP 214 (2014), 362;
ders., Liability for rescission, enrichment and vindication for benefits that are lost anyway and
not used in breach of duty?, JR 2013,
479; ibid., assessment of the value of compensation under withdrawal law, AcP 213 (2013), 46;
idem., exclusion of withdrawal in the warranty right in the event of subsequent impossibility of
performance - recurrence of §§ 350, 351 BGB old version?, AcP 203
(2003), 539; ibid., liability for damages in the event of withdrawal, ZGS 2005, 386;
ibid., The liability criteria between the law of obligations and property law in relation to the right
of rescission, AcP 206 (2006), 683; i.e., liability for unjust enrichment after resignation –
a repressed repression and its consequences, AcP 208 (2008), 417; S.Lorenz,
The solution from the contract, in particular withdrawal and revocation, in: Schulze/
Schulte-Nölke reform of the law of obligations 329; ders., basic knowledge of civil law:
Legal consequences of withdrawal and revocation, JuS 2011, 871; idem., The "jumping back"
of danger to the seller and its consequences, NJW 2015, 1725;
Martens, surrender of use and compensation in the case of withdrawal, AcP 210
(2010), 689; Meyer, compensation for damages in the restitution obligation according to
Section 346 (4) BGB, JURA 2011, 244; Reischl, Basic cases on the new law of obligations,
JuS 2003, 667; Rheinländer, The liability of the resigning party
knowledge of the right to withdraw, ZGS 2004, 178; Schwab, modernization of the law of
obligations 2001/2002 - the reversal of contracts after
§§ 346 ff. BGB new version, JuS 2002, 630; Wackerbarth, Determination of the compensation
in use after withdrawal from the car purchase contract, NJW 2018, 1713; Meadow/
Hauser, Services received iSd § 346 BGB and transfer of risk, JuS
2011, 301.
Case a: Antique dealer A exchanges a picture for a cupboard belonging to B.

He has the cupboard picked up by his always reliable assistant C,
who damages an expensive vase in B's office. Later A makes of that
contractually reserved right of withdrawal and demands return
of the picture against surrender of the cabinet. B only wants the picture in return for a replacement
return the vase. " paragraph 2, 33
Case b: K buys a television set from V. He wants from his contracted
exercise the agreed right of withdrawal after dropping the device, thereby destroying it. V
considers that impossible. At least K has to compensate for the damage. " Paragraphs 13, 25
Case c: V sells a cat to K. He demands effective resignation

also the boys thrown out in the meantime. " Paragraph 18
Case d: K effectively withdraws from the purchase contract for his new car. V
seeks compensation for the temporary use of the car by K and for
the impairment that has already occurred as a result of the approval (now only
Used cars). " Paragraphs 18, 21, 25
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I. Concept, Effect and Delimitation

1. Definition and legal regulation Withdrawal
means the reversal of a contractual obligation through a declaration of intent that

must be received. The right of withdrawal is a design right. The prerequisites for a
right of withdrawal result from the contractual agreement or from numerous provisions
outside of the general law of obligations (“Rn. 10). The exercise and the legal
consequences of withdrawal are uniformly regulated for all cases of withdrawal in §§
346 ff. (“ 11 f., 15 ff.).
2. Effect on the obligation Rescission does not
2 – as was previously assumed in some cases – cause the entire obligation to expire
retrospectively (ex-tunc), but transforms it into a restitution obligation for the future (ex-
nunc). Its content is based on §§ 346 et seq.
(“Rn. 17 et seq.).
Important consequences result from the continued existence of the obligation. In

particular, a claim under §§ 280 Paragraph 1, 241 Paragraph 2 for breach of protection
obligations remains unaffected by the withdrawal (case a). Withdrawal from the contract
also does not nullify any claims for compensation for damage caused by delay that have
arisen beforehand (§§ 280 Para. 1, 2 and 286).1 Likewise, securities that are given for
primary performance obligations can also be retained for the obligation to return: It depends
that the securities are also provided for such obligations according to the will of the parties.
The right to demand damages (instead of performance) in the case of a mutual contract is
also not excluded by withdrawing from the contract (§ 325; " § 23 marginal number 72).
3. Demarcation
3 The following must be distinguished from resignation:
a) Challenge. The rescission requires a reason for rescission (sections 119 et seq.)
and a declaration of rescission (section 143). Unlike the resignation ("Rn. 2), it destroys
the contested declaration of intent and thus the legal transaction with retrospective
effect
1 BGHZ 88, 46.
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(Section 142 (1)). The rescission does not take place according to §§ 346 ff., but
according to §§ 812 ff.
b) Withdrawal and return. The BGB recognizes a number of rights of 4

revocation, some of which differ significantly from one another (cf., for
example, §§ 109 Para. 1, 130 Para. 1 Sentence 2, 168 Sentence 2, 3, 530, 671).
The practically particularly important revocation in consumer contracts
that are outside of business premises (§§ 312b, 312g, 355;
" § 19 para. 8 ff., 18 ff.) or with the exclusive use of
Means of long-distance communication (§§ 312c, 312g, 355; "§ 19 para. 14 f.,
18 ff.) allows the consumer to initially
to reverse an effective obligation by means of a declaration of structuring
that must be received (cf. Section 357).
c) Termination. The termination is a declaration of intent that must be 5

received and that dissolves the obligation for the future; in the
In contrast to withdrawal, there is no reversal here. Accordingly, the
termination serves primarily – but not exclusively
(cf. §§ 648 f. for the work contract and § 671 for the order) - the
Termination of continuing obligations (" para. 12; e.g. tenancy: §§ 542 f.,
568 ff.; employment relationship: §§ 620 ff.; society:
§§ 723 et seq.), because it is difficult to reverse the mutual services (cf.
also § 313 (3) sentence 2;
" § 27 para. 12).
d) Condition subsequent. If a condition subsequent is agreed, the legal 6

transaction is canceled for the future without further explanation when it
occurs (Section 158 (2)). A return of the condition must be specially
agreed (§ 159).
II. Requirements
1. Right of Withdrawal
The entitlement to withdraw may arise from a contract or the law 7

result. Since the reform of the law of obligations, Sections 346 et seq.
apply equally to both rights of withdrawal.
a) The contractual right of withdrawal. The contractual right of

withdrawal is agreed by the parties in order to give the beneficiary the
opportunity to disengage from the deal. Such a
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The right to withdraw from the contract can be made expressly or impliedly.
If, for example, it is agreed in a contract that the debtor

non-fulfilment should lose his rights under the contract (forfeiture clause),
a cancellation agreement has been made
(§ 354).
If, on the other hand, the debtor is to lose only individual rights, the
Agreement of a contractual penalty to be seen (§ 339; see "§ 11).
8th
Two further cases in which the law interpreted an agreement as a reservation of rescission
until December 31, 2001 are in the course of the reform of the law of obligations
omitted. Section 361 old version concerned the relative fixed transaction. It is in Section 323 Paragraph 2 No. 2
(Statutory right of withdrawal without the need to set a deadline) has risen ("§ 23 Rn. 63). The
interpretation rule of § 455 old version, according to which a
Purchase under retention of title, the seller was entitled to withdraw in case of doubt, if the
buyer defaulted on payment, is without replacement
omitted. A significant change in the legal situation is thus for the
Conditional seller not connected because he has been since the reform of the law of obligations
according to § 323 paragraph 1 can withdraw by operation of law if he has unsuccessfully set
the buyer a payment deadline.
9 The contractual right of withdrawal can, but does not have to, go to a be
be linked to a special reason for withdrawal.
The agreement contained in the terms and conditions of a right of the user to
without an objectively justifiable reason stated in the contract
To solve the obligation to perform (= right of withdrawal) is, however, fundamental
ineffective (§ 308 No. 3). In commercial transactions, too, the user will not be able to freely
choose to be bound by the contract
(§ 307).
10 b) The statutory right of withdrawal. Sections 346 et seq. gain their

greatest practical significance in the context of the statutory right of
withdrawal. They are directly on this since the reform of the law of obligations
and modified applicable. Statutory rights of withdrawal can be found
inter alia in Sections 313 (3), 323, 324, 326 (5), 508. After that
Since the warranty for defects was integrated into the general right to
default,2 the rescission now plays a role there too
important role (§§ 437 No. 2, 634 No. 3).3 On the other hand, the (the
statutory provisions relating to the right of withdrawal) §§ 346 et seq.
no (corresponding) application when withdrawing from consumer contracts
that are concluded away from business premises,

3 Brox/Walker SchuldR BT § 4 para. 49 and § 24 para. 23 et seq.
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and when withdrawing from distance contracts. Since June 13, 2014,
Article 357 has contained its own regulation for the rescission of these
contracts.
2. Notice of Withdrawal
The right of withdrawal is exercised by a declaration of intent to the 11
contractual partner (§ 349). The declaration of withdrawal therefore
requires legal capacity (note § 111). The resignation is unconditional;
because the opponent of the withdrawal has a legitimate interest in clear
circumstances. A condition is therefore only permissible if it does not
create unreasonable uncertainty about the new legal status for the
recipient of the declaration;4 this is particularly the case if the occurrence
of the condition depends on the will of the opponent of the withdrawal.
Example: A resigns under the condition that his contractual partner B does not pay the
purchase price by the end of the year.
If several parties are involved in a contract on one side or the other, 12

the right of withdrawal can only be exercised by all and against all (§
351 Sentence 1).
III. exclusion of withdrawal

1. No exclusion in the event of impossibility of return
Since the reform of the law of obligations, the beneficiary can also 13
withdraw from the contract if he is unable to return it (case b), subject to
another contractual agreement. This applies up to the limit of abuse of
rights (Section 242) even if the impossibility is intentionally brought
about.5 However, the entitled person may – like the opponent of the
withdrawal – be obliged to compensate for the value ("Rn. 21 et seq.).
The §§ 350-353 old version valid up to December 31, 2001 contained a number of facts
in the presence of which the right of withdrawal was excluded, namely in the case of loss,
processing and transformation as well as the sale and encumbrance of the object that the
entitled person received . In addition, a distinction had to be made as to whether a case of
contractual
4 BGHZ 97, 263.

5 BT-Drs. 14/6040, 195.
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legal or statutory resignation.6 In the course of the reform of the law of obligations,
the provisions mentioned were deleted. Instead, the
§§ 346 para. 2, 3, 347 on the obligation to compensate for value added
(“Rn. 21 et seq.).
2. Deadline for withdrawal

14 The law has not stipulated any deadlines for declaring resignation. However,
the parties can agree on such a period. Section 350 sentence 1 gives the
opponent of the withdrawal the contractual (not
also in the case of the statutory) right of withdrawal, the possibility of unilateral
declaration to the person entitled to withdraw for the
to set a reasonable deadline for exercising the right of withdrawal. With
If the deadline is missed, the right of withdrawal expires (§ 350 Sentence 2).
IV. Legal Consequences
15 The effects of the resignation are regulated in §§ 346-348.

Reference is also made to these regulations several times when the
Necessity of reversal on circumstances other than that
resignation of a participant (reference to legal consequences, cf.
§§ 281 para. 5, 326 para. 4, 439 para. 5, 635 para. 4).
1. Expiration of unfulfilled performance obligations

16 If the contractual obligations have not yet been fulfilled, services no longer
need to be rendered. There is not only one right to speak; rather, the performance
obligations expire. The legislature considered this consequence to be self-
evident and an explicit one
Regulation for expendable.7
2. Return of services received and surrender of benefits actually obtained
17 The withdrawal obliges those involved to receive benefits

to return and to release any benefits that have been drawn.
a) Refund of services received. If the contractual partners have already

fulfilled their contractual obligations, they are welcome
6 27th edition 2000, paragraph 201 et seq.

7 BT-Drs. 14/6040, 194.
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to return the benefits (Section 346 (1)). The exercise of the right of
withdrawal therefore does not result in any change in the law
one, but there is an obligation with the obligation to
refund.
The contracting parties remain the owners of the assets transferred to them
objects. You are only legally obliged to return ownership.
b) Release of benefits drawn. In addition, the benefits actually 18

obtained are to be disclosed (Section 346 (1)). Under
According to § 100, uses are granted (§ 99) and advantages of use
to understand.
In case c, V can also use the young as direct material fruits (§ 99 para. 1)
reclaim, although B has become the owner according to § 953. To the
Release of the benefits of use in the case of d "marg. 21.
A provision in the GTC, according to which the user in the event of withdrawal
can demand an unreasonably high remuneration for the use or use of a thing (a right) or
for services rendered is invalid (section 308 no. 7 letter a).
c) Consequences of violating the obligation to return or surrender. 19

If the debtor of the obligation to return or surrender from § 346
paragraph 1 violates this obligation, the creditor
claim damages in accordance with §§ 280-283. that will
expressly clarified in Section 346 (4). This liability for damages
assumes that there is a return obligation based on withdrawal; it
therefore only intervenes after the declaration of withdrawal. After
this time, the return debtor is in charge
through his fault the impossibility of return or surrender of use, he is
liable according to §§ 280 paragraphs 1, 3, 283 for damages instead
of performance, without referring to the loss of enrichment (§ 818
paragraph 3) or the Obligation to compensate for value (§ 346 Para. 3).
to be able to If he delays the return or surrender, he must
according to §§ 280 paragraphs 1, 3, 281 also damages instead of performance
and under the conditions of §§ 280 para. 1, 2, 286 replacement of
afford delay damage.
Prior to the declaration of withdrawal, there is also no return or refund 20
Duty to surrender that could be breached. If at this time the cause is set for the fact that
the obligation arising later cannot be fulfilled
This does not lead to an obligation to pay damages, but only to an obligation to pay compensation
according to Section 346 Paragraph 2, which can be omitted according to Section 346 Paragraph 3.
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3. Replacement of value instead of impossible return or surrender

21 The debtor is not always able to give back what has been obtained
in concrete terms and surrender the benefits drawn. then
a value replacement obligation is considered. This also applies to the
Reversal of a purchase of consumer goods.8 There are two different cases
for the obligation to compensate for lost value.
a) Originally Non-Returnable or Redeemable Performance or

Use. If the debtor has a performance
received or drawn a use which by their nature is not
returned or handed over (e.g. service), he has to pay compensation
according to § 346 paragraph 2 sentence 1 No. 1
according to this standard, if the granting of the possibility of use

was the subject of the contract to be reversed (e.g. in the case of a
rental agreement). If, on the other hand, the benefits were obtained on
the basis of another contract (e.g. the buyer uses the purchased item),
the obligation to compensate for use is largely not based on Section 346 (2).
No. 1 based, but derived directly from § 346 paragraph 1.9
In case d10 , K used the car and thus uses it
drawn in the form of benefits (§ 100). According to the prevailing opinion, he has to
replace this in accordance with Section 346 (1). If you take § 346 para. 1
but does not apply in such cases, because the release of benefits of use (as opposed
to benefits in the form of fruits) is not in nature
is possible, they must be compensated for according to § 346 Paragraph 2 No. 1.
22 b) impossibility of surrender and deterioration of the

obtained. Compensation for lost value is also owed if what has been received
is returnable by its nature, but from another
reason cannot be returned or returned in its original form (section
346 (2) nos. 2 and 3).
In principle, the resignation does not change anything in the distribution of the risk
of accidental loss or accidental deterioration
when purchasing, it usually passes to the recipient when the item is handed over
(§ 446 sentence 1). With this, the risk remains even after the declaration of withdrawal
and creation of the return obligation; because he is indeed from
8 BGH NJW 2010, 148 (no violation of the consumer goods directive 1999/44/
EC).
9 NK-BGB/Hager § 346 para. 33; Lorenz/Riehm new debt regulation, para. 422.
10 Cf. on such a case BGH NJW 2010, 148.
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its obligation to return it in kind, but not from an obligation to compensate for the value
freed. The exceptions can then be found in Section 346 (3).
aa) According to Section 346 (2) sentence 1 number 2, the debtor is entitled to compensation 23
pay if he has used, sold, encumbered, processed or (not only insignificantly)
redesigned the item received and is therefore unable to return it (in the original
form). In the case of an encumbrance (e.g. a plot of land).
however, the primary obligation is not compensation, but return and elimination
of this encumbrance (e.g. deletion of a land charge).11 Only if this elimination
is not possible can the guarantor creditor demand compensation. Otherwise
there is none
Obligation to pay compensation if the defect that entitles you to withdraw only
became apparent during the processing or transformation of the item (§ 346
Paragraph 3 Sentence 1 No. 1).
Section 346 (3) sentence 1 no. 1 will have to be applied analogously if the
Deficiency only shows on the occasion of consumption.12
If the obligation to compensate for value according to Section 346 (3) 24

sentence 1 no. 1 is excluded, the debtor must at least make a remaining enrichment
publish (§ 346 Abs. 3 S. 2, legal consequences reference to the
§§ 818 ff.)13.
bb) According to Section 346 (2) sentence 1 no. 3, the debtor also has 25
Compensation is to be paid if the item received is lost or if it has deteriorated
beyond the wear and tear caused by normal use.
In case b, K must pay compensation for the value of the television set, unless there is a case
of § 346 Para. 3 S. 1 No. 3 (observance of customary care) is present
("§ 20 para. 19). In case d, on the other hand, V cannot substitute for the by alone
demand the reduction in value resulting from the approval, since this was caused by the
intended use.
One becomes the norm on other cases of impossibility of return
have to apply analogously, provided that, for example, in the event of theft or loss of the
Items to be returned or surrendered are also not included in No. 2.14
However, the obligation to pay compensation according to Section 346 (2) sentence 1 no. 3 does not apply 26
if the creditor himself the deterioration or demise
11 BGH NJW 2009, 63 et seq.

12 NK-BGB/Hager § 346 para. 50.
13 BGH NJW 2015, 1748.
14 NK-BGB/Hager Section 346 para. 40; Looschelders SchuldR AT § 40 para. 15.
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is responsible for or the damage would have occurred to him as well

(Section 346 (3) sentence 1 no. 2).
The case in which the deterioration or loss is due to a defect in the purchased
item is equivalent to the obligee being responsible.
The case that the damage would also have occurred to the creditor is about
given in the event of storm damage to the house or property.
27 The obligation to pay compensation according to § 346 Section 2 Sentence 1 No. 3 also does not apply
then if the debtor in the case of a legal
Right of withdrawal has observed the customary diligence (§ 277, "§
20 Rn. 19) and the damage has nevertheless occurred (§ 346 Para. 3
p. 1 no. 3).
The reason for the exemption from the obligation to pay compensation is that
the statutory right of withdrawal is usually triggered by a breach of duty by the
opponent of the withdrawal (exception: Section 313 (3)) and the person entitled to
withdraw relied on having finally become the owner of the item
and to be able to do with it as one pleases (§ 903). This trust is only valid until the
person entitled to withdraw is aware of the reason for the withdrawal
worthy of protection because after that he has to be prepared for an obligation to
give back. Therefore, it would have made sense to give him the privilege
to grant the obligation to compensate for value according to § 346 paragraph 3 sentence 1
number 3 only until this knowledge has been obtained. Against a corresponding teleological correction
the provision15 speaks, however, that the legislature is privileging the
Consciously not limited to those entitled to withdraw until they become aware of
the reason for withdrawal and only provided for an obligation to pay damages from
the time of the declaration of withdrawal ("Rn. 19 f.). For the period between
learning of the reason for withdrawal and the declaration of withdrawal, one is
duty to handle the item with care16, breach of which makes one liable for damages
(section 280 (1)).
28 Even if the obligation to compensate for value does not apply, a remaining Be
Enrichment also here (§ 346 Abs. 3 S. 2, "Rn. 24).
29 c) Calculation of the replacement value. Section 346 (2) sentence

2 contains a regulation for the calculation of the value replacement. If
a certain consideration (purchase price) was agreed in a reverse
mutual contract such as a purchase contract, this is for the
to be used as a basis for calculating the replacement value and not the
objective value. This also applies if value replacement for towed, but
Non-issuable uses (e.g. use of a purchased
15 So NK-BGB/Hager § 346 para. 58 f.

16 So BT-Drs. 14/7052, 194.
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apartment until the rescission of the purchase contract) is to be paid.

The benefit of use that is decisive for the value compensation is then to be
calculated pro rata temporis from the purchase price.17 However, if value
compensation is to be paid for the benefit of use of a loan and the
Consideration (agreed interest) is proven to be higher than the benefit of use
(standard market interest rate), value compensation only needs in
amount of the benefit to be paid (§ 346 Para. 2 S. 2,
2nd ms.).
This connection to the price agreement remains with
Compensation for the value of the resignation opponent despite the resignation
receive profit. From a legal point of view, this is a dubious result.
Example: K buys a picture worth EUR 1,000 from V for EUR 1,500.
After the agreed right of withdrawal has been exercised, K's picture is stolen. In
accordance with Section 346 (1) V, he can demand the return of the EUR 1,500 paid and,
conversely, in accordance with Section 346 (2) sentence 1 no. 3, (2) sentence 2 in
Amount of this agreed amount also provide compensation, so that arithmetically
nothing can be reversed. Economically, therefore, is not the state before
conclusion of contract established; rather, despite the resignation, the result remains
of the contract exist because the difference between the value of the picture and the
agreed purchase price remains with V. It would be different if K still had the picture
could return; then he would have to give back (picture worth
of EUR 1,000) against a repayment claim of EUR 1,500, and he would be placed in the
same economic position as if the contract had not been concluded at all. The different
solution in both cases is not convincing, but corresponds to the law.18
If there is no such agreement (rare), the objective circumstances are decisive. 30

The lower objective value and not the
Agreed consideration is also decisive if it is currently
is based on the defect in the service that entitles you to withdraw.
This means that instead of the agreed value, the value in accordance with §§ 441
Paragraph 3, 638 Paragraph 3 to replace the reduced value.
Example: The picture bought for 1,500 EUR, which has an objective
value of 1,000 EUR is only worth 500 EUR due to damage.
The compensation that the withdrawing buyer has to pay if it is impossible to return the
goods is EUR 1,500 × (EUR 500: EUR 1,000) = EUR 750.
17 BGH NJW 2017, 3438 para. 26 et seq. Manm Schwab JuS 2018, 708.
18 This is also the case with BGH NJW 2009, 1068 on the opposite case, in which the buyer
acquired the purchased item below value and therefore only has to pay compensation in the
amount of the agreed low purchase price in the case of rescission.
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4. Compensation for uses not drawn and for uses

31 a) Compensation for unused benefits. According to § 346 Para. 1,
the debtor has to surrender the benefits actually obtained ("Rn. 18).
According to § 347 Para a proper economy could have drawn.
Possible examples are: leaving an agricultural area fallow, non-collection of due

rent, waiver of possible interest on a sum of money (i.e. no minimum usage
compensation in the amount of the statutory interest rate, cf. § 347 sentence 3 old
version).
In this respect, too, the person entitled to resign by operation of law is entitled to do so
only to be responsible for the customary care (§ 347 Abs. 1 S. 2).
32 b) Replacement of use. According to what has been said so far, the
debtor has to return the item and any uses in kind or in terms of value.
If he made uses of the thing that were necessary for the preservation
of the thing (necessary uses), the obligee would be unfairly enriched.
For this reason, Section 347 (2) sentence 1 grants the debtor a right
to compensation for his necessary uses if he returns the item or
provides compensation for its value. The same applies if he is released
from the obligation to compensate for the value because the defect
that entitles him to withdraw only became apparent during the
processing or transformation of the object (§ 346 Para. 3 Sentence 1
No. 1), because the creditor is aware of the deterioration or is
responsible for the sinking himself or because the damage would have
occurred to him as well (section 346 (3) sentence 1 no. 2). In this
case, too, it would be inappropriate if the creditor benefited from the
necessary uses without compensation.
The obligee has to reimburse other expenses, namely expenses that are not
necessary, insofar as he is enriched by them (section 347 (2) sentence 2). These
include the useful (ie value-enhancing) uses.
A provision in the terms and conditions according to which the user can demand an
unreasonably high reimbursement of expenses is invalid (§ 308 No. 7 letter b).
5. Fulfillment step by step

33 The obligations of the parties resulting from the withdrawal must
be fulfilled step by step (§§ 348, 320, 322). become of it
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both the return and surrender claims (§ 346 Paragraph 1) and any claims
for compensation (§§ 346 Paragraphs 2, 3; 347) are recorded.
On the other hand, claims arising from Sections 280 (1) and 241 (2) for breach of
protection obligations are not claims “from withdrawal”. They result from the breach of the
duty to protect and not from the withdrawal. In case a, B cannot therefore refuse to return
the picture by invoking Section 348.
However, he has a right of retention according to § 273 (" § 13 para. 2 ff.).
V. Invalidity of withdrawal
1. Repudiation agreement
If the right to withdraw is contractually reserved against payment of a 34
repudiation, it is ineffective according to § 353 if the repudiation is not paid
before or at the time of the declaration and the opponent therefore rejects
the declaration or if the repudiation is not paid immediately after the rejection
will.
2. Possibility of offsetting
If the withdrawal is due to non-fulfilment of an obligation on the part of 35
the other party (Section 323 (1)), it becomes ineffective under Section 352
if the other party had the option of offsetting before the withdrawal and
declared the offsetting immediately after the withdrawal.
As a result, the unfulfilled obligation ceases to exist retrospectively

(§ 389, "§ 16 para. 12) and thus the basis of the resignation.
VI. Sections 346 et seq.
Sections 346 et seq. are fundamentally discretionary. They can therefore 36

be waived by agreement of the parties. Whether such an agreement exists
must be determined by interpretation.
However, the basic requirement can be excluded by a special statutory order. If, for
example, in the case of an installment transaction (Section 506 (3)) it is agreed between
an entrepreneur and a consumer that if the entrepreneur withdraws due to late payment
(Section 508), the payments already made will lapse, this constitutes a deviation from the
obligation to return pursuant to Section 346 to the detriment of the consumer. It is invalid
according to § 512 sentence 1, because § 508 to the according to § 512
https://doi.org/10.17104/9783406758829-139
mandatory provisions and §§ 346 et seq. apply to the right of withdrawal mentioned
there.
Requirements and legal consequences of withdrawal
I. Requirements 1. Right
of withdrawal a)
Contractual b)
Statutory (e.g. §§ 313 Para. 3, 323, 324, 326 Para. 5,
508)
2. Declaration of withdrawal (§ 349)
3. No exclusion (Section 350 sentence 2)
II. Legal
consequences 1. Expiration of the
obligation to perform 2. Restitution of the benefits received (Section 346 (1))
3. Release of Benefits (Section 346 (1))
4. Compensation in the event of impossible return or surrender or
deterioration of what has been obtained (section 346 (2); exceptions:
section 346 (3))
5. Compensation for benefits not drawn (Section 347 (1) sentence 1)
6. Replacement of use (§ 347 Abs. 2 S. 1)
https://doi.org/10.17104/9783406758829-139
6th chapter. consumer protection

Consumer contracts and special
forms of distribution
§ 19. Consumer protection in consumer contracts

and special forms of distribution
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Case a: Representative V approaches K on the train to work and tempts her to

Purchase of cosmetics worth 70 EUR. Later, K repents and leaves
the message on V's answering machine that she was revoking the contract. Effective? "
Paragraphs 9, 18, 26
Case b: K buys vacuum cleaner bags from agent V at her front door. Later she realizes
that she still has a large supply and she sends these
Goods returned to V. Effective revocation? " Paragraphs 9, 18, 27
Case c: O buys crockery worth EUR 30 for EUR 60 on a coffee trip
EUR. After the dishes have fallen to the ground, O declares the retraction.
Vendor V considers this invalid. In any case, he sets off a counterclaim of EUR 60 for
the destroyed crockery. " Paragraphs 12, 18, 40
Case d: K buys a lawnmower in C's shop. for financing
of the purchase price of EUR 500, he concludes a loan agreement at the same time
with B, the seller's house bank, for which V works as a clerk.
K later regrets it and no longer wants the lawnmower. He revokes
both contracts. B, meanwhile, the loan amount as agreed
paid directly to V for the purpose of repaying the purchase price, insists on repayment of
the loan by K. What is the legal situation? " Paragraphs 9, 45, 46, 48, 49
Case e: What are the legal consequences if, in case d, the V den
K visited his house at his request and finished it there
of the purchase contract for the lawn mower? " Paragraphs 9, 18, 48
Case f: Entrepreneur U places in an Internet auction on eBay
enter a piece of jewelry for auction from 1 EUR. Consumer K submits the highest bid
within the stated term. However, he refuses
acceptance and payment. Right? " Paragraphs 15, 18, 35
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I. Overview of consumer protection in the German Civil Code
If a contract between a consumer (§ 13) and a

Entrepreneur (§ 14) is concluded, the consumer is
Doubt the losing party. It is therefore specially protected by numerous
regulations.
In part, consumer protection relates to individual contract types. In this
respect, it is regulated in connection with the respective contract law in the
special law of obligations. are to be mentioned
the consumer protection regulations when buying consumer goods
(§§ 474 ff.)1, in the part-time housing rights contract (§§ 481 ff.)2, in the
Consumer loan agreement (§§ 491 et seq.)3 , for financial aid
(§§ 506 ff.)4 and installment delivery contracts (§ 510)5 as well as consumer
construction contracts (§§ 650i ff.)6. As far as it is with these contract types
the point is that the consumer has a right of withdrawal
However, for the exercise and the legal consequences of a revocation,
supplementary provisions from the general law of obligations (§§ 356a ff.,
357b ff.) to be consulted.
2 Insofar as consumer protection affects all or at least several types of
contract, it is regulated in the general law of obligations. In addition
belongs to § 310 para. 3, according to which the terms and conditions control to protect the am
The consumer involved in the contract has an extended area of application
("§ 4 para. 62 ff.). Furthermore, §§ 312 ff. and 355 ff.
consumer protection rules. These were only valid until 06/12/2014
for "special forms of distribution". They were put into action
of the Consumer Rights Directive 2011/83/EU of 25.10.2011
Law of September 20, 20137 restructured and completely revised.
This directive aims to contribute to a high level of consumer protection and
to a better functioning of the internal market between business and
consumers.8 Better
The BGB does not become legible through the subsequent insertion of such
detailed regulations on individual consumer protection issues.

7 Law Implementing the Consumer Rights Directive and Amending the Law
zes for the regulation of housing procurement, Federal Law Gazette I 3642.
8 Bundestag printed paper 17/12637, 1st
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II. Special duties and principles for all

consumer contracts
In the case of consumer contracts for a paid service by the entrepreneur, 3
the entrepreneur has basic information obligations and special principles
apply to protect the consumer. With consumer contracts are according to §§
312 paragraph 1, 310 paragraph 3 contracts
between an entrepreneur (§ 14) and a consumer (§ 13)
meant. In most cases, the entrepreneur will provide the contract-typical service
(e.g. delivery of an item, performance of services) and
the consumer pays a fee (e.g. purchase price) or another
Provide consideration (e.g. provision of personal data)9 . However, this is not
necessary. Sections 312 et seq. also apply
when the consumer renders the contractually typical service
(For distance selling, see "Rn. 14). § 312a applies regardless of
of the respective form of distribution (i.e. also in shops) in principle for all
consumer contracts, as far as its applicability
is not restricted for individual contracts in § 312 paras. 2-7. This
Restrictions are largely based on the fact that there are special statutory
information requirements for the contracts mentioned
exist that justify excluding these contracts in whole or in part from the scope
of Section 312a.10
1. Information obligations of the entrepreneur

When a trader calls a consumer in order to conclude a contract with him, 4
he must state his at the beginning of the call
Identity and the purpose of his call, do not mind the identity
of the calling employee,11 disclose (Section 312a (1)). Before the
Conclusion of the contract, he must inform the consumer about essential characteristics
of the goods, the price, the terms of payment and delivery, the existence of
warranty rights and guarantees and, if applicable, other circumstances
inform (§ 312a Abs. 2, Art. 246 EGBGB). The information must
9 According to a draft law by the federal government to implement Directive (EU) 2019/770 on certain
contractual aspects of the provision of digital content and digital services, effective January 1,
2022, this should be done in one
new § 312 para. 1a are expressly regulated.
10 BT-Drs. 17/12637, 45.
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take place in a clear and understandable manner (Art. 246 para. 1 sentence 1
EGBGB).
If the entrepreneur violates his information obligations, the entrepreneur
is liable for damages
§ 311 paragraph 2 in conjunction with § 280 paragraph 1 due to violation of pre-contractual
obligations into account.
2. Limits on the agreement of fees

5 For the agreement of charges in addition to the price
§ 312a Para. 2 Clause 2 - Para. 5 regulates special requirements for the
main service. The entrepreneur can only demand freight, delivery and
shipping costs if he informs the consumer about it
informed in a clear and understandable way (§ 312a Abs. 2 S. 2
in conjunction with Art. 246 Para. 1 No. 3 EGBGB). Paid ancillary services
can only be expressly agreed upon, not impliedly
(Section 312a (3)). This aims to focus on the consumer
often only on the price to be provided by the entrepreneur
main performance are protected from committing themselves to a greater
extent than intended.12 An agreement
according to which the consumer because of the use of a particular
Pay a special fee by means of payment (e.g. credit card, direct debit, bank
transfer) is only possible under strict conditions according to Section 312a (4).
Conditions effective: Firstly, the consumer must have at least one
common and reasonable free payment option
be granted. Second, the agreed fee must not exceed
the costs actually incurred by the entrepreneur.
Excessive fees for credit card payments are therefore not permitted.
According to Section 312a (5), a fee may not be agreed for the consumer
calling a telephone number provided by the entrepreneur with a question
or explanation about the contract concluded with the entrepreneur,
insofar as the fee
for using the telecommunications service. This is intended to prevent the
consumer from having to contact the customer by telephone due to the
expected costs
Entrepreneur is held.13
6 If a fee agreement pursuant to § 312a Paragraphs 3-5 has not become
part of the contract or is ineffective, the contract remains in effect
12 BT-Drs. 17/12637, 53.

13 BT-Drs. 17/12637, 52.
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Otherwise effective (§ 312a Para. 6). This corresponds to the interests of

consumer. He retains his right to the execution of the contract without
being burdened with the disadvantages mentioned in paragraphs 3-5
will.
III. Off-premises consumer protection

concluded contracts and distance contracts
1st sense
Sections 312b et seq. provide increased consumer protection for 7

Contracts concluded away from business premises
(especially doorstep selling), as well as for distance selling contracts.
What these special forms of distribution have in common is that
the contracts in an unusual manner, in unusual circumstances, or
completed or initiated at an unusual location.
If the contract is concluded away from business premises, the
Danger that the consumer will be surprised and taken by surprise and
enter into a contract that he may not enter into at all
wanted. In the case of long-distance contracts, this does not happen when the contract is concluded
to a physical encounter between entrepreneur and consumer, and
the latter – if he is the buyer – usually has no opportunity to see and
examine the goods before the conclusion of the contract. the
§§ 312b ff. aim to protect the consumer from dangers,
which may arise from the unusual situation at the time the contract
was concluded. They are therefore also regulated in connection with
the establishment of contractual obligations.
2. Definitions
a) Off-premises contracts. 8th
§ 312b defines the off-premises closed

Contracts. According to Section 312b (2), business premises are both
immovable commercial premises in which the entrepreneur carries out his activities
exercises permanently, as well as mobile commercial premises such as
market or exhibition stands and sales vehicles.
Movable business premises in this sense also include such
Exhibition stands used for sales only a few days a year.14
14 BGH NJW-RR 2019, 753 paras. 13 ff., 22 ff. (sale of a fitted kitchen on an alle
biennial fair).
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The sales contracts initiated or concluded at such trade fairs are therefore not covered
by Section 312b (1).
Section 312b (1) lists four groups of cases in which a contract is

concluded away from business premises:
9 No. 1: The contract is concluded with the simultaneous presence of the
parties at a location that is not part of the business premises
owned by the entrepreneur. Examples: private residence (cases b, e),
restaurant, health resort, public transport (case a), publicly accessible
traffic areas. These are the actual doorstep transactions. Even if the
consumer is after the entrepreneur himself
Ordered at home and therefore did not conclude the purchase contract in
a surprise situation (case e), is - contrary to the bis
Section 312 (3) no. 1 old version applicable on June 12, 2014 – a case of Section 312b
Para. 1 No. 1.15 In case d, on the other hand, there is no doorstep selling,
because K bought the lawn mower in V's shop.
9a If an employee (§ 611a) about at his workplace
concludes a termination agreement for the purpose of terminating his
employment relationship, the requirements of Section 312b (1) No. 1 are in place
usually not before. The employee is regarded as a consumer by the
Federal Labor Court,16 and the termination agreement
is in any case a contract for a paid service (cf.
Section 312 (1)) if a severance payment or other benefit for the employee
is agreed therein. But the consumer's workplace will mostly be identical to
the entrepreneur's business premises. Then it is up to the employee
for this reason alone it is the most important instrument of consumer protection
in the case of contracts concluded outside of business premises, namely
the right of withdrawal (§ 312g; "Rn. 18 et seq.), does not apply. But yourself
if the termination agreement is concluded in the employee's home, the
employee may, according to case law
of the Federal Labor Court17 did not comply with his declaration of intent
§§ 312g, 355 revoked. It is then a matter of a contract concluded outside
of business premises within the meaning of Section 312b. but
§ 312 on the consumer contract and thus also the right of withdrawal
according to § 312g are according to the recognizable legislative
Will only on sales transactions of goods and services
15 BT-Drs. 17/12637, 49.

16 BAG NJW 2005, 3305 (3309 f.); 2013, 3741.
17 BAG NZA 2019, 688 para. 13 et seq. Man Bachmann/Ponßen NJW 2019, 1969 and
Note Boemke JuS 2019, 1204.
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tailored, but not to employment contracts and termination agreements under

labor law. The reversal regulated in § 357 as a legal consequence of the
revocation does not apply to these.18
However, the Federal Labor Court has found another way to
Employee who has thoughtlessly concluded a termination agreement
help. It has from the consideration obligations of § 241 paragraph 2 ("§ 2
Rn 11 ff.) derived the requirement of fair negotiation. Accordingly, the employer may
not enter into a negotiation situation when concluding a termination agreement
Causing or exploiting unfair treatment of the worker
because it affects the worker in an unacceptable manner.19
This can be the case, for example, when creating particularly unpleasant framework conditions,
which are significantly distracting or even arouse the employee's instinct to flee,
as well as when exploiting an objectively recognizable physical or mental weakness or
insufficient language skills. When
the employer culpably violates the principle of fair negotiation
the termination agreement is generally ineffective. The employer is namely
due to this breach of duty pursuant to §§ 280 Paragraph 1, 249 Paragraph 1 obliged to
pay damages and must put the employee in the same position as the employee without
the conclusion of the cancellation agreement.20 This case law on
The requirement of fair negotiation and the legal consequences of a violation is not
undisputed. According to the will of the legislature, a declaration of intent should only
be ineffective in the case of immorality (§ 138) and destroyed by contestation in the
case of fraudulent deception or unlawful threats (§ 123).
being. These limits are undermined by ineffectiveness in the event of unfair negotiations.
No. 2: Although the contract is not concluded in a situation according to 10

No. 1, it is prepared by a binding offer from the consumer. Sense of this
extension of No. 1: With regard to the consumer's need for protection, it
makes no difference whether the entrepreneur does too
makes his contractual declaration outside his business premises.
No. 3: Although the contract is concluded on the business premises of the 11
entrepreneur, it is initiated by the fact that the consumer has visited the
business premises in person immediately beforehand
and addressed individually. Case in point: speaking up
of the consumer in the public traffic area in front of the shop
of the entrepreneur (also by handing out a leaflet).
On the other hand, the case is not recorded in which the contract is only clear
after addressing the consumer is completed, provided
the consumer only has enough time to check the conclusion of the
18 BAG NZA 2019, 688 para. 23.

19 BAG NZA 2019, 688 para. 34.
20 BAG NZA 2019, 688 para. 35 et seq.
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ses hat.21 Then you can't think of being taken by surprise

be speech.
12 No. 4: The contract will be concluded on an excursion that will take place from
Entrepreneur or organized with his help to order from the consumer
for the sale of goods or the provision of
to advertise services and to conclude a contract with him. This
includes in particular the classic coffee journeys (case c). Reason: If
excursions and sales offers like that
are organizationally interwoven, that the customer with regard to the
announcement and implementation of the event in
a leisurely carefree mood is set, he can
the offer aimed at a business transaction difficult
withdraw.22 The provision also applies if the excursion
leads to a business premises of the entrepreneur where the contract
will be completed.23
13 If a representative acts on behalf of the consumer, the negotiation
or conclusion situation of Section 312b (1) must be in person
of the representative.24 This follows from the legal concept of
§ 166 para. 1. If the entrepreneur (e.g. bank) does not conduct the
contract negotiations himself, he must also accept responsibility for
the objective situation in the person of the negotiator (e.g. credit
broker) when the contract was concluded (§ 312b para. 1 sentence 2).
14 b) distance contracts. Distance contracts are according to § 312c paragraph 1
Contracts concluded between a consumer (Section 13) and an
entrepreneur (Section 14) using only means of distance communication,
unless the conclusion of the contract is not part of an organized
process for distance selling
Distribution or service system takes place. In the case of § 312c, the
Entrepreneur to be involved in the contract as a supplier. That follows
the sense of consumer protection in distance selling, the
is stipulated by the Consumer Rights Directive.25 The consumer is
only worthy of protection if he, as a buyer,
Possibility missing to see and check the goods before the conclusion of the contract
21 BT-Drs. 17/12637, 49.

22 BGH NJW 2004, 362 (negated for a consumer exhibition).
23 BT-Drs. 17/12637, 49.
24 BGH NJW 2000, 2268 (2270).
25 Maume NJW 2016, 1041 (1043 f.).
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fen. Section 312c does not apply to contracts for delivery by a consumer
to an entrepreneur.26
Transactions that only happen by chance through the use of long-distance means of
communication are therefore not recorded (cf. § 312c para. 1, 2.
Hs.). Rather, the entrepreneur must be so equipped in terms of personnel and equipment
be that he can regularly deal with transactions to be carried out at a distance
can.27 However, it is not necessary for the entrepreneur to use his entire
transacts business via means of long-distance communication. Therefore about one
Lawyer contract, via a lawyer hotline provided for this purpose
or website is concluded, even then be a distance contract,
if the lawyer also offers the possibility of contracts in his office
to complete.28
Section 312c (1) also covers contracts in which the consumer only visits the business
premises of the entrepreneur for the purpose of obtaining information about goods or
services, but then negotiates and concludes the contract via means of distance
communication. If, on the other hand, the contract
Although negotiations are conducted via means of distance communication, but then
concluded on the business premises of the entrepreneur, there is no distance contract.
Therefore, only the telephone reservation of an appointment leads
for a service (e.g. hairdressing appointment) does not become a distance contract
about the service.29 In a contract under exclusive
There is also no use of means of distance communication if the
the consumer had personal contact with an employee of the entrepreneur or a
representative authorized by the entrepreneur during the contract negotiations.30
According to § 312c paragraph 2, means of distance communication are considered to be such 15

Means of communication used to initiate or conclude a contract between
a consumer and an entrepreneur
can be used without the simultaneous physical presence of the
contracting parties. Examples in the law are letters, catalogues,
Telephone calls, faxes, e-mails, SMS as well as radio and tele media
called. The regulation therefore covers both the classic
Distance sales (e.g. catalog orders) as well as a large part
of so-called electronic commerce and applies to teleshopping
as well as for teletext, the Internet (eBay, case f) and other on line media.
But also if a messenger is commissioned when the contract is concluded
will, although the consumer in direct personal
26 So to § 312b old BGH NJW 2015, 1009 (1011).

27 BGH NJW 2018, 690 para. 19; 2019, 303 para. 18 f.
28 BGH NJW 2018, 690 para. 22.
29 BT-Drs. 17/12637, 50.
30 BGH NJW 2018, 1387 para. 20.
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contact, but cannot and should not provide any information about the content
of the contract and in particular about the nature of the contractor's contractual
service, it is the
Use of means of distance communication.31
15a If the contracting parties dispute whether the contract was concluded
exclusively using means of distance communication, the consumer who
refers to §§ 312c et seq.
312g, the burden of proof.32 If, on the other hand, the entrepreneur
denies the existence of a distance contract on the grounds that
if the conclusion of the contract did not take place within the framework of a
sales or service system organized for distance selling, it is subject to proof in
this respect.33
3. Information obligations and consequences of breaching them

16 In the case of distance contracts and off-premises contracts that do not
relate to financial services,
Section 312d (1) has imposed various information obligations on the
entrepreneur before the contract is concluded. The details of the information
obligations result from Art. 246a §§ 1-4
EGBGB, to which Section 312d Paragraph 1 refers (on the deviating
information requirements for such contracts for financial services
§ 312d paragraph 2 in conjunction with Art. 246b EGBGB). According to
Section 312 f, the contractor must provide a copy of the contract or a
other confirmation of the contract with details of the content of the contract.
This serves the interest of the consumer in comprehensive contract
documentation. A violation of this obligation can justify a claim for damages
(§§ 280 Para. 1, 241 Para. 2).
and give the consumer a right of withdrawal (§ 324; " § 25 para. 9 f.).
According to Art. 246a § 1 EGBGB, before concluding a contract covered by §

312d, the entrepreneur has to inform the consumer about his identity, among other things
and address, about essential characteristics of the goods, the price, if applicable
additional delivery and shipping costs, about a possible
Existing right of withdrawal (see Section 312g), address for complaints and customer
service, warranty and guarantee conditions
to inform. The entrepreneur must provide the consumer with this information in clear
and understandable language, viz
31 BGH NJW 2004, 3699 (on the so-called Postident-2 procedure).

32 BGH ZIP 2016, 1640.
33 BGH NJW 2018, 690 para. 17.
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when concluding off-premises contracts on paper

or (with the consent of the consumer) on another medium
(Details Art. 246a § 4 EGBGB). It is not sufficient if this information is only made
available via a hyperlink on a company's website34
The information provided in fulfillment of the information obligations 17

become part of the contract unless the parties have expressly agreed
something else (§ 312d para. 1 sentence 2). In the event of a violation
of the entrepreneur against his information obligations comes a
Liability for damages of the entrepreneur according to § 311 paragraph 2 in connection with
§§ 280 para. 1, 241 para. 2 due to violation of pre-contractual obligations.
A breach of information obligations
Costs (freight, delivery, shipping, other costs) leads to
that the entrepreneur has no claims against the consumer in this respect
and must nevertheless reimburse payments already made
(§ 312e).
4. Right of Withdrawal
The main tool of consumer protection at outside 18

contracts concluded on business premises and in the case of distance
contracts is the consumer's right of withdrawal (cases a, b, c, e, f).
It gives the consumer, under certain conditions, the
Possibility to withdraw from a contract with the entrepreneur without
reason.
a) Term and meaning. The purpose of the right of withdrawal is to 19

Protection of the consumer against contractual commitments that he may
rush and without weighing the pros and cons
Points of view, especially without the necessary overview of
to have the consequences of the contract.
Before the year 2000, the right of withdrawal was in special consumer protection 20
laws (§ 3 FernAbsG old version, §§ 1, 2 HTWG old version, § 7 VerbrKrG old version, § 5
TzWrG aF) regulated. As a result of the "Act on Distance Selling Contracts and Other
Questions of Consumer Protection" of June 27, 200035 , the
§§ 361a and 361b old for the uniform design of the right of withdrawal
added to the German Civil Code for all consumer protection regulations. This
Regulations were revised with the Law of Obligations Modernization Act,
supplemented by additional regulations and incorporated into the German Civil Code as §§ 355-359
34 ECJ NJW 2012, 2637 with recourse to Art. 5 Para. 1 Directive 97/7/EC.
35 Federal Law Gazette I 897.
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arranges. The Consumer Credit Directive Implementation Act of

civil law part of the late payment directive and the reorganization
of the regulations on the right of cancellation and return of 29.7.200936 as well as by
the law introducing a model cancellation information from
On July 24, 201037 , Sections 355 et seq. became effective on June 11, 2010 and on
7/30/2010 changed. To implement the Consumer Rights Directive 2011/83/
EU were by law from 20.9.2013 until then for doorstep selling
and distance contracts in §§ 312 Paragraph 1 Sentence 1 and 312d Paragraph 1
Sentence 1 summarized separately regulated rights of revocation in today's § 312g.
21 According to § 355 paragraph 1 sentence 1, the consumer and the entrepreneur

no longer bound to their contractual declarations after a revocation by
the consumer. The revocable declaration of intent
of the consumer and the concluded contract are therefore first
only floating effective. They can become definitively ineffective by
revocation. The parties are already entitled to mutual performance
claims upon conclusion of the contract. The declarations of intent and
thus also the contract become final
but only when the right of withdrawal expires.
22 b) Prerequisites for the right of withdrawal. The right of withdrawal

according to § 355 for consumer contracts only exists if a consumer is
granted a right of withdrawal according to § 355 by law
will. Such a regulation generally contains the law of obligations
Section 312g (1) for off-premises contracts and distance contracts.
23 However, numerous exceptions are listed in Section 312g (2),

in which the consumer has no right of withdrawal because he either
does not need protection or at least has other interests in the
prevail over the final existence of the contract. This concerns e.g
– Contracts for the supply of goods,38 for their manufacture
individual selection or determination by the consumer or which are
clearly tailored to personal needs (e.g. made-to-measure curtains,
No. 1), regardless of whether the entrepreneur with the

production has already started or not,39
38 These are sales contracts and contracts for the delivery of movable objects to be manufactured or
produced within the meaning of Section 650, but not work contracts within the meaning of Section 631
(BGH NJW 2018, 3380 para. 20 ff. on the contract for the installation of a passenger lift
on the house facade).
39 ECJ NJW 2020, 3707 para. 22 et seq., 30.
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– Contracts for the delivery of perishable goods (esp. fresh food,

No. 2),
– Contracts for the delivery of goods that, for reasons of health
protection or hygiene, after the opening of their
sealed are not suitable for return (e.g. medicines,
medical and cosmetic products, No. 3),
This exception is interpreted narrowly. According to the case law of the ECJ40 and
the BGH41 , which attracted a great deal of attention
a mattress that an online retailer delivers sealed to the consumer,
do not belong to the goods which, for reasons of hygiene protection, are
returns are not suitable. That is why the consumer is responsible for that
Right of withdrawal if he has removed the protective film. Be a mattress
in view of the cleaning options, it will still be roadworthy. One
possible depreciation is to be expected of the entrepreneur, especially since he
can incorporate his price calculation.
– Contracts for the delivery of goods which, due to their nature,

are inseparably mixed with other goods after delivery (e.g.
delivery of heating oil, No. 4),
– Contracts for the delivery of sealed data carriers with
Audio or video recordings or computer software after the seal
has been removed (No. 6),
– Contracts for urgent repair or maintenance work,
which the consumer has expressly asked the entrepreneur to
provide (No. 11),
– Contracts for the provision of betting and lottery services
gene (#12)
– as well as notarized contracts (No. 13).
In the special law of obligations, rights of withdrawal for timeshare contracts 24
(Section 485), for consumer loan contracts (Section 495), for deferred payment and
other financial aids (Sections 506 (1), 495) and for installment delivery contracts
(Section 510 (2)) intended. In addition, due to
Freedom of contract also for contracts that do not fall under Section 355 by operation of law
a right of withdrawal according to this provision can be agreed.42 Whether, however
only the issuing of an objectively unnecessary cancellation policy
the granting of a contractual right of withdrawal
can is doubtful. This is to be determined in individual cases by interpretation.43
40 ECJ NJW 2019, 1507 para. 40 et seq. Manm Sing/Bartl/Weber.

41 BGH NJW 2019, 2842 para. 15 ff. Manm Gutzeit JuS 2019, 1018 and note Koch JZ
2019, 834.
42 BGH ZIP 2012, 1509 (1510); 2012, 262 (263); Palandt/Grüneberg BGB before § 355
Paragraph 5.
43 Left open by BGH ZIP 2012, 1509 (1510); 2012, 262 (263 f.).
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c) Exclusion of the right of withdrawal.

aa) Sense and purpose of §§ 312b, 312c
24a Even if the requirements of Sections 312b, 312c are met according to the
wording of the law, the right of revocation under Section 312g can be excluded
if these provisions do not comply with their meaning and purpose
intervene and are therefore to be reduced teleologically. This is to be assumed
if, when the consumer submits the declaration of intent
the situation of surprise and being taken by surprise, against the dangers of
which the consumer is to be protected, is missing.
Example: Regarding the contracts that relate to a paid service

also include rental contracts for living space (cf. § 312 para. 4) and thus, according to
case law, also agreements between the parties on an ongoing basis
Tenancy over the amount of rent.44 Therefore, the tenant is entitled to his Ver
In principle, the right of revocation of § 312g also applies to contract declarations, if
the agreement outside business premises (§ 312b, "Rn. 8 ff.) or
in distance selling (§ 312c, "Rn. 14 ff.) is made (§§ 312 Para. 1, 4 in conjunction
Section 312 (3) No. 7). However, the Supreme Court for the consent of the tenant
to increase the rent in order to adjust it to the comparative rent (§§ 558, 558a)
a right of revocation due to a teleological reduction of § 312 para. 4
P. 1 negative. The landlord must namely his rent increase request in
Explain and justify in text form (§ 558a), and the tenant has the opportunity
to check the factual justification of this request. The tenant can
i.e. form his legal will before submitting the declaration of consent without being under
pressure or taken by surprise.45 Therefore, the
The tenant's declaration of consent according to § 558 is not covered by the purpose
of the right of withdrawal for leases.
bb) Section 242
Furthermore, the right of withdrawal can be excluded under narrow

conditions as an exception due to abuse of rights or inadmissible exercise of
rights.46 However, it is not sufficient for this to be the case
the consumer withdraws, although he likes the goods, just because he does
can now buy it cheaper from another provider
and his contractual partner cannot subsequently opt for the cheaper one
price. The right of withdrawal is not linked to specific reasons. The motive of
the consumer when exercising the right of withdrawal is irrelevant. At most if
the consumer suspicious of the special situation when concluding the contract
44 BGH NJW 2019, 303 para. 40 f.

46 BGH NJW 2016, 1951 f. Manm Wendehorst and note Herresthal EWiR 2016, 581;
NJW 2010, 610 para. 20.
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exploits the right to damage the entrepreneur through a revocation without himself
having an advantage, abusive or vexatious behavior of the consumer may lead to the
exclusion of the right of revocation due to the particular need for protection of the
entrepreneur.47 Furthermore, the right of revocation of the consumer is subject to
forfeiture (§ 242; " § 7 para. 17). It is therefore excluded if the consumer has not
exercised it for a long time (time element) and the entrepreneur can rely on the
absence of the revocation due to the circumstances of the individual case
(circumstance element).48
d) Exercising the right of withdrawal. aa)

Declaration of revocation The revocation
must be declared. It must be clear from the declaration of revocation that the 25
consumer no longer wants the contract to be valid (section 355 (1) sentence 3).
However, the word "revocation" does not have to be used.49 The revocation does not
have to contain a reason (section 355 (1) sentence 4). It must be clear from the
declaration who is revoking. As a declaration of intent that must be received, the
revocation pursuant to Section 130 (1) only becomes effective when it has been
received by the entrepreneur. Until it is received, the declaration of revocation is
revocable (Section 130 (1) sentence 2).50 On the other hand , revocation as a design
right is irrevocable once it has been received and cannot be revoked.51
In contrast to Section 355, Paragraph 1, Sentence 2, old version, which was in 26

force until June 12, 2014, and to the deviating regulation in Section 356a, Paragraph
1, the declaration of revocation no longer has to be submitted in text form (Section 126b).
A verbal explanation, such as that spoken on the answering machine as in case a, is
also sufficient. However, compliance with the text form is still recommended because
in the event of disputes the consumer must prove that he/she declared the cancellation
in good time. The entrepreneur can put the model revocation form according to Annex
2 to Art. 246a § 1 Para. 2 S. 1 No. 1 EGBGB on his website and give the consumer
the opportunity to revoke
47 BGH NJW 2016, 1951 para. 16 et seq.; Benecke ZIP 2016, 1897 (1900 ff.); Mankowski JZ 2016,
787 (789 ff.).
49 BGH NJW 2017, 2337 para. 42 et seq. (declaration of rescission as declaration of revocation);
1993, 128; 1996, 1964 (1965).
50 BGH ZIP 2017, 2454 para. 24.
51 BGH NJW-RR 2018, 301 para. 29.
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exercise your reputation by completing and submitting this form

(Section 356 (1) sentence 1). This enables the entrepreneur to carry out an
automated reversal and direct assignment to the respective customer account.52
In this case, he must provide the consumer with the
Confirm receipt of the revocation immediately on a durable medium (Section
356 (1) sentence 2).
27 In contrast to the law in force until June 12, 2014, this alone is sufficient
return of the goods without comment for a proper revocation is no longer
possible, unless the parties contractually agree
have agreed.53 In case b, the return of the goods is therefore
no effective implied revocation.
bb) Revocation period
28 (1) According to § 355 paragraph 2 sentence 1, the cancellation period is 14 days. she
generally begins with the conclusion of the contract, unless otherwise agreed.
The time limit is calculated according to §§ 187 Para. 1, 188
para. 2, 193.
29 (2) For the start of the cancellation period for cancellation of contracts
concluded outside of business premises and distance contracts as well as for
the expiry of the right of cancellation
§ 356 paras. 2-5 detailed special provisions. The following are worth mentioning:
According to paragraph 2 no. 1 letters a-d, the cancellation period begins at

Purchase of consumer goods (purchase agreement between an entrepreneur
and a consumer of movable property, Section 474 (1) sentence 1)
only if the consumer or a third party named by him, who
is not the carrier who has received the goods. Will several things
ordered in one order process but delivered separately, the
Deadline only upon receipt of the last partial delivery.
30 According to paragraph 3, the cancellation period does not begin before the
entrepreneur has fulfilled his information obligations regarding the right of cancellation (Art. 246a § 1
Para. 2 S. 1 No. 1 or Art. 246b § 2 Para. 1 EGB in conjunction with § 312g). The
seller must provide the cancellation policy prior to entering into the contract
make them available (Art. 246a § 4 Para. 1, 3 EGBGB). he uses
the model for the cancellation policy, he must give it to the consumer
correctly filled out in text form (§ 126b) (Art. 246a, § 1
Paragraph 2 sentence 2 EGBGB). The instruction must therefore be in a permanent manner
52 BT-Drs. 17/12637, 60.

53 BT-Drs. 17/12637, 60. AA Hoffmann/Schneider NJW 2015, 2529, according to which in the
return without comment is usually a declaration of revocation.
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ten reproduction of characters are given by the trader in a

suitable manner and are sent to the consumer. the mere
Accessibility of the cancellation policy on a normal website of
the entrepreneur is not sufficient for this; because the instruction
does not reach the consumer's sphere of power in this way in
an unchangeable, textually embodied form.54 Such a
Only retrievable instruction sets the cancellation period of § 355
Para. 2 S. 1 not in progress. If the right of withdrawal is not
provided or is not provided properly, this expires except at
Financial services contracts at the latest twelve months
after the original cancellation period of 14 days (§ 356
Para. 3 p. 2).
The cancellation policy is only effective if it is accompanied by or 31
after the consumer has submitted the declaration aimed at concluding the contract.55 There
is no prior (premature) cancellation policy
capable of restoring the consumer's freedom of choice; she
therefore does not start the cancellation period. On the other hand, it is harmless
if the declaration of acceptance of the entrepreneur only after the offer of the
consumer and the cancellation policy that was issued at the same time.56 In terms of
content, the cancellation policy must comply with Art. 246a Section 1 Paragraph 2 Sentence 1 No. 1
or Art. 246b § 2 Abs. 1 EGBGB contain information (especially
Reference to the right of revocation and to the fact that this is not justified
must become; Name and address of the addressee of the revocation; reference to
Duration and start of the cancellation period and that the period can be met by sending the
declaration in good time). It has granted the consumer the essential rights opened up to him
by the revocation
To make them aware of their obligations.57 In addition, it is also subject to the so-called
clarity requirement, ie it must be clearly designed in terms of content and printing
be distinguished, for example, by colour, larger letters or bold type
stand out from the rest of the text in a way that can be overlooked.58 Regarding the content
It is clear that the instruction does not contain any superfluous additions that
distract from the actual cancellation policy.59 Appendix 1 to Art. 246a § 1
Paragraph 2 sentence 2 EGBGB contains a sample cancellation policy. uses the
Entrepreneurs a form that fully corresponds to this model,60 is sufficient
his cancellation policy meets the legal requirements (Art. 246a § 1
Paragraph 2 sentence 2 EGBGB).
54 BGH NJW 2014, 2857 (2858) (still on Section 355 (2) sentence 1 old version).
55 BGH NJW 2010, 3503 f.; 2002, 3396.
56 BGH NJW 2010, 3503 f.
57 BGH NJW 2012, 1197 (1199).
58 BGH NJW-RR 1990, 368 (370); NJW 1996, 1964 (1965).
59 BGH NJW 2012, 1814 (1816); 2002, 3396 (3398).
60 BGH NJW 2011, 1061 (1062) (still on the earlier § 14 para. 1, 3 BGB-InfoV);
also BGH ZIP 2011, 1858.
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32 A special feature for the start of the cancellation period applies when purchasing
Sample according to § 454.61 Here the contract only becomes binding for the buyer
with the approval of the purchased item. Before this time begins
cancellation period does not run.62 Another special feature applies to one of
contractually granted that are independent of the legal requirements
right of withdrawal. Here it cannot be assumed without special indications that the
cancellation period only applies to one of the Art. 246a § 1
Para. 2 EGBGB sufficient cancellation policy begins.63
33 (3) To give the consumer both weeks as a period for reflection
leave, the timely dispatch of the
revocation (§ 355 Abs. 1 S. 5). So the timing doesn't matter
of access.
34 e) Legal Consequences. The legal consequences of revocation of an outside
Contract concluded from business premises or a distance contract
according to §§ 355 ff. result from §§ 355 Para. 3, 357 ff. These
Consequences can only be changed by contract in favor of the
consumer (section 361 (2) sentence 1).
aa) Rescission according to Section 355 (3) as a general right
follow a revocation
35 Due to the revocation by the consumer, this and
the entrepreneur to their on the conclusion of the consumer contract
directed declarations of intent are no longer bound. The mutual
performance obligations thus expire. In case f, K can refuse acceptance
and payment from the outset if the right of withdrawal is exercised
effectively and in a timely manner. The first
A consumer contract that is currently in effect but has now become
ineffective is converted ex-nunc into a settlement relationship (so-called
return obligation relationship). The services already exchanged must
be returned immediately (section 355 (3) sentence 1).
This standard is the basis for the claim for reimbursement.
Sections 346 et seq. on the legal consequences of withdrawal do not
need to be referred to (other than according to the legal situation in
force until June 12, 2014). The risk of loss or deterioration of the goods
during return transport is borne by § 355 paragraph 3
p. 4 the entrepreneur. Therefore, about the loss of the goods when
Return transport has no effect on the right to reimbursement
of the consumer.

62 BGH NJW-RR 2004, 1058.
63 BGH ZIP 2012, 1509 (1510 f.).
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bb) Peculiarities for ge outside of business premises

concluded contracts and distance selling transactions (§ 357)
Section 357 sees the general revocation consequences for the 36
There are numerous special features regarding the revocation of contracts
concluded off-premises and distance contracts. The following should be
mentioned:
(1) According to paragraph 1, the benefits received must be returned
within 14 days at the latest. The period begins for
Entrepreneurs with access, for consumers with the levy
the declaration of revocation (section 355 (3) sentence 2). For the preservation of the 14-
Days limit by the consumer it only depends on the timely
Dispatch of the goods to (§ 355 Abs. 3 S. 3).
(2) The entrepreneur's obligation to return does not only include 37
the main service of the consumer. Rather, it extends
on payments by the consumer for the delivery, provided these costs
were not caused by special requests by the consumer
(cf. paragraph 2).
The reason for this cost reimbursement claim of the consumer lies
in that the consumer is prevented from exercising his right of withdrawal if he is left
with these costs after the withdrawal
could become. That is why the ones that were valid until 12.6.2014 became effective
§§ 312d, 357, 346 para. 1, which did not yet contain a regulation on the
reimbursement of shipping costs, from the ECJ64 and following it from the BGH65 in the sense
interpreted that the consumer after the revocation of a distance contract
is entitled to reimbursement of delivery costs paid.
(3) For the repayment, the seller must use the same means of payment 37a
that the consumer uses for the payment
has (paragraph 3 sentence 1). Issuing a voucher instead of paying back in
Money is therefore fundamentally ruled out. However, this rule is
dispositive. According to paragraph 3 sentence 2, it does not apply if the contracting parties
expressly agree otherwise and the consumer will not incur any costs as a
result.66
(4) When reversing a purchase of consumer goods, the 38
Entrepreneurs refuse repayment until they have returned the goods or
the consumer has proven that the goods have been dispatched
has (paragraph 4).
64 ECJ NJW 2010, 1941 et seq.

65 BGH NJW 2010, 2651 f.
66 On the conditions for the validity of such agreements, see Willems NJW 2018,
1049 (1050 ff.).
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39 (5) The cost of returning the goods is different than after

the law applicable up to 12.6.2014 basically the consumer
(paragraph 6). The prerequisite is that the entrepreneur duly
informs the consumer about this obligation to bear the costs
(Art. 246a § 1 Para. 2 S. 1 No. 2 EGBGB) and not to himself
agreed to bear the costs. In addition, upon revocation
an off-premises contract
Entrepreneur picks up the goods delivered to the consumer's home
own cost pick up if a return by post because of
quality of the goods is not possible.
40 (6) According to paragraph 7, the consumer has to pay for a loss in value of the
goods (regardless of fault) .67 The following conditions must be
met for this:
(a) The diminished value must result from handling the goods
other than what is necessary to examine the goods
(Paragraph 7 No. 1). In this case, the consumer does not lose his
Right of withdrawal, but he is liable for the loss in value. The burden of proof for
dealing with her that goes beyond examining the matter
bears the entrepreneur.
If the consumer who sells a catalytic converter for his car at a distance
bought it, then had it installed in his vehicle and took a test drive, these measures go
beyond a mere examination of the properties and functionality of the purchased
item.68 He is therefore liable
in the event of revocation, the seller is compensated for the loss in value of the now
used catalytic converter.
Although the crockery is destroyed in case c, the O stands according to § 312b
Para. 1 No. 4 in conjunction with §§ 312g, 355 a right of withdrawal. His claim to
However, repayment of the purchase price in the amount of EUR 60 from Section 355 (3) sentence 1 is
expired by the set-off declared by V (§ 389) in the amount of 30 EUR. To the
V in turn has a claim against O according to Section 357 (7) for replacement of the
objective value (when determining the value, the agreed fee [EUR 60] must be
reduced by the profit margin)69 .
The value replacement due to deterioration of the thing can be due

of the fact that the thing is no longer new but used.
67 Paras. 7 to 9 on compensation for lost value should, according to a draft law by the Federal
Government from January 2021 to implement Directive (EU) 2019/2161 from Section 357
outsourced and regulated in a new § 357a.
68 BGH NJW 2017, 878 para. 24 ff. (still on § 357 para. 3 old version) manm Schwab JuS
2017, 881; also Amort NJW 2017, 857.
69 Cf. BGH NJW 2010, 2868; Palandt/Grüneberg BGB § 357 para. 11.
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Examples: New motor vehicles lose around 20 % in value when they are first
registered.70 A piece of clothing also loses significantly in value as soon as it has
been worn (even if only a little).
With the exclusion of the obligation to pay compensation in the event that the 41
impairment exclusively on the examination of the condition,
of the properties and functioning of the item
is (cf. para. 7 no. 1), the aim is that the consumer does not
right to look at the goods and to appraise them. He just has to carry out
this check just as carefully as when buying in a shop.
Examples: The consumer must appreciate the depreciation that an item of clothing
suffered from being unpacked and tried on, or that of a
book that is just opened and leafed through briefly, do not replace it.71 If the consumer
has bought a waterbed and the mattress
filled with water for test purposes, it also does not have to be compensated for the
resulting reduction in value in the event of a revocation.72
(b) Another prerequisite for the consumer’s liability for value replacement 42
is proper cancellation instructions (cf. paragraph 7 no. 2
in conjunction with Art. 246a § 1 Para. 2 S. 1 No. 1 EGBGB) by the entrepreneur.
(7) Para. 8 contains its own regulation on the replacement of value in use 43
for the services provided by the entrepreneur up to the point of revocation.73
Notwithstanding paragraph 7, the consumer only owes compensation for
such services if he pointed out this legal consequence before submitting
his contractual declaration
has been and he has expressly requested that the entrepreneur
before the end of the cancellation period with the execution of the service
begins. The amount of the compensation in use depends on the
Extent of actual use in relation to the total duration of use.74
f) Exclusion of further claims. Further claims of the entrepreneur against 44

the consumer as a result of the revocation, for example from Section 280,
Section 823 or Section 812, are granted in accordance with Section 361 (1).
70 BT-Drs. 14/6040, 199.

71 Bundestag printed paper 14/6040, 200 on Section 357 (3) old version.
72 BGH NJW 2011, 56 man Schinkels LMK 2011, 312902 and comment Faust JuS 2011,
259
73 Paragraphs 7 to 9 on compensation for lost value should, according to a draft law by the
Federal Government from January 2021 to implement Directive (EU) 2019/2161 from Section 357
outsourced and regulated in a new § 357a.
74 For the whole BT-Drs. 17/5097, 12.
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closed. However, something else applies to claims for damages

of the consumer against the entrepreneur from contract, §§ 280 paragraph 1,
311 para. 2 or §§ 823 ff., which are independent of his right of withdrawal
exist.75
g) Revocation and objection enforcement.

aa) Right of revocation
45 The ability to withdraw from a contract for no reason
can, can for the consumer in so-called affiliated shops
be subverted. Such transactions exist when a (consumer) contract for the
delivery of goods (e.g. hire purchase) or the
Provision of another service (e.g. work, service or travel contract) and a
loan agreement (§ 488)76 are linked in such a way that
the loan serves to finance this contract and both contracts form an economic
unit (section 358 (3) sentence 1).
The latter is particularly the case if the entrepreneur himself
finances the consideration of the consumer, i.e. is also a contractual partner
of the loan agreement or - in the case of financing
by a third party – if the lender uses the entrepreneur’s cooperation to
conclude the contract (section 358 (3)
p. 2). The economic unit lies between a so-called (real) credit agreement
and the property purchase agreement financed with it
only under narrower conditions (section 358 (3) sentence 3).77
Case d is an example of a related transaction
Business in which a buyer - usually through the mediation of the seller - with
enters into a loan agreement with a lender in order to finance the purchase price. As
a rule, the loan value is then paid out directly to the seller and ownership of the
purchased item is transferred to the bank to secure the installment repayment claim.
46 In such cases, if one contract is not revocable (in the case of d

the sales contract because it was not concluded away from business
premises), there is a risk that the consumer
the other contract existing right of withdrawal (in case d after
§ 495) can not exercise practically, since his obligation to pay is over
the irrevocable contract would continue to exist. To the
To protect consumers from these risks presented to them by the Auf
75 NK-BGB/Ring § 357 para. 115; Palandt/Grüneberg BGB § 361 para. 1.

76 Every loan agreement, not just a consumer loan agreement within the meaning of Section 491 (BT-Drs.
17/5097, 17).
77 BGH NJW 2004, 153.
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If there is a threat of splitting up an economically uniform contract, Section 358 (1) and
(2) extends the effect of the consumer’s right of withdrawal for one contract to the other
contract in the case of combined contracts. The consumer must be informed of the
consequences of the right of withdrawal in the cancellation policy according to Section
356 Paragraph 3 Sentence 1 in conjunction with Article 246a Section 1 Paragraph 2
Sentence 1 No. 1 or Article 246b Section 2 Paragraph 1 EGBGB. If the loan agreement
is revoked in case d, K is therefore no longer bound by the purchase agreement for the
lawn mower.
The revocation must of course be declared in a timely manner. However, the

cancellation policy is insufficient and does not set the cancellation period in motion if
it gives an impartial and uninformed addressee the incorrect impression that the
cancellation can only be used to withdraw from the financed transaction and not from
the loan agreement.78
(1) Section 358 (1) regulates the right of revocation in the event of revocation of the 47
financed consumer contract (e.g. purchase contract). If such a contract can be revoked
pursuant to Sections 312g or 485, the revocation pursuant to Section 358 (1) also
extends to the associated loan agreement.
This ensures that in the case of the financed consumer contract, not only this, but also
the loan contract can be reversed at the same time. The latter is therefore considered
revoked without the consumer having to declare a revocation or have a right of revocation
at all. This achieves what is known as reverse processing synchronism.
(2) In contrast, Section 358 (2) regulates the opposite case. 48

A revocation of the loan agreement according to §§ 495 paragraph 1, 514 paragraph 2
sentence 1 in conjunction with § 355 means that the associated consumer contract (e.g.
purchase contract) also becomes ineffective.
In case d, K can revoke the loan agreement (section 495 (1)). According to § 358
paragraph 2, he is then no longer bound to the isolated irrevocable purchase contract
with V.
The right of revocation in Section 358 (2) applies regardless of the existence of a
right of revocation for the consumer contract. If the consumer can also revoke the
financed consumer contract, this does not supersede the right of revocation for the
consumer loan contract according to Section 495. The double right of withdrawal can
be important for the consumer. If, for example, only a revocable financed contract
first and only ten days later
78 BGH NJW 2009, 3020.
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an associated consumer loan agreement is concluded

this can also be revoked if the 14-day cancellation period has expired
for the financed contract has already expired.
In case e, both the purchase contract itself according to § 312b Para. 1 No. 1 in conjunction
§§ 312g, 355 as well as the loan agreement according to §§ 495, 355 revocable.
Both contracts are related contracts within the meaning of Section 358 Paragraph 3. As a result
However, the right of cancellation for the loan agreement is not excluded. K has
declared the revocation of the loan agreement to B in due time and form. Therefore,
in this case, too, he is not involved in the financed
Sales contract bound with V.
49 (3) The legal consequence of revocation in the case of related transactions is

that also the contract associated with the revoked contract
is to be reversed in accordance with Section 358 (4) in conjunction with Sections 355 (3), 357-357b.
In the event of a revocation of the transaction associated with the loan
agreement pursuant to Section 358 (1), the lender's claims are against
the consumer is excluded from paying interest and costs for the reversal of the
loan agreement (section 358 (4) sentence 4).
The purpose of the regulation is that the consumer
can be detached from the related business without consequences.79 In the event that
that the loan has already been granted to the entrepreneur of the associated
contract, the consumer only needs to deal with the lender, since according to
Section 358 (4) sentence 5 im
relationship with the consumer enters into the rights and obligations of the
entrepreneur from the associated contract.80 That is why he is now
Debtor of the repayment claim (purchase price).
For this reason, in case d, K is obliged to pay the loan to B

refund; but B's claim for repayment is combined with the claim of K (in the role of
buyer) against B (in the role of seller;
cf. Section 358 (4) sentence 5) on repayment of the purchase price by operation of
law.81
bb) Objection penetration

50 The consumer is not only affected by the right of withdrawal
(§ 358), but also by a so-called objection penetration
(§ 359) protected. If the consumer has objections to the entrepreneur from the
associated contract, he can
Refuse repayment of the loan in accordance with Section 359 (1) sentence 1. Has
79 BGH NJW 2011, 1063 (1064) (interest-free reversal, however, only to the extent that
Loan is for financing related business, not for one
part of the loan for other purposes).
80 BGH NJW 2009, 3572 (3574).
81 MüKoBGB/Habersack § 358 para. 91.
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the consumer, however, in the case of a purchase or work contract

§§ 437 No. 1 or 634 No. 1 a claim for supplementary performance, so
according to Section 359 (1) sentence 3, he can only repay the loan
refuse if subsequent performance has failed.
Excluded is the objection penetration according to § 359 paragraph 1 sentence 282
if the objection is based on a contract change that was only agreed between the
entrepreneur and the consumer after the conclusion of the loan contract
based; because the lender does not need to do this when the contract is concluded
calculate.
cc) Corresponding application of Section 358 for related contracts
So-called connected contracts are to be distinguished from the 51

connected contracts within the meaning of Section 358 (3). A coherent
Contract exists when it has a relation to the revoked contract
exhibits and relates to a service provided by the entrepreneur of
revoked contract is provided (section 360 (2) sentence 1). same
applies if there is such a connection between a loan agreement and
another transaction that the loan serves exclusively to finance the
revoked agreement and in which
Loan agreement the performance of the entrepreneur from the revoked
contract is specified (§ 360 Para. 2 S. 2). If the consumer has revoked
his declaration of intent to conclude a contract, he is also entitled to his
consent to the conclusion of the contract
declaration of intent in a related contract is not bound (Section 360 (1)
sentence 1). Section 358 (4) sentences 1-3 shall apply mutatis mutandis
to the rescission of such related contracts (section 360 (1) sentence 2).
IV. Customer and consumer protection for contracts in

electronic commerce and online marketplaces
Section 312i contains regulations to protect customers who use a 52

Entrepreneur concludes a contract in electronic commerce. § 312i
deliberately does not speak of the consumer, but
from the customer, who can be a consumer, but does not have to be. Of-
82 The exclusion in minor cases (financed fee up to EUR 200) was implemented
Law of July 29, 2009 with effect from June 11, 2010 deleted (Federal Law Gazette I 2355 [2357]).
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half of this, § 312i does not have an exclusively consumer-protecting

character. On the other hand, § 312j regulates special obligations of the
entrepreneur in transactions in electronic commerce vis-à-vis consumers.
This provision is therefore intended to protect consumers.
This is also the subject of the planned section 312k on information
obligations for operators of online marketplaces towards consumers.
1. Technical means of customer protection (§ 312i)

53 With contracts in electronic commerce, there is a risk of input errors and
the customer's need to be able to make corrections before placing a final
order. Therefore, the entrepreneur must provide the customer with
appropriate, effective and accessible technical means with the help of which
the customer can identify and correct input errors before submitting his order
(§ 312i Para. 1 Sentence 1 No. 1). Furthermore, he has to provide the
customer with certain information on the conclusion of the contract, which is
regulated in Art. 246c EGBGB (e.g. technical steps leading to the conclusion
of the contract), in a clear and understandable way (§ 312i Para. 1 Sentence
1 No. 2). He must immediately confirm receipt of the order to the customer
electronically (§ 312i Para. 1 Sentence 1 No. 3). Finally, he must give the
customer the opportunity to call up the contract provisions, including the
general terms and conditions, upon conclusion of the contract and to save
them in a reproducible form (section 312i (1) sentence 1 no. 4).
54 A breach by the entrepreneur of these obligations under § 312i does not

lead to the nullity of the contract. However, it can justify a liability for damages
on the part of the entrepreneur from Section 311 (2) in conjunction with
Section 280 (1) and, moreover, can lead to the customer being able to
contest the contract due to an error in declaration in accordance with Section 119 (1).
The conclusion of a contract in electronic commerce alone does not constitute a
right of withdrawal for the customer. However, it can exist if the requirements for a
distance selling transaction according to Section 312c are also met (Section 312g).
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2. Information obligations towards consumers and protection of the

consumers against cost traps in electronic commerce
The protection of consumers in electronic transactions 55

Business transactions serve special information obligations of the
entrepreneur as well as precautions by which the consumer of a
hasty conclusion of the contract is to be held.
aa) On websites for electronic commerce with
According to § 312j paragraph 1, the entrepreneur has to pay consumers at the latest
Beginning of the ordering process in addition to the information according to § 312i
paragraph 1 clearly and unambiguously stated,
– whether there are delivery restrictions and
– which means of payment (e.g. purchase on account, prior bank transfer,
payment by credit card) are accepted.
However, he does not have to offer every customer every fundamentally

accepted means of payment. Rather, he may make a purchase upon it
Reject the invoice for which he makes an advance payment due to a
negative credit check.83
bb) Paras. 2-4 in Section 312j (until June 12, 2014: Section 312g) serve to 56
better protect consumers from cost traps in electronic commerce. According
to Section 312j (2), the entrepreneur is obliged to provide the consumer with
information about the total price, any delivery and
To provide shipping costs and the minimum contract period in a clear and
understandable way. According to § 312j paragraph 3 the
Entrepreneurs arrange the ordering situation in such a way that the consumer
expressly confirms with his order that he is going to a
payment obligated. If the order is made via a button,
it must be clearly legible with nothing other than the words "order with
obligation to pay" or with a corresponding clear wording (so-called button
solution)84. The fulfillment of this obligation is according to § 312j paragraph
4 (in addition to the general
Eligibility requirements) A requirement for the conclusion of a contract.
83 BT-Drs. 17/12637, 58.

84 On problems related to this button solution Fervers NJW 2016,
2289; Weiss JuS 2013, 590.
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Although the regulations in Section 312j (2-4) are not formal requirements, they
have the function and effect of a formal requirement. You should
Protect consumers from being misled and hasty due to the special situation on
the Internet.85 The reason for including paragraphs 2-4 was the
Practices of dubious entrepreneurs to disguise the fact that their service costs
something by an unclear or confusing design of their Internet pages.
For example, a service was offered as "gratis", "free" or "free of charge",
while only in the small print, in low-contrast font or in a
In the footnote there was a note that a chargeable service was ordered or a
subscription contract was concluded at the same time. It is true that in such cases
there is often no contract at all or it is revocable (sections 312c, 312g) or
contestable (sections 119, 123), but the consumer
often do not exercise their rights based thereon. Under the massive
and intimidating pressure from lawyers and collection agencies
and in view of their legal uncertainty, they are more willing to settle claims that
they claim. Before such costs or
Subscription traps on the Internet are intended to protect consumers through § 312j Paras. 2-4
will.
3. Planned: Information obligations for operators of online

marketplaces towards consumers (draft of a § 312k
in conjunction with Art 246d EGBGB)
56a To implement Directive (EU) 2019/2161 for better

Enforcement and modernization of the Union's consumer protection
rules, which will apply in the EU Member States by 28.11.2021
must take place,86 a draft law has been available since January 2021
federal government. After that, a new § 312k on “General
Information obligations for operators of online marketplaces”. An
online marketplace is a service that enables consumers to enter into
distance contracts with other traders through the use of software
operated by the trader
or consumers. The operator of an online marketplace is the
entrepreneur who makes an online marketplace available for
consumers, eg eBay or Amazon. The new information obligations
concern, among other things, the disclosure of the criteria of the
Rankings of search results and their weighting, information on
whether the potential contractual partner is an entrepreneur or a
consumer, and information on the resale of admission tickets via a
ticket exchange
85 BR-Drs. 525/11, 13.

86 OJ L 328 BC 12/18/2019.
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of the provider over the original price set by the organizer.

However, these and other information obligations should not be included in
the planned § 312k, but rather in Art. 246d EGBGB, to which reference
should be made in § 312k (1).
V. Consumer protection when changing providers

continuing obligations
If a continuing obligation is established between an entrepreneur (e.g. 57

telephone provider) and a consumer pursuant to §§ 312 et seq., which is
intended to replace an existing continuing obligation with another
entrepreneur
(change of provider), the necessary termination of the previous continuing
obligation is often carried out by the new provider
accepted. The consumer is encouraged by the offer “You save
a lot of money and don't have to worry about anything" or "we take care
of all the formalities for you" lured them to switch providers. In order to
prevent a dubious new provider from using the old one
If the consumer terminates the continuing obligation without being
instructed to transmit the termination or without being authorized to give
notice of termination, the termination of the
Consumer or the power of attorney to terminate the text form.
The consumer who has not been informed of his right of withdrawal can still
withdraw from the new contract ("paragraphs 13, 19 et seq.) if he already has
phoned the new provider.
VI. Indispensability, prohibition of circumvention and burden of proof
Compliance with §§ 312-312j is secured by § 312k.88 58
1. Indispensability
Sections 312-312j may not be to the detriment of the consumer
or the customer's are deviated from (§ 312k Abs. 1 S. 1). The regulations
are therefore intended to protect the consumer or the customer
unilaterally mandatory. Agreements through which information
87 Inserted by law of July 29, 2009 with effect from August 4, 2009 (Federal Law Gazette I 2413).
88 With the planned insertion of a new Section 312k ("Rn. 56a), the previous Section 312k
become § 312 l.
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If the entrepreneur's obligations or the consumer's right of withdrawal are

excluded in whole or in part or are made dependent on additional requirements,
they are then ineffective.
This also applies to a waiver by the consumer or the customer
to his rights.
2. Circumvention Prohibition
59 Sections 312 et seq. also apply if they are circumvented by other

arrangements (section 312k (1) sentence 2). Therefore
For example, the consumer's right of withdrawal according to § 312g cannot
be undermined by a construction of the conclusion of the contract,
which formally avoids the criteria for an off-premises contract or a distance
selling transaction, but in substance the conclusion of the contract is the same
as for a
such business takes place.
Example: With his order, the consumer submits a contract offer by means of
distance communication. With the delivery of the goods, the entrepreneur sends his
declaration of acceptance through a representative. then
only means of distance communication are used for both contractual declarations.
But the situation when the contract was concluded, which
The consumer's right of withdrawal is comparable to that of a distance contract ("Rn.
14).
3. Burden of Proof
60 If the contracting parties dispute the fulfillment of the entrepreneur's

information obligations under Sections 312-312i, the
Entrepreneur bears the burden of proof towards the consumer (§ 312k
paragraph 2). This can be important, for example, if the consumer demands
compensation from the entrepreneur for breaching his
Obligations to provide information (see "Rn. 17). The burden of proof rule
of Section 312k (2) does not apply to the fulfillment of information obligations in
electronic commerce pursuant to Section 312i (1).
("Rn. 53); because § 312k paragraph 2 regulates only the burden of proof
the consumer, not to every customer within the meaning of § 312i paragraph 1.
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Consumer's right of withdrawal for off-premises contracts and distance

contracts
I. Requirements
1. Right of withdrawal (§ 312g Para. 1)
a) contract concluded off-premises
(§ 312b) or distance contract (§ 312c) between entrepreneur
and consumer
b) no exception according to § 312g paragraph 2
c) no special right of withdrawal according to other regulations
(Section 312g (3))
2. Declaration of revocation (§ 355 Para. 1 S. 2-4)
a) Shape (no special shape required; possibility
completing and submitting the model revocation form, Section
356 (1) sentence 1)
b) Deadline: 14 days from the conclusion of the contract, if
proper notification of the right of withdrawal, otherwise 12
months after the original 14-day period has expired (sections
355 (2), 356 (3));
Special regulations at the beginning of the period, e.g. for the
purchase of consumer goods in Section 356 (2).
II. Legal Consequences
1. No binding effect of the declaration of intent (§ 355
Para. 1 sentence 1), in the case of connected and related contracts,
also not to the other contract (§§ 358
para. 1, 360 para. 1)
2. Rescission according to Section 355 (3) with special features
according to §§ 357, 358 paragraph 4
VII. Planned: Consumer protection in contracts for

digital products
Literature: butcher, contracts for digital content and digital services 61

ments: New BGB contract type or selective reform?, JZ 2019, 577.
With effect from January 1st, 2022, contracts for digital products
the consumer protection established in the general law of obligations should
be expanded.
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1. Reason for the planned new regulation

62 Directive (EU) 2019/770 on certain contractual aspects of the supply
of digital content and digital services89 harmonises the
essential contractual provisions relating to consumer contracts for

digital products. This is intended to help achieve a uniformly high level
of consumer protection and avoid legal fragmentation in the EU. the
The directive must be implemented into national law by June 1st, 2021
applicable from January 1st, 2022. In January 2021, the federal government
published for a law intended to achieve implementation.
2. Systematic location
63 The government draft does not specifically include provisions on
the law of obligations for a new type of contract for digital content
or digital services; because the directive to be implemented
does not describe a uniform type of contract. It isn't either
separate law is planned for such contracts because the legislature
made a conscious decision in the 2001 reform of the law of obligations, in
Integrating all consumer contract regulations into the German Civil
Code in the interest of transparency and comprehensibility. Rather,
according to the government draft, a separate Section 3 Title 2a with
Sections 327-327u is planned in the General Law of Obligations. this solution
means, however, at another point an inflation of the
BGB through regulations on a special matter, whereby the basic
structures of the BGB, which were once considered exemplary worldwide
threaten to blur further.
3. Content
64 Subtitle 1 “Consumer contracts for digital products” (§§ 327-327s)

should form the core of this new title. Here are
Provisions on the applicability of this subtitle (§§ 327, 327a),
on the concept of digital products (327b, 327c), on the scope of
Obligation to provide a service free of defects (§§ 327d327h), to the
consumer’s warranty legal remedies (§§ 327i–
89 OJ L 136 BC May 22, 2019 p. 1 and OJ L 305 BC 26.11.2019 p. 62.
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327n), on the modalities of contract termination (§§ 327o, 327p)

as well as further regulations (§§ 327q-327s). The provisions on your
own warranty rights should be emphasized,
which, in particular, the law of obligations for different types of contracts
regulated warranty law. This priority should go through
new regulations for the individual contract types of the special
law of obligations to be secured. A new element of warranty law is the
obligation of the entrepreneur to update (provision of updates) digital
products.
In subtitle 2 (§§ 327t, 327u) are “Special Provisions 65
for contracts for digital products between entrepreneurs"
intended. So this is no longer about consumer protection.
Rather, these regulations regulate a right of recourse for the
entrepreneur in the event of a claim by the consumer
Extension of this claim to previous links in the distribution chain and
the statute of limitations for this claim and the burden of proof.
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Section 20. Liability of the debtor
1 Literature: Bachmann, Die Dogmatik des § 278 BGB, in Drygala/Wächter,

liability for fault, duty to inform, attribution of knowledge and behavior in M&A
transactions, 2020, 125; Derleder, procurement risk,
Delivery bottleneck and performance period, NJW 2011, 113; Deutsch, The
negligence in the new law of obligations, AcP 202 (2002), 889; Goecke,
Unlimited liability of minors, NJW 1999, 2305; Haberzettl, Guilt and Promise,
2006; Kähler, Indirect and direct limitations of
Willful liability, JZ 2007, 18; Kamanabrou, Limits of Liability for Breaches of
Protective Duty by Third Parties, NJW 2001, 1187; Kilian, The criminal
responsibility of minors according to § 828 BGB new version, ZGS 2003, 168; blade axe,
Debtor liability for robot failure, JZ 2019, 718; E. Lorenz, Liability
for vicarious agents, in: Determination 50 years BGH, 2000, vol. I, 329; S.Lorenz,
Basic knowledge - civil law: liability for vicarious agents (§ 278 BGB),
JuS 2007, 983; ders., basic knowledge - civil law: representation (§ 276
BGB), JuS 2007, 611; Thönissen, The principle of guilt in civil law?, AcP
219 (2019), 855; G. Vollkommer, extension of liability through revision of the
§ 276 BGB?, in: Dauner-Lieb/Konzen/Schmidt Neues SchuldR 123; walker,
The limited liability of the employee taking into account the
Reform of the law of obligations, JuS 2002, 736; idem., fault in civil law, Ad
Legendum 2015, 109; ibid., liability privileges, JuS 2015, 865; ders., the
civil liability of the soccer player and his club for injuries to an opponent, FS
Tolksdorf, 2014, 143; Wendelstein, On liability for damages for “fulfillment”
agents in the event of violation of integrity interests, AcP 215 (2015), 70.
Case a: B, intoxicated, drives the car borrowed from A into a tree. He

does not want to pay any damages because he was not at fault.
" paragraph 4
Case b: B drives the borrowed car over a wooden bridge, although he

not sure if she is carrying the car; but he trusts that she already
will hold. The car is destroyed when the bridge collapses. B means
he only acted negligently. " Paragraphs 9, 10
Case c: Master roofer U has his journeyman G carry out the roof repairs on
B's house. He damaged the floor lamp with his ladder and dropped a roof tile on
the street, causing a
passer-by is injured, seals the roof badly and finally takes up
B's hanging laundry in the attic with. Is U liable for damages?
" Paragraphs 25, 31, 32, 37
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Section 20. Liability of the debtor 221
Case d: K is interested in a certain work of art. The art dealer V promises to

procure and deliver it. He can, however, the owner
do not persuade to sell. In the meantime, K had made a lucrative resale, which
cannot be completed due to V not being able to deliver.
He demands that V replace the lost profit. " Paragraph 47
In German civil law it is different than in Anglo-American

the fault principle. Thereafter, the debtor is liable (in particular
for damages) only in the event of fault. the debtor
can be responsible both for their own (§§ 276, 277) and for the
fault of others (§ 278). He is only liable in exceptional cases
without fault. This is particularly the case with an assumed
guarantee (cf. Section 276 (1) sentence 1, 2nd half) and in the cases of
Statutory guarantee liability (e.g. § 536a paragraph 1, 1st case, § 833 sentence 1, § 7
1 StVG).1
I. Liability for own fault

According to Section 276 (1) sentence 1, 1st half-sentence, the debtor is 2
regularly responsible for intent and negligence. Both are included under the term
of fault summarized.2 An accusation of fault can
but only related to a breach of duty by the debtor
and only be made to those who are also culpable. fault
therefore requires breach of duty, culpability (= criminal capacity)
and one of the forms of guilt (intent or negligence).
1. Breach of Duty
The breach of duty of the action (action and omission) of the 3
Debtor usually results from the objective violation of
an obligation arising from the debt relationship. This one needs a discussion
Point only if either already has the existence of an act
of the debtor is problematic or if the facts of the case offer
indications that there is a justification for the behavior of the
debtor (cf. on unlawfulness "§ 28 marginal number 4).
Example: The painting owed is destroyed by fire caused by a lightning strike.

Here the debtor can fulfill his obligation to procure the
1 On further case groups of no-fault liability Walker Ad Legendum 2015,

109 (114 f.).
2 months I, 281.
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222 7th chapter. liability of the debtor
thing no longer fulfill. However, he cannot be held responsible for the lack of action. –
The dog given to him for custody attacks the custodian in such a way that only a shot
by V at the dog wards off its attack on V and thus a danger to V. The behavior of the V
is not in breach of duty (§ 228). It doesn't matter that V is acting intentionally here.
2. Culpability The
4 culpability is based on Sections 827, 828.3, which Section 276
Paragraph 1 Clause 2 declares to be applicable accordingly.
These provisions apply directly only to the criminal capacity and not to the culpability
per se.
a) Non-culpable persons. All persons under the age of seven are

incapable of culpability (Section 828 (1)).
Nor is anyone responsible who acted in a state of unconsciousness
or in a state of pathological disturbance of mental activity that
precludes free determination of will (§ 827 Sentence 1).
However, the law makes an exception to this and assumes fault in the form of
negligence if the debtor has temporarily caused this situation by culpably intoxicating
himself with alcohol or similar substances (§ 827 sentence 2; case a) .
5 b) Persons with limited culpability. All persons who have reached

the age of seven but not the age of 18 have limited criminal
responsibility. The law makes liability for damage dependent on
whether the person concerned had the insight required to recognize
liability when committing the breach of duty (section 828 (3)).
An exception applies according to Section 828 (2) newly added on August 1, 2002.
According to this, a child who has reached the age of seven but not ten is not
responsible for damage that it does not intentionally cause to another person in the
event of an accident involving motorized road or rail traffic. However, according to the
sense and purpose of the regulation, this liability privilege only applies if the child is in
a typical situation where the child is overwhelmed by the specific dangers of motorized
traffic (not, for example, in the event of a fall during a Kickboard4 race against a parked
car).5

4 Skateboard and scooter combination, standing surface with two front wheels, one
rear wheel and handlebars with knob.
5 BGH NJW 2005, 354.
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c) Culpable persons. All other persons are culpable. 6
3. Form of Debt
a) intent. The law does not define the concept of intent. 7

According to the jurisprudence and the prevailing opinion in
In writing, resolution includes knowing and willing to succeed
and awareness of illegality.
aa) In the case of intent within the meaning of Section 276, the severity of the
There are two types of accusations of guilt:
(1) Direct intent (dolus directus) occurs when the actor foresees 8th
success as a necessary consequence of his actions

and act anyway.
(2) Conditional intent (dolus eventualis) is given when the 9
The perpetrator only imagines success as possible and uses it just in case
of its entry (according to the volitional theory that prevails today).
According to the conception theory, the conception of the possibility of success

occurring is sufficient for the conditional intent. However, dem can
not be followed, since only taking into account the element of will a
Distinction from conscious negligence is possible. Because if you have the idea that
success might happen, you can do it anyway
disapprove and only act in reckless trust in a good outcome of his actions - and
deliberately negligent. In this case, too, the representational theory would have to
affirm intentional action, what
is not appropriate.
In case b, there is intent according to the conception theory, and negligence
according to the theory of the will. In both cases, B is liable for culpable damage to
the wagon (section 280).
Conditional intent must be distinguished from willful negligence. In both 10
cases, the actor sees success as possible
in advance. With conditional intent, he wants to act anyway, himself
when the possible consequence occurs. He says to himself: "Well, if
yes!” In the case of deliberate negligence, on the other hand, he would of the
Refrain from action if he knew that it was possible
consequence occurs. He says to himself: “It will be all right.” This
distinction is not very important for civil law because the
Debtor according to Section 276 (1) Sentence 1 is equally responsible
for intent and negligence. However, the distinction can be decisive if an
exclusion of liability has been agreed; the
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Liability for intent cannot be excluded (§ 276

paragraph 3).
If in case b A and B have excluded liability for damage to the wagon, B is only liable
for intentional damage.
11 bb) The awareness of illegality also belongs to

intent (theory of intent); what is required is the knowledge of the perpetrator that
he with his action violates a contractual or statutory
Duty is violated.6 This distinguishes intent in civil law
from the one in criminal law. According to the prevailing theory of guilt
(cf. § 17 StGB) only means knowing and wanting to commit the offense;
it is part of the facts, whereas the awareness of illegality is to be
separated from intent and counted as an independent element of guilt.
12 If there is no awareness of illegality, this will result in

the theory of guilt and the theory of intent have different consequences. Destroy the
Perpetrators knowingly an alien thing in the erroneous legal opinion, authorized to do so
according to the theory of guilt, then he has intentionally committed property damage
(Section 303 of the Criminal Code). Whether he can be punished for this depends on
whether his error of law was avoidable (cf. § 17 StGB). would also im
If criminal law includes the awareness of illegality as part of intent (theory of intent),
there would be a penalty for damage to property from the outset
not considered, as there is no intent and negligent damage to property is not a
punishable offense (§§ 15, 303 StGB). Under civil law, the perpetrator is obliged to pay
damages if his legal error is negligent;
because compensation must also be paid for negligent damage to property
(cf. Section 823 (1)).
13 The theory of guilt may in principle have its justification in criminal law.
However, the legislature of the BGB has regarded intent as a form of
guilt in Section 276 (Arg. Section 278); So he started from the intentional
theory. So intent doesn't just presuppose that
Knowing and wanting the circumstances of the crime, but also awareness
of breach of duty.7 Incidentally, for civil law
Disputes of theories are of secondary importance, because here the
debtor is regularly equally negligent for one as for one
intentionally brought about success. against it
Criminal liability in principle presupposes intent, if not negligent
action is expressly threatened with punishment (§ 15 StGB).
6 See BGH NJW 1985, 135; Fikentscher/Heinemann SchuldR paras. 647, 649; Looschel
ders SchuldR AT § 23 para. 4.
7 Cf. BGHZ 118, 201 (208).
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If Ms F beat up the underage neighbor's daughter T because of making a noise,

assuming that she had a right to be punished, and if T suffers bodily harm, then
according to the correct view, T's claim for damages is not due to intentional but to
negligent bodily harm (§ 823 Para. 1) under consideration.
cc) In civil law, intent must in principle only refer to the 13a
objective facts and illegality, not to the damage caused (cf.
the wording of Sections 280 (1), 823 (1), 2). This must
therefore not have been foreseeable for the tortfeasor. A
statutory exception is Section 826 (intentional damage
contrary to public policy).8 Here the damage takes the place
of the violation of the law (good) or protective law, which is
not required under Section 826 as the point of reference for intent.
There is an exception that is not regulated by law in the case of limited employee
liability (“Rn. 21 f.). If an employee causes damage in an operational activity, a full
obligation to compensate for intentional damage according to the case law of the
Federal Labor Court9 only comes into consideration if the damage was caused
intentionally. The employee must therefore have foreseen the actual amount of the
damage at least as possible and accepted it with approval. If this is not the case,
only limited liability due to negligence can be considered.
b) negligence. 14
aa) The law understands negligence to mean disregard for
the care required in traffic (section 276 (2)). Determining
negligence can be very difficult in individual cases.
Example: Whoever demands a service from his contractual partner that he does
not owe, and thereby violates his duty of consideration from § 241 Para. 2 (" § 2
para. 12), does not automatically act negligently just because his legal position is
incorrect. He violates the due diligence in traffic only if he was not allowed to view
his legal point of view as plausible.10
The care required in traffic is an objective, typified standard.

Unlike in criminal law, this accusation of guilt does not
depend on personal abilities, but on the fact that the debtor
behaves as carefully as the respective obligation requires to
avoid damage.
8 See Brox/Walker SchuldR BT Section 47.
9 ZB BAG (GS) NJW 1995, 210; BAG NJW 2003, 377 (379); NZA 2011, 345 (346).
10 BGH NJW 2009, 1262 (1264).
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required. Because right-hand traffic must move without regard to

the debtor's personal ability to rely on it
can, that everyone has to properly fulfill his
obligations.
Examples: A surgeon who does not personally have the skill
to carry out a certain operation according to the rules of medical art is negligent
under civil law if he commits a medical error. –
For the merchant, Section 347 (1) HGB11 expressly states that he
the diligence of a prudent businessman is responsible.
Above-average personal skills (e.g. of a pilot) are given
also significant in civil law.
15 bb) In principle, the debtor has for each, no matter how small
to admit negligence (§ 276 Para. 1 S. 1, 1st Hs.). Therefore plays
the distinction between different degrees of negligence
(slight, medium, gross negligence) generally irrelevant.
16 c) Deviating regulation. The principle that the debtor
is responsible for any form of intent or negligence does not apply
if a milder liability (to a stricter liability "Rn. 44 ff.) is
determined or can be inferred from the other content of the
obligation (§ 276 Para. 1 S. 1, 2nd Hs.).
17 aa) A different provision can result from a contract
or a legal regulation.
(1) Liability for negligence (but not liability for intent,
Section 276 (3)) can be excluded or limited by contractual
agreement.
In general terms and conditions, however, liability for damage caused by negligence can be excluded
injury to life, body or health in principle
cannot be excluded or limited in favor of the user (§ 309
No. 7 letter a).12 The same applies to the grossly negligent causation of others
Damage (§ 309 No. 7 Letter b). For exceptions, see § 309 No. 7, 2nd half. A
release from liability for damage to property caused by simple negligence is
permissible. Whether such an agreement is also
extends to the vicarious agents of the beneficiary party, so that they do not
personally liable for tort shall be determined by interpretation.13
18 (2) In various cases, the law stipulates a milder liability within the
meaning of Section 276 (1) sentence 1, 2nd clause and provides for liability only for
11 Brox/Henssler HandelsR para. 371 f.

12 On agreed liability privileges in AGB Walker JuS 2015, 865 (870).
13 BGH NJW 1962, 388.
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gross negligence or breach of customary care

(of course we are also liable for intent here).
(a) Gross negligence occurs when the care required in traffic is
violated to a particularly serious degree, with others
Words that what should have been obvious to everyone is not taken into account.
In contrast to simple negligence, it must be the case with a
grossly negligent behavior is also subjectively inexcusable
misconduct, which significantly exceeds the usual level.14 Gross
negligence is generally assumed when a driver switches to “red”
at a traffic light
ignored. The limitation of liability to gross negligence
is provided by law primarily for cases in which someone
either free of charge or primarily in the interest of another
becomes active.
Example: Volunteer board members of an association (§ 31a) and

members of the association who work for the association free of charge (§ 31b), donors (§ 521),
lender (section 599), emergency manager (section 680), finder (section 968); – see also liability
in default of creditors (§ 300; "§ 26 marginal number 12).
(b) If the debtor is only liable for the care that he usually uses in 19
his own affairs (diligentia quam in suis),15
it does not depend on an objective breach of the duty of care;
much more the individual normal behavior of the debtor is the yardstick
for the accusation. However, taking account of the debtor's
personal characteristics does not mean that he is released from
liability for gross negligence (section 277). The reasons for
Relief from liability are very different.
Examples: partners (Section 708), spouse (Section 1359), parents (Section 1664). In these
cases, there is a special relationship of trust between the injuring party and the injured party.
The free custodian (§ 690) is to
interest of the other stored items do not have to be treated more carefully
as his own. The previous heir (§ 2131) is the owner of the estate objects.
bb) There may also be a deviation from the principle that 20

the debtor is liable for any form of negligence, including "from
the other content of the obligation". This possibility only became
new with the reform of the law of obligations on January 1, 2002
14 BGH NJW 2007, 2988, 2989 (negated if a driver crosses the roadway
dodges crossing fox); 2003, 1118 (1119).
15 Walker JuS 2015, 865 (867 f.); ibid. Ad Legendum 2015, 109 (112).
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inserted. Referring to the content of the obligation

must not, however, undermine other legal assessments.
Example: The law provides for several gratuitous obligations
limited liability only in the case of intent and gross negligence (liability
of the donor in accordance with Section 521, of the lender in accordance with Section
599) or only in the event of a breach of customary care (liability of the free custodian
according to § 690). Such a limitation of liability, however, must not
Contractor, citing his work, which is also unpaid
(§ 662) are applied; because in this case the legislature has been aware
no limitation of liability provided.
21 (1) According to the ideas of the legislature, this is possible
Legal institution of the limited liability of the employee
derived from the content of the obligation. After that, one is liable
Employee (§ 611a) for damage he his employer
added when carrying out an operational activity
only to the following extent: His liability is generally full
excluded if the damage is due to slight negligence.
In the case of normal negligence, the damage is shared
appropriately and the employee is therefore partially released from liability
one. On the other hand, gross negligence leads to full liability
the employee's liability for damages. In case of a mismatch
However, a (partial) limitation of liability is also possible here
between compensation and damage. In the event of intent, the
employee is always liable in full.16
22 However, recourse to the content of the contractual obligation
(employment relationship) alone is not sufficient for this generally
recognized limitation of liability.17 It is still necessary to justify that
why the limitation of liability results from the content of the
employment relationship. Until the reform of the law of obligations,
limited employee liability was combined with an analogous application of the
§ 254 justified: The fault of the employee was that
risk of causing damage to be borne by the employer
compared to operational activities initiated by him as a reason for the
attribution of damages. The result of this consideration analogous to §
254 leads to the above-mentioned liability classification depending on the
severity of fault. This should not be changed by the reform of the
law of obligations.18 By § 276 paragraph 1 sentence 1 (content of the
16 For details see Walker JuS 2002, 736.

17 Cf. NK-BGB/Dauner-Lieb § 276 para. 39.
18 BT-Drs. 14/6587, 48 to No. 21.
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contractual relationship), the limitation of employee liability based

on Article 254 was only secured by law.
(2) Furthermore, in team sports, a milder liability can be derived 22a
from the content of the competitive relationship between the
deduce players of the opposing teams. If a player
injures his opponent through a foul play, there is basically a
tortious obligation to pay damages according to § 823 para. 1 in
consideration. But fouls and fouls are quite typical parts of certain
team sports, and all of them
Players accept the risk of injury associated with it. Therefore, it
follows from the content of the competitive relationship that a
player, even if he behaves in violation of the rules, only
then liable for injuries caused to an opponent if he acted at least
with gross negligence.19
II. Liability for third-party negligence
1. Meaning of Section 278

In the context of an obligation, the debtor is subsequently liable 23
Section 278 for fault on the part of his legal representative and his
vicarious agents. Liability is particularly important in practice
for vicarious agents. These are people whose
Debtor served to meet its obligations. the
The legal position of the creditor would be significantly reduced if
the debtor is not responsible for the fault of this person
would have to. This is because the creditor has no contractual
claim against the auxiliary person and any claim against them in
tort may possibly not be realizable. on the other hand
it must be taken into account that the debtor has to fulfill his
may serve the obligation of an auxiliary person; he can this person
select, guide and monitor. Therefore it is justified that
the debtor to the creditor for the fault of his auxiliary person
shall be liable as if he himself were at fault.
Since an accusation of fault can only ever be linked to a breach 24
of duty ("Rn. 2 f.), the debtor is charged via § 278
not only the fault, but strictly speaking the culpable
imputed to the auxiliary person's breach of duty.
19 Details: Walker JuS 2015, 865 (871); also FS Tolksdorf, 2014, 143 (149 f.).
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2. Requirements
25 a) Obligation. Liability for the fault of the named persons only
applies within the framework of an already existing one
obligation ("to fulfill an obligation").
This also includes a pre-contractual obligation within the meaning of Section 311
Para. 2 with the obligations from § 241 Para. 2 ("§ 5 para. 1 f.) as well as already
existing statutory obligations. However, it is not enough
if the action only creates a (legal) obligation
arises.
In case c, U does not have to be responsible for the injury of the passer-by from
an existing obligation in connection with § 278. In any case, liability under Section
831 may be considered.
26 b) Auxiliary within the meaning of Section 278. Auxiliary within the meaning of Section 278 are the statutory
representative and vicarious agent.
aa) Legal representatives are primarily natural representatives
People (parents, guardians, carers, carers). According to his mind
and purpose, section 278 also applies to executors, insolvency
administrators and similar persons who are not legal representatives
in the narrower sense, but, like them, have direct rights and
obligations for another person due to their office
can justify.20
27 Whether the board of directors and the statutory representatives of legal persons
(§§ 26, 86, 89) also fall under § 278 is disputed because the legal
person is responsible for them according to § 31. The question has little practical
Significance because § 278 and § 31 regularly lead to the same result. she
but should in view of the version of § 26 paragraph 1 sentence 2, according to which these organs
have "the status of a legal representative" to be affirmed.21
28 bb) Vicarious agents are the persons used by the debtor to fulfill
his obligations. Required and
it is sufficient that the debtor called on the third party to fulfill his
obligation. From this it follows that
that the third party has acted for him with the will of the debtor
have to be; the third party, on the other hand, does not need to know that he is a
Obligation of the debtor fulfilled. On the other hand, § 278 requires
not that there is an obligation between debtor and assistant
20 Palandt/Grüneberg BGB Section 278 para. 5; Hm

21 Likewise Erman/Westermann BGB Section 278 para. 9; aA about Looschelders SchuldR AT
§ 23 para. 37; MüKoBGB/Grundmann § 278 para. 10.
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stands, even if this will be the case regularly. Nor

does the assistant need in a socially dependent relationship to
to stand in debt; So even a self-employed entrepreneur can
to be vicarious agents.
Example: If the landlord (V) commissions the installer (U) with a repair in the
tenant's (M) apartment, then U is V's vicarious agent with regard to V's contractual
duty of care towards M.
If U causes a flood through improper work in the rented apartment, which destroys
M's carpet, then V is responsible for this under Section 278.
29
The debtor is not only responsible for his (direct) vicarious
agents, but also for their agents if they
are entrusted with the fulfillment of the debtor's obligation with his
consent (indirect vicarious agents). Subcontractors of the vicarious
agent can therefore also be vicarious agents of the
be client.
In the example mentioned, he does not have U, but journeyman G during the repair
causes the damage, then V must also be responsible for it due to § 278.
30
The vicarious agents also include the persons who work with the
are entrusted with conducting contract negotiations;22 because these so-called
Negotiating assistants are assistants in the fulfillment of pre-
contractual obligations (on this already "Rn. 25).
On the other hand, persons who are not vicarious agents are
act for the debtor with the will of the debtor, whose
but the creditor does not use it to fulfill a liability.
Therefore, in the purchase contract, the seller is involved
The manufacturer of the item is not regarded as the seller's vicarious
agent.23 The seller's liability (transfer of ownership of the purchased
item) is fulfilled by the seller himself.
31
c) To fulfill an obligation. The helper must
Fulfillment of an obligation of the debtor towards the creditor.
Liabilities do not include
only the main performance obligations, but also the ancillary performance
and protective obligations resulting from the contractual relationship.
22 BGH NJW 1974, 1505 f.; see also BGH NJW 1991, 2557.
23 BGH NJW 2014, 2183 (2185); OLG Koblenz NJW-RR 2018, 54 para. 22 et seq.
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In case c, the defective repair constitutes a breach of a primary obligation and the
damage to the floor lamp constitutes a breach of a
duty to protect (§ 241 Para. 2).
32 According to hM24 , the damaging action must be factually related to the

activity assigned to the auxiliary person
stand. Therefore, liability according to Section 278 should be excluded for
such damage which the auxiliary person only causes to the creditor “on
occasion” of their activity. The main issue here is liability
for criminal offenses (laundry theft in case c). For inclusion too
such damage speaks, however, that the obligations from the
Obligation relationship also the general obligation of the debtor
belongs not to have a damaging effect on the legal interests of the creditor
(cf. Section 241 (2)). If the debtor uses an auxiliary person, he must in
principle allow himself to be treated as if he were theirs
action would have taken itself. On the other hand, the creditor should
but not exempted from the general life risk by § 278
become the victim of a harmful act. With a
The view that is being advanced25 must therefore be differentiated
according to whether the damage caused to the auxiliary person was made
significantly easier by the activity assigned. § 278 is to be affirmed if the
Auxiliary is only given the opportunity to steal because
the creditor them precisely because of the existing debt relationship
can "work" in his area (case c).
Counterexample: In case c, G steals the ge in the unlocked courtyard
parked vehicle of B.
33 d) fault of the auxiliary person. According to Section 278, the debtor has a
fault of his legal representative or vicarious agent
to represent one's own. It can be the fault of the auxiliary person
but not in the technical sense, because that presupposes a breach of duty
(" para. 2 f.), but the auxiliary person to the creditor
owes nothing. According to the meaning and purpose of Section 278 ("Rn. 23),
it is much more important to ask whether the action of the auxiliary person, if she
made by the debtor himself as breach of duty and culpable
would be to look at.26
24 RGZ 63, 341 (343); cf. BGHZ 23, 323; 31, 366.
25 See, for example, Looschelders SchuldR § 23 AT marginal number 39; Medicus/Lorenz SchuldR I Rn. 382;
Palandt/Grüneberg BGB § 278 para. 20 et seq.; Soergel/M. Wolf BGB § 278 para. 37 ff.
26 Medicus/Lorenz SchuldR I para. 383.
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aa) Therefore, it does not depend on the culpability (§§ 827 f., 34
"Rn. 4 f.) of the auxiliary person, but solely on that of the debtor.27
The risk of a defect in the tool must be borne by the person who
used it. That is the debtor and not the creditor.
If, on the other hand, the debtor himself is incompetent to commit a crime and his
legal representative acts for him, his fault is to be attributed to the debtor.28
bb) The relevant form of debt is also determined by the person of 35

the debtor.29
If, for example, his liability is contractually and legally limited to intent or gross
negligence, then he does not have to be responsible for simple negligence on the
part of his assistant. The same applies if he only owes the care that he uses in his
own affairs. In this case, the debtor is only liable if the vicarious agent acts more
carelessly than the debtor tends to do in his own affairs.
However, there is a special feature insofar as the debtor can 36

contractually exclude liability for the intentional behavior of his
auxiliary person in advance (sections 278 sentence 2; 276 paragraph
1 sentence 1, 2nd half). Person is denied by § 276 paragraph 3.
Liability for auxiliary persons can only be limited by general terms and conditions
to the same extent as liability for their own negligence (§ 309 No. 7).
Even if liability for intent on the part of the auxiliary person is excluded, it still
remains to be checked whether the debtor is not responsible for his own fault in the
selection of the auxiliary person.
cc) The standard of care that is decisive in the context of the 37
negligence check is also determined according to the person at fault
ners.
Example: If the debtor employs an apprentice, he is nevertheless liable for

compliance with the care that can be expected of him as a master craftsman (case c).
3. substitution
There is no room for liability under Section 278 if the debtor is 38

entitled to transfer his performance obligation in full to a third party,
so that the third party takes his place and thus has to fulfill the
obligation independently (so-called substitution). a law
27 Esser/Schmidt SchuldR I AT § 27 I 3 c.
28 Soergel/M. Wolf BGB§ 278 para. 57.
29 Walker JuS 2015, 865 (870).
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A good example of this is the transfer of the mandate (§ 664

Para. 1 p. 2).30 Here the debtor (agent) is not responsible for
ensuring that the third party engaged by him/her takes over the
order properly fulfilled; extends its responsibility
only focus on carefully selecting the third party (culpa in eli
gendo). According to § 276 (liability
for own fault) and not according to § 278 (liability for others
fault) responsible. The third party is liable for breaches of duty
towards its contractual partner (the agent). This
has its claim for damages in principle according to § 667 to the
Client who is harmed by the breach of duty by the third party
is to assign.31 The client can due to the assigned
demand compensation for his damage from the third party.
4. Differences between Section 278 and Section 831
39 Liability for damage caused by another

also provides for Section 831. According to this provision, the person who
has ordered someone else to perform a service is liable for the damage caused
the vicarious agent unlawfully harms a third party in carrying out
the work.32 However , there are significant differences between
Section 278 and Section 831:
– In contrast to Section 831, Section 278 requires an existing
obligation.
– § 278 is not an independent basis for a claim, but an attribution
norm. It must therefore always be checked first
whether an obligation has been breached as part of an
existing obligation; for asking whether the debtor this
is responsible for breach of duty, § 278 is to be consulted. Section 831
is, on the other hand, an independent claim norm alongside Sections 823 et seq
from tort.
– Liability above § 278 is liability for culpable behavior of others
(of the auxiliary person); fault on the part of the debtor is
irrelevant. Section 831, on the other hand, establishes liability
for the principal's own (presumed) fault
in the selection and supervision of vicarious agents. It is not
necessary for the vicarious agent to be at fault
31 MüKoBGB/Schäfer § 664 para. 16.
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lich; it is sufficient that he has unlawfully fulfilled one of the

elements of §§ 823 et seq.
– In the case of Section 831, the debtor can release himself from his
liability by proving that he was not at fault in the selection and
supervision of the vicarious agent (Section 831 (1) sentence 2;
possibility of exculpation). In the case of section 278, on the other
hand, there is no possibility of relief for the debtor because his
fault is irrelevant.
Since the principal can usually exonerate himself according to Section 831 (1)
sentence 2, case law has tried in various ways to expand the scope of Section 278
in the interests of the injured party. Mention should be made here above all of the
liability codified in the course of the reform of the law of obligations due to pre-
contractual breach of duty (§§ 280 Para. 1, 311 Para. 2; cic; " § 5 marginal number
2 and " § 25 marginal number 11 ff.) and due to a obligation with a protective effect
for third parties ("§ 33 para. 13 ff.).
– Since, in Section 831, the liability of the debtor for the unlawful act
of the vicarious agent is based on the fact that he has not carefully
selected and supervised the vicarious agent, the latter must be
subject to the instructions of the debtor to a certain extent. In
contrast, the term vicarious agent within the meaning of Section
278 does not require any dependence on instructions.
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III. No-Fault Liability

40 According to Section 276 (1) sentence 1, 1st half, the debtor is
responsible for intent and negligence; he is therefore only liable in the event of fault.
This only applies, however, if a stricter (or milder, " para. 16 ff.)
Liability is neither determined nor to be inferred from the other content
of the obligation (§ 276 Para. 1 S. 1, 2nd Hs.). Stricter liability means
that fault does not matter.
1. Miscellaneous Provision
41 a) By virtue of agreement. Liability without fault can initially be
determined by (express or implied) agreement.
However, this is not possible in general terms and conditions because of Section 307 (2) No. 1.33
42 b) by operation of law. The law also recognizes cases of liability

without fault.
Examples: Liability for accidental performance disruptions during debt collection (§

287 S. 2, "§ 23 Rn. 74), liability of the landlord for initial
Defects in the rented property (section 536a ( 1))34; of the animal owner (§ 833 S.
1)35, of the vehicle owner (§ 7 Para. 1 StVG)36. There are also numerous other case groups
strict liability.37
2. Content of the obligation
43 According to the wording of Section 276 (1) sentence 1, the content

of the obligation should result in liability without fault, in particular if
there was no agreement on fault
was made, but one party has assumed a guarantee or the procurement
risk. However, these two cases, which are not conclusive, could also
be regarded as different contractual ones
classify determination. It is therefore doubtful whether the content of the
obligation at all has its own appreciable area of application.
33 Cf. BGHZ 119, 168 on the AGBG.

35 Brox/Walker SchuldR BT § 48 para. 18, § 54 para. 53.
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a) Guarantee. Because the debtor in the case of a guarantee even then 44

liable for damages if an accusation of negligence does not apply to him
meets, are involved in the (particularly tacit) assumption of a
guarantee strict requirements. It is only available if
the debtor agrees to the creditor for the entry or
consequences associated with the absence of a specific circumstance
in any case (ie without fault). Whether such a guarantee is given and
how far it extends is to be determined by interpretation (§§ 133, 157). In
any case, general praise (“guaranteed first class”) is not sufficient.
With the guarantee, the legislator wanted in particular the cases of an 45

assurance of properties in contracts relating to objects
capture. It is thus relevant for the rental, the work and in particular the
purchase contract.38
According to § 463 old version, the seller is liable in the event of a property assurance
even without fault for damages. This provision was removed as part of the reform of
the law of obligations. Since January 1st, 2002, the
Violation of the seller's obligation from Section 433 Paragraph 1 Clause 2 to deliver a
defect-free item, a claim for damages (Sections 280 Paragraph 1, 437 No. 3),
if the seller is responsible for this breach of duty. However, according to Section 276
(1) sentence 1, 2nd clause, the need to be represented must also be affirmed in the
case of a guarantee (guarantee of property). In this respect, despite the omission of § 463
aF changed by the reform of the law of obligations in the matter.
Example: K, who is very overweight, wants to buy an armchair from V.

V allayed his concerns about stability by pointing out that his
Furniture would have carried far heavier people. He can rely on the safety one hundred
percent. When K inaugurates the piece of furniture after delivery, it cannot withstand
the load due to a material defect
was standing. K is badly injured. Here V has the resulting damage
according to § 280 paragraph 1 in connection with § 437 No. 3 also without fault.
b) assumption of a procurement risk. Assuming a procurement risk 46

can also result in liability on the part of the debtor that is independent of
fault. If the
If the debtor takes on the task of overcoming certain obstacles to
procurement, he thereby incurs a no-fault liability. Whether and to what
extent this is the case must also be determined on a case-by-case basis
by interpretation (§§ 133, 157).
38 For details, see Brox/Walker SchuldR BT § 4 para. 115 et seq.
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The existence of a procurement option must be distinguished from the assumption

of the procurement risk. As long as this is given, there is no case
the impossibility according to § 275 paragraph 1, so that the primary claim is not
goes under (cf. "§ 22 para. 3). On the assumption of the procurement risk
it doesn't matter in that respect. This is only relevant to the question of whether
the debtor is also responsible for the impediment to performance (if it occurs).
and is therefore liable for damages.
47 The assumption of a procurement risk is typically at

Generic debts ("§ 8 Rn. 1 et seq.) to be accepted. But it comes
also in the case of piece debts ("§ 8 para. 2) into consideration.
In case d, V gives K the lost profit from the resale

compensation even without fault (§§ 280 Para. 1, 3, 283).
48 However, the debtor generally does not want to assume
risks that are unrelated to the nature of the procurement debt.
Example: The debtor agrees to a specific thing up to a

to obtain a specific date. If he falls temporarily into a coma as a result of a traffic
accident, he is liable despite assuming the procurement risk
no-fault compensation for damage caused by delay (§ 280
Para. 1, 2 in connection with § 286).
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8th chapter. disturbances in the debt relationship
§ 21. Overview of the disturbances in

obligation
Literature: Canaris, The reform of the right to default, JZ 1

2001, 499; ibid., The general right to default in performance in the Law of
Obligations Modernization Act, ZRP 2001, 329; Emmerich, The Law of Performance
Disorders, 6th edition 2005; Gerhardt, The delimitation of the most important bases
for claims in damages law in the event of default, JURA 2012, 251;
Grigoleit/Riehm, The categories of damages in default law, AcP 203 (2003), 727;
Hadding, obligations to perform and disruptions to performance under “modernized”
law of obligations, FS Konzen, 2006, 193; Hellweg,
§§ 280 ff. BGB, 2005; Kindl, The law of defaults after the
Law of Obligations Modernization Act, WM 2002, 1313; Körber, The Right of
Breaches of duty in general law of obligations - Part 1, JURA 2015, 429;
Mattheus, Modernization of the law of obligations 2001/2002 - The innovations of the
general law on default of performance, JuS 2002, 209; Medicus, The performance
disturbances in the new law of obligations, JuS 2003, 521; Otto, The basic structures of the
new default law, JURA 2002, 1; Reischl, basic cases for the new
Law of Obligations, JuS 2003, 40, 250; Senne, The right to performance disruptions
the Law of Obligations Modernization Act, JA 2002, 424; v. wilmowsky,
Breaches of duty in an obligation, JuS 2002, Beil. to issue 1; Room,
The new right to default, NJW 2002, 1.
I. Concept of disruption in the obligation

The contractual or legal obligation is based on the fulfillment of the
performance obligations ("§ 2 para. 5 ff.) and the observation of the
Due diligence, fidelity, loyalty, care and other duties that
summarized here under the concept of protection obligations
(cf. "§ 2 para. 11 ff.), directed. However, a debt relationship is not
always properly settled. Its purpose can be defined by a
Behavior of the debtor or the creditor as well as by others
circumstances are completely or partially (also qualitatively),
permanently or temporarily thwarted. One summarizes such cases of disturbances
in the contractual relationship under the – albeit too narrow – term of
default. They have in common that it is not to ord
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240 8th chapter. disturbances in the debt relationship
proper fulfillment of (performance or protection) obligations

the obligation (non-performance in the broader sense in the
Contrasted with non-fulfilment in the narrower sense of the whole or
partial failure of performance).
2 Occasionally, instead of non-performance, reference is made to breach of duty.
However, this is traditionally used to describe behavior by the debtor that is in breach of
duty ("§ 20 para. 2). However, there are also other disturbances
in an obligation (e.g. the item owed is lost by accident). Insofar as the concept of breach
of duty, on the other hand, deviates from conventional usage, is purely objective (i.e.
abstracting from any subjective accusation as falling behind the program of duties of the
obligation) is understood,1 is a factual difference to that

the non-performance i. S. improper fulfillment is not given
(for the fulfillment of obligations within the meaning of § 280 Para. 1 "§ 22 Rn. 51).
II. Types of breaches in the obligation

3
Disturbances in the contractual relationship come in various
forms. So the performance can fail at all. The
Non-performance can be final (impossibility of performance) or
temporary (delay in performance or default on the part of the debtor
or default in acceptance by the creditor). Furthermore, there is
Possibility that the debtor will perform but not properly (poor
performance). Finally, a breach of the contractual obligation can
also consist of a breach of a duty to protect (section 241 (2)).
Examples: The vase to be delivered is destroyed before delivery (impossible). The

contract on 1.2. The vehicle owed will only be delivered on 15.2. delivered (debtor's
default). The creditor does not collect his portrait as agreed (creditor's default of
acceptance). The owed tailored suit is
two sizes too big (poor performance). The master painter damaged
the front door of the customer during the work (violation of a duty to protect).
4 In a broader sense, this also includes cases in which the

The business basis of the obligation itself is disturbed because
the circumstances underlying the conclusion of the contract
subsequently changed or the circumstances assumed by the parties
actually did not exist.
1 Bundestag printed paper 14/6040, 92 (134).
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Section 21. Overview of disruptions in the contractual relationship 241
III. Legal basis

The default law regulates the requirements and the legal consequences 5
of defaults. It has been fundamentally redesigned in the course of
modernizing the law on guilt. Until December 31, 2001, impossibility
(sections 275, 280 ff., 307 f., 323 ff. old version), default by the debtor
(sections 284 ff., 326 old version), default by creditors (sections 293 ff.)
and the liability for material defects (e.g. in the case of purchase §§ 459
ff. old version) is regulated independently, while the pVV, the cic and the
omission of the basis of the contract are not regulated at all.
The law that has been in force since January 1, 2002 attempts to 6
regulate the various types of defaults comprehensively and, if possible, in
common regulations. These are primarily classified according to legal
consequences. There are now general provisions on claims for damages
and reimbursement of expenses (sections 280, 284) and on withdrawal
(sections 323 et seq., 346 et seq.). In addition, there are special provisions
for impossibility (sections 283, 326), default by the debtor (sections 286 et
seq.) and default by the creditor (sections 293 et seq.) and for disruption
of the basis of the contract (section 313). In the special law of obligations,
the law also makes supplementary provisions on the rights to defects (e.g.
§§ 437 ff. for the purchase contract,2 §§ 536 ff. for the rental contract,3 §§
633 ff. for the contract for work4).

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IV. Presentation of disruptions in the contractual relationship
7 The following presentation of the right to default is oriented

Contrary to the legal system, they are not aware of the various
legal consequences, but of the types of disruption in the
contractual relationship. This corresponds to the question when processing
legal case. It is true that one or more specific legal consequences
are regularly asked for. But examining this
Legal consequences are always based on the given
circumstances, such as non-performance, late performance,
poor performance or a breach of the duty to protect.
§ 22. Impossibility of performance
1 Literature: Armbrüster/Prill, debt contracts in times of the corona pandemic, JuS 2020,
1008 and 1144; Bacher, The corona pandemic and the general rules on performance
disruptions, MDR 2020, 514; Benicke/Hellwig,
The system of liability for damages due to breach of duty,
NJW 2014, 1697; Bernhard, The gross disproportion in § 275 Abs. 2 BGB,
JURA 2006, 801; Canaris, The treatment of impediments to performance for which we are not responsible
according to Section 275 (2) of the German Civil Code when purchasing units, JZ 2004, 214; ders., the
Significance of the transfer of the risk of consideration within the framework of § 243 II
BGB and § 275 II BGB, JuS 2007, 793; ibid., The continued existence of the claim
to the consideration according to § 326 paragraph 2 BGB due to the responsibility of the
buyers, FS Picker, 2010, 113; Dötterl, The responsibility of the creditor,
ZGS 2011, 115; Dubovitskaya, Absolute Fixed Deals, AcP 215 (2015), 581;
Finn, Obligation to perform and impediment to performance, 2007; Friday, legal consequences
the impossibility and unreasonableness of the service, NJW 2014, 113; Gruber, Modernization
of the Law of Obligations 2001/2002 – The one for which both parties are responsible
impossibility, JuS 2002, 1066; Grundmann, The claim for damages
from contract, AcP 204 (2004), 569; Gsell, The relationship between resignation and
Compensation for damages, JZ 2004, 643; Haberzettl, guilt and promises,
2006; Hauck/Stephan, Legal consequences of canceling and relocating a sports event, JuS
2012, 585; Heckel, Claims and objections in the “new” performance disruption law, JZ 2012,
1094; Heyers/Heuser, Qualitative impossibility
– an unrecognized legal figure, NJW 2010, 3057; Hirsch, compensation instead
of performance, JURA 2003, 289; Hoffmann, Impossibility during the course of an internet
auction, ZIP 2017, 449; Huber, damages instead of that
Performance, AcP 210 (2010), 319; Katzenstein, Liability for non-performance
§ 311a paragraph 2 BGB, JR 2003, 447; Keilmann, To the burden of the obliging one - study
on the distribution of the burden of proof in § 280 I BGB, 2006; Körber, The Right
https://doi.org/10.17104/9783406758829-239
§ 22. Impossibility of performance 243
breaches of duty in the general law of obligations – part 2, JURA 2015, 554;
Kohler, Breach of duty and having to be represented – the legal consequences of
the new § 280 Para. 1 BGB, ZZP 2005, 25; idem., Contested impossibility of
performance and being responsible for § 275 BGB – process situation
and Substantive Law, AcP 205 (2005), 93; idem., Problems of fault-based liability for
damages according to § 311a Abs. 2 BGB, JURA 2006,
241; Lehmann/Zschache, The deputy commodum, JuS 2006, 502;
Liebscher/Zeyher/Steinbrück, Right to performance disruptions in the light of
COVID-19 Pandemic, ZIP 2020, 852; Löhnig, The prerequisites for the right to refuse
performance according to Section 275 (2) BGB, ZGS 2005, 459; Looschel ders,
"Impossibility" and damages instead of performance, JuS 2010, 849;
S. Lorenz, On the delimitation of partial performance, partial impossibility and
partial bad performance in the new law of obligations, NJW 2003, 3097; i.e.,
Compensation for damages in lieu of performance, assumption of profitability and
reimbursement of expenses in warranty law, NJW 2004, 26; ders., basic knowledge
- civil law: What is a breach of duty (§ 280 I BGB)?, JuS 2007, 213; idem., Arguing
and material defects - On the concept of breach of duty in § 323 V 2 BGB,
NJW 2006, 1925; ders., basic knowledge - civil law: types of damage in the
Breach of duty (§§ 280 II, III BGB), JuS 2008, 203; Musielak, The exclusion of the
obligation to perform according to § 275 BGB, JA 2011, 801; Peukert, § 326
Para. 1 S. 2 BGB and the reduction as a general legal remedy, AcP 205
(2005), 430; Reichenbach, The constituent element of the breach of duty in
new default law, JURA 2003, 512; Reischl, basic cases for
new law of obligations, JuS 2003, 453; Schroeter, Satisfaction of the interest in
performance in money: The damages demanded “instead of performance” in
modernized law of obligations, AcP 220 (2020), 234; Schulze/Ebers, Disputes in the
new law of obligations, JuS 2004, 265; Schur, damages after final
Conviction to Performance, NJW 2002, 2518; i.e., liability of the seller
selling stolen items online, ZAP 2006, 111; Black people, impossibility, inability and
similar obstacles to performance in the new law on default in performance, JURA
2002, 73; M. Stürner, "Factual Impossibility" (§ 275
II BGB) and disruption of the business basis (§ 313 BGB) - impossible to distinguish?,
JURA 2010, 721; Sutschet, liability for initial inability,
NJW 2005, 1404; idem., Exchange and difference theory after the guilt law reform,
JURA 2006, 586; Tettinger, Initially or Later? –
The impediment to performance occurring between the offer and the conclusion of the contract,
ZGS 2006, 452; Breach of values, The application of § 275 BGB to operational
disruptions in work contracts, ZGS 2003, 53; Wieser, Simultaneous Complaint
Performance and compensation from § 281 BGB, NJW 2003, 2432; Wilhelm, Die
Breach of duty under the new law of obligations, JZ 2004, 1055; Wolf/Eckert/
Gerking/Künnen/Kurth, The Civil Law Effects of the Covid-19
Law - an overview, JA 2020, 401; Zieglmeier, The New “Rules of the Game”
of § 280 I 2 BGB, JuS 2007, 701; Zwirlein, The right to refuse performance
from § 275 II 1 BGB, JA 2016, 252.
See also the evidence for "§ 21.
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Case a: S makes a specific commitment to G in the purchase contract

transfer of original painting. After the conclusion of the contract, the picture will be destroyed by
fire. G demands EUR 200 from S, which he paid to an expert called in when the contract was
concluded, as well as a further EUR 500,
since he could have sold the painting for a profit of that amount.
" Paragraphs 4, 12, 53, 54, 57, 71, 74, 76
Case b: What is the legal situation if the authorized signatory of the S takes the picture according to Ver
sold and transferred to X at the end of the contract? " Paragraphs 7, 12, 53, 54
Case c: What applies if the image has already been damaged by fire upon conclusion of the contract
nothing was? " Paragraphs 4, 10, 54, 66, 69
Case d: Does something change if the picture is already dated before the conclusion of the contract?
authorized signatory of S has been sold to X? " Paragraphs 7, 10, 54, 66, 68
Case e: V rents a holiday home to M. M transfers the in advance
Agreed rent to V. Even before M’s arrival, a pandemic-related ban on accommodation is issued
by statutory order, from
which also includes V's holiday home. What are the consequences?
out of it for the duties of V and M? " Paragraphs 4, 30, 48, 53
If the debtor does not perform at all for the reasons stated in
Section 275, in particular because it is not possible for him to perform
the question arises as to what effects the impossibility has on the
debtor's obligation to perform and on the creditor's obligation to
perform in return. In addition, it is necessary to examine
whether and under what conditions the creditor can demand
compensation for damages or reimbursement of futile expenses
instead of the impossible performance. After all, it is contractual
Obligations (in the case of mutual contracts) of interest, whether
the creditor withdraws from the contract because of the impossibility
can solve the contract.
I. Effects on the primary performance obligations

2 In principle, performance disruptions have no immediate effect
Influence on the primary performance obligations ("§ 2 Rn. 5 ff.).
The creditor's claim to performance remains in place until he
Remedy asserting the performance by the debtor
excludes (in particular withdrawal and damages instead of
Power). Only if the provision of a service is not possible
is, a corresponding obligation of the debtor cannot exist
(§ 275 para. 1: impossibilium nulla est obligatio, "Rn. 3). Can the
Debtors only under a grossly disproportionate performance
Effort or is the fulfillment of a personally to him
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rendered service unreasonable, he can refuse the service

(§ 275 para. 2 and 3, "Rn. 18 ff., 22 ff.). In all three cases
the whereabouts of any surrogate (§ 285, "Rn. 25 et seq.) and -
in the mutual contract – the impact on the contractual
Obligation to perform in return must be clarified (§ 326, "Rn. 29 et seq.).
1. Exclusion of the obligation to perform in the event of impossibility (section 275 (1))
Pursuant to Section 275 Paragraph 1, the right to performance is 3

excluded if it is impossible for the debtor or anyone else.
The creditor cannot therefore demand performance in kind. It
This is an official objection to be considered.
Impossibility within the meaning of Section 275 (1) only exists if the
service cannot be provided under any circumstances. This only deviates
from the legal situation before the reform of the law of obligations
captures the “genuine”, “real” impossibility. If the performance is at
least theoretically possible, Section 275 (1) is ruled out. In these cases,
however, an objection against the
claim for benefits. With § 275 para. 1 everyone can now
Types of impossibility are recorded.
a) Objective and subjective impossibility. § 275 paragraph 1 regulates 4
first of all, both the objective (“for everyone”) and the subjective
impossibility (“for the debtor”).
aa) Objective impossibility
Objective impossibility exists when the performance of no one
people can be provided.
(1) It is given when the performance according to the laws of nature
or according to the state of the art in science and technology
absolutely cannot be provided.1 Such a case typically occurs when the
item owed no longer exists (cases
a and c: destruction of the image). But legal reasons can also make
the service impossible, for example if the sale of the
Subject, the rental of a holiday home during a
Pandemic (case e) or the fulfillment of the work obligation by law
or prohibited by the authorities (so-called legal impossibility).
In the case of a generic guilt ("§ 8 Rn. 1 ff.) there is only objective impossibility 5
in case of loss of the entire class, unless the seller has the
1 BGH NJW 2011, 756; on this Faust JuS 2011, 359; Pfeiffer LMK 2011, 314413; diaper
ZGS 2011, 218.
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Generic guilt transformed into a piece guilt by concretization (§ 243

Paragraph 2, "§ 8 Rn. 6) or the risk of performance has passed to the creditor in
accordance with § 300 paragraph 2 due to the creditor's default of acceptance. The same applies
for the reserve debt as a limited generic debt ("§ 8 para. 1).
In the case of a service, objective impossibility lies about then

if the debtor promises the use of supernatural or "magical" powers.2
However, if the interpretation of the contract shows that the use of
magical powers is not owed, but only entertainment similar to a
fairground, there is no impossibility
before.
6 (2) As a rule, late performance does not lead to impossibility; it only

solves the consequences of the debtor's default (" § 23 para. 30 et seq.,
50 ff., 56, 70 ff., 73 ff.). According to the type of service agreed
However, a certain performance time can be so essential that the
service can only be provided at the agreed time and later
cannot be made up for. Here occurs in case of non-compliance
time impossibility (absolute fixed date).
Examples: The obligation to enable a video recording of the carnival procession of a

certain year can only be fulfilled at the time of the procession on Shrove Monday. If the
employee is involved in a production process (e.g. assembly line assembly), he cannot
make the missed shift
repeat. Arranging a taxi ride for a specific time, around a specific train or train, is also
classified as an absolutely fixed transaction
Flight to reach.3 However, this only applies if a delayed journey does not
makes more sense. If, on the other hand, a later train or flight is also possible,
so that the interests of the creditors are also satisfied by a delayed taxi ride
can be made, there is no impossibility but default. The taxi orderer can then hold on to his
claim for performance and additionally under
demand compensation for the damage caused by the delay in accordance with the requirements of
Sections 280 (1), 2, 286.
bb) Subjective impossibility

7 Subjective impossibility exists when the performance is
a third party, but - for factual or legal reasons -
cannot be provided by the debtor (so-called inability).
(1) Here, too, Section 275 (1) only applies if the debtor
cannot even theoretically eliminate the obstacle to performance.
Accordingly, there is no inability if the debtor shows his Leis
2 BGH NJW 2011, 756 (card reader).

3 Palandt/Grüneberg BGB § 271 para. 17.
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viability - for example through procurement or replacement -

can produce.
Examples: The book owed was stolen, and the search for the
Thief is hopeless. Then the debtor can still assign it
(§ 931), but no longer handed over. But since the thief is able to
there is no objective but subjective impossibility. Even that is missing
it if the thief is known and the debtor recovers it
can (until then only temporary impossibility). – The picture owed
no longer belongs to the debtor; it can therefore no longer be received from the debtor
be transferred. There is no objective impossibility because the owner is able to transfer
ownership (cases b and d). If the owner is willing to sell the picture to the debtor, there
is no subjective impossibility.
(2) The mere financial inability to perform or to establish his ability to pay 8th
does not release the debtor from his

obligation to perform. The rule “you have to have money” applies. Inability
to pay therefore does not lead to inability. For representation, see "§ 20.
(3) In the case of highly personal performance obligations, a circumstance 9

which makes the debtor unable to perform the performance also constitutes
an objective impossibility.
Example: The employee is unable to work due to illness. The employee

does not have the permit (driving or work permit) required to fulfill his or her work
obligations. In this case, another person cannot provide the service either (cf. § 613
sentence 1).
b) Initial and subsequent impossibility. According to the wording of the 10

law (“is impossible”), it is irrelevant for the exclusion of the obligation to
perform when the impediment to performance occurred.
aa) Initial (= original) impossibility

Initial or original impossibility exists when the
Impossibility already exists when the obligation arises.
Example: The picture owed was already destroyed when the contract was concluded
or has already been transferred to a third party who is not willing to surrender (cases c
and d).
§ 311a paragraph 1 expressly makes it clear that the effectiveness of a 11

The contract does not prevent the debtor according to § 275 para. 1-3
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does not have to perform and the impediment to performance already exists when
the contract is concluded.
In this case, a contract without a primary obligation to perform is created. However, the
contract is the basis in particular for the claim for damages instead of performance according
to § 311a Para. 2 (“Rn. 64 ff.). In addition, claims for the surrogate (“Rn. 25 ff.), for
reimbursement of expenses (“Rn . 71 f.) and - in the event of a temporary impossibility -
even insist on the primary service (" para. 16). The legal situation was different until the
reform of the law of obligations in 2002. According to § 306 old version, a contract that was
aimed at an initially impossible service was void.
bb) Subsequent impossibility

12 Subsequent impossibility exists if the impossibility
only occurred after the formation of the obligation.
Example: The image owed will be destroyed after the conclusion of the contract or sent to
transferred to a third party who is not willing to hand it over (cases a and b).
13 c) Partial and total impossibility. The primary performance

obligation is excluded according to § 275 paragraph 1 if the
performance is impossible. The norm thus covers both complete
and partial impossibility. The prerequisite is, of course, that the
service can be divided. The consequence of the partial impossibility
is basically the release from the primary obligation to perform with
regard to the impossible part of the service.
Example: A chair from the owed antique seating group is destroyed by fire. Then the
obligation to perform is limited to the remainder – but the creditor may be entitled to withdraw
from the entire contract (§§ 326 Paragraph 5, 323 Paragraph 5, "Rn. 81 ff.).
14 In the case of the so-called qualitative impossibility4 , however,

partial impossibility is exceptionally equated with complete
impossibility. Qualitative impossibility exists if a defect in a
purchased item cannot be remedied. In this case, the purchase
contract is effective (§ 311a; "Rn. 64), but the seller is released
from his obligation to deliver a defect-free item and to supplementary
performance according to § 275 paragraph 1 (cf. § 437 No. 2 , 3)
5. The same applies to the work contract (cf. § 634 No. 3, 4).6
4 Cf. Heyers/Heuser NJW 2010, 3057; Looschelders SchuldR AT § 22 para. 17; Lorenz/
Riehm New Debt Regulation, para. 302.
5 See also Brox/Walker SchuldR BT § 4 paras 43, 56, 97.
6 See also Brox/Walker SchuldR BT § 24 paras. 16, 37.
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d) Responsibility and non-responsibility impossibility. 15

According to Section 275 (1), it is ultimately irrelevant for the loss of the
primary obligation whether the debtor is responsible for the impossibility within
the meaning of Sections 276 et seq.
That is also appropriate; because even if the debtor has intentionally destroyed
the owed purchase item, for example, he can no longer deliver it.
e) Temporary and permanent impossibility.

aa) Temporary impossibility
For the temporary impossibility there is no special one 16
Regulation. The legislature has left the legal treatment of the temporary
impossibility of the judiciary and science.7
However, since it would be inappropriate to oblige the debtor to perform

condemn, which at the moment is not even theoretically enforceable,
one becomes in any case § 275 with regard to the primary obligation to perform
have to apply. The enforcement of the obligation to perform is then
inhibited as long as the obstacle to performance exists. A lawsuit is in
dismiss such cases as temporarily unfounded, provided
not in exceptional cases the prerequisites for an action for future ones
Services (§ 259 ZPO) are available.
Example: The debtor's factory from whose production the delivery he

should follow has been put out of operation for two months by a fire.
The creditor is not unreasonably burdened by this. Also

his obligation to provide consideration is suspended in accordance with Section 326 (1) sentence 1
(“Rn. 30 et seq.).
bb) Transition to permanent impossibility
In individual cases, however, it must be checked whether the temporary 17
impossibility should be equated with the permanent one. That is the case when
the attainment of the purpose of the contract is called into question by the
temporary impossibility and compliance is therefore required by one or the
other contractual partner in accordance with the principle of good faith and
after fair consideration of the interests of both contractual parties
of the contract cannot be expected.8 For the assessment
the decisive factor is the point in time at which the impediment to performance
occurred.
7 Bundestag printed papers 14/6857, 11; 14/7052, 185.

8 BGHZ 47, 48 (50 ff.); 83, 197 (200 f.).
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Example: If the fulfillment of the obligation to perform is prevented by the outbreak

of war, neither the debtor nor the creditor can be expected to be willing to perform
until the unforeseeable end
ten.
2. Exclusion of the obligation to perform in the case of grossly disproportionate

Expenses (§ 275 Para. 2)
18 a) Performance expenses and creditor interests. While the obligation to

provide benefits pursuant to Section 275 (1) expires automatically, Section 275 grants
Paragraph 2 (as well as paragraph 3) the debtor an objection,
if the performance requires an effort that is in a rough
Disproportionate to the (economic or non-material) performance interest
of the creditor. Section 275 (2) applies to all performance obligations,
regardless of whether they are based on a contract
based on a legal obligation or generally on a legal obligation.9
19 b) proportionality test. In order not to weaken the principle of contract

binding, Section 275 (2) must be real
Extreme cases remain limited. The disparity must reach an almost
intolerable level. In the case of the necessary proportionality test in
individual cases, according to Section 275 (2) sentences 1 and 2
in addition to the requirements of good faith, a possible one
accountability of the debtor and the content of the debt relationship must
be taken into account.
If the debtor is responsible for the obstacle, it is appropriate if

he has to make increased efforts to overcome it,10 which of course does not mean
that he otherwise owes no effort at all.
It already follows from the way the contract is interpreted that the debtor only
owes very little or above-average effort
let the parties stick to it.
20 Section 275 (2) is intended to cover cases in which performance is

opposed by an objective obstacle which, although theoretically possible,
cannot be removed by any reasonable creditor seriously
can be expected.
In Section 275(2), the famous ring at the bottom of the lake is referred to as the
Textbook example of the previously so-called factual impossibility classified
9 BGH NJW 2008, 3122 (3123) (Right to refuse performance in relation to a claim from
§ 1004).
10 Cf. BGH NJW 2008, 3122 (3123).
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not. The same applies if a third party is the owner of the item owed and
only wants to sell them to the debtor at a utopian price. - Something
However, the situation may be different if the debtor undertakes to remove the
obstacle (e.g. purchase of a famous painting from the current
Owner; salvaging something from a sunken ship) or when he
culpably caused the impediment to performance.
c) Distinction from economic impossibility. Not under 21

§ 275 para. 2, on the other hand, falls according to the explanatory memorandum11 of the law
Fact of the previously so-called economic impossibility, in which the
provision of the service is less problematic than in the case of actual
impossibility, but still with so
significant expenses that they owe the debtor
is unreasonable. One speaks here of over-mandatory
Difficulties that are beyond the sacrifice limit. Here it is
Equivalence of performance and counter-performance disturbed. the
Cases are therefore to be treated (as was the case before the new
version of the right to disruption of performance) according to the
principles of disruption of the business basis (§ 313; see "§ 27). This is to be justified
Delimitation with the fact that according to § 275 Para. 2 S. 1 only the
ratio between the effort required for the service and the
The creditor's interest in performance is decisive, while the debtor's
interests, which are significant in the event of economic impossibility,
are not included in the weighing.12 Are the parties involved
Conclusion of the contract based on a false assumption (e.g. a false
stock market price) or if the circumstances have changed significantly
later (e.g. significant tax increase), the performance obligation can be
based on the correct or changed business basis
be adjusted, thereby avoiding the rigid legal consequences of Section
275 (2).
The general provision of Section 275 (2) is supplemented by the special

provisions of Sections 439 (4) and 635 for purchase and work contract law
paragraph 3.
3. Exclusion of the obligation to perform if unreasonable max

personal benefits (section 275 (3))
Pursuant to Section 275 (3), the debtor can also refuse performance 22
to be rendered in person by raising an objection.
11 BT-Drs. 14/6040, 130.

12 BT-Drs. 14/6040, 130.
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gladly if they weigh up the impediment to his performance with the

creditor's interest in performance
cannot be expected.
The provision contains a special regulation for personal performance
obligations and therefore primarily applies to service and employment
contracts (cf. § 613 sentence 1). In these cases – different
than in § 275 paragraph 2 - not only objective, but also personal
Circumstances and interests of the debtor to exclude the
obligation to perform and not only in the context of the disruption of
the business basis (§ 313, see "§ 27) consideration
Find. However, here too, such an exclusion can only be considered in
extreme cases (cf. "Rn. 19). Section 275 (3) should also be considered
as § 275 para. 2 ("Rn. 20) resign if the debtor is in
knowledge of the impediment to performance.
23 The case of the previously so-called moral impossibility is exemplary.
One speaks of this when the debtor because of
in a predicament for non-economic reasons
the performance cannot be expected.
Examples: The singer's wife is dying. The foreign worker is called up for military service
in his home country and has to
face the death penalty for non-compliance. A Bundesliga soccer match
is canceled shortly before the start of the game because of a suicide attempt by the
referee.13 - On the other hand, the refusal to perform, the fulfillment of which
Debtors would fall into conflicts of conscience, to be treated as a disturbance of the
business basis (§ 313, see "§ 27).14 This differentiation
not convincing. It seems more correct to include the refusal to work for reasons of
conscience under Section 275 (3).15
24 Section 275 (3) is also intended to cover necessary visits to the doctor, the necessary
Care for seriously ill relatives, as well as the charge
to authorities and court appointments.
4. The claim to the surrogate (Section 285 (1))

25 Literature: Hammen, representative commodum in the event of initial impossibility for
everyone?, FS Hadding, 2004, 41; Hartmann, The claim
on the deputy commodum, 2007; Linardatos/Russmann, The claim to the representative
commodum in the event of the impossibility of restitution,
JURA 2013, 861.
13 On the legal consequences Hauck/Stephan JuS 2012, 585.

14 BT-Drs. 14/6040, 130.
15 Cf. Looschelders SchuldR AT § 21 para. 28; Lorenz/Riehm new debt regulation, para. 311.
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If the debtor is already under Section 275 of his obligation to perform

is freed, on the other hand he should not be allowed to keep what
what he obtains in place of the item owed (the so-called representative
commodum). Therefore, § 285 paragraph 1 determines that the
Creditor Surrender of what was received in lieu or assignment
of the claim for compensation if the debtor does not have to perform
under Section 275 Paragraphs 1-3.
This is a claim to the surrogate, not 26
against a claim for damages. So the believer has
not to show damage, § 285 para. 1 only requires that
the circumstance that made the performance impossible also caused
the surrogate adequately (§ 285 Para. 1: "as a result of the circumstance").
Example: A claim for damages against the arsonist or a claim against the
insurance company based on the insurance contract takes the place of the picture
destroyed by fire. The debtor has
Assign the claim to the creditor or return what has been received (e.g. the sum
insured) to the creditor.
The purpose of Section 285 (1) is to transfer assets to the person to 27

whom they are economically entitled.16 That is why the representative
commodum not only includes what the debtor does instead of
destroyed or stolen property (commodum ex re), but also what the
debtor achieves as consideration through a legal transaction (commodum
ex negotiatione)17.
Examples: The item owed has already been sold and transferred to a third party
who is not willing to surrender it. The purchase price achieved is
Section 285 (1) to be handed over to the creditor, even if a special profit has been
made. With a double rental of commercial space
the non-owning (first) tenant can be handed over by the landlord according to § 285
of the rent achieved by the (second) tenant. But that doesn't apply if
the non-owning tenant should not have used the rented property in the same way as
the owning tenant;18 because in this case the rent obtained is
not taken the place of the owed transfer of use.
If the creditor makes use of his right under section 285 (1), 28
his damage is reduced, which he can demand compensation according to §§ 280, 283
can (“margin no. 50 et seq.) to the value of the surrogate (§ 285 para. 2).
16 RGZ 120, 347.

17 Cf. BGHZ 46, 264; BGH NJW 1983, 930.
18 BGH NJW 2006, 2323 (2324 f.).
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5. Exemption from the obligation to provide consideration (Section 326)
29 The previous discussions about the exclusion of the obligation to

Performance pursuant to Section 275 Paragraphs 1-3 also apply in principle
to mutual contracts (" Section 3 para. 2). However, these contracts are not
just about the question of how the impossibility affects the debtor's
obligation to perform ( e.g. transferred purchased item),
but also the consequences for the claim to consideration (e.g. payment of
the purchase price).
30 a) Loss of the obligation to provide consideration (Section 326 (1)). At the
mutual contract, the creditor promises his consideration
only because the debtor also undertakes to perform. If the debtor is
released from the obligation to perform pursuant to Section 275 (1-3), the
creditor can no longer remain obliged either.
Therefore, pursuant to Section 326 (1) sentence 1, there is no claim to
consideration. The creditor does not need his consideration either
provide. He therefore bears the risk of performance, while the debtor bears
the risk of consideration or price.
Examples: The car that was sold was destroyed by flooding. The buyer
has no claim against the seller; he does not need the purchase price
numbers. – Has the car already been transferred and handed over to the buyer?
(cf. § 433 para. 1 sentence 1) and if it is then destroyed, §§ 275, 326 are not
applicable; because the seller has fulfilled his obligations under the purchase contract.
The buyer must pay the purchase price; he bears as the owner
the danger of accidental sinking (“casum sentit dominus”). - If in
If it is legally impossible for V to transfer the holiday apartment to M because of the
pandemic-related ban on accommodation, he will be admitted according to
§ 275 paragraph 1 free from his obligation to use, but he loses
according to § 326 paragraph 1 also his claim to payment of the rent.
Section 326 (1) sentence 1 has the following requirements:

aa) Mutual contract with services in a reciprocal relationship
31 There must be a mutual contract. In addition to the statutory obligations,

this does not include the only
unilateral or imperfect bilateral binding contracts
("§ 3 Rn. 3 f.) like donation (§ 516), guarantee (§ 765), loan
(§ 598) and mandate (§ 662). The agreed services must
as in § 320 (" § 13 para. 14) in a reciprocal relationship.
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The contract must be effective; otherwise no performance obligations arise

from it anyway. An initial objective impossibility does not prevent effectiveness
(§ 311a Paragraph 1, "Rn. 11). bb) Release from performance according to §
275 Paragraphs 1-3 The debtor does not have to perform according to §
275 Paragraphs 1-3. This is the case if performance is impossible (§ 275 32
Paragraph 1, "Rn. 3 et seq.) or he is entitled to a right to refuse performance
according to § 275 Paragraph 2 or Paragraph 3 and he also made use of it, ie
the objection has raised (" para. 18 ff., 22 ff.). It is irrelevant whether the debtor
is responsible for the obstacle to performance that released him.
If the debtor is only partially released from the obligation to perform, section 33
326 (1) sentence 1 also applies. The claim to consideration is reduced in the
same way as the purchase price is reduced in the case of a defective
purchased item (§§ 326 Paragraph 1 S. 1, 2nd Hs., 441 Paragraph 3).
Example: The trailer of the truck that was sold was destroyed by flooding.
The seller must deliver the motor vehicle that is still available. If the purchase
price for the trailer was 1/3 of the purchase price , the buyer has to pay 2/3 of
only the agreed purchase price. Regarding the right of withdrawal ", para. 84.
If the debtor's obligation to perform is only temporarily suspended, the 34

entitlement to consideration is also only suspended ("Rn. 16). cc) Exception
in the event of irremediable poor performance According to Section 326 (1)
sentence 2, Section 326 (1) sentence applies. 1 not if the debtor does not
need to provide supplementary performance in the event of non-contractual 35
performance in accordance with Section 275 Paragraphs 1 to 3. This refers to
the case of non-remediable performance defects.
Examples: V sells a plot of land to K. Before the conveyance, he grants D an

easement that she no longer wants to be bought from (§ 435).
A buys a painting from B. After delivery, he finds that it has now been irreparably
damaged (Section 434(1)).
The fulfillment of the claim for subsequent performance resulting from §§ 437 No.
1, 439 is not possible in the form of remedying the defect or subsequent delivery,
since each item is unique and has an unresolvable defect of title or quality. The claim
for subsequent performance is therefore excluded according to § 275 paragraph 1.
The legislator has made it clear with Section 326 Paragraph 1 Clause 2 36
that poor performance is not a (qualitative) partial performance within the
meaning of Section 326 Paragraph 1 Clause 1, 2nd half. This prevents the
purchase price from being reduced by law and the buyer also being entitled to withdraw
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is necessary. Both would contradict the evaluation of § 441. The buyer can
either keep the purchased item and reduce the purchase price according to §§
437 No. 2, 441 by means of a legal declaration or according to §§ 437 No. 2,
326 Para. 5, 323 Para 5 Clause 2 withdraw from the purchase contract. The
same applies to the customer in the case of a contract for work (§§ 634 No. 3
in conjunction with §§ 636, 326 Paragraph 5, 323 Paragraph 5 Sentence 2 or § 638).
37 b) Exceptions. There are various exceptions to the principle that the obligation
to perform also lapses with the obligation to perform in return
men.
aa) Responsibility of the obligee If the obligee
is solely or predominantly responsible for the circumstance due to which the
obligor does not have to perform pursuant to Section 275 (1) to (3), the obligee
retains the right to consideration (Section 326 (3) 2 p. 1, 1st case). The obligee
must therefore provide the consideration because the law for the protection of
the obligor assumes that the performance is deemed to have been fulfilled.19
Similar to Section 254, Section 326 (2) also imposes the obligation on the
obligee (cf. “ Section 2 marginal no 16, "§ 31 Rn. 37) not to place any obstacle
to the debtor's performance.
38 (1) The law does not say what the creditor is "responsible" for. The term
goes beyond mere causality. Without justification, it was substituted for the
creditor's obligation to represent the creditor, which was relevant under Section
324 old version. Apparently, the legislature did not intend to change the legal
situation. Therefore, Sections 276, 278 are still applicable accordingly,
especially since Section 276 (1) now also speaks of "responsibility" (albeit that
of the debtor).
39 What the creditor is responsible for depends primarily on the contractual risk
distribution (section 276 (1) sentence 1, 2nd half). For this reason, Section 326
(2) is also applied in the case in which the obligee expressly or implicitly
assumes the risk of the impediment to performance leading to the impossibility.20
Example: The creditor is in a contract with a card reader

Life coaching promise recognizing that the basics and
Effects of this activity according to the knowledge of science and
Technology are not demonstrable, but only an inner, not rationally explainable
19 Cf. Mot. II, 208.

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bare conviction.21 A waiver of the right to remuneration according to § 326 Para. 1

would not do justice to the content and purpose of the contract and the motives and
ideas of the contracting parties.
Otherwise, the creditor's liability can arise in particular from a

(deliberate or negligent, Section 276 (1) sentence 1,
1st Hs.) Violation of his main or secondary contractual obligations.
The creditor is responsible for the behavior of his assistants analogous
to § 278.
Examples: The creditor breaches his duty to prevent a required
official approval is granted. The managing director of the buyer intentionally or
negligently destroys the purchased item. The tenant violates
a duty of care, so that the transfer of use becomes impossible.
Whether the creditor for the obstacle to performance predominates 40

who is responsible must be determined by weighing up the liability of
the debtor. With this high standard wanted
the legislature22 define a degree of responsibility that
according to § 254 leads to the exclusion of the claim for damages
("§ 31 para. 50).
The case in which the creditor is responsible for the impediment to performance is not regulated 41
jointly responsible, but not predominantly responsible. There
the consideration is usually divisible, one is here with a reduction
can help according to the legal concept of § 254, as before
of the reform of the law of obligations in the case of those for which both sides are responsible
impossibility was true.23
(2) However, the debtor must allow what he 42

saves as a result of being exempted from the benefit or acquires or
maliciously fails to acquire through other use of his labor (section 326
(2) sentence 2; idea of equalization of benefits).
Examples: The seller saves the shipping costs due to the impossibility caused
by the buyer; the buyer can pay this amount from
deduct the purchase price. – The master painter has another job for a fee
carried out because he carried out his obligation to his customers
whose fault could no longer be fulfilled; he must allow the payment received to be
offset against his wage claim. Does he have the other job
not accepted because he harms his customers or because he
21 BGH NJW 2011, 756 (758).

22 BT-Drs. 14/6040, 187 to § 323 paragraph 6.
23 27th edition 2000, paragraph 270.
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The customer can also deduct the amount that the master painter would have made if the
other work had been carried out. bb) Default of acceptance by the obligee If the obligee is
not largely responsible for the circumstance that releases the debtor from his obligation to
perform under Section 275 (1)–3, this circumstance occurs at a time when the obligee
43 is in default of acceptance (Section 293; Section 26), the debtor also retains his claim to
consideration.
An exception applies if he himself is responsible for the circumstance within the

meaning of § 276 paragraph 1 sentence 1 (cf. "§ 20 para. 7 ff.) (§ 326 paragraph 2
sentence 1, 2nd case). Also here the consideration is to be reduced in accordance
with Section 326 (2) sentence 2 ("margin no. 42).
44 It should be noted that, contrary to Section 276 (1) sentence 1, the debtor is only
responsible for intent and gross negligence during the delay in acceptance (Section 300
(1)). He therefore retains the right to consideration even if he caused the impediment to
performance through slight negligence.
45 Section 446 , sentence 324 and Section 644, paragraph 1 , sentence 225 once again
contain express assignments of the risk of reimbursement to the buyer and the customer in
the event of default in acceptance. In terms of their scope of application, they coincide with
the general provision of Section 326 (2) sentence 1, 2nd case. cc) Surrender of the
compensation obtained If the creditor demands surrender of the compensation obtained

46 for the item owed or assignment of the compensation claim according to Section 285
("Rn. 25 et seq.), he must provide the consideration (Section 326 (3) sentence 1). However,
if the value of the compensation or the compensation claim falls short of the value of the
service owed, the consideration is reduced accordingly (sections 326 (3) sentence 2, 441
(3)).
Example: If the seller of the car has a claim against the insurance company and the
buyer demands assignment of this claim because it exceeds the purchase price, he must
pay the purchase price.
However, if the sum insured only covers 2/3 of the value of the car, the
buyer is only obliged to pay 2/3 of the agreed purchase price.

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dd) Exceptions in sales, service and work contract law The law
makes further important exceptions to the regulation of § 326 Para. 1 47
Clause 1, in which the claim to the consideration remains.
Examples: Despite the loss of the claim to the performance that has become
impossible (e.g. delivery of the purchased item, production of the work, performance
of the work), the creditor is not released from the consideration (payment of
remuneration) if - the purchased item has already been handed over to the buyer
(Section 446 sentence 1)26, – the purchased item or the work has been shipped to
a place other than the place of performance at the request of the buyer or the
customer (for the purchase: Section 447 (1) [restriction on the sale of consumer
goods: Section 475 2]27; for the work contract: Section 644 Section 2), the
employer bears the risk of loss of working hours (Section 615 sentence 3)28, -
the person obliged to provide the service for a relatively insignificant period of
time through no fault of his service is prevented (§ 616)29.
In these cases, the creditor bears the so-called compensation risk.
c) reclaiming the consideration (Section 326 (4)). If the creditor has 48

rendered the consideration, although he has been (partially) released from
it in accordance with Section 326 (1) sentence 1, he must (insofar) have it
reimbursed. For this, Section 326 (4) refers to the rescission provisions of
Sections 346-348 ("Section 18 para. 17 et seq., reference to legal consequences).
In case e, M, who is not owed the rent according to Section 326 (1), can already
had transferred, reclaim them (§§ 326 Para. 4, 346 Para. 1).
II. Damages instead of performance
If the creditor does not receive the agreed performance from the debtor 49
due to impossibility and therefore demands compensation, it is always
compensation “instead of the (e.g. impossible) performance”. The conditions
under which such a claim exists depend on whether the impediment to
performance only occurred after the contract was concluded or was already
present at the time the contract was concluded.

27 Brox/Walker SchuldR BT § 7 para. 4 f.
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1. Damages due to subsequent impossibility (§§ 280

paras. 1, 3, 283)
50 Legal basis for a claim for damages instead of

Performance due to subsequent impossibility are §§ 280
Paragraphs 1, 3, 283.
a) Requirements. The requirements for the claim result from

Section 280 (1) and on the basis of the reference in Section 280
Paragraph 3 additionally from § 283.
aa) Obligation
According to § 280 paragraph 1 between the claimant and the
the opposing party has an obligation. So are both
legal as well as legal obligations.
In the case of contractual obligations, it does not matter whether it is
are mutual or unilaterally binding contracts. the
Reciprocity is not for the claim for damages, but
only for the application of §§ 320 et seq. of importance. In the end
unilateral obligations, eg based on a legacy, are also covered by
Section 280 (1). A pre-contractual obligation within the meaning of
Section 311 (2) with duties to protect is not sufficient
according to § 241 paragraph 2 (see "§ 5); because damages "instead of
performance" presupposes an obligation with obligations to perform.
bb) Breach of duty
51 In which the violation of a duty required under Section 280 (1).
from the debt relationship is disputed.30 If one
Breach of duty in the traditional sense defined as behavior contrary
to duty ("§ 20 para. 2, "§ 21 para. 2), it can only lie in the bringing
about of the impossibility. This is also widely represented.
Consequence of this view is that it is about at a through
impossibility caused by natural events, there is no breach of duty
by the debtor. However, the legislature has evidently given a
different meaning to the breach of duty in Section 280 (1). According
to this, the breach of duty lies in the impossibility
already in the fact that the debtor does not provide the service
owed. It may even be such a breach of duty in itself
to not give; because if the debtor according to § 275 paragraphs 1-3 of his
obligation to perform is released, there is no longer an obligation to perform
could be violated by non-performance. But through the Ver
30 For the status of opinion, see MüKoBGB/Ernst § 280 para. 10 ff.
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In referring to the requirements of Section 280 (1) in Section 283, the

legislature has made it clear that non-performance due to impossibility
(Section 275 (1)) or because of a right to refuse performance under Section
275 (2) and (3) can trigger a claim for damages for breach of duty and
should therefore be regarded as a breach of duty.31 Accordingly, the cause
of the impossibility does not play a role in the breach of duty, but only when
the debtor has to be represented (" marginal number 53).
According to this concept of the legislature, the breach of duty in Section 280 (1),
which is to be examined not only in the case of impossibility, but in all claims for
damages due to disruptions in the contractual relationship, has hardly any independent
meaning. Rather, it includes any objective failure of the debtor's behavior to comply
with the program of obligations arising from the contractual obligation. The breach of
duty is therefore merely the collective term for non-performance due to impossibility,
for delay in performance ("§ 23 para. 3), poor performance ("§ 24 para. 10) and breach
of the duty to protect ("§ 25 para. 3). Although this understanding of the breach of duty
is dogmatically objectionable and hardly reconcilable with the fact that there must be a
breach of duty before the allegation of fault can be examined ("§ 20 para. 2 f.).
However, the legislature was already aware of the criticism during the legislative
process. Therefore, his concept is used as a basis for the further explanations.
What kind of performance the debtor from one of the mentioned in § 275 52
Para. 1-3 does not provide the reasons mentioned, does not matter.
Examples: If the seller is unable to transfer ownership of the purchased item because
the purchased item was destroyed after the conclusion of the contract, the buyer is
entitled to a claim for damages in accordance with Sections 437 No. 3, 280 Paragraphs
1, 3, 283.32 The same applies if the purchased item is transferred, but the seller
violates his obligation under § 433 Paragraph 1 Sentence 2 to procure a purchased
item free of material defects because this was afflicted with an irremediable material
defect after the conclusion of the contract.33
cc) Responsibility The

debtor must be responsible for the impediment to performance that 53
triggers the legal consequences of Section 275. This is based on § 276 (see
"§ 20). He must have caused the impossibility or the reasons mentioned in
§ 275 paragraphs 2, 3 culpably or not prevented it. The culpability of an
assistant is the debtor
31 BT-Drs. 14/6040, 142.

33 Brox/Walker SchuldR BT § 4 para. 101 f.
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attributed according to § 278 (case b). The fact that the debtor has to be
represented does not have to be positively established. Rather, it is
presumed by law pursuant to Section 280 (1) sentence 2. The debtor must
therefore relieve himself.
Examples: Such relief is possible, for example, if the seller, as the debtor of the obligation
to transfer ownership, can submit that the transfer of ownership of the purchased item is
impossible for him because it was stolen despite adequate security or was destroyed in a
fire caused by lightning (case a) - the landlord , who is not allowed to leave the rented
holiday home to the tenant due to a pandemic-related ban on accommodation (case e), is
also not responsible for this legal impossibility ("Rn. 4). - The debtor is also not responsible
for the impediment to performance if the creditor has removed it by way of self-remedy.
dd) Exemption of the debtor from the obligation to perform pursuant to

Section 275 Pursuant to Section 283 sentence 1, the debtor must be
54 released from his obligation to perform pursuant to Section 275 (1-3).
The exemption from performance can be based on objective (cases a, c)
or subjective impossibility within the meaning of Section 275 (1) (cases b,
d, "Rn. 4 et seq.). However, release from the primary obligation to perform
due to disproportionate effort is also covered according to § 275 Section
2 ("Rn. 18 ff.) and because of unreasonableness in the case of highly
personal services according to § 275 Section 3 ("Rn. 22 ff.), if the debtor
refuses to perform for one of these reasons. ee) Post-contractual The
impediment to performance that triggers the legal consequences of
Section 275 Paragraphs 1-3 must have occurred after the conclusion
55 of the contract.While this cannot be inferred from the wording of
Sections 280 Paragraphs 1, 3, 283, it follows from Section 311a by
implication Para. 2, which is exclusively applicable as a special regulation
in the event of initial impossibility ("Rn. 64 ff.).
Example: The sold car is destroyed between the conclusion of the purchase contract
and the transfer to the buyer, which was agreed two days later. Subsequent impossibility
also applies in cases a and b.
ff) No need to set a deadline It is not necessary

56 for the obligee to unsuccessfully set a deadline for performance instead
of performance before asserting the claim for damages. From a legal point
of view, this follows from the fact that Section 283 Sentence 2 does not
refer to Section 281 Paragraph 1 Sentence 1
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refers, in which the necessity of setting a deadline is regulated. the

The factual reason for the dispensability of setting a deadline is that
that such in the case of impossibility and according to § 275
Para. 2, 3 rightly refused performance would be pointless and moreover
the debtor has been released from his obligation to perform pursuant to Section 275
is.
b) Content of the claim for damages. In the event of damages 57

of the performance, the creditor is to be placed as if the performance was like
owed would have been provided.34
aa) Positive interest
The claim is aimed at compensation for the positive interest (= interest in
performance). The market value of the missing service is therefore eligible
for compensation. But also the possibly higher costs for a replacement
procurement as well as a lost profit (500 EUR in case a)
from a planned resale can be requested to be replaced. In this way, the buyer
retains the advantages of a particularly favorable price even when claiming
damages
get business.
Example: K buys a used car worth EUR 5,000 from V for

4,000 EUR, which he also pays. Between the conclusion of the purchase contract and
transfer of ownership, the car is destroyed in an accident for which V is to blame.
K's interest in performance is therefore EUR 5,000.
bb) difference theory or exchange theory (= surrogation theory)
With mutual contracts, the question arises of how the damage 58

of the creditor is to be calculated. A calculation is considered
according to the difference theory or according to the exchange theory (=
surrogation theory).
(1) In any case, the damage can be calculated according to the difference
theory. Thereafter, the compensation for damages takes the place of
performance and consideration. The creditor is no longer obliged to perform
(see Section 326 (1)). His compensable damage consists of the difference
between performance and counter-performance. the
Value of the achievement that has become impossible and the value of the not
The additional consideration to be provided is therefore merely an invoice
item for the unilateral claim for damages.
34 BGH JZ 2010, 44 (on Section 281 (1) sentence 1) with critical comment Klöhn.
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Example: T1 exchanges a car worth EUR 2,800 for a horse from

T2 worth 3,000 euros. After the conclusion of the exchange contract, the dies
Horse through fault of T2. According to difference theory, T1 keeps its
car and receives 200 EUR in damages.
The difference theory is also applicable if the creditor of the claim for damages
has paid the consideration due to him
has already done. He can then withdraw from the contract, demand the return
of his consideration according to § 346 and at the same time
the compensation calculated according to the difference theory instead of the
claim performance. Section 325 expressly provides for the combination of
withdrawal and damages.
59 (2) It is questionable whether the creditor can choose to also claim his damage
calculate according to the exchange theory (= surrogation theory).
can. Thereafter, the creditor renders the rendered impossible
performance continues to be his consideration and demands compensation for damages
because of the total non-payment. This option is of interest to the creditor if his
consideration does not consist of money and he wants to get rid of this
consideration.
Example: Is after conclusion of the exchange contract (horse [value 3,000 EUR]
against a car [value EUR 2,800]) the horse through the fault of the debtor
(T2) died, the creditor (T1) can continue to deliver the car and instead of the right to
transfer ownership of the horse, its value in the amount of
3,000 EUR to be replaced.
60 § 326 appears against such a damage calculation

to speak paragraph 1. Thereafter, the debtor of the performance that has
become impossible loses his claim to the consideration. In the example given,
the debtor (T2) of the service (horse) that has become impossible can no longer
pay the consideration (car).
to demand. However, this regulation does not take away from the creditor (T1).
the right to provide the consideration if he wants to provide it. In this case, he
can claim compensation according to the
Calculate exchange or surrogation theory.35
cc) Small or large damages in the case of partial impossibility
61 In the event that the creditor only because of part of the performance
according to § 275 has been released from his obligation to perform
35 NK-BGB/Dauner-Lieb § 283 para. 14 f.; Looschelders SchuldR AT § 29 para. 7.
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§ 283 sentence 2 on the damage calculation according to § 281 paragraph 1 sentence 2, 3,

Section 5.
(1) In principle, the creditor can only claim damages with regard to
demand that part of the performance that the debtor is after
§ 275 does not have to provide. This is the so-called small compensation.
Example: If the seller can only deliver 90 of 100 bottles of wine sold, the
compensation for damages is based on the value of the not
delivered 10 bottles or the possibly higher costs of purchasing a replacement from
another retailer. – If only the navigation system in a purchased car has an irreparable
defect, the buyer can claim the replacement costs for the defective navigation device
as compensation.
(2) Under the conditions of Sections 283, 281 (1) sentence 2, the 62
However, creditors also have the option of waiving partial performance and
claiming damages “instead of full performance”.
This is the great compensation. The prerequisite is that the creditor has no
interest in partial performance (section 281 (1) sentence 2) or
that the irreparable defect in the service is significant (§ 281
Para. 1 p. 3). This additional requirement is the same as that
of §§ 326 paragraph 5, 323 paragraph 5 in the case of withdrawal due to a partial
impossibility or an irremediable lack of performance. That is
logical because the large amount of damages has the effect of a combination of
withdrawal and damages.
Example: K buys the last set of six from a special offer at V

matching garden lamps. If one of the lamp bodies is irreparably defective, he can
return the entire set and claim the possibly higher cost of a replacement from another
seller.
If the creditor receives the large amount of damages (instead of the whole 63
performance), he must return the partial performance already received to the debtor
in accordance with Sections 283, 281 (5) in accordance with Sections 346 et seq.
2. Damages due to initial impossibility (§ 311a

paragraph 2)
Legal basis for a claim for damages instead of 64

Performance due to initial impossibility is § 311a paragraph 2.
a) Requirements. The requirements for the claim are

only partly identical to those of Sections 280 (1), 3, 283.
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aa) Contractual relationship

According to Section 311a (2), there must be a contractual relationship between
the claimant and the opposing party. That's the consequence
from the fact that the provision is based on an impediment to performance that already
existed at the time the contract was concluded. The contractual relationship must be
based on an effective contract; because from a according to §§ 125,
134, 138, 142 ineffective contract can not perform obligations
arise, so that § 275 is not applicable. Section 311a (1) provides
It is clear that an impediment to performance that already exists at the time the
contract is concluded does not conflict with the effectiveness of the contract.
bb) Release of the debtor from the obligation to perform

Section 275
65 Furthermore, § 311a paragraph 2 in conjunction with paragraph 1 requires that the debtor
is released from its obligation to provide benefits in accordance with Section 275 Paragraphs 1-3. To that extent
The same applies as under Section 283 in the event of subsequent impossibility (“Rn.
54).
cc) Obstacle to performance upon conclusion of the contract

66 The impediment to performance, the legal consequences of § 275 para. 1-2
triggered, must already have existed at the time the contract was concluded. Man
therefore also speaks of initial impossibility, disproportionality or unreasonableness.
These are contractual relationships in which there is no primary obligation to perform
due to Section 275
debtor gives.
Example: In case c, G bought a picture that was already available at the end of the
contract of sale was destroyed by fire. In case d was the picture
already no longer owned by S when the contract is concluded.
dd) Knowledge or negligent ignorance of the debtor of

performance impediment
67 The debtor's responsibility for a claim for damages has different requirements than
Sections 280 (1),
3, 283. This is related to the fact that the program of duties
of the debtor before the conclusion of the contract is designed differently than after
the conclusion of the contract. Before that, the debtor mainly has information obligations,
while he only has obligations with regard to the object of performance afterwards.
Therefore § 311a Abs. 2 S. 2 presupposes that the debtor
knew of the impediment to performance at the time the contract was concluded or was culpable
didn't know.
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The knowledge or negligent ignorance of an assistant whom the 68

debtor has engaged in the preparation of the contract is to be attributed
to the debtor in accordance with Section 166 or Section 27836 .
In case d, it is sufficient for Section 311a (2) that S's authorized signatory was
aware that S was no longer the owner and possessor of the picture sold to G.
Section 311a (2) sentence 2 is worded in a way that is comparable to Section 280 (1) sentence 2. 69
It follows that the debtor's knowledge or at least negligent ignorance
of the impediment to performance is presumed and the opposite must
be proven by the debtor.
In case c, the S will not be able to prove this to the contrary,
if he started the fire himself.
b) Content of the claim for damages. The legal consequence of 70

Section 311a (2) corresponds to that of Section 283 in the event of
subsequent obstacles to performance (“Rn. 57 ff.). The claim for
damages instead of performance is therefore aimed at the positive
interest. It can be based on the difference – or the exchange theory (=
If section 275 is only applied to a part of the service, the so-called
small damages apply and according to section 311a paragraph 2
sentence 3 in conjunction with section 281 paragraph 1 sentence 2, 3
the so-called large damages (instead of the entire service) can only
be considered under the additional condition of loss of interest or the
relevance of the irremediable defect in performance.
III. Reimbursement of expenses (§ 284)
Literature: Fischinger/Wabnitz, reimbursement of expenses according to § 284 71

BGB, ZGS 2007, 139; Grigoleit, new regulation of the compensation of "frustrated"
expenses (§ 284 BGB): The failed musical, ZGS 2002, 122; Gsell, reimbursement of
expenses according to § 284 BGB, NJW 2006, 125; Körber, The law of breaches of
duty in the general law of obligations - Part 2, JURA 2015, 554; S
Lorenz, basic knowledge - civil law: reimbursement of expenses (§ 284 BGB), JuS
2008, 673; Reim, The reimbursement of futile expenses according to § 284 BGB,
NJW 2003, 3662; Schneider, § 284 BGB - on the history and interpretation of a new
standard, 2007; Stoppel, The reimbursement of frustrated expenses according to §
284 BGB, AcP 204 (2004), 81; idem., On the relationship between § 284 BGB and
the regulations on the consequences of withdrawal, ZGS 2006, 254; Tröger, investi-
36 So Palandt/Grüneberg BGB § 311a para. 9.
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protection according to § 284 BGB, ZGS 2005, 462; ders., The individuality one
Bresche: Reimbursement of expenses according to § 284 BGB, ZIP 2005, 2238.
1. Meaning
Has the creditor incurred expenses in order to conclude the
contract (e.g. notarization costs) or the subject matter of the contract
use (e.g. making a frame for an acquired painting), then in the
event of the impossibility of
Performance by the debtor as useless. These costs (so-called
frustrated expenses) would also have been incurred if the contract
had been properly performed. You can therefore not be held as compensation
of the service (cf. "Rn. 49 ff.). The basis for a claim for
reimbursement of expenses is rather § 284. This provision
was newly created in the course of the modernization of the law of obligations and
valid since January 1st, 2002.
In case a, the EUR 200 for the art appraiser would also have been incurred if the
purchase contract had been fulfilled. They therefore do not constitute a substitute
Damage. However, they are wasted expenditures,
which can be requested to be replaced under Section 284.
72 Before 01/01/2002 the creditor of a claim for damages
Reimbursement of expenses only granted in cases in which in favor of the
Creditor could be assumed that the services owed
would have been equivalent and the creditor would have earned the expenses
incurred in connection with the transaction
(so-called profitability assumption). However, this assumption could
Debtors are refuted and resorted to in particular for expenses that
were made for non-material or consumer purposes (e.g. events
of parties, trade unions, family celebrations; Buying a single family home
or a fitted kitchen), not one.
2. Scope
73 The legislature deliberately “located” Section 284 within the
framework of Sections 280 et seq., because the claim for
reimbursement of expenses should not be limited to mutual contracts,
but should apply to all contractual and statutory obligations.37
Example: Does a legatee have a glass case for a legatee

If the work of art is produced, he can demand reimbursement of expenses from the
heir who culpably destroyed the work while being aware of the legacy.
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3. Requirements
a) Existence of a claim for damages. The claim to 74

Reimbursement of expenses can only be made instead of (ie alternatively) to the claim
be asserted for damages instead of performance. To the
Creditors must therefore first make a claim for damages
instead of being entitled to the service on the merits, ie the requirements
of Section 280 (3) in conjunction with Sections 281-283 or Section 311a
Para. 2 are present ("margin no. 49 et seq.).
In case a, the EUR 200 reimbursement of expenses and the EUR 500 compensation for
damages cannot be requested simultaneously, but only alternatively (either – or).
The creditor can choose between reimbursement of expenses and damages 75

free. If he wants to be put in the same position as if the contract had not been concluded, he
can demand reimbursement of expenses in accordance with Section 284. If, on the other
hand, he wants to be treated as if the contract had been properly executed,
he can alternatively claim his interest in performance, i.e. compensation for damages instead
of performance.
b) Expenses. In addition, the creditor must be in reliance on 76

the receipt of the benefit expenses (voluntary sacrifice of property)
have made, which he was also allowed to make cheaply.
Examples of expenses: contract costs (e.g. costs for handover,
Dispatch, transfer and registration of a motor vehicle38, certification, appraisal and advice
[art expert in case a], as well as customs duties,
freight, installation and assembly costs)39; Interest paid by the creditor for a
loans taken out to finance the business are payable;
Follow-up investments for the exploitation of the object of performance (e.g. conversion
measures to integrate a work of art into a house)40; creditor's own work41.
The restriction that only expenses are reimbursed which 77

the creditor was allowed to do “reasonably” should keep the thought in mind
of contributory negligence, i.e. Section 254 (its direct applicability
appears questionable in the case of claims for reimbursement of expenses)42, remember.
For example, the creditor may not make hasty expenses if he already
knows signs that the concluded contract will fail.43
38 BGH NJW 2005, 2848 (2850 f.).

39 NK-BGB/Arnold § 284 para. 20.
41 St.; cf. NK-BGB/Arnold § 284 para. 19; Palandt/Grüneberg BGB § 284 para. 5.
42 Cf. Lorenz/Riehm Neues SchuldR para. 228.
43 Canaris JZ 2001, 517.
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78 Whether the obligation to pay compensation also covers expenses that are
obviously disproportionate to the service that was not provided (e.g. costs for an
expensive picture frame that the creditor took for something of little value
picture made), is disputed.44
79 c) The causality of the non-performance of the contract for the futility of the
expenses. Furthermore, the non-fulfilment of the contract must have been
the reason why the expenses were wasted. In vain are such voluntary ones
Victims of property that turn out to be useless because of the debtor's non-
performance or performance that is not in accordance with the contract.45 Would
the purpose of the expenses even in the case of contractual fulfillment
not been reached, a claim for reimbursement of expenses is excluded. This
restriction is intended to prevent
that the creditor passes on his expenses to the debtor in the case of a loss-
making transaction via Section 284.46 Since it is the
When it comes to objecting to lawful alternative conduct, the debtor bears the
burden of proof.47
Example: After the fire in the rented hall, it turns out that the
event planned there should have been canceled anyway.
4. Legal consequence
80 Pursuant to Section 284, the creditor can demand reimbursement of

expenses that have become useless. However, the full amount cannot be replaced
negative interest.
Example: The buyer of a living room set can demand reimbursement of the
delivery costs incurred as expenses. However, he cannot
claim that he has a similar set cheaper in the meantime
in the furniture store X and this in trust in the fulfillment
by the seller,48 since failure to take an opportunity does not constitute an expense.
44 See Canaris JZ 2001, 517; Palandt/Grüneberg BGB § 284 para. 6.

45 BGH NJW 2005, 2848 (expenses on the purchased item if the purchase contract we
due to defectiveness of the purchased item is reversed).
46 Cf. Wilmowsky JuS 2002, supplement. to issue 1, 15.
47 NK-BGB/Arnold § 284 para. 33.
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IV. Resignation (Section 326 (5))
Documents: Fest, the scope of the exclusion of the right of withdrawal in accordance 81
with §§ 323 Paragraph 6 Alt. 1, 326 Paragraph 5 BGB, ZGS 2006, 173; Körber, The law
of breaches of duty in the general law of obligations - Part 3, JURA 2015, 673.
Pursuant to Section 326 (5), 1st half-sentence, the creditor can withdraw
if the debtor does not have to perform pursuant to Section 275 (1-3).
Section 323 applies accordingly to the withdrawal, with the proviso that
setting a deadline is unnecessary (section 326, paragraph 5, 2nd half-sentence).
Such a requirement to set a deadline only makes sense if the debtor is still
obliged to perform at all.
This is not the case in the cases of Section 275.
The right of withdrawal due to impossibility has only a limited meaning. If 82
the obligation to perform is excluded pursuant to Section 275, the creditor is
regularly released from the obligation to perform in return pursuant to Section
326 (1) sentence 1 anyway. In addition, the right of withdrawal according to
Section 326 (5) must not undermine the assessments on which the
exceptions of Section 326 (1) ("Rn. 37 ff.) are based.49 The right of
withdrawal plays a role in cases in which Section 326 Paragraph 1 sentence
1 is not applicable because of Section 326 Paragraph 1 Clause 2 or in which
performance and consideration are only partially omitted, such as when the
creditor does not know whether the requirements of Sections 275, 326
Paragraph 1 Clause 1 available.
If, however, in the case of Section 275 (2) ("Rn. 18 et seq.) it is uncertain whether the
debtor is invoking his right to refuse performance at all because of a grossly
disproportionate effort, the creditor must first set him a reasonable deadline for
subsequent performance. First after the deadline has expired without result or after the
debtor has raised an objection, the creditor can withdraw.50
1. In case of poor performance
If, in the event of non-contractual performance, the right to supplementary 83

performance (§§ 437 No. 1, 439 and §§ 634 No. 1, 635) is excluded
according to § 275 Paragraphs 1-3, § 326 Paragraph 1 Clause 1 applies S.
2 of the norm does not apply ("Rn. 35 f.). The creditor owes the (full) counter-
performance despite the non-remediable lack of performance.
49 NK-BGB/Dauner-Lieb § 326 para. 30.

50 BGH NJW 2013, 1074 (1076 f.).
https://doi.org/10.17104/9783406758829-239
tion. However, he can release himself from the obligation to perform by withdrawing
according to §§ 326 paragraph 5, 323 (§§ 437 No. 2 and 634 No. 3).
If he wants to keep the defective purchased item or the defective work, he can
alternatively also reduce the purchase price (sections 437 no. 2, 441 para. 1)51 or the
remuneration (sections 634 no. 3, 638)52.
According to § 326 paragraph 5 in conjunction with § 323 paragraph 5

sentence 2, withdrawal is excluded if the defect is only insignificant (cf. "§ 24
marginal number 30).
Example: The cover of the CD sold is irreparably damaged.
2. In the event of partial

84 impossibility If the debtor's obligation to perform is only partially excluded
pursuant to Section 275, the entitlement to consideration only partially lapses
pursuant to Section 326 (1) sentence 1, 2nd half ("Rn. 33). Here, it may be that
the creditor has no interest in partial performance.
Example: One of two paintings that belonged together burned.
In such cases, he can withdraw from the entire contract in accordance with Section 326 (5)
in conjunction with Section 323 (5) sentence 1.
3. In case of uncertainty about the reason for non-performance

85 Finally, Section 326 (5) is intended to help the obligee in cases where he is
unaware of the reason (impossibility or mere delay) for the debtor to fail to
perform. If this is based on a circumstance that releases the debtor from
performance under Section 275, the creditor is also free under Section 326 (1)
sentence 1. Otherwise, the creditor can only withdraw in accordance with Section
323 (1) ("Section 23, para. 57 et seq.).
86 If the creditor does not know the reason for the non-performance, he can set
the debtor a reasonable grace period (cf. "§ 23 Rn. 62 ff.) and withdraw after the
fruitless expiration. In practice, it can then remain open as a rule whether the
return 323 para. 1 or from § 326 para

53 BT-Drs. 14/7052, 193.
54 Critical: NK-BGB/Dauner-Lieb § 326 marginal number 35.
https://doi.org/10.17104/9783406758829-239
Legal Consequences of Impossibility
I. Exclusion of the debtor's obligation to perform (§ 275

paragraph 1)
II. Claim of the creditor to the surrogate (Section 285 (1))

III. Release of the creditor from the obligation to provide consideration (§ 326
Paragraph 1; exceptions: § 326 Paragraph 1 S. 2, Paragraphs 2, 3)
IV. Reimbursement of consideration already provided (Section 326
(4))
V. Claim of the creditor for damages instead of
1. In the
event of subsequent impossibility (§§ 280 Para. 1, 3, 283)
a) Obligation b) Breach
of duty in the form of non-performance due to a subsequent
impediment to performance according to Section 275 Paragraphs
1-3 c) Responsibility (Sections 280 Paragraph 1 Sentence 2,
276, if applicable Section 278) d) Damage 2. At initial impossibility
(§ 311a Para. 2) a) Contractual relationship b) Release of the debtor
from the obligation to perform (§ 275 Para. 1-3) due to an initial
impediment to performance c) Knowledge or grossly negligent
ignorance of the debtor of the impediment to performance (§ 311a
Para. 2 p. 2) d) Damage VI. Creditor's claim for reimbursement
of expenses instead of damages instead of performance (§ 284)
1. Existing claim for damages in lieu of performance 2. Reasonably

incurred expenses in reliance on receipt of the service 3. Causation
between non-performance and futility of expenses VII. Creditor’s right
of withdrawal (section 326 (5))
https://doi.org/10.17104/9783406758829-239
§ 23. Delay in performance
1 Literature: Althammer, Ius variandi and self-commitment of the creditor, NJW 2006,
1179; Benicke/Hellwig, The system of liability for damages due to breach of duty, NJW
2014, 1697; this., premature
Hedging transaction and damages, ZIP 2015, 1106; Bressler, self-remedy in the "state of
limbo" after the expiration of the supplementary performance period, NJW
2004, 3382; Canaris, Concept and facts of damage caused by delay
new default law, ZIP 2003, 321; Derleder/Karabulut, debt enforcement and rights of
retention under general law of obligations, JuS
2014, 102; Derleder/Hoolmans, From debtor default to creditor default
and back, NJW 2004, 2787; Diller, The EUR 40 lawsuit is coming! - or
not after all?, NZA 2015, 1095; Dornis, From future dealings with an unknown - the
"compensation lump sum" in the new § 288 BGB, ZIP 2014,
2427; Dornis/Kessenich, The "Compensation Flat Rate" in the Event of Default
– Introduction to fundamental questions of a new default instrument,
JURA 2015, 887; Dubovitskaya, Absolute Fixed Deals, AcP 215 (2015), 581;
Eberl-Borges, The delay in performance in multi-party contractual relationships, AcP 203
(2003), 633; Faust, Law of Obligations: Compensation for loss of use despite withdrawal,
JuS 2010, 724; Fuhlrott, No default flat rate in labor law, ZIP 2019, 404; Greiner/
Hossenfelder, request
for "immediate", "prompt" or "immediate" supplementary performance as
Sufficient extension of time within the meaning of § 281 I 1 BGB?, JA 2010, 412; Grigoleit/
Riehm, The defect-related loss of business in the system of performance disruption law,
JuS 2004, 745; Grundmann, The claim for damages
Contract, AcP 204 (2004), 569; Haberzettl, guilt and promises,
2006; Hanau, The debtor in the hands of the creditor?, NJW 2007, 2806;
Hellgardt, The substitute ability of the premature cover purchase, JuS 2016,
1057; Herresthal, Compensation for damage caused by delay when withdrawing from the
contract, JuS 2007, 798; ders., The unwritten factual feature of
Enforceability in §§ 281 I, 323 I BGB, JURA 2008, 561; Hirsch, Compensation for damages
in lieu of or in addition to performance – current issues of demarcation,
JuS 2014, 97; Hoffmann, The divisibility of debt contracts, JuS 2017, 1045;
Huber, Compensation in lieu of performance, AcP 210 (2010), 319; Kindl, Simple damages,
damages caused by delay and damages in lieu of performance, JURA 2020, 773 (Part 1)
and 881 (Part 2); Klein, Claims of the creditor in the event of default by the debtor, JA
2020, 8; Kleine/Scholl, Das
Competitive relationship between primary and secondary creditor rights in the case of
breaches of duty in general law of obligations, NJW 2006, 3462; R. Koch, Die
Setting a deadline for performance or supplementary performance - More appearances than reality?, NJW
2010, 1636; S. Koch, The EUR 40 reminder fee for consumer contracts,
NJW 2015, 2212; Körber, The law of breaches of duty in general
Law of Obligations – Part 1, JURA 2015, 429; Kohler, Representation in ver
https://doi.org/10.17104/9783406758829-239
§ 23. Delay in performance 275
legal damages, JZ 2004, 961; ders., § 281 Abs. 4 BGB and that
End of the right to performance, JURA 2014, 872; B. Lorenz, debtor default
and effective warning of the creditor, ZGS 2011, 111; S. Lorenz, Default in payment
and fault, WuM 2013, 202; idem., fraudulent intent and material defect –
On the concept of breach of duty in § 323 V 2 BGB, NJW 2006, 1925; Ludes/Lube,
Responsibility for § 281 BGB, ZGS 2009, 259; Nietsch, Compensation for cover
purchases despite performance, NJW 2014, 2385; Odemer, Das
Deadline requirement of §§ 281, 323 BGB, JURA 2016, 842; Ostendorf,
The distinction between compensation for damages instead of and in addition to
performance - attempt at a reorientation, NJW 2010, 2833; Riehm, trials and tribulations
on the setting of deadlines and their dispensability, NJW 2014, 2065; Rubin,
Damages in lieu of performance and damages in addition to performance, Ad
Legendum 2018, 135; Schneider, When does a motion to dismiss mean a
serious and definitive refusal to perform?, MDR 2015, 1394; Schroe ter, Satisfaction
of the interest in performance in money: The “instead of performance” demanded
damages in the modernized law of obligations, AcP 220 (2020), 234;
Blacks, "Stands and falls" - The riddle of relative fixed debt, AcP 207
(2007), 437; Skamel, The reasonable period for performance or supplementary performance,
JuS 2010, 671; Spitzer, The law to combat late payments in the
Business transactions, MDR 2014, 933; Temming, On the reform of § 323 BGB
by the Consumer Rights Directive, JA 2018, 1; Ulrici, No 40-euro default fee for late
payment of wages, NZA 2019, 143;
Weiss, Readjustment in the Right of Withdrawal, NJW 2014, 1212; ders., The
relationship between withdrawal and damages instead of performance - autonomy instead
artificial concurrency, NJW 2015, 3393; Weissgerber, The End of the
debtor default, 2006; Wietfeld, Seller's Rights in Case of Non-Compliance
of payment and collection periods for eBay purchases, JURA 2013, 851; Wilhelm,
The breach of duty under the new law of obligations, JZ 2004, 1055.
Case a: S has promised G in a notarial deed as a gift (§ 518) that he will be given
a picture on October 1st. G leaves S on October 10th
request through an attorney to provide the image and pay the cost of engaging the
attorney. " Paragraphs 5, 15, 30
Case b: V sold K his car for EUR 3,000. V expresses concern as to whether
verbal agreements are also binding. Since he does not deliver, leaves
K warn him through a lawyer and demands reimbursement of the legal fees.
" Paragraphs 5, 10, 17, 30
Case c: In case b, K could resell the car for EUR 3,300. Since V
does not deliver, K wants EUR 300 from him. what can he do " paragraph 50
Case d: In case b, K would like to use his money to buy a car from a more reliable
person. What should he do so that he doesn't have to buy and pay for two cars
afterwards? " Paragraph 68
Case e: In case b, the V is given the car from the
stolen from locked garage. K could have resold it for a profit of EUR 500. " Paragraph
31, 74
https://doi.org/10.17104/9783406758829-239
If the debtor fails to provide the performance that is possible for him on
time, this constitutes a breach of duty within the meaning of Section 280 (1).
damage to the obligee as a result of such a delay in performance. However,
he cannot do this without further ado according to Section 280 (1), but
according to Section 280 (2) only under the additional condition
of § 286, ie in the event of default, demand replacement. The claim
to the service not yet rendered remains unaffected.
On the other hand, the delay can mean that the creditor is no longer
interested in the payment. In that case give him
Section 281 (1) the right to demand damages instead of performance. In
addition, he can withdraw from the contract in accordance with Section 323 (1).
In the interest of the defaulting partner, however, these far-reaching
consequences should only intervene if a reasonable period of time for
performance was unsuccessfully set beforehand.
The one lying in the mere non-fulfillment of a (due) claim
A breach of duty therefore has no specific consequences under the law on default of
performance. The creditor can only assert his original claim to performance. Only under
the additional conditions of
Section 286, Section 281 or Section 323 give the creditor further rights.
I. Compensation for damage caused by delay
1. Requirements
2 The requirements for a claim for damages due to
Delays in performance result from Section 280 (1) and, due to the reference
in Section 280 (2), also from Section 286.
a) Obligation. between the applicant and the respondent

there must be a contractual or legal obligation.
Details "§ 22 para. 50.
3 b) Breach of duty in the form of delay in performance. the
according to § 280 para. 1 required breach of duty (" § 22 para. 51).
in that the performance owed despite the possibility of performance
and enforceability of the claim is not provided in good time.
aa) Existence of an effective obligation to perform
Such a breach of duty initially presupposes the existence of a
effective obligation to perform within the meaning of Section 241 (1). is indifferent,
on what legal basis the claim is based. Unsatisfactory
is, on the other hand, a mere duty to protect within the meaning of Section 241 (2).
https://doi.org/10.17104/9783406758829-239
There is no effective obligation on the part of the debtor to perform if 4

his obligation due to an objection preventing legal action
was not created or has been lost due to an objection which destroys
the right. A breach of duty
is only considered if the service owed is still possible. If the non-timely
performance is based on the fact that the performance is impossible,
according to § 275
Para. 1 no (primary) performance obligation of the debtor that he
could breach. Impossibility therefore includes a breach of duty
form of performance delay.
For the delimitation of the performance delay from the impossibility
decisive as to whether the performance owed can still be made up for. In the case of
absolute fixed-date transactions ("§ 22 para. 6), the service can only be provided at the agreed time
be provided; after that it can no longer be made up for, so that no mere
Performance delay, but impossibility is given. hurt someone
an obligation to cease and desist (e.g. a non-competition clause) is impossibility
before; the omission cannot be delayed and after an infringement
be made up for.
bb) Enforceability
The creditor's claim must also be enforceable, ie due 5
and be free of objections.
(1) The claim cannot be enforced before it is due. One
Receivable is due when the debtor has to render the service; it is not
decisive whether he is already allowed to provide it ("§ 12
para. 18 et seq.).
If, for example, it has been agreed that "payable in three months" has expired, this is due
Deadline in a non-performance no breach of duty. This also applies if
the debtor definitively refuses to perform before the deadline has expired.2
If, on the other hand, no agreement has been reached on the due date, immediate due date
will regularly have to be assumed (§ 271 Para. 1; " § 12 marginal number 21). In the case
a, the claim is due on October 1st, in case b upon conclusion of the contract.
(2) If the creditor's claim is subject to an objection by the debtor, 6

this does not change the due date. The requirement
however, is not enforceable. A breach of duty is therefore ruled out.
For as long as the debtor refuse to perform
his non-performance is not a breach of duty. It is sufficient
basically that the right of refusal is objectively given. It
1 See also Derleder/Karabulut JuS 2014, 102.

2 BGH NJW-RR 2008, 210 (211).
https://doi.org/10.17104/9783406758829-239
need not be asserted by the debtor; this is first

required in the process.
Examples: §§ 214, 275 paras. 2 and 3, 438. - On the question of whether the objections
exclude default from § 273 and § 320, see "§ 13 marginal note 10 f., 20.
cc) non-performance
7 The debtor has not provided the performance possible despite the
enforceability of the claim. In principle, it is sufficient if
the debtor has performed the performance in good time.
It is therefore not necessary for the performance to be successful in good time
has occurred. In the case of sending debts, it is therefore sufficient to send the
Would.
Section 286 (3) ("Rn. 19 et seq.), however, conforms to the directive to that effect
designed that it depends on whether the creditor within 30 days
has received the amount of money.3 In this case, the punctuality is exceptionally
dependent on the occurrence of the performance success.
8th
It is equivalent to carrying out the service act if the
Debtor to the creditor's performance in a default of acceptance
justifying way (§§ 293 ff., "§ 26 para. 5 ff.) offers.
c) Additional requirements of section 286: default of the debtor. Pursuant

9 to Section 280 (2), the additional requirements of Section 286 (debtor's
default) must also be met. Is required
either a reminder from the creditor (section 286 (1)) or a
Circumstance that makes the reminder unnecessary (section 286 (2)) or
Expiry of 30 days after the due date and invoicing (§ 286
paragraph 3). In addition, the debtor must be responsible for the non-
performance if the objective default requirements are met
(Section 286 (4)).
aa) Reminder (Section 286 (1))

10 According to § 286 paragraph 1, the creditor sets the debtor by a
reminder in default (case b).
The user cannot be released from the reminder by general terms and conditions
the (§ 309 No. 4).
(1) The reminder is a unilateral request to the debtor, which must be

received, to render the service owed. egg
3 ECJ NJW 2008, 1935; cf. already Krause JURA 2002, 217 (221).
https://doi.org/10.17104/9783406758829-239
It does not require a specific form. In particular, you can

also be done orally.
The reminder is not a declaration of intent, but a business-like one
Plot. But the question has practically no meaning, because regulations
on the declaration of intent to be applied analogously to business-like actions.4 The
reminder of a minor is effective because it
is only legally advantageous (cf. Section 107), while that of an incompetent person is
void (cf. Section 105). The reminder becomes effective upon receipt (§ 130)
at the debtor; at the earliest then the delay begins.
(a) A reminder presupposes that the obligor can infer from it 11

with sufficient clarity that the obligee is demanding a specific
performance. However, setting a deadline is not necessary.
Nor does a specific legal disadvantage need to be threatened
will. However, the reminder must make it clear that
Failure to perform will have consequences.5
This requirement is also due to the equality of reminders and
Invoicing (cf. § 286 Para. 3; "Rn. 19 et seq.) not omitted, but confirmed. Without the
need for a reference to the consequences
both differed only in the demand for payment. Whether default
occurs immediately or in 30 days, would then depend solely on whether the creditor
expressly or impliedly asks for payment after he has made his payment claim, which
will usually be the case. –
A mere invoice is therefore generally just as little a reminder
like an exaggeratedly friendly explanation; it can be different with one
invoice with the conspicuous note "second invoice". – Setting a deadline under Sections
281 (1) and 323 (1), on the other hand, regularly becomes a deadline at the same time
Represent a reminder within the meaning of Section 286 (1).
The creditor duns more or something different than the debtor 12

is obliged to pay (excessive reminder), the reminder is equally
effective if the debtor submits it in good faith
Consideration of traffic custom as a request for approval
had to understand the actually owed performance (§§ 133, 157)
and the creditor to accept the opposite of his ideas
lesser performance.6 If the reminder only refers to a part of the
debt, default only occurs to that extent.
(b) According to the wording of Section 286 Paragraph 1 Clause 1, the reminder must 13
after the due date; otherwise it has no effect.
4 BGHZ 47, 352 (357); BGH NJW 1987, 1547.
5 Looschelders SchuldR AT § 26 para. 5; aA Palandt/Grüneberg BGB § 286 para. 17.
6 BGH NJW 2006, 3271 (3272).
https://doi.org/10.17104/9783406758829-239
However, it is permissible to combine a reminder and an action that justifies

the due date.
14 (2) Particularly massive forms of reminders are the filing of an action for
performance and the delivery of a reminder notice (section 286 (1) sentence
2).
If an action that has been filed or a dunning application that has been filed
is withdrawn, the delay ends again. bb) Dispensability of the reminder
(Section 286 (2))

15 The debtor does not always need to be reminded of his obligation to pay
by way of a reminder. The most important cases in which the reminder is not
necessary are regulated in Section 286 (2). According to this, a reminder is
not required in the following cases: (1) A time according to the calendar is
(legally or contractually) determined for the service (No. 1; "dies interpellat
pro homine"; case a). This calendar-related determination must be agreed
upon or result from the law or a court judgement; a unilateral determination of
the performance time by the creditor is not sufficient.7 In the case of an
excessive claim, this case of default can occur under the same conditions as
in the case of an excessive reminder ("Rn. 12).8 It is sufficient if the
performance time is already calendar-based at the time the contract is
concluded can be determined ("three days after conclusion of the contract")
9. In contrast, the link to a future, uncertain event is not sufficient ("one week
after delivery"); Section 286 (2) No. 2 is relevant here.
16 (2) The service must be preceded by an event and a reasonable time for
the service is determined in such a way that it can be determined from the
event according to the calendar (No. 2).
Not only termination (e.g. “The loan is to be repaid two weeks after
termination”) can be considered as such an event, but also performance or
the issuance of an invoice by the creditor. The determination of time can be
agreed, but also included in the law or in a judgment (e.g. § 721 ZPO).
However, a unilateral determination is not sufficient. The time must be

calendarable and reasonable from the event.
7 BGH NJW 2008, 50 (51).

8 BGH NJW 2006, 3271 (3272).
9 Cf. BGH NJW 2001, 365.
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This is intended to prevent the period after which the delay occurs from being
(contractually) too short or even being reduced to zero10
(e.g. "delivery one hour after call", "payment immediately after delivery").
However, it is doubtful whether this requirement is compatible with the late payment
directive 2000/35/EC, which the standard is intended to implement
whether – in a directive-compliant interpretation – at least in business transactions
it is also possible to agree on a very short period or to waive any period
is.11
(3) The debtor seriously and definitively refuses to perform (No. 3). 17
The reason for this exception is - similar to
in §§ 281 para. 2, 323 para. 2 No. 1 ("Rn. 42) - in that the reminder
would be a meaningless formality if the debtor would not anyway
is willing to do. Therefore, a corresponding declaration by
to impose strict requirements on the debtor. He must clearly and
to finally express that he will not perform the service.12 It is not sufficient
for this if he merely has doubts
expresses his obligation to perform (case b).13 The default begins with
the refusal to perform.
(4) The immediate occurrence of default is due to special reasons 18
justified after weighing the interests of both parties (No. 4).
So far, only groups of cases that have been recognized by judges are
to be recorded.
Examples: The service is obviously particularly urgent (e.g. repairing a burst

water pipe). The creditor (e.g. the operator of a self-service filling station) has a
recognizably evident interest in immediate payment, especially as he often receives
a reminder from the anonymous customer in the event of non-payment
is not possible.14 The debtor evades the reminder or he keeps the
creditor from a reminder by promising to render the service on a specific day.15
cc) Deadline after invoicing (Section 286 (3))

Section 286 (3) contains a special regulation. Then he comes 19
Debtor of a payment claim at the latest, even without a reminder
then in default if he does not pay within 30 days of the due date
10 BT-Drs. 14/6040, 146.

11 See NK-BGB/Schulte-Nölke § 286 para. 35 f.
12 BGH NJW 2017, 1666 para. 31 Man Heese JZ 2017, 529.
13 So to § 323 also BGH NJW 2012, 3714 (3716) man Gutzeit, note Faust JuS 2012,
940 and note Gsell EWiR 2013, 99.
14 BGH NJW 2011, 2871 f. Manm Lorenz LMK 2011, 319864 and Faust JuS 2011, 929;
also Sautter JuS 2011, 900.
https://doi.org/10.17104/9783406758829-239
and receipt of an invoice or equivalent statement of payment. The

regulation has the following special requirements:
20
(1) It must be a claim for payment.
(a) This means any monetary claim (str.) that a
consideration for a performance by the creditor. Therefore, only (but
not all) main performance obligations fall under Section 286 (3).
("§ 2 Rn. 6). For what the fee is paid in individual cases, according to
Section 286 (3) irrelevant. The performance of the creditor can therefore
the delivery of a thing, in a service or work performance, but
also lie in the mere transfer of use.
21 Examples: §§ 433 paragraph 2, 535 paragraph 2, 611 paragraph 1, 611a paragraph 2, 631 paragraph 1.
Counterexamples: claims for damages, enrichment, repayment claims and claims for
insurance benefits. This is it
also about money, but not about demands for payment.
22
(b) It is irrelevant whether the debtor is an entrepreneur (§ 14) or
is a consumer (§ 13). In the latter case, the consequences of Section 286 apply
Paragraph 3 but only if the consumer in the invoice or
statement of payment that has been specifically pointed out
(§ 286 para. 3 sentence 1, 2nd half).16
23
(2) The debtor must have received an invoice or an equivalent
list of payments. This applies to their legal nature
corresponding to what was said about the reminder (“margin no. 10).
(a) The invoice is a structured statement of a claim for payment
for a delivery of goods or other service. she
is intended to enable the debtor to review the claim.
The creditor must therefore provide the debtor with a textual fixation
(Writing, e-mail; in contrast to a reminder, however, a mere
orality) of the required fee.
A request for performance and the threat of consequences are -
unlike the reminder (" para. 11) - not
necessary. Mere notification of the claim is sufficient.
If the invoicing (in exceptional cases) is a due date,
their access does two things: the claim becomes due and the 30-day period begins to run.
24
The equivalent payment schedule has a catch-all function. It is
intended to make it clear that Section 286 (3) also includes all fixed
notifications about the required fee
16 BGH NJW 2008, 50 (51).
https://doi.org/10.17104/9783406758829-239
if they are not in the form of an invoice (e.g. in a letter from a lawyer).
If the invoice or request for payment also meets the requirement for a 25
reminder, Section 286 (3) is irrelevant. then
the debtor comes immediately (section 286 (1)) and not first
after 30 days (§ 286 Para. 3) in default.
(b) The invoice or equivalent statement of payment may
the debtor - unlike the reminder (" para. 13) - already before
have reached the due date; however, the 30-day period does not begin
until the due date of the claim.
(c) If the time of receipt of the invoice or payment schedule is uncertain, 26
the debtor who is not a consumer comes into play
is in default no later than 30 days after the due date and receipt of the
consideration (section 286 (3) sentence 2). So it is assumed that dem
debtor has received the invoice with the consideration. He
must then prove that he did not receive an invoice at all or only received it
later.17
(3) 30 days must have elapsed since the due date and receipt of the 27
invoice or payment schedule without the debtor having
has performed. When paying by bank transfer
it depends on whether the amount owed was credited to the creditor's
account in good time.18 The deadline is calculated in accordance with
Sections 187 (1), 188 (1): Default occurs upon expiry of
30th day a.
On the other hand, one will not be able to apply § 193 (str.). The norm captures
the case that the debtor within a certain period of time a performance
has to provide. However, the debtor must already be on the due date and not
only pay after the expiry of the period of Section 286 (3).
dd) Agreements on the occurrence of default according to paragraphs 1-3

Agreements on the occurrence of default, which are governed by Section 286 27a
Paragraphs 1-3 are not excluded, but according to § 286
Para. 5 in conjunction with Section 271a Para. 1-519 ("Section 12 para.
22 et seq.) only permitted with restrictions. The maximum limits for agreed
payment, acceptance or inspection periods provided for in Section 271a Para
through any agreements on a later occurrence of default
17 Details: NK-BGB/Schulte-Nölke § 286 para. 72 ff.

18 ECJ NJW 2008, 1935 (1936).
19 Both regulations were added with effect from July 29, 2014 by the law to combat late
payment in commercial transactions of July 22, 2014, Federal Law Gazette I 1218.
https://doi.org/10.17104/9783406758829-239
be bypassed. Rather, such agreements are only effective if they are expressly
made and with a view to
the interests of the creditor are not grossly unreasonable. However, these
restrictions of Section 271a Paragraphs 1-3 do not apply to contractual
obligations in which a consumer fails to meet the payment claim
owes (§ 271a Paragraph 5 No. 2). For legal transactions against payment
between entrepreneurs and for those where only on the debtor side
there is a consumer, an express agreement is required if the delay is more than
60 days after receipt
the counter-performance or the later receipt of an invoice. An agreement on the
time of performance that is effective under Section 271a must be taken into
account when it comes to the effectiveness of an additional agreement on the
occurrence of default.
Example: If the parties in business dealings agree on a payment period of 50 days after
receipt of the invoice, a further agreement on the occurrence of default is only 20 days
after the end of the payment period
only effective if this agreement on the occurrence of default is expressly stated
is taken and is not grossly unreasonable for the creditor;20 because by the
Combining the two agreements will extend the 60-day period of Section 271a
Paragraph 1 exceeded.
ee) Must be responsible for the non-performance in the presence of the objek
tive default requirements (§§ 286 Para. 4, 280 Para. 1 S. 2)
28 The debtor must the non-performance in the presence of the objective
are responsible for the default requirements (section 286 (4)). From the
negative wording of paragraph 4 follows that the representation must
is suspected. However, the debtor can exonerate himself. The same applies to
fault as to claims for damages
because of impossibility ("§ 22 marginal number 53).
Examples of non-fault: Serious illness of the debtor who in

person has to pay; cases of force majeure. If the debtor pays as a result
of a legal error, he is only not in default if the error is not due to negligence. Strict
requirements have to be set here (duty to inquire)21.
29 At first glance, Section 286 (4) merely repeats the provision of Section 280
(1) sentence 2. The provision therefore only seems to apply to the
other consequences of default (increased liability [" para. 73 ff.], interest on
arrears [" para. 32 f.]) to be of importance, on the other hand for the
20 BR-Drs. 154/14, 18.

21 Cf. BGH NJW 2001, 3114 (3115).
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Compensation for damages does not play a role.22 But Section 286 (4) is
important for the point in time of the possible proof of exoneration. According
to this, the time of the breach of duty (non-performance despite possibility
and due date) is not decisive, but the one at which
the objective default requirements (including the reminder)
are available.23 For compensation for the damage caused by delay, it is
therefore necessary, but also sufficient, that the presumption of fault
cannot be refuted at the time of default.
ff) End of default
The default ends as soon as the debtor has paid the owed service 29a
renders ("No. 7) or in a justification for the default of acceptance
way (§§ 293 ff., "§ 26 Rn. 5 ff.). According to the BGH, it is not sufficient for
the debtor to only perform under
offers subject to recovery; because a performance under
Reservation has no fulfillment effect.24
a) Compensation for damage caused by delay. The creditor has acc. 30

§§ 280 para. 1, 2, 286 a claim for compensation for the damage caused by
the delay (= damage caused by delay or default). Below is the one
To understand damage caused to the creditor by the delay of
performance arises. The claim occurs in addition to the primary claim to
performance. The creditor is to be placed here financially in the same way as he is
would stand if the service had been rendered on time
would.
Examples: Costs for necessary borrowing, lost investment interest, lost profit
(also from speculative transactions)25, costs of
prosecution. – If a doctor is late in issuing a medical certificate requested by his
patient and the patient is therefore unable to take out term life insurance before he
dies, the doctor is liable for damages under the conditions of Sections 280, 286.26
– In case a S am
1 October defaulted on the debtor even without a reminder (Section 286 (2) No. 1);
the costs of hiring a lawyer are part of the damage caused by the delay. In case b,
V only becomes aware of the lawyer's reminder letter
22 This is also indicated by the legal materials (BT-Drs. 14/6040, 148).

23 BeckOK BGB/Lorenz BGB § 286 para. 54; Erman/Hager BGB § 286 para. 57; Charcoal burner
JZ 2004, 961 (963); Looschelders SchuldR AT § 26 para. 8; Palandt/Grueneberg Civil Code
Section 286 para. 32.
24 BGH NJW 2012, 1717 Manm Schwab JuS 2012, 937.
25 See BGH NJW 2002, 2253.
26 BGH NJW 2006, 687 (liability denied due to lack of effective warning).
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default; therefore K cannot claim the costs of the letter as damage caused by default
assert.
It is disputed whether the so-called business interruption damage (the delivered machine
does not work and can therefore only be checked in after a delay
be put into operation) a replaceable only according to §§ 280 paragraph 2, 286
Damage caused by delay27 or damage to be compensated immediately in accordance with Section 280 (1).
Damage caused by breach of duty.28 For the application of Sections 280 (2), 286
speaks that otherwise the seller, who at least timely (if
initially defective) is more strictly liable (i.e. without a reminder).
than the seller who does not deliver on time. The BGH29 holds the defect-related
loss of use damage of the buyer adhering to the contract
nevertheless according to §§ 437 No. 3, 280 Para. 1 for substitute. When delivering one
the seller penetrates the defective item in a more dangerous manner than with
a mere delay in the goods sphere of the buyer. This one could
himself from the consequences of a delay due to calendar regulations
of the delivery date or by means of a reminder. The seller is prevented from being
overburdened by liability law by having to be represented (section 280 (1) sentence
2).
31 Damage caused by non-performance must be distinguished from

damage caused by delay. This arises from the fact that the debtor's performance
definitively no longer renders ("§ 22 para. 57). Difficulties in
delimitation can arise in particular if it is impossible to render
the service owed during the delay
(§ 275; cf. case e) or if the creditor to the defaulting
debtor unsuccessfully sets a grace period. In both cases he can
(if the debtor is responsible) Damages instead of performance
(= damages for non-performance = positive interest)
require (§§ 281, 283). The default damage occurs differently
the damage caused by the delay is not in addition to, but instead of, the
service.
Example: V does not deliver the item owed on time. K lets

give him a grace period through his attorney. Things go down (or
the grace period expires). K demands the lost profit from a failed resale as well as
his legal fees.
If the seller does not deliver on time and the buyer

therefore covers the additional costs of this cover purchase
according to the case law of the BGH as delays
27 For example NK-BGB/Dauner-Lieb § 280 marginal number 61.
28 For example Canaris ZIP 2003, 321 (326 f.); Medicus JuS 2003, 521 (528); Palandt/Weidenkaff BGB Section 437
marginal number 36.
29 BGH NJW 2009, 2674 ff. Manm Grunewald EWiR 2009, 731.
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claim damages according to §§ 280 Sections 1, 2, 286. Such costs are

not delay or accompanying damage, but damage that takes the place of
performance
kicks. The creditor can only do this under the conditions
of §§ 280 Sections 1, 3, 281 replaced.30
b) Default interest and other damage caused by default. If money is 32

owed, the creditor can charge interest on arrears if the debtor is in default
demand (§ 288 Abs. 1 S. 1). The claim is a money debt
to the release of a deposited amount of money, so that in the event of
late release there is a claim to interest on arrears analogous to § 288 para. 1
S. 1 exists.31 The default interest rate for payment claims is
for legal transactions in which a consumer is involved
year 5 percentage points above the base interest rate according to § 247 (§ 288
Para. 1 p. 2). The base interest rate, which is adjusted every six months in
accordance with Section 247 (1), has been negative since January 1, 2013. It has
remained unchanged at -0.88% since January 1, 2020 and will be redefined on July 1, 2020. at
legal transactions in which a consumer is not involved
the interest rate for payment claims is 9 percentage points above the base
interest rate (section 288 (2)).
Section 288 (2) applies exclusively to claims for payment from legal
transactions. Therefore, only monetary claims are recorded that are
consideration for the service rendered or to be rendered by the creditor.32
These include, for example, claims for payment of the
purchase price or rent, but not claims for damages
or claims from a contractual penalty promise.
The minimum default damage according to § 288 paragraph 2 does not need to be proven
will; he is irrefutably established under the law. A higher interest rate
comes into consideration if he "for another legal reason" (e.g. from
of a party agreement) results (section 288 (3)).
However, these regulations do not preclude the creditor from claiming 33

further damage caused to him by the delay in payment
debtor has arisen (section 288 (4)). For example, does he have a bank loan?
12% interest taken, his interest debt to the
30 BGH NJW 2013, 2959 mAnm Hilbig-Lugani and annotation Schwab JuS 2014, 167; in the end
agreeing, but with different justification Korch/Hagemeyer JURA 2014,
1302; aA Nietsch NJW 2014, 2385 ff. Differentiating Benicke/Hellwig ZIP 2015,
1106 (1109 ff.).
32 BGH NJW 2010, 1872 (1873).
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The bank is to be compensated for damages caused by default in accordance with Sections 280 (1), 2
and 286.
Interest on arrears does not have to be paid (section 289 sentence 1, which insofar
Section 288 (1) restricts; cf. the ban on compound interest in § 248
paragraph 1; " § 9 para. 14). However, default interest can be demanded as damages if
the creditor has effectively put the debtor in default due to overdue default interest amounts
(§ 289 sentence 2).33
33a Pursuant to Section 288 ( 534 ) , the creditor can, under certain conditions,
charge for his collection costs as other damage caused by default
demand a lump sum compensation of 40 EUR. This
The creditor is entitled to payment as soon as default occurs, regardless of
whether he has actually suffered financial loss
has arisen. However, if he has further damage due to costs
of legal prosecution, he must allow the lump sum to be offset against this (section
288 (5) sentence 3).35 The lump sum for damages
However, the creditor is only entitled to this if the debtor is not a consumer (section
288 (5) sentence 1). Creditors, on the other hand, can
Being an entrepreneur as well as a consumer.
It was and is still controversial whether Section 288 (5) is also applicable in
labor law, so that the employee for each month in
where the employer is in arrears with the monthly remuneration payment, can
request the employer to pay the EUR 40 flat rate.
This was initially affirmed by a widespread view.36 For that
speaks that the legislature has deliberately not limited the applicability of Section
288 (5) to contracts between entrepreneurs, although that would have been
possible under Directive 2011/7/EU. The lump sum should also go to consumers,
the creditors
are a money claim. Employees are consumers within the meaning of Section 13.37
Then, however, the BAG38 has an application of § 288 para. 5 im
Labor law denied and thus apparently the question for practice
cleared. The BAG sees a special regulation in Section 12a Paragraph 1 Sentence
1 ArbGG that supersedes Section 288 Paragraph 5. After that has been working in a
33 Cf. BGH NJW 1993, 1260.

Section 34 (5) was inserted for the purpose of implementing Directive 2011/7/EU by the law to combat late payment
in business transactions of 22 July 2014 with effect from 29 July 2014, Federal Law Gazette I 1218. See Dornis
ZIP 2014, 2427; S. Koch NJW
2015, 2212.
35 On this crediting, see also ECJ NJW 2019, 1933 para. 12 et seq., 24.
36 See, for example, Lembke NZA 2016, 1501 (1503 ff.) with further references; so does the view represented here
up to the 42nd edition.
37 BAG NJW 2005, 3305 (3309 f.), 2013, 3741.
38 BAG NJW 2019, 2193 paras. 23 et seq., 36 et seq.
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legal dispute the prevailing party in the first instance

not entitled to compensation for lost time and reimbursement of
the costs of hiring a legal representative
or assistance. In the opinion of the BAG, this regulation should
not only a procedural one, but also a substantive one
Claims for reimbursement of costs due to collection costs are
excluded. Therefore, in such cases, a lump sum for damages due
to collection costs (which cannot be reimbursed at all) is also postulated
Section 288 (5) to be rejected. Despite this supreme court decision,
the flat-rate compensation for damages caused by delay is still a
matter of debate.39 Several labor courts support the BAG
refused and the plaintiff employee the 40-euro flat rate
granted.40 § 12a ArbGG is not opposed to any special regulation
§ 288 paragraph 5. This standard aims to also the employer
to stop punctual payment of wages, and must therefore also
labor law to be applicable.
An agreement made in advance that gives the right to the 33b
excludes the creditor from a payment claim for interest on arrears
according to § 288 paragraph 6 sentence 1 ineffective. Subsequent
agreements on this subject, for example in the form of a settlement,
are not excluded. Agreements on the exclusion of lump sum
damages or reimbursement of legal costs are only
permissible if they are not grossly unfair for the creditor (§ 288
Para. 6 p. 2, 3). Sentences 1-3 do not apply if the claim
directed against a consumer (section 288 (6) sentence 4).
II. Damages instead of performance
Does the creditor have an interest in the 34

If performance is lost, he can demand compensation for damages instead
of performance (§§ 280 Paragraphs 1, 3 and 281) as in the case of a
liberating impediment to performance (§§ 280 Paragraphs 1, 3 and 283;
"§ 22 Rn. 49 et seq.). ) He thus waives the primarily owed service and liquidates
instead his positive interest.
In contrast to section 283, the debtor's primary obligation to perform still exists in
the case of section 281. Rather, this only expires with the
39 Clearly negative, for example Lembke NZA Editorial Issue 3/2019.

40 LAG Sachsen NJW-RR 2019, 624; ArbG Bremen-Bremerhaven v. 11/20/2018 – 6 approx
6390/17, BeckRS 2018, 34543.
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rejection of the claim for damages instead of performance (§ 281 Para. 4; "Rn. 54).
1. Requirements
35 The prerequisites for the claim for damages instead of performance
due to delay of the same arise from Section 280 (1) and due to the
reference in Section 280 (3) also from Section 281. In contrast,
there is no need for delay within the meaning of Section 286.
36 a) Obligation. First of all, there must be a legal or contractual
obligation between the claimant and the opponent. Details "§ 22
Rn. 50. § 281 is not limited to contractual obligations with
synallagmatic performance obligations.
The owner-owner relationship can also be considered as an obligation. If the owner

asserts his claim for surrender under section 985 and the owner refuses surrender, the
owner may, under the conditions of sections 280 subsections 1, 3, 281 subsections 1, 2,
instead of surrender demand damages instead of performance. 41 This claim is not
superseded by §§ 989, 990, because according to them, damages can only be demanded
because of deterioration of the thing or impossibility of surrender; on the other hand, the
damage caused by withholding due to refusal of possible surrender is not covered by these
provisions. However, the claim for damages according to §§ 280 paragraphs 1, 3, 281
paragraphs 1, 2 must not undermine the assessment of § 993 paragraph 1 2nd half. 989 ff.
should not be obliged to pay damages. Therefore, instead of performance, claims for
damages can only be made against the bad faith owner or the owner who has been sued.42
37 b) Breach of duty in the form of delay in performance. The breach

of duty required under Section 280 (1) is that the performance owed
is not provided despite the possibility of performance and the
enforceability of the claim ("Rn. 3 et seq.).
38 c) Unsuccessful determination of a grace period. In addition, the
creditor must have set the debtor a reasonable deadline for
performance without success (section 281 (1) sentence 1). Due to
this requirement, the legislator has priority over the claim for
damages instead of the service in the case of remediable defects
41 BGH NJW 2016, 3235 para. 11 et seq. Manm Riehm JuS 2016, 1024.
42 BGH NJW 2016, 3235 para. 24.
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granted. The creditor must demand performance in kind before

he is paid money for his interest in performance.
Conversely, by setting a grace period, the debtor should be
given one last chance to avert the economic disadvantages
that are associated with a liability for damages.
With regard to the legal nature of the setting of a grace period, the statements
made regarding the reminder apply accordingly ("margin no. 10). - According to
hM43 , an effective setting of a grace period is only possible after the due date The
BGH concludes from the materials on the reform of the law of obligations that the
legislature wanted to allow the right of withdrawal through § 323 in connection with
the previous legal situation only in the event that the deadline is only set after the
due date of the service Setting a deadline is the same as for the reminder justifying
default ("margin no. 13).
aa) Request for

performance The creditor must expressly request the debtor 39
to perform. The mere question of willingness to perform is just
as insufficient as an overly polite request for performance.44
On the other hand, dressing up in a request does no harm if
the overall circumstances show that the request for performance
is serious.45 The request to effect the contractual performance
is sufficient definitely; the individual pertinent performance
components do not need to be listed in the request.46 With
regard to an excessive or insufficient claim, what was said
about the reminder applies accordingly ("margin no. 12). bb)
Appropriate grace period The creditor must give the debtor a
reasonable grace period for performance The adequacy is 40
assessed according to the circumstances of the individual case,
taking into account the interests of both contracting parties.47
The content of the obligation to perform can also play a role.The
debtor should be given the opportunity to complete the
performance that has already begun
43 So on setting a deadline according to § 323 BGH NJW 2012, 3714 manm Gutzeit and
manm Faust JuS 2012, 940; Erman/Westermann BGB § 323 paras. 23, 28; Huber/Faust
fault RMod § 3 paras. 127, 133; Looschelders SchuldR AT § 27 para. 13; Palandt/
Grüneberg BGB § 323 para. 12.
44 BGH ZIP 2016, 1538 para. 28.
45 BGH ZIP 2016, 1538 para. 29.
46 BGH NJW 2010, 2200 (2201).
47 Cf. BGH NJW 1985, 2640.
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However, the debtor has to be ready to perform from the due date,
the period does not need to be so long that the debtor can start and
finish the performance that has not yet begun.48
41 If the obligee requests immediate, immediate or immediate
performance from the obligor, he is making it sufficiently clear that
the obligor only has a limited (determinable) period of time to
perform. A reasonable period of time is therefore set in motion by
such a request.
It is not necessary to state a specific period or final date.49 Even if
the obligee sets an unreasonably short deadline, a reasonable
period of grace will start to run.
The provision in the terms and conditions by which the user reserves an unreasonably
long or insufficiently specific grace period is invalid (§ 308 No. 2).
cc) Dispensability of a period of

42 grace (1) Pursuant to Section 281 (2) (as well as Section 323
(2) No. 1), the setting of a period is unnecessary if the debtor finally
and seriously refuses to perform. In this case, the setting of a grace
period (as well as the reminder; "Rn. 17) is obviously pointless and
therefore not reasonable for the creditor. As with Section 286 (2)
No. 3, however, strict requirements must be made for a refusal to perform.
The debtor must indicate that if he is faced with the choice between
performance and payment of damages instead of performance, he
will opt for the latter.50 It is not sufficient for this if he declares that
he will not be able to pay when it is due.51 Otherwise, the final
refusal to perform only makes it unnecessary to set a grace period,
but not automatically to the due date of the claim.52 (2) According
to Section 281 (2) (also Section 323 (2) No. 3, cf. also Section 286
43 Para. 2 No. 4) is also dispensable if there are special
circumstances which, after weighing up the mutual
48 Bundestag printed papers 14/6040, 138; BGH NJW 1985, 320 (323); OLG Köln NJW-RR
2018, 1141 (1143) on the reasonable deadline for retrofitting a car with manipulated
pollutant software.
49 BGH NJW 2009, 3153 (3154) with critical comment Faust JZ 2010, 202; confirmed in NJW
2015, 2564 f. Manm Gutzeit and note Riehm JuS 2015, 1121; again confirmed in NJW
2016, 3654 marginal note 25 man Höpfner NJW 2016, 3633 and commentary Schwab
JuS 2017, 67.
50 BGHZ 104, 6 (13).
51 See § 323 BGH NJW 2012, 3714 (3716) Manm Gutzeit, comment Faust JuS 2012, 940
and note Gsell EWiR 2013, 99.
52 BGH NJW-RR 2008, 210 (211).
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interests justify the immediate transition from the primary claim to performance
to the secondary claim for damages instead of performance. In particular, the
so-called just-in-time contracts should be recorded.53 In the case of these,
one part (supplier) must
deliver to the other part at a certain point in time so that its production can be
operated properly. stays the
In such cases, the creditor must be able to arrange for a replacement to be
procured in whole or in part if performance is lost in such cases. Furthermore,
a grace period is due to special circumstances
dispensable if the seller has a defect known to him
has fraudulently concealed the conclusion of the purchase contract and the
buyer therefore immediately claim damages or
wants to withdraw from the purchase contract;54 because the basis of trust
that has been lost cannot be restored even after a period of grace.
However, the special circumstances are explained in accordance with § 326 44
aF can also accept if the interest of the creditor
in the fulfillment of the primary claim is omitted precisely because of the delay
in performance.55
Example: Seasonal items cannot be sold due to the delay in performance

become. The resale of a machine failed due to the delay in performance. -
Conversely, from § 323 para. 2 No. 2 is to
can be seen that exceeding an agreed performance date also
in the case of the so-called relative fixed transaction (“Rn. 63) is not sufficient to
Circumstances within the meaning of Section 281 (2) to be accepted.
(3) Finally, setting a deadline is unnecessary if the parties 45

have waived this requirement in individual contracts. One
However, waiver by general terms and conditions fails due to § 309 No. 4; in the
Use vis-à-vis a corporation at § 307.56
dd) Warning instead of setting a deadline
If a deadline is not set according to the type of breach of duty 46
into consideration, a warning shall take its place in accordance with Section
281 (3). The purpose and scope of this provision are unclear.
It is intended to cover omission obligations.57 Violation of a
However, the obligation to forbear leads to impossibility ("Rn. 4), see above
that with regard to the damage that has occurred, Section 281 is not relevant at all.
53 BT-Drs. 14/6040, 140.

54 BGH NJW 2007, 835 (837); 2010, 2503 (2505).
56 Cf. BGH NJW 1986, 842 (843).
57 BT-Drs. 14/7052, 279.
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It is at least conceivable that Section 281 (3) should enable the creditor,
in the event of a violation of a cease-and-desist obligation, to warn the
debtor to comply with the cease-and-desist obligation in the future and, in
the event of a repeated violation, to compensation for damages instead
of full performance (Section 281 1 sentence 2).58 ee) Unsuccessful grace
period The grace period set by the creditor is unsuccessful if the
47
debtor has not paid by the end of the period.
As with the delay in performance that is the reason for the delay, the performance of
the performance is decisive. It is sufficient for the debtor to offer the creditor the performance
in a manner that justifies the default in acceptance ("margin no. 8).
If performance becomes impossible before the deadline expires, the

claim for damages instead of performance cannot be based on Section
281, but only on Section 283. The prerequisite is that the debtor culpably
caused the impossibility or did not prevent it.
This is not the case, for example, if the creditor takes action himself before the
grace period expires ("Section 22, para. 53).
48 A partial non-performance is sufficient (Arg. § 281 Abs. 1 S. 2).
However, the creditor can then only claim damages instead of
performance to that extent. He is only entitled to claim damages instead
of full performance if he has no interest in partial performance (§ 281
Para. 1 Sentence 2, "Rn. 52).
If, on the other hand, the delivery of an insufficient quantity (quantity defect) is equivalent
to a material defect in sales law (§ 434 Paragraph 3) and in contract law (§ 633 Paragraph
2 Clause 3), the rules on material defects apply ("§ 24 Rn. 17) The partial delivery as a
form of partial performance therefore falls outside the scope of Section 281 (1) sentence 1,
1st case.
49 d) Responsibility. The debtor must be responsible for non-performance

despite the possibility of performance, the enforceability of the claim and
the setting of a deadline. The need to represent is assumed in accordance
with § 280 paragraph 1 sentence 2. The same applies as for compensation
for damage caused by delay ("Rn. 28 and "§ 22 Rn. 53).
However, if the debtor is in default when the deadline expires, he is liable according to
Section 287 Sentence 2 regardless of fault ("Rn. 74). In this case, the fault of the debtor
only has to exist at the time the payment was due.
58 Critical to Section 281(3) Huber/Faust SchuldRMod Section 3 marginal number 147.
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a) Damages instead of performance. Through the compensation 50

instead of performance, the creditor should be put in the position he was in
proper fulfillment would stand.59 So the through
The damage caused by the non-performance are compensated (so-called
positive interest or non-performance damage; details "§ 22
paragraph 57). On the relationship between damage caused by non-performance and damage
caused by delay" para. 31.
The claim is also based on § 281 in principle

cash payment limited. In rem restitution (section 249 subsection 1) would circumvent the
assessment of section 281 subsection 4. The creditor also has one here
Right to choose between difference and surrogation theory (" § 22 marginal note 58 f.).
It is true that the claim for consideration is also lost with the claim for damages (“Rn. 55).
But that does not exclude the surrogation theory either
like the loss of the claim for consideration in the event of impossibility
§ 326 ("§ 22 marginal number 60).
In case c, K must set V a grace period. After the unsuccessful expiration, he can claim
damages instead of performance (EUR 3,300 minus EUR 3,000
= 300 EUR) request. He is also not prevented from doing so if he already has the
has declared his resignation (§ 325; "Rn. 72).
b) Compensation for damages instead of full performance. Does the 51

If the debtor only partially fails to perform, the creditor can acc.
§ 281 para. 1 sentence 1 in principle only "to the extent" compensation
demand instead of performance, ie he can only demand the positive interest
liquidate the outstanding part of the service (so-called small damages).
Example: A lends his chess set to B. Despite setting a grace period, this only gives
the stones back. In this case, A can only claim damages instead of performance with
regard to the board.
However, it may be that the creditor is not in the best interest of the partial 52
performance. He wants compensation instead of performance
then not only with regard to the missing part, but with regard to the entire
service (so-called large damages).
According to § 281 paragraph 1 sentence 2, he can only do that if he is at the
partial performance has no interest. This requirement is not already
to be affirmed if the partial performance can be used less favorably for him.
Rather, this can be done when calculating the small
59 BGH JZ 2010, 44 with critical comment Klöhn.
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be taken into account.60 What is required is that

the creditor can objectively do nothing with the partial performance.
Examples: A gives B only one shoe from the borrowed pair. at

In the chess game, from which B only gives back the pieces, the board and pieces are
made to match.
Since the mere partial delivery in sales and work contract law is not a partial performance within the meaning of
Section 281 Paragraph 1 Sentence 2, but a poor performance within the meaning of Section 281 Paragraph 1 Sentence 3
represents, it does not come to the loss of interest, but only
on the fact that the deviation is not insignificant ("§ 24 para. 17 f.).61
The acceptance of a partial performance makes it more difficult for the creditor to
liquidate his overall interest. He can avoid this difficulty if he
rejects the partial service; he is entitled to do so in accordance with Section 266.
53 If the requirements of Section 281 (1) sentence 2 are met, the creditor has
the right to choose. He can keep the partial performance and the small one
claim damages. However, he can also claim the large amount of damages. In
that case, however, he is only entitled to withdraw from the contract in
accordance with Section 281 (5) to return the partial performance
applicable Sections 346 et seq. ("Section 18 para. 17).
c) Loss of Primary Claims.

aa) The entitlement to the service
54 If the creditor demands damages instead of performance, leave
the primary claim for performance of the creditor under (section 281 (4)).
On the other hand, the claim for performance does not expire upon expiry of the
set grace period. The creditor can therefore also after the deadline
nor demand performance. That is also appropriate. Despite the delay in
performance, the creditor may still be interested in the original performance.
He can get through to the debtor
the setting of a grace period indicates the need for immediate fulfilment
make it clear without committing yourself to the mere liquidation of the interest.
Whether the obligee demands damages instead of performance is to be determined by

interpretation. With regard to the law-destroying effect is a
clear explanation required. It must show that the creditor refuses to perform and liquidates
his interest instead. In any event, this is to be affirmed in the case of an action for
damages. On the other hand
the mere threat to demand damages is not sufficient.
60 Staudinger/Schwarze BGB Section 280 marginal no. E 6; Staudinger/Schwarze BGB Section 281 marginal number B
153 ff.
61 See also Brox/Walker SchuldR BT § 4 marginal number 96.
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bb) The claim to consideration

In the case of mutual contracts, the question of fate arises 55
of the quid pro quo. Because of the synallagmatic connection with the
claim to performance, this is also lost.62 The creditor therefore does
not have to additionally declare withdrawal
(Sections 323, 325) in order to free oneself from the obligation to provide consideration.
III. reimbursement of expenses
If the requirements of Section 281 (1) sentence 1 are met, the 56

creditors as in Section 283 instead of compensation
of the performance also demand reimbursement of his futile expenses
(§ 284). Details "§ 22 Rn. 71 et seq.
IV. Resignation (§ 323)
Due to the delay in performance, the other party may lose interest in 57
the performance of the contract. § 323 granted
therefore under certain conditions the right to withdraw from the contract.
Then it is no longer carried out.
A similar result can also be achieved by eliminating positive interest according to the
difference theory. The claim to
Compensation instead of performance depends but differently than the right of withdrawal
from having to represent the debtor ("margin no. 49).
1. Requirements
The withdrawal constitutes a right of withdrawal and the effective suspension 58
exercising this right.
a) Right of withdrawal. The prerequisites for the right of withdrawal

result from Section 323. They only partially agree with those of Section 281
match. What is required is the non-fulfilment of a performance obligation
based on a mutual contract despite the determination of a
grace period by the creditor.
Unlike the claim for damages instead of performance according to § 281
the resignation does not require representation.
62 Cf. Palandt/Grüneberg BGB § 281 para. 52.
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aa) Mutual contract

The right of withdrawal according to § 323 – unlike § 281 – only applies
mutual contracts ("§ 3 para. 2).
bb) Non-performance despite the due date
59 The debtor does not have to have fulfilled his performance obligation despite
the due date.
(1) Based on the contract, there must first be an effective obligation to
perform within the meaning of Section 241 (1). However, this does not need it
to be synallagmatic in nature. Any contractual agreement is sufficient
Obligation to perform, not just one based on reciprocity.
However, a mere duty to protect within the meaning of Section 241 (2) is not sufficient.
Violation of these only entitles the holder to withdraw in accordance with Section 324.
The obligation to perform must be effective. This is not the case if there
are objections, especially if the provision of the
performance owed is impossible (section 275 (1)). details
"Rn. 6 f.
In the event of impossibility, however, a right of withdrawal results from Sections 326 (5),
323; "§ 22 para. 81 et seq.
60 (2) The obligation to perform must also be enforceable, ie the creditor's

claim must be due and unchallenged. details
"Rn. 5 f.
If the claim has a right to refuse performance according to § 275 para. 2

or 3 contrary, there is a right of withdrawal as in § 275 paragraph 1
Sections 326(5), 323; "§ 22 para. 81 et seq.
61 Section 323 (4) makes an exception to the maturity requirement.

According to this, the creditor can withdraw before the due date if it is
obvious that the conditions for withdrawal will be met (risk of performance).
From this regulation
in particular, the serious and final refusal to perform before the due date is
recorded. A final and serious refusal to perform only makes the setting of
a grace period unnecessary
(§ 323 Para. 2 No. 1; "Rn. 62). If it was declared before it was due,
the creditor would have to wait without § 323 para. 4 until
he can resign. But that's okay with him in view of the behavior of the
debtor unreasonable. Rather, he should be able to resign immediately
to.
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Example: B plays Santa Claus for a fee. He promises A with

Consideration for their small child on Christmas Eve by 5.30 p.m. at the latest
to appear. Three days beforehand, he announced that he could not come until around 10 p.m.
In this case, A can withdraw immediately, ie before the due date (section 323 (4)) and without
setting a grace period (section 323 (2) nos. 1 and 2).
After the due date, the right of withdrawal according to § 323

Para. 4 can no longer be exercised; then there is no longer a case of
jeopardy of performance. From this point in time, the
Effectiveness of the withdrawal according to § 323 paragraph 1, 2.63
cc) Unsuccessful determination of a grace period

(1) As with Section 281, Section 323 also requires that the obligee 62
has requested the debtor to perform and has set him a reasonable period
of time in which to effect it. Setting an effective deadline is only possible
after the service is due.64 Details
"Rn. 38 et seq.
Also as with Section 281 (cf. its paragraph 2), setting a grace period is
unnecessary if the debtor makes the performance final and
seriously refused (section 323 subsection 2 no. 1) if, in the case of poor
performance65 , there are circumstances which, after weighing up the
interests of both parties, justify immediate resignation (section 323 subsection 2
No. 3) and if the parties have agreed so;
" Paragraph 45.
Beyond § 281 paragraph 2, a grace period is also then 63

not required if the debtor fails to perform by a date specified in the contract
or within a specified period
causes, although the timely or timely performance after a
Notice from the creditor to the debtor before the conclusion of the contract
or due to other circumstances accompanying the conclusion of the contract
is essential for the creditor (section 323 (2) no. 2). The parties
must have a specific date or a specific performance period
have agreed and compliance with this performance time must after
be so essential to the party's will that business with it will stand
and shall fall.66
63 BGH NJW 2012, 3714 (3715) Manm Gutzeit, note Faust JuS 2012, 940 and note.
Gsell EWiR 2012, 1463.
64 BGH NJW 2012, 3714 (3717).
65 For the limitation to poor performance and the associated contradiction in the valuation
of Section 281 (2), 2nd case, see Riehm NJW 2014, 2065; Weiss NJW 2014, 1212.
66 BGHZ 110, 96.
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Examples: clauses such as "fix" or "at the latest".

This so-called relative or simple fixed transaction is to be distinguished from the so-
called absolute fixed transaction, although it is rare. For him, compliance with the
performance time is so essential that exceeding it justifies the impossibility of performance
(section 275 (1)); "§ 22 para. 6. Then § 326 applies, which of course also entitles you to
withdraw without setting a grace period (§§ 326 Para. 5, 323); "§ 22 para. 81.
According to Section 323 (3), a warning takes the place of setting a grace period if
setting a grace period is out of the question due to the nature of the breach of duty (see the
comments on the parallel provision of Section 281 (3): "Rn. 46).
64 (2) The determination of a period of grace must be unsuccessful. This

presupposes that the debtor has not performed by the end of the period,
whereby, as with Sections 286 and 281, the performance act is decisive.
It should also suffice if the debtor accepts the creditor

default (§§ 293 et seq.).
65 As with Section 281, a partial non-performance is also sufficient here

(Arg. Section 323 (5) sentence 1), which, however, does not include the
partial delivery in sales and work contract law; " Paragraph 48.
The obligee is of course not obliged to accept partial performance (section 266).
With regard to the question of whether the obligee can withdraw in full or
only partially, a distinction must be made, as with compensation for damages
instead of performance (" para. 51 f.). In principle, the obligee only has a
right to partial withdrawal.67 The contract should be maintained and
processed as far as possible according to the will of the legislature. Only if
the creditor has no interest in the partial performance can he withdraw from
the entire contract (§ 323 Paragraph 5 Sentence 1). A complete withdrawal
is also possible Consider if the consideration to be provided by the creditor
(e.g. delivery and transfer of ownership of an apartment) cannot be divided;68
then a partial withdrawal makes no sense.
dd) No exclusion of rescission Finally,

66 rescission must not be excluded in accordance with Section 323 (6).
67 BT-Drs. 14/6040, 186.

68 BGH NJW 2010, 146 et seq.
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(1) Withdrawal is excluded in accordance with Section 323 (6) 1st case if
the creditor for the circumstance that entitle him to withdraw
would, is solely or predominantly responsible.
Example: The creditor has the debtor's production hall on fire
plugged in so that this temporarily cannot perform. In this case, rescission is
excluded in accordance with Section 323 (6) 1st case.
(2) Section 323 (6) 2nd case also excludes withdrawal if 67

the circumstance for which the debtor is not responsible occurs at a time when
the creditor is in default of acceptance.
However, this standard should not play a major role, since the
Circumstances justifying withdrawal (non-performance despite setting a grace period)
does not exist if the debtor is in default of acceptance
reasoning manner ("margin no. 64). In addition, applies
Section 323 (6) 2nd case only if the debtor has a liability on
reason for withdrawal does not apply.
b) Declaration of withdrawal.
aa) The creditor's right to choose
If and to the extent that the requirements of Section 323 are met, 68
the creditor withdraw from the contract. Of course, he is not forced to do so.
Rather, he has a right to choose: First, he can insist on the fulfillment of the
primary claim. Secondly, he can
withdraw and thus end the contractual relationship. Third, he can
but also claim damages instead of performance according to § 281.
Fourth, he can finally combine rescission and damages (§ 325; " Rn. 72).
The creditor repeats after the unsuccessful expiration of the deadline

his demand for performance does not lose his right of withdrawal. Rather, he
can then still declare his withdrawal if the debtor, even after a renewed request
for performance
does not perform.69 On the other hand, the creditor loses his right to
performance if he demands damages for non-performance
(Section 281 (4)) or by declaring withdrawal from the contract, transforming
the contractual relationship into a rescission obligation pursuant to Section 346
tet.
In case d, K will set V a grace period. After its fruitless expiry, he can demand
compensation for damages from the exchange relationship
(Section 281 (4)) or resignation (Section 349). He then needs the purchase price
69 BGH NJW 2006, 1198.
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no longer to pay and no longer accept the car. He can buy a car much more elsewhere.
bb) Interpretation of the creditor's statement

69 The right of withdrawal is a design right of the creditor
is to be exercised against the debtor (cf. Section 349). Whether a statement
by the creditor is to be understood as an exercise of the right of withdrawal
is must be determined by interpretation. Your must be similar to
in the case of a claim for damages pursuant to Section 281 (4) ("Rn. 54), it
can be inferred that the creditor is no longer interested in asserting the
primary claim for performance, but rather
want to release from the contract.
70 The resignation changes the exchange of services

obligation into a reversal obligation
§§ 346 et seq. (" § 18). The following consequences result in detail:
a) Loss of the primary claims. Withdrawal leads to the deletion of the

original claims for performance. In the event of a partial withdrawal due to
only a partial delay in performance, this consequence only occurs
regarding the unfulfilled part. But the creditor also has
to provide only that part of the consideration that corresponds to the part of
the service rendered.
For the calculation one will be able to fall back on the legal concept of § 441 paragraph
3. Accordingly, the consideration is to be reduced in the ratio in which the value of the
service is to the value of the partial service.
71 b) Refund of mutual services. Insofar as a service or consideration not

owed here has been provided,
it is to be returned in accordance with §§ 346 et seq.
72 c) Withdrawal and compensation. As already mentioned, prevents

the withdrawal does not affect the creditor, damages instead of performance
to demand (§ 325). However, the withdrawal cannot remain without effects
on the amount of the claim for damages. the
The creditor cannot on the one hand demand back the consideration and
on the other hand demand compensation according to the surrogation
method ("§ 22 marginal no. 59). Here he is on the difference method
("§ 22 marginal note 58). He is then to be put as he would be,
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if the contract had been properly performed, the debtor

i.e. would not have violated his contractual obligations.
The buyer's claim for damages, which is based on the positive interest, then typically
also includes the loss of use that arises because the buyer is unable to use the
purchased item as a result of a defect.70
V. Other consequences of the delay in performance
In addition to those previously mentioned, there may be a delay in performance 73

have further consequences.
1. Increased Liability in Default
a) Removal of limitations of liability. During the delay (section 286 paras.

1-4), the debtor is responsible for any negligence (section 287 sentence 1).
This provision is relevant for those cases in which the debtor is not responsible
for the contractual relationship
each, but only for gross or individual negligence (§ 276 Para. 1 S. 1, 2nd Hs.;
"§ 20 Rn. 16 ff.).
Example: The custodian free of charge is only responsible for that care which he
uses in his own affairs (§ 690). The
can mean according to § 277 that he is not liable for simple negligence.
However, if he defaults on the return obligation, he is liable for any negligence.
b) Liability for coincidence. Usually the debtor is not liable 74

for accidental impediments to performance (cf. § 276 Para. 1 S. 1, 1st Hs.).
However, if he is in default, he is also responsible for the accidental obstacles
to performance (section 287 sentence 2). In this case, the debtor must also
pay damages
if with regard to the occurrence of the impediment to performance
not even an accusation of negligence can be made.
The impediment to performance does not need to be adequately offset by the delay
to have been caused; with adequate causality, this results
Liability of the debtor rather already from §§ 280 paragraphs 1, 2 and
286. For section 287 sentence 2, it is sufficient that the impediment to performance during
of default occurs.71
70 BGH NJW 2008, 911; confirmed in NJW 2010, 2426 (2427).

71 Palandt/Grüneberg BGB § 287 para. 3; hL.
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Example: V owes K the delivery of a generic item as a bring debt. If he is in default and
goes the thing he has chosen
on the way to K by chance, he must according to §§ 280 para. 1, 2
and 286 no-fault for the further delay damage of the K
stand up. – In case e, the owed car is used during the delay without
stolen through the fault of the V. V is responsible for this according to § 287 sentence 2. K can
i.e. the lost profit of EUR 500 according to §§ 280 paragraphs 1, 3 and 283
demand replaced.
2. Interest on the claim for compensation in default

75 If the item owed has been lost during the delay (or can no longer be
returned for another reason) or has been reduced in value and the debtor
has
Compensation for the value or the reduction in value (e.g. §§ 280,
283), this monetary claim is also subject to interest (§ 290). The minimum
damage results from Section 288 (1) sentence 1; a further one
Damage (§ 288 Para. 4) can also be asserted here. In addition, the creditor
has a claim for payment in the event of default
The debtor (unless he is a consumer) is entitled to a flat-rate compensation
for legal action in the amount of EUR 40 (Section 288
Paragraph 5 sentence 1).
3. Peculiarities of lis pendens

76 Lis pendens is normally established by filing an action
justified (cf. § 261 Para. 1 ZPO). As a rule, the debtor is in default at the
latest because the filing of an action is equivalent to a reminder (section
286 (1) sentence 2). Exceptionally occurs with it but
no debtor's default if, for example, the debtor as a result of a
error of law through no fault of his own ("paragraph 28). The law still treats
the debtor of lis pendens
in certain respects as if he were already in default; then
from the filing of the action for performance, the debtor must
particularly expect that he will be sentenced to performance.
77 a) litigation interest. From the lis pendens on, a money debt must bear
interest (section 291 sentence 1). The pendency is here
thus equal to the default of the debtor. However, the demand only becomes
is due during the legal dispute, the obligation to pay interest only begins from this point
in time (section 291 sentence 1 old version).
The amount of the process interest corresponds to the interest on arrears (§ 291 Sentence 2
in connection with Section 288 (1) sentence 2, 289 sentence 1; "Rn. 32). Further damage
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(Section 288 (4)) the creditor can only assert in the event of default;
§ 291 sentence 2 does not refer to § 288 paragraph 4.
b) Liability in the event of lis pendens. If a claim for the return of an 78

item is pending, Section 292 (1) refers to
liability for deterioration or impossibility of return, due to the obligation
to return uses or their use
Remuneration and because of a claim for compensation for use of the
owner-owner relationship (§§ 987 et seq.).
Example: G is suing for a contractual claim for the return of an item
one. S is liable for damages if, from this point in time onwards, the item demanded
deteriorates or perishes through his fault
(§§ 292, 989), even if G is not the owner and therefore § 989 does not apply directly.
He has to surrender the uses (= fruits and benefits of use; cf. § 100) and for culpably
not drawn
to pay damages (§§ 292, 987). On the other hand, S has one
Right to reimbursement for necessary expenses (e.g. feeding costs),
not for utilitarian or luxury uses (Section 994(2)).
The claims of the creditor according to § 292 are minimum claims.

They do not exclude further rights from default or from the special
obligation (§ 292 Para. 1 old version).
Legal consequences of the delay in performance
I. The obligee's claim for compensation for the delay

damage (§§ 280 Para. 1, 2, 286)
1. Obligation
2. Breach of duty in the form of non-performance despite
possibility and due date (Section 280 (1) sentence 1)
3. Debtor's default
a) Reminder or dispensability of the reminder
(§ 286 para. 1-3)
b) Responsibility (§§ 286 Para. 4, 280 Para. 1 S. 2, 276,
possibly § 278)
c) Delay Damage
II. Claim of the creditor for damages instead of
Performance (§§ 280 Para. 1, 3, 281)
1. Obligation
2. Breach of duty in the form of non-performance despite
possibility and due date
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3. Unsuccessful determination or dispensability of an after

deadline or warning (§ 281 Para. 1-3)
4. Responsibility (§§ 280 Para. 1 S. 2, 276, possibly § 278)
5. damage
III. The creditor's claim for reimbursement of expenses instead
of damages instead of performance (§ 284)" § 22 marginal number 71
IV. The creditor's right of withdrawal (Section 323)
1. Mutual Contract
2. Non-performance despite possibility and due date
3. Unsuccessful determination or dispensability of an after
time limit or warning (§ 323 Para. 1-3)
4. No exclusion of the right of withdrawal (§ 323 Para. 6)
5. Effective declaration of withdrawal (§ 349)
V. Increased Liability of the Debtor
1. Removal of any liability limitations
(§ 287 sentence 1)
2. Liability for coincidence (§ 287 Sentence 2)

VI. Interest on the claim for value replacement in default (§ 290)
VII. Increased Liability of the Debtor in the Case of Litigation
(§ 291, § 292 in connection with §§ 987 ff.)
§ 24. Poor performance
1 Literature (on positive breach of contract): Köpcke,types of positive breach of

contract, 1965; Schünemann, The positive breach of contract – a critical inventory,
JuS 1987, 1; Wertheimer/Eschbach,
Positive breaches of contract in civil law and labor law,
JuS 1997, 605.
After the reform of the law of obligations: Benicke/Hellwig, The system of liability
for damages due to breach of duty, NJW 2014, 1697; De dek, depreciation of
expenses due to poor performance in the purchase contract,
ZGS 2005, 409; Gieseler, The Structures of Poor Performance in Performance
Disruption Law, ZGS 2003, 408; Grundmann, The claim for damages
Contract, AcP 204 (2004), 569; Gsell, damages instead of performance
the new law of obligations, Jb. J. ZivRWiss 2001, 105; Körber, The Right of
Breaches of duty in general law of obligations - Part 1, JURA 2015, 429
and Part 3, JURA 2015, 673; Kohler, § 281 Para. 4 BGB and the end of the right to
performance, JURA 2014, 872; ders., warranty and remuneration
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§ 24. Poor performance 307
entitlement in cases of § 323 para. 6 BGB – legal questions in the case of patients
refusing to rectify defects, AcP 215 (2015), 165; Höpfner, The exclusion of withdrawal
due to "insignificant" breach of duty, NJW 2011, 3693;
Münch, The service “not provided as owed” and other breaches of duty, JURA 2002, 361;
Recker, damages instead of performance –
or: damage caused by defects and consequential damage, NJW 2002, 1247; Ruby,
Compensation for damages in lieu of performance and compensation for damages in addition to performance,
Ad Legendum 2018, 135; Schroeter, Satisfaction of the interest in performance in
Money: The compensation demanded “instead of performance” in the modernized
Law of Obligations, AcP 220 (2020), 234; Schur, The Buyer's Claim for Damages Due to
a Material Defect, ZGS 2002, 243; Skamel, Exclusion of withdrawal in the event of minor
defects, ZGS 2009, 399; Wilhelm, Die
Breach of duty under the new law of obligations, JZ 2004, 1055.

Case a: The lawyer first sues his client's claim
appeals to an incompetent court and thereby causes unnecessary costs. The client
demands damages. " Paragraph 4, 10
Case b: K buys 100 bottles of wine from V. V only delivers 60 and also shares
at the same time not to make a larger amount available for K. Can he boste K return the
60 bottles and reimbursement of the (higher) costs for
ask for the wine to be purchased from another dealer? " paragraph 5,
10, 15, 17, 31
Case c: What is the legal situation if, in case b, V delivers 100 bottles,
but 40 of which are inedible? " Paragraphs 5, 10, 18, 31
Case d: V supplies K with a defective aquarium. This expires and damage
digs the parquet floor of the K. Rights of the K? " Paragraphs 5, 10, 24
Case e: K bought a plot of land from V and, in accordance with Section 448 (2) borne
the costs of notarial certification of the purchase contract (cf. Section 311b (1)). When he
discovered that the soil was contaminated, he explained after unsuccessful
setting a deadline for the removal and renewal of the earth and demands repayment of
the purchase price and reimbursement of the notary costs. " paragraph 25
I. Concept of underperformance and overview of it

legal regulation
In addition to the impossibility and delay of performance, the law
regulates poor performance as a further impairment of performance. from
One speaks of poor performance if the performance provided is complete
or partially does not correspond to the agreed quality.1
1 Wilmowsky JuS 2002, supplement. to issue 1, 9.
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2 The law describes the poor performance with the words "performance ...
not as owed" (§ 281 Para. 1 Clause 1) or "performance ...
not in accordance with the contract” (section 323 (1)). According to the wording
of the law, what constitutes the poor performance is irrelevant. She can on one
breach of a main obligation, but also on the breach of an ancillary obligation.2
If there is a case of poor performance,
the creditor can under the conditions of §§ 280 para. 1, 3,
281, 283 or § 311a para. 2 demand damages instead of the (entire) service or,
in the case of mutual contracts, in accordance with the
§ 323 paragraph 1 or § 326 paragraph 5 withdraw. In this case, compensation
for damages and withdrawal according to § 325 can be combined.
3 Until the reform of the law of obligations, poor performance was only insufficiently and
incompletely regulated in the law. The statutory rules on impossibility, debtor's default and
the warranty for defects did not apply
any breach of duty that has occurred. This was particularly evident in the case of contract
types that did not have any warranty provisions, such as the
service or employment contract. Among other things, to close this loophole in all
unregulated cases of culpable breach of duty
in corresponding application of §§ 280, 286 old version or §§ 325, 326 old version in
mutual contracts the legal institution of positive breach of contract
(pFV) developed and applied.3 Due to the now explicit
statutory regulation of poor performance in §§ 281, 323 in general
Part of the law of obligations is the regulatory gap that existed before the reform of the law of obligations
for the applicability of the positive breach of contract existed, insofar
been closed. The default in performance regulated today in § 280 should not
can no longer be described as a "positive" breach of contract or claim.
II. Scope of the regulations on

poor performance
4 §§ 280 et seq., 323, 326 paragraph 5, 311a paragraph 2 first cover the
Poor performance in the context of such contractual obligations for which
law does not contain any special provisions. This applies, for example, to
Service contract (§§ 611 ff.; case a) and for the order (§§ 662 ff.), furthermore
for all those types of contract that are not in the law at all
are regulated (e.g. machine installation contract).
5 For the practice-relevant contract types of purchase and work contract law,
the legislature has the poor performance through more
2 Bundestag printed papers 14/6040, 138 (184).

3 Cf. 27th edition 2000, paragraph 291 et seq.
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More detailed provisions are laid out in the special part of the law of
obligations (cf. Sections 434 et seq. and Sections 633 et seq.), but
without making a final, independent provision there. The defect rights
of the buyer (cases b–d) or the orderer result from the
Reference norms of § 437 and § 634 mainly from the
general default law. If the purchased item or the work is defective,
compensation for damages can be claimed instead of the (entire)
Performance in accordance with §§ 280 Para. 1, 3, 281, 283, or § 311a
Paragraph 2 requires or in the case of mutual contracts the withdrawal
§ 323 para. 1 or § 326 para. 5 (cf. § 437 no. 2 and
No. 3 or § 634 No. 3 and No. 4).4
However, there are also types of contract for which the law in 6
finally contains independent defect regulations. In addition
include the rental agreement (§§ 536 ff.)5 and the travel contract (§§ 651k ff.)
6. In these cases, the general rules of §§ 281, 283, § 311a
and §§ 323, 326 can be used. One exception applies only

if claims for defects are already valid before the transfer of risk
be made, e.g. in the case of a rental agreement before the rented item is made
available or in the case of a travel contract before the start of the trip; because to this
At this point in time, the special defect regulations do not yet apply.
In the event of non-compliance with the protection obligations within the meaning of Section 241 (2), the 7
Regulations of Sections 282 and 324 ("Section 25 para. 5 ff.). They take precedence over Sections 281
(1), 283 and 323 (1) in their area of application.7 They grant
a claim for damages instead of performance or a right of withdrawal
not because of a violation of the interest in performance, but exclusively
because duties to protect (§ 241 Section 2) were violated.8
III. Compensation instead of the (entire) service
The creditor can claim damages in the event of poor performance 8th
demand performance. The basis of a claim depends on

whether the quality defect of the service can be remedied or whether it
cannot be remedied, so that the debtor is relieved of his obligation to provide the
owed service according to § 275 paragraph 1 is released.
4 See Brox/Walker SchuldR BT Section 4, paragraphs 49 ff., 79 ff. and Section 24, paragraphs 24 ff., 35 ff.
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1. Compensation for damages due to a remediable lack of performance
In the case of a remediable lack of performance, the creditor can

§§ 280 para. 1, 3, 281 claim damages instead of performance.
9 a) Requirements. The claim has the following prerequisites:
aa) There must be an obligation between the parties - as for any claim for
damages according to §§ 280 et seq. (see already
" § 22 para. 50).
10 bb) The debtor must have committed a breach of duty ("§ 22 para. 51) in
have committed a form of malperformance. That assumes that
he is due (cf. § 271) and not subject to objections (e.g. pursuant to
Section 273 or Section 320) Claim of the obligee to performance free of defects
has not fulfilled as owed.
In case a, the poor performance consists in the filing of an action before the wrong
court. In cases c to d in the procurement of a defective
Purchased item (cf. Section 434 (1)). The under-delivery in case b also stands
according to § 434 paragraph 3 equal to a material defect, so that there is poor performance.
11 cc) Furthermore, the creditor must in principle have set the debtor a reasonable
period of time for subsequent performance without success
(Section 281 (1) sentence 1), unless this is exceptionally superfluous
(§ 281 para. 2; §§ 440 sentence 1, 636, party agreement). For details on this, refer
to the explanations on the setting of a grace period in
be expelled in the event of non-timely performance ("§ 23
para. 38 et seq.).
12 dd) The debtor must be responsible for the poor performance within the meaning of
Sections 276 et seq. (Section 281 (1) sentence 1 in conjunction with Section 280 (1)
sentence 2). For the liability of the debtor according to §§ 276 et seq. cf. "§ 20.
The obligation to represent the debtor for the poor performance
according to the version of the law of § 280 para. 1 sentence 2 suspected (exception
in the case of employee liability: Section 619a). So the debtor has
to prove his non-representation. Relevant time for
according to hM, having to be responsible is that of the expiry of the deadline.9 Self
if the seller is not at fault for the original delivery of a defective item, the culpably
omitted or unsuccessful rectification is sufficient for compensation
9 Palandt/Grüneberg BGB § 281 para. 16; aM Looschelders SchuldR AT § 27 marginal no. 22

(point in time of breach of duty when due or when the deadline expires).
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saying. An original fault can continue to have an effect until the end
of the grace period. If there is no need to set a deadline pursuant to
Section 281 (2), the occurrence of the event (e.g. serious and final
refusal to perform) that takes the place of the expiry of the deadline
is decisive for having to be responsible.
b) Legal Consequences. The assertion of damages 13

A claim instead of performance triggers several legal consequences:
aa) If the creditor demands damages "instead of performance" ("§
22 para. 49 et seq.), the claim for performance is excluded (§ 281
Para. 4). The assertion of the claim for damages (not just the expiry
of the grace period) leads In contrast, it does not matter whether
the creditor actually receives compensation.10
bb) By way of compensation for damages, the obligee is to be 14

put in the economic position he would be in if the obligor had
rendered the performance as owed, i.e. its quality had not fallen
short of the owed standard.11 This is compensation for the so-
called . There are two ways to calculate it:
(1) In the case of so-called small damages (section 281 (1) 15

sentence 1: “damages in lieu of performance”), the obligee retains
the defective performance or item and otherwise demands that it be
made available as if it had been properly performed would. The
creditor can therefore primarily demand payment of the difference
between the value of the defective service or item provided and the
value of the service or item in the owed defect-free condition as
damage.
It is disputed whether, in the case of small damages, the damage can also be
calculated based on the fictitious repair costs that actually did not arise due to the lack
of repairs. The VII. Civil Senate of the BGH rejected such a damage calculation in the
law on contracts for work and services because the customer's assets were not reduced
by fictitious repair costs.12 If one follows this, the same should also apply to the small
compensation for damages due to a defective purchased item.13 But the V. Civil
Senate of the Federal Court of Justice does not want to follow the case law of the VII.
Civil Senate for sales law. He therefore has a procedure provided for in Section 132 (2)
GVG
10 BT-Drs. 14/6040, 140.

11 Cf. Wilmowsky JuS 2002, supplement. on issue 1, p. 10.
13 Brox/Walker SchuldR BT § 4 para. 93 and § 24 para. 55.
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initiated, in which it should be clarified whether the VII. civil senate at all
wants to hold on to his stated calculation of the small amount of damages.14
If so, the question may need to be considered by the Grand Senate in
Civil matters (§ 132 Para. 1, 2 GVG) are decided.
In addition to compensation for the pure reduced value (i.e. the loss of
quality), the creditor also receives via Sections 280 (1), 3, 281
replaces the so-called general direct financial loss.
Therefore, in particular, compensation obligations are opposed to those of the creditor

is exposed to third parties, or a loss of profit because it is due to the
Poor performance by the debtor to his creditor, compensable damage items within the
scope of the damage caused by defects
represent.
In cases b and c, K could in any case demand reimbursement of the costs of purchasing
a replacement for the 40 bottles that were not delivered or were undrinkable.
16 (2) If the poor performance is significant, the creditor can choose to

claim so-called large damages instead of the small one
(cf. Section 281 Paragraph 1 Sentence 3: "Compensation for damages
instead of full performance"). The relevance of the lack of performance is
to be determined taking into account all the circumstances of the individual
case, especially the purpose of use and the prevailing opinion. There it comes
not only to the objective inferior value of the service. When
the poorly performing debtor is to be accused of malice (e.g. the
Seller fraudulently conceals a defect), for that reason alone
As a rule, one does not speak of an insignificant breach of duty.15 In the
case of a large claim for damages, the creditor returns the defective
service or item and demands compensation for the damage he suffered
as a result of the non-fulfilment of the whole
contract has arisen. In this case, the debtor is entitled to claim back what
has been paid in accordance with Sections 346-348 (Section 281 (5)).
For example, when a defective item is delivered, the buyer gets back the purchase
price that has already been paid and can claim damages such as the additional costs of
procuring a replacement or lost profit as non-performance damage
and demand release from liability arising from resale. the
The seller can reclaim the defective purchased item that has already been handed over
according to the rules of rescission (§§ 437 No. 3, 1st case, 281 paragraph 5, 346 ff.). The
buyer must therefore also surrender the benefits drawn (§§ 437 No. 3, 1.
case, 281 para. 5, 346 para. 1) and must in the event of a possible sinking or
14 BGH ZIP 2020, 1073.

15 BGH NJW 2006, 1960 (1961).
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compensation for deterioration of the purchased item (§§ 437 No. 3, 1st case, 281
Para. 5, 346 Para. 2 No. 3).
Even if the performance is not quantitatively sufficient to fulfill an obligation 17

under a purchase contract or contract for work and services, the buyer can
demand large damages if the underdelivery is significant. In principle, the
question of whether the large amount of damages can be demanded when
partial performance is effected is assessed according to Section 281 (1)
sentence 2. According to this provision, the creditor can only demand
damages instead of the entire performance if he participates in the partial
performance has no interest (cf. "§ 23 Rn. 52). But this is different for
purchase and work contracts. This follows from the fact that the legislator
has expressly equated the underdelivery in the purchase and work contract
with a material defect (cf. § 434 para 3 or Section 633 Paragraph 2 Sentence
3).
In case b, the under-delivery is a defective service. This deficiency (only 60 instead

of 100 bottles) is also significant within the meaning of Section 281 Paragraph 1 Clause
3. K is therefore entitled to claim the large amount of damages.
On the other hand, it does not matter whether the buyer is not interested in a mere
delivery of 60 bottles.
The same applies in the event of partial poor performance of contractual 18

obligations (case c). Section 281 (1) sentence 3 (poor performance) and not
Section 281 (1) sentence 2 (partial performance) also applies here (str.).
Thus, the buyer is not limited to claiming damages in lieu of performance in
relation to the 40 inedible bottles, but can also claim damages in lieu of full
performance (cost of replacing 100 edible bottles). For the buyer it makes no
difference whether part of the purchased item is not delivered or is delivered
in an unusable condition.17
2. Compensation for damages due to an irremediable lack of performance
If it is not possible for the debtor to remedy the lack of performance, he is 19

relieved of his obligation in accordance with Section 275 (1).
16 Cf. on the comparable problem of resignation in Section 323 (5): BT-Drs. 14/6040, 187 and "Rn. 31.
17 For the comparable problem of resignation under Section 323 (5), see: Bundestag printed paper 14/6040,
187
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free for subsequent performance. The same applies in the cases of § 275 para. 2, 3.
Then the setting of a deadline provided for in Section 281 before the assertion of
damages instead of performance would be pointless. wear dem
§§ 311a paragraph 2 and 283 invoice:
20 a) In the event of an initial impediment to performance. If there was already an

unresolvable impediment to performance when the contract was concluded, the creditor can
according to § 311a para. 2 claim damages instead of performance. The prerequisite
is that the debtor was aware of the impediment to performance at the time the contract
was concluded or was not aware of it due to negligence
has (§ 311a Abs. 2 S. 2). From the wording of the law (This does not apply
...) it follows that this prerequisite is presumed. the debtor
must therefore provide evidence to the contrary. The calculation of the compensation
is the same as for the claim from Section 281 (“Rn. 14 et seq.).
The creditor can claim so-called small damages and – if the lack of performance is
significant – so-called large damages
(§§ 311a paragraph 2 sentence 3 in conjunction with § 281 paragraph 1 sentence 3).
21 b) In the event of a subsequent impediment to performance. If the non-remediability

of the performance defect only occurs after the conclusion of the contract, for
the claim for damages instead of performance §§ 280
Para. 1, 3, 283 the correct basis for the claim. Here he has to
Debtor to bring about the impediment to performance within the meaning of Section 276
have represented. That is to be assumed if he was at least negligent
has not prevented the subsequent elimination of the performance defect from becoming
impossible. The need to represent becomes effective
presumed by law (section 283 in conjunction with section 280 (1) sentence 2). For the calculation
of the compensation come as with § 281 ("Rn. 14 ff.) of the so-called
small or - if the lack of performance is significant - the so-called large
Compensation for damages (§ 283 Clause 2 in conjunction with § 281 Paragraph 1 Clause 3) into consideration.
IV. Compensation for damages due to consequential damages
22 Does the poor performance not only lead to a reduction in the value of the
performance, but to an infringement of other legal interests of the creditor, the creditor
can also demand compensation for the consequential damages resulting therefrom.
But that is not the point
for damages instead of performance; because an improvement of the service would
not eliminate these consequential damages.
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For this reason, Sections 281, 283 and 311a (2) are excluded as the basis for a
claim. Rather, the claim arises from Section 280 (1).
The claim for compensation for consequential damages exists in addition to the fulfillment
claim for payment and the claim for damages instead of performance.
1. Requirements
The debtor must have committed and be responsible for a breach of duty in the 23
form of poor performance. The having to represent
is assumed according to § 280 paragraph 1 sentence 2.
2. Compensable Damage
According to Section 280 (1), only the damage suffered by the creditor as a result 24
of the infringement of other legal interests is eligible for compensation. The inferiority
of performance and a loss of profit as a result are only under
the additional requirements of §§ 281, 283 (damages
instead of the service) can be replaced.
In case d, K has the defect rights because of the faulty aquarium

§ 437. Because of his parquet damage he can demand compensation according to § 437 in connection
with § 280 paragraph 1.
V. Reimbursement of expenses
Instead of compensation for damages instead of performance, the creditor can 25

demand reimbursement of the expenses that he relied on
made the receipt of the service and was reasonably allowed to do it,
unless their purpose would also exist without the breach of duty by the
debtor has not been reached (section 284).
In case e, K can withdraw from the purchase contract according to §§ 437 No. 2, 323 and
according to § 346 reclaim the purchase price. The certification costs are
not to be paid by V to K according to § 346, nor to compensate by way of damages according
to §§ 437 No. 3, 280; because they would also be with one
defect-free property was created. However, they are futile expenses which K can demand
reimbursement from V pursuant to §§ 437 No. 3, 284.
Details of this claim "§ 22 marginal number 71 ff.18
18 Cf. also Brox/Walker SchuldR BT § 4 para. 112 et seq.
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VI. Withdrawal (§§ 323 Para. 1, 326 Para. 5)
26 In the event of a remediable lack of performance, the right to

Withdrawal from Section 323 Paragraph 1. If the performance deficiency cannot be remedied,
the right of withdrawal is governed by Section 326 Paragraph 5.
1. Withdrawal due to a remediable performance defect
a) Requirements. The right of withdrawal due to non-contractual

performance according to Section 323 (1) has numerous identical ones
Claim requirements such as the claim for damages
§§ 280 para. 1, 3, 281 or § 283. However, § 323 also has individual
specifics.
27 aa) Section 323 (1) (unlike Section 281) requires a mutual contract. Details:
"Section 23 marginal number 36 in connection with "Section 22 marginal number 50
Guarantee contract, in the case of an order and other contracts in which
there is no reciprocal relationship, Section 323 does not apply. Only
Sections 275 et seq. apply here.
28 bb) In principle, the creditor must unite against the debtor
have a due and unobjectionable claim to benefits, the
the debtor has not fulfilled the contract (section 323 (1)), whereby
the performance deficit can be remedied. It is not required that the
The creditor's claim for performance is in a mutual relationship
(synallagma).19 With non-contractual performance is just as
performance not owed (section 281 (1) sentence 1) means poor
performance.
29 cc) The creditor must basically unsuccessful to the debtor
set a reasonable deadline for subsequent performance (Section 323 (1))
or have issued a warning to the debtor (section 323 (3)), unless the
setting of a deadline or warning is exceptionally superfluous. For the
details, reference can be made to the setting of a deadline for untimely
performance ("§ 23 para. 38 et seq.).
30 dd) Withdrawal is excluded in a number of cases:
(1) The obligee cannot withdraw from the contract if
if the poor performance is irrelevant (" para. 16) (§ 323 para. 5
p. 2). Unlike the claim for damages according to §§ 280 paragraphs 1, 3,
281, in which the irrelevance of the poor performance "only" the
19 BT-Drs. 14/6040, 183.
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Option to large damages denied, damages

instead of performance in the form of small damages (cf. § 281
Para. 1 p. 1, 3) can be demanded, the law completely excludes the right of
withdrawal in minor cases. The examination of the relevance requires a
comprehensive weighing of interests
based on the circumstances of the individual case. It basically depends on
the relationship between the purchase price and the costs of remedying
the defect.20
Example: The car sold has bodywork damage, the repair of which accounts for only
1% of the purchase price.21 The BGH also uses this limit of 1% (in any case, no
significance) as a basis for special
expensive purchases, eg a mobile home for more than EUR 134,000.22 If at
According to the case law of the Federal Court of Justice23, the cost of remedying a
defect exceeds 5% of the purchase price as a rule
more to assume irrelevance. However, the circumstances of
Individual cases show that even with lower defect removal costs of
significant poor performance is to be expected. If, for example, in a car
with manipulated pollutant software, a software update for less
than 100 EUR is possible, but at the time of the declaration of withdrawal at all
It is not foreseeable whether and when this update will be approved by the Federal
Motor Transport Authority and when it will actually be available
this uncertainty is hardly assumed to be an insignificant defect
be.24
In the case of insignificant defects in a purchased item, for example, the buyer can
not withdraw from the purchase contract (§§ 437 No. 2, 323 Para. 5 Sentence 2). he's up
Reduction (cf. §§ 437 No. 2, 441) and compensation for damage caused by defects (§§ 437
No. 3, 281 paragraph 1 sentence 1 (small damages) or consequential damage
(§§ 437 No. 3, 280 Para. 1) limited.
§ 323 para. 5 sentence 2 (possibly in conjunction with § 326 para. 5) takes place in the purchase and 31
Work contract law also in the case of an under-delivery and a
partial default.25 Although the obligee can
in the case of partial performance by the debtor, according to Section 323
(5) sentence 1, only withdraw if he is not interested in the partial performance
has ("§ 23 Rn. 65). However, since the under-delivery is expressly equated
with a material defect in the law on sales and work contracts
20 BGH NJW 2014, 3229 (3230); NJW 2013, 1523 para. 33; NJW 2011, 2872 para. 19 et seq.
21 BGH NJW 2005, 3490 (3493).
22 BGH NJW 2011, 2872 (2874).
23 BGH NJW 2014, 3229 (3231) with att. Note Gsell EWiR 2014, 585, note Faust JZ
2015, 149 and note Riehm JuS 2015, 68.
24 OLG Köln NJW-RR 2018, 1141 (1143).
25 St.; cf. also Looschelders SchuldR AT § 33 para. 8 f.
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(Section 434 (3) or Section 633 (2) sentence 3), it constitutes poor performance,
so that the exclusion of withdrawal is governed by Section 323 (5) sentence
226 (to the parallel problem with large damages under Section 281
Para. 1 p. 2 or 3 cf. "Rn. 17). The yardstick here is the relevance of the
underdelivery.
In cases b and c, K could also withdraw from the contract. If, on the other hand, only
one bottle had been delivered too little or with inedible contents, there would be no right of
withdrawal due to insignificance.
32 (2) Withdrawal is also excluded if the creditor is solely or predominantly

responsible for the circumstance that would entitle him to withdraw (§ 323
Para. 6, 1.
Case). The creditor should thus bear the price risk if the
poor performance is due to his responsibility.
Example: If the buyer of a used car damages it during a

travel between the conclusion of the contract and the transfer of risk, the right of withdrawal
is denied.
33 (3) Furthermore, the creditor has no right of withdrawal if

the circumstance for which the debtor is not responsible occurs at a time when
the creditor is in default of acceptance (§ 323
Para. 6, 2nd case).
Example: The customer does not pick up the television he has bought on the agreed
day. Another customer caused the next day on the in the
Televisions set aside for collection at business premises clearly visible
Scratch.
34 b) Legal Consequences. With the receipt of the declaration of withdrawal

a settlement obligation to which the general rules of withdrawal set out in
Sections 346 et seq. apply (for details on withdrawal, see " Section 18).
In particular, the parties have the benefits received
To be returned step by step (§§ 346, 348). The mutual primary claims for
performance expire.
2. Withdrawal due to an irremediable lack of performance
35 In the event of an irremediable lack of performance, the debtor

according to § 275 paragraph 1 of his obligation to perform according to the contract
free. The creditor's right of withdrawal then arises from Section 326
Paragraph 5. In this case, the right of withdrawal is relevant because
26 Cf. Brox/Walker SchuldR BT § 4 para. 64 f.
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the obligee is not automatically (not even partially) released from his obligation to provide
consideration if the obligor performs poorly and cannot be remedied (section 326 (1)
sentence 2). So there is no reduction by law. Rather, the creditor must decide whether he
wants to reduce (e.g. pursuant to Section 437 No. 2 or Section 634 No. 2) or withdraw
from the contract. Section 326 (5) refers to the requirements of Section 323, which apply
to withdrawal due to a remediable defect. However, prior setting of a deadline for
contractual performance is not necessary; it would also be pointless because the lack of
performance cannot be remedied. The legal consequences correspond to those of
remediable defects.
Legal Consequences of Poor Performance
I. Compensation for damages instead of performance in the case of a defect that can be remedied
(§§ 280 para. 1, 3, 281)
1. Obligation 2. Breach
of duty in the form of remediable poor performance 3. Responsibility (§§ 280
Para. 1 S. 2, 276, if necessary § 278)
4. Unsuccessful determination of a reasonable grace period (Section 281 (1)
sentence 1) or dispensability of the grace period (Section 281 (2))
5. damage
II. Compensation for damages in lieu of performance in the event of irremediable defects
("§ 22 marginal number 49)
1. In the event of an originally unresolvable impediment to performance
(Section 311a (2))
2. In the event of an impediment to performance that cannot be removed
subsequently (§§ 280 Para. 1, 3, 283)
III. Damages due to consequential damage (§ 280 Para. 1)
1. Obligation 2. Breach
of duty in the form of poor performance 3. Responsibility (§§ 280
Para. 1 S. 2, 276, possibly § 278)
4. Consequential damage IV.
Reimbursement of expenses instead of damages instead of
Performance (Section 284) "Section 22
marginal number 71 V. Withdrawal 1. In the event
of a remediable lack of performance (Section 323 (1))

a) Mutual Contract
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b) Remediable lack of performance

c) Unsuccessful determination of a reasonable grace period
(Section 323 (1)) or dispensability of the grace period
(Section 323 (2)) d) No exclusion of withdrawal aa) If the
poor performance is irrelevant (Section 323 (5) sentence 2 )
bb) If the creditor is responsible (§ 323 Para. 6, 1st case)
cc) If the creditor is in default of acceptance (§ 323
Para. 6, 2nd case)
2. In the event of an irremediable lack of performance (Section 326 (5))
Section 25. Violation of duties to protect
1 Literature: Fleischer, Pre-contractual obligations at the intersection of the reform of the

law of obligations and private community law – illustrated using the example of information
obligations, in: Schulze/Schulte-Nölke Reform of the law of obligations 243; Kersting, The
legal consequences of pre-contractual breaches of the duty to provide information – claim
for cancellation of contract or “reduction” from cic?, JZ 2008, 714; Knoche/Höller, §§ 241
Para. 2, 282 BGB: Damages in lieu of performance after the main performance has been
effected, ZGS 2003, 26; Koch, § 311 Para. 3 BGB as the basis of a confidentiality-based
liability for information, AcP 204 (2004), 59; Körber, The law of breaches of duty in the
general law of obligations - Part 3, JURA 2015, 673; Mankowski, § 324 BGB is no solution
for negligent deception, ZGS 2003, 91; Mertens, The legal consequences of liability from
culpa in contrahendo in the case of a contract that has come about under new law, ZGS
2004, 67; Schur, Performance and Diligence, 2001; Walker, The civil liability of football
players and their clubs for injuries to an opponent, FS für Tolksdorf, 2014, 143; Breach of
values, Liability from culpa in contrahendo when contract negotiations are broken off, ZIP
2004, 1525.
Case a: Painter M is supposed to paint E's apartment. In the course of carrying out his
work, M damages several valuable pieces of furniture. E would therefore like to have the
work completed by another painter and charge M for the additional costs. " Paragraphs 4,
5, 10
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Section 25. Violation of duties to protect 321
Case b: K goes to V's department store to find out about the price there
of a new TV set. He slips on the improperly cleaned floor and injures himself. K
demands compensation from V. " Paragraphs 12, 15
Case c: K is interested in a house that is surrounded by agricultural land on the

south side of the property. on
Inquiry at V informs that these plots of land would not be developed,
although he could have known that a sports facility is planned there. After K bought
the house from V for EUR 400,000, a short time begins
later the construction work for the sports facility. " Paragraphs 13, 17
I. Overview of the legal regulation

According to § 241 paragraph 2, the obligation can be defined according to its content
each part to respect the rights, objects of legal protection and interests
of the other party (details on these so-called protection obligations "§ 2 para.
11 et seq.). The violation of such a protection obligation
Section 241 (2) can, in accordance with Section 280 (1), justify a claim for
damages which is in addition to the claim for performance. Does he
Creditors because of the damage caused by the breach of the duty to protect
If he is no longer interested in the performance of the damage caused, he
can demand damages instead of performance under the conditions of §§
280 Para. 1, 3, 282. In addition, the obligee has the right to withdraw from
the contract under the conditions of Section 324.
Before the reform of the law of obligations, these cases were solved with the help
of a positive breach of contract ("§ 24 para. 3).
According to § 311 para. 2, 3, an obligation with obligations 2

Section 241 (2) also arise at a pre-contractual stage
(Details "§ 5). A breach of duty also results
a claim for damages from § 280 paragraph 1. If the pre-contractual
breach of duty is only recognized after the conclusion of the contract
also a claim for damages instead of performance (§ 282) and a
Right of withdrawal (§ 324) into consideration.1
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II. Violation of the obligation to protect
1. Damages due to breach of duty under Section 280 (1).

3 According to Section 280 (1), the obligee can demand compensation for
damage caused by the obligor through an infringement for which he is responsible
caused a protection obligation within the meaning of Section 241 (2).
a) Requirements. There must be an obligation between the parties (for

more information, see Section 2). The debtor must fulfill the obligation
Section 241 (2) to take into account the rights, objects of legal protection and
interests of the creditor. He must be responsible for the breach of the duty to
protect (section 280 (1) sentence 2). For information on the liability of the
debtor and the distribution of the burden of proof, see
"§ 20 and "§ 22 marginal number 53.
4 b) Legal consequence. Under the above conditions, the

debtor to the damage caused by the breach of duty
replace other legal assets of the creditor. This is the so-called integrity damage.
The debtor must restore the situation that would exist if the duty of protection
had not been breached
(§ 249; "§ 31 Rn. 2). The damage cannot be claimed instead of the service,
but in addition to the service. It is the amount
after not limited by the interest in performance. contributor
Fault (§ 254; "§ 31 Rn. 36 et seq.) must be taken into account.
In case a, E can claim damages for the damaged furniture under Section 280
Demand paragraph 1.
If a football fan violates his spectator contract with the organizing club by using prohibited
pyrotechnics, he must notify the club,
who is therefore fined by the Football Association, this
Replace amount of money.2
2. Damages instead of performance (§§ 280 Para. 1, 3, 282)

5 If the creditor can no longer be expected to accept performance from this
debtor because of the breach of the duty to protect, he can
Section 282 demand damages instead of the entire service.
2 BGH NJW 2016, 3715 para. 11 et seq. Manm Mäsch JuS 2017, 261. Regarding the ability to take recourse
such association penalties Walker NJW 2014, 119; also FS Rössner, 2015, 701.
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a) Requirements. In the context of a contractual obligation with the

creditor, the debtor must have breached a duty to protect and be
responsible for the breach of duty. The breach of the duty to protect
must be of such importance that the creditor can no longer be expected
to accept performance from the debtor (although he could still perform
it properly). The unreasonableness is to be checked on the basis of an
evaluation, taking into account all the circumstances of the individual
case. In that regard, high demands are to be made. In particular, it will
depend on the weight and frequency of the breach of duty. Furthermore,
unreasonableness is likely to be all the more likely the greater the risk
that further violations of the duty to protect are to be expected in the
future.
In case a is due to the multiple damage to the valuable furniture
exceeding the reasonableness threshold.
According to the wording of Section 282, a warning is not required. 6

The relationship of trust between the creditor and the debtor can
therefore be disrupted to such an extent by a first significant breach of
the duty to protect that the creditor cannot reasonably be expected to
have the debtor perform the service. In the case of breaches of duty
that are initially less serious, the debtor will have to be made aware of
his misconduct by means of a warning, so that it can only be assumed
that the further execution of the contract is unreasonable if the creditor
has warned the debtor without success.3
Example: A serious insult to the creditor by the debtor or another crime committed
by the debtor against the creditor can be sufficient for application of section 282 even
without a warning.
However, it is not necessary to set a deadline; because the 7

contractual performance, which the creditor can demand by setting a
deadline, is irrelevant in the case of a breach of the duty to protect.
b) Legal consequence. The content of the claim for damages is 8th
based on the principles of Section 281 ("Section 23 Rn. 50). According

to Section 282, the higher costs for a replacement transaction can be
demanded, which the creditor concludes instead of the service not
further provided by the debtor. On the other hand, the damage to
integrity resulting from the breach of the protective obligation is covered by other leg
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assets of the creditor already covered by § 280 paragraph 1, and they provide
does not constitute compensation in lieu of performance.
3. Resignation (§ 324)
9 According to section 324, the creditor of a mutual contract
withdraw if the debtor has breached an obligation under Section 241 (2) and
the creditor is no longer able to adhere to the contract
is to be expected.
a) Requirements. Like Section 282, Section 324 requires a breach of the

duty to protect of such importance that the creditor
sticking to the contract is no longer reasonable. However
not every obligation is sufficient for the application of § 324
out. Rather, a mutual contract must exist (further details
" § 3 para. 2). On the other hand, § 324 does not require that the debtor is
responsible for the breach of the duty to protect. Fault
can, however, be of importance in determining whether it is unreasonable for
the creditor to adhere to the contract.
10 b) Legal Consequences. With regard to the legal consequences of the
declared resignation, the same applies as for a resignation according to § 323 (" § 23
para. 70 et seq.). If the debtor is responsible for the breach of the duty to
protect, the creditor can either withdraw from the contract or
also demand damages (section 325).
In case a, E can have the work completed by another painter
and demand reimbursement of the additional costs from M.
III. Breach of protection obligation in the pre-contractual

obligation
11 The breach of protection obligations in the pre-contractual obligation has

similar requirements and legal consequences as the
Violation of the duty to protect in a contractual obligation.
1. Damages due to breach of duty according to §§ 280 paragraph 1, 311

paragraph 2
a) Prerequisites and case groups. The debtor must

As part of a pre-contractual obligation ("§ 5 para. 1 ff.)
have committed a breach of their duty to protect for which they are responsible.
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Except for exceptional cases, it is not clear what duties to protect

exist in the pre-contractual obligation and how far these duties extend
(e.g. § 491a4 for pre-contractual information requirements for
consumer loan agreements) is not regulated by law, but directed
depending on the circumstances of the individual case. In this
respect, case law has over the course of time formed groups of
cases for culpa in contrahendo, which, however, are not conclusive
but open to constant further development. On these case groups
even after the insertion of Section 241 (2) on the duty to protect
and Section 311 (2) on the pre-contractual obligation.
aa) Even in the pre-contractual obligation, the parties involved 12

are obliged to behave in such a way that the legal interests (life,
body, health, freedom) and rights (e.g. property) of the other are
not violated.
In case b, there is a pre-contractual obligation between K and V

Form of contract initiation according to § 311 Paragraph 2 No. 2. V has thereby
that he did not ensure a properly cleaned floor, a
Infringes the duty to protect and thereby causes physical injury to K. –
This group of cases also includes the famous decisions of the Reich Court on injury
caused by a falling roll of linoleum5 and of the Federal Court of Justice on injury
caused by slipping on a lettuce leaf.6
bb) The parties also have other interests (in particular 13
to take into account the assets, but also, for example, the freedom of decision) of the
respective other part. This obligation can be violated as a result
be that the other party despite demand (possibly even without demand)7
is not sufficiently informed about such circumstances that are essential for the
conclusion of the contract.8
Examples: The seller does not inform the buyer that the
The object of purchase cannot be used for the intended purpose.
This breach of duty then leads to the conclusion of the purchase contract
Buyer would not have closed or would not have closed this way if the information was correct (case c).
– The car rental company offers a vehicle to an accident victim
such a tariff, which is not reimbursed by the insurance company of the person who caused
the accident, without informing the lessee about this before the conclusion of the contract.9 –
4 Inserted by law of July 29, 2009 with effect from June 11, 2010 (Federal Law Gazette I 2355
(2359)).
5 RGZ 78, 239.
6 BGHZ 66, 51.
7 BGH NJW 2002, 1042; NJW 2010, 858.
8 BGH NJW 2001, 2021; NJW 2004, 2674 (duty to provide information in specific
no).
9 BGH NJW 2006, 2618.
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The seller of a used car does not inform the buyer that
that he bought the vehicle shortly before reselling it from a non-resident
Motor vehicle letter registered "flying middleman" acquired;10 because
in such cases, the reliability of the information provided by the seller, e.g
Mileage "according to the information provided by the previous owner" significantly depreciated. –
The operator of a repair workshop explains a customer who has a defect
his car (atypical engine noise) only wants to have it repaired if
the repair is economically worthwhile, not about possibly hidden
Defects whose repairs increase the replacement value of the vehicle
exceeds.11 - The financing bank informs its customers before the conclusion of the
Credit agreement does not indicate that the financed land purchase agreement
is immoral or is based on a fraudulent misrepresentation by the seller about
essential properties of the property or on an intentional culpa in
contrahendo is based.12 – The seller of a piece of land holds the unlawful
informing buyers that the purchase contract (as prescribed in § 311b paragraph 1)
is notarized. The result is the invalidity of the contract.
14 The duty to consider the interests of others can also

be violated by the fact that the contract negotiations are
broken off without good reason, although for the other already a
Trust had arisen.13
Examples: In a job interview between an employee

and an employer notifies the employee of his hiring
was intended and he should already resign from his previous position.
If the employer then refrains from hiring you without a compelling reason, this
constitutes an unauthorized termination of contract negotiations. - Does the seller
of a car awaken the prospective buyer's
idea that he is determined to sell, and he can see that
that he may prevent the interested party from buying another car
he does not refrain from his intention to sell without reason. In any case
he must communicate the change of heart as soon as possible. Will, however
the conclusion of a contract that requires a formal form can be presented as certain
Termination of negotiations due to the purpose of the formal requirement
one partner can only substantiate a claim for damages from the other party if the
behavior of the person who breaks off means a serious breach of the obligation to
behave honestly in the contract negotiations; that usually requires the determination
to be premeditated
breach of duty.14 The mere fact that a real estate seller who is fundamentally
willing to conclude a contract internally
10 BGH NJW 2010, 858.

12 BGH NJW-RR 2007, 251.
13 BGH NJW-RR 2001, 381.
14 BGH NJW 1996, 324.
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reserves the right to increase the purchase price without harming the prospective buyer
In any case, it is not yet a particularly serious breach of the duty of loyalty.15 If such
an increase in the purchase price does not occur, then this is not the case
to the conclusion of the contract, to which the buyer is already prepared and therefore
had taken out a financing loan, he can damage his
he suffers as a result of the termination of the loan agreement, not in accordance with §§ 280 Paragraph 1,
311 Para. 2 No. 1 replaced.
b) Legal Consequences. The debtor must also here (cf. already 15

" Margin 4) create the situation that would exist if the
breach of the duty to protect would not have taken place (negative interest).
In case b, V gives the injured K, for example, the healing costs and the Ver
to replace service failure.
As an exception, there is even a claim for compensation for the 16
interest in performance (positive interest) if the contract is concluded without

the breach of duty would have come about effectively.
If a (in particular according to § 311b para. 1) form-requiring contract without
observance of this form, because one party deliberately prevents its unlawful
contractual partner from complying with the form, the claim of the other contractual
party based on the interest in performance does not go to the transfer of ownership of
the property or to the conclusion of a contract
formal contract; because that would result in the invalidity order
bypassed. Rather, the claim is based on the interest in performance
money.16
Does the injured party have a 17

Contract concluded on unfavorable terms and he would like
adhere to this contract, according to an earlier view, his claim should
be directed towards an adjustment of the contract.17 On the other hand
the BGH18 rejects such a claim based on the interest in performance.19
According to this, the injured party who is party to the contract
adheres to, only assert his remaining loss of confidence. This is
reduced to the legitimate expectations
of the injured party, which are not satisfied by the contract
be able. In the case of a contract of sale, the injured party is treated in such a way
as if, knowing the true state of affairs, he had succeeded in
15 BGH NZM 2018, 295 para. 11 man Schwab JuS 2018, 905.
16 BGH NJW 1965, 812; str.
17 Cf. Palandt/Heinrichs BGB 65th edition 2006, § 311 para. 59; on the opinion Mü
KoBGB/Emmerich § 311 marginal number 214.
18 BGH NJW 2006, 3139 (3141).
19 So also Palandt/Grüneberg BGB § 311 para. 57.
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contract on more favorable terms. So he doesn't get it

a sales performance that is tailored to his expectations, but has to
only pay less for the actually agreed service. Only if he can prove that his
contractual partner
upon proper clarification to another contract with him
would have admitted, the loss of confidence also includes the interest in
performance aimed at adjusting the contract.
In case c, K can demand damages on the grounds that he only
would have paid a lower price for the property if V had properly informed him before the
conclusion of the contract.
18 c) competitions. If the pre-contractual violation of the duty to protect relates

to a defect in the subject matter of the contract
Sections 280 et seq. generally do not apply in addition to the contractually
typical defect rights, but rather as part of these defect rights.
Section 437 No. 3 refers to sales law and Section 634 No. 4 to that
Work contract law, among other things, on § 280. The statute of limitations
then according to § 438 or § 634a.
However, the BGH makes an exception in the case of intentional breaches
of contractual obligations by the seller; then come too
a claim for damages according to §§ 280, 311 into consideration.20
If there is no defect at all (e.g. because the breach of duty in the
incorrect or non-existent information about the appropriate
operation of the defect-free item or dangers emanating from it), if the special
defect rights do not apply,
that because of the breach of the duty to protect § 280 also directly
applies. In these cases, Section 195 applies to the statute of limitations.
According to the case law of the BGH21, a pre-contractual fraudulent
misrepresentation can entitle both to contesting the later declaration of intent
to conclude the contract according to § 123 as well as
also a claim for damages according to §§ 280 paragraph 1, 241 paragraph 2,
311 para. 2, which is also aimed at rescission of the contract (in rem
restitution). Speaking against this view is that there is a claim for damages
aimed at cancellation of the contract, which is subject to the strict requirement
of bad faith in § 123 and the
shorter challenge period of Section 124 than the standard statute of limitations
20 BGH NJW 2010, 858 (859).

21 BGH NJW 2013, 1591.
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can be overturned.22 A claim for damages from culpa

in contrahendo because of a pre-contractual deception is therefore
only due to another damage to be compensated in money
Regard.23
A claim for damages due to a pre-contractual breach of the obligation
to provide information and a claim for rescission of the effectively
revoked contract exist side by side. However, the assertion of a claim
may affect the scope of the
affect others.24
If a pre-contractual breach of duty (e.g. deception in
conclusion of an insurance contract) already covered by statutory
provisions (e.g. §§ 19-22 Insurance Contract Act), the sanctions
regulated there are fundamentally conclusive; there are no additional claims
(e.g. of the insurance company) from culpa in contrahendo.25 Claims
from a tort can exist in addition to those from Sections 280, 311 (2).
2. Damages instead of performance

Due to a pre-contractual breach of the duty to protect, a 19
Claim for damages instead of performance according to § 282 only then
exist if the creditor has any claim to the
has power. That assumes that it is after the pre-contractual
Breach of duty has led to the conclusion of a contract and the
breach of duty is only recognized afterwards. If in this case
if the creditor can no longer be expected to accept the performance by the debtor,
he can, according to § 282, instead of the performance, for example, claim the lost
profit or the cost of purchasing a replacement.
3. Withdrawal
If it occurs after the pre-contractual breach of the duty to protect 20

a contract, the creditor can. § 324 of this
rescind the contract, provided that the pre-contractual protection
22 Kuhn JURA 2013, 975 (979); Walker/Storck LMK 2013, 347218; Wolf/Neuner BGB
AT, 10th edition 2012, paragraph 115 et seq.; on the status of opinion MüKoBGB/Emmerich § 311
Rn. 78 with further references.
23 For such a case, see OLG Munich NJW 2013, 946 (concealment of
illegitimate child when initiating a donation agreement
spouse).
24 BGH NJW 2017, 61 para. 21 f.
25 BGH NJW-RR 2007, 826.
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breach of duty, adherence to the contract is no longer reasonable (§ 324).

Withdrawal and damages instead of performance can be combined with each
other (§ 325).
Legal consequences of a breach of the duty to protect
I. Breach of the duty to protect in the existing contractual relationship 1.

Compensation for breach of duty (Section 280 (1)) a) Relationship b)
Breach of duty in the form of breach of the duty to protect c)
Responsibility (Sections 280 (1) sentence 2, 276, if applicable
Section 278) d ) Damage 2. Compensation for damages instead of
performance (§§ 280 Para. 1, 3, 282) a) Obligation b) Breach of duty
in the form of breach of the duty to protect c) Being responsible (§§ 280
Para. 1 S. 2, 276, if necessary § 278 ) d) unacceptability of
performance for the creditor e) damage 3. Withdrawal (§ 324) a)
mutual contract b) breach of duty in the form of breach of protection
obligation c) unreasonableness of adherence to the contract for the
creditor II
1.
Compensation for damages due to breach of duty (§§ 280 Para. 1, 311
Para. 2) a) Pre-contractual obligation (§ 311 Para. 2) b) Breach of
duty in the form of a breach of the duty to protect c) Being responsible
(§§ 280 Para. 1 S. 2). , 276, if applicable Section 278) d) Damage 2.
Damages in lieu of performance (Sections 280 (1), 3, 282, 311 (2))
a) Claim for performance based on an obligation b) Breach of duty in
the form of a pre-contractual breach of duty c) Must be responsible (§§
280 Abs. 1 S. 2, 276, if necessary § 278) d) unreasonableness of the
performance for the creditor e) damage
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§ 26. Default of creditor 331
3. Withdrawal
(Section 324) a) Mutual contract following breach of
a duty to protect b) Breach of duty in the form of a pre-
contractual breach of duty c) Unacceptability of
sticking to the contract for the creditor
§ 26. Default of creditor
Literature: Derleder/Hoolmans, From debtor default to creditor default and back, 1

NJW 2004, 2787; Feuerborn, The default of the creditor - general principles and
special features in the employment relationship, JR 2003, 177; Niemeyer/König,
Default of acceptance due to excessive legal action, step by step, NJW 2013, 3213.
Case a: B commissions the master mason U to build a garage. B wants to

procure the building material himself by April 30, but is unable to do so.
U demands compensation from B in accordance with § 642." Rn.
4, 7 Case b: What is the legal situation if U because of a serious illness
can no longer carry out the work anyway? " paragraph 4
Case c: K has ordered wine from V, which is to be delivered to K on October 1st.
V meets no one at K. The wine was spoiled without V knowing it.
V demands from K the additionally incurred storage costs. " Paragraph 5, 16
Case d: V informs K by telephone that he will bring the television ordered from
the catalogue, which has already been loaded. K agrees to take delivery, but does
not want to pay for the time being. V then unloads the device again, which is
destroyed due to V's carelessness. " Paragraphs 9, 12, 14, 15
The fulfillment of the obligation can be disturbed not only by the

behavior of the debtor but also by the creditor; because in the vast
majority of cases the debtor is not in a position to perform without
the creditor's cooperation.
For example, the buyer of a thing must accept it from the seller and agree with
him on the transfer of ownership (cf. §§ 433, 929).
The employer must provide the employee with access to his company and provide
him with the necessary work equipment.
The creditor is not obliged to cooperate (exceptions: §§ 433 para. 2

2, 640), so that the debtor has no actionable claim for cooperation
against him, whose violation
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could trigger sayings. Failure to cooperate does not release the debtor from
his obligation to perform.
If the creditor does not accept the performance or fails to cooperate in
any other way that is necessary for the performance, he is in default of
creditor (= default of acceptance). The law has regulated the requirements
and the consequences of the creditor's default in §§ 293 et seq.
I. Requirements
3 The creditor's default requires the following in detail:
1. Entitlement to performance
The debtor must be entitled to performance, ie the performance must be
able to be performed (cf. § 271 Para. 2; " § 12 para. 19).
2. Capabilities
4 He must also be willing and able to perform (section 297).
If he is unable to perform temporarily or permanently, default in acceptance
is ruled out. This is where the rules on impossibility come into play (§§ 275,
280, 283, 326). If performance only becomes impossible after the obligee
has defaulted on acceptance, then the default on acceptance ends when
the impossibility occurs.
The distinction between impossibility and default of acceptance often
causes considerable difficulties. As with the drawing of the line between
impossibility and debtor's default, the decisive factor is whether the
6) -, performance owed can still be made up for.1 ("§ 22 para.
In case a, there is default of acceptance and not impossibility, so that U can demand
appropriate compensation from B according to § 642. In case b, on the other hand, B is not
in default of acceptance (§ 297); U is released from performance due to inability (§ 275
Para. 1) and does not have to pay damages due to lack of fault (§ 280 Para. 1 Sentence 1,
2).
Special features arise in labor law if the work cannot be performed in

the event of a disruption to operations that is not your fault (§ 615 Sentence
3; "§ 22 marginal number 47).2
1 Cf. Jauernig/Stadler BGB § 293 para. 8.

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3. Range of Services
a) Actual Offer. An offer of performance by the debtor is regularly 5
required (section 293). Usually has to
the debtor to the creditor the performance in such a way as to effect it
is actually offered (§ 294), ie at the right place, to
right time, in right condition and completeness; an offer subject to
repayment is not sufficient (details: "§ 12). The debtor's range of
services must be such that the creditor does not need to do anything
other than
to access and accept the service offered.3
Since in case c the wine is not of medium type and quality (§ 243 Para. 1), but
was defective (cf. Sections 433 (1) sentence 2, 434), K is not in default of acceptance
advised, so that a claim under Section 304 for reimbursement of storage costs is
ruled out.
It is not absolutely necessary that the creditor of the

knowledge of the debtor's actual offer. is namely,
as in case c, a specific date has been agreed for the service,
then the creditor, the debtor not at the place of performance
occurs, default in acceptance solely due to the actual range of
services.
b) Literal offer. In exceptional cases, a verbatim offer is sufficient 6
(section 295). That is once the case when the creditor
has previously declared that he will not accept the service (cf. also
the parallel in Section 286 (2) No. 3; " § 23 para. 17).
Verbatim offer is sufficient if a
Action by the creditor is necessary (example: debt to collect; "§ 12
paragraph 12). In these cases, it stands for the literal range of services
the same if the debtor requests the creditor to carry out the necessary
cooperative act (section 295 sentence 2).
Example: The tailor requests the customer to appear for a fitting.
c) dispensability of an offer. No offer is necessary if the obligee has 7

to cooperate at a certain point in time and does not do so. Details:
Section 296, which corresponds to Section 286 (2) nos. 1 and 2
(“Section 23 para. 15 f.)
is equivalent to.
3 RGZ 109, 324.
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In case a, U does not need to offer B his work because B up to

30.4. has not carried out his act of cooperation (procurement of the building material)
(section 296 sentence 1).
4. Non-Acceptance of Service
8th Finally, default in acceptance presupposes that the creditor
has not accepted the debtor's offer of performance (section 293).
It depends on the creditor being at fault here – unlike in the case
Default of debtor (§§ 286 Abs. 4, 280 Abs. 1 S. 2) - not on.
Non-acceptance can also cause the obligee to default if he is obliged to accept according
to the obligation
(such as the buyer; Section 433 (2)). But then the conditions of the
Debtor's default (§ 286; " § 23 para. 9 et seq.) must be fulfilled.
9 However, the creditor is also in default of acceptance if he

accept the service, but does not want to provide the required and due
consideration (section 298; case d).
10 In deviation from Section 293, a temporary hindrance to acceptance
by the creditor does not constitute a creditor's default if
the debtor pays him the performance unexpectedly early (i.e. if the
performance time was not determined or the debtor was allowed to
perform before the agreed performance time, § 271 (2) offered
(§ 299). In order to trigger the consequences of the creditor's default in
these cases, the debtor must have announced the performance to the
creditor a reasonable time in advance.
II. Effects
1. No exemption from performance
11 The creditor's default does not lead, just like the debtor's default
to release the debtor from his obligation to perform.
A special case contains § 615 S. 1, according to which the conscript for the
Work not performed as a result of the employee's default of acceptance
could demand payment without being obliged to provide subsequent performance.
2. Disclaimer of Liability
12 However, according to Section 300 (1), the creditor's default causes a
Relief of liability than the debtor during this period only for
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He is responsible for intent and gross negligence (another provision within

the meaning of Section 276 (1) sentence 1, 2nd half). As in the case of
accidental loss of the item, the debtor is also not liable for damages if the
loss is due to his slightly negligent conduct
based (§ 280 Abs. 1 S. 2; case d). The same applies if during
of the delay in acceptance, the subject of the service deteriorates (e.g.
damage to the television in case d).
The liability relief of § 300 paragraph 1 affects after hM but only
Taking care of the subject of the service, not other obligations arising from the
contractual relationship (e.g. careful execution of the self-help sale). To that extent remains
it for the liability for damages in the standard of § 276 paragraph 1 sentence 1, 1st Hs.
3. Transfer of the risk of performance in the case of generic debts
According to § 300 para. 2, in the case of generic debts ("§ 8 para. 1 et seq.), the 13
Risk passes to the creditor if he does not receive the item offered
assumes According to the correct opinion, this provision only regulates
the risk of performance, but not the risk of consideration or price.4 you
This means that the debtor is also released from his obligation to perform in
accordance with Section 275 (1) if the (segregated) item perishes
becomes free if the generic debt has not yet become a specific debt through
concretization. However, it is always necessary that the
debtor has separated out the generic item.
The scope of § 300 paragraph 2 is not large because of 14
In general, the debtor has done what is necessary for the service with the
service offer, so that already according to § 243
Paragraph 2, the risk of performance has passed through specification
("§ 8 para. 6 f.). § 300 para. 2 only has independent meaning there,
where the creditor is in default of acceptance without prior notice
a specification has been made.
In case d, V did not do what was necessary with the telephone offer if an obligation
to deliver was agreed; because then there is one
Specification according to § 243 para. 2 not yet done. But K was through that
literal offer of the V according to §§ 295, 298 in default of acceptance. Since V
had discarded the device with the loading, the performance risk was after
§ 300 para. 2 passed to K, so that in the event of subsequent inability
according to § 275 paragraph 1 is released from his obligation to perform. He is also
not liable for damages because he is only liable for intent and gross negligence
liable (section 300 (1)).
4 Cf. Jauernig/Stadler BGB § 300 para. 4.
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Section 300 (2) also gains importance in the case of monetary debts ("Section 9 para. 1 et seq.),
because here a transfer of risk through specification (§ 243 Para. 2) does not regularly occur
(§ 270 Para. 1; "§ 12 para. 17).
4. Transfer of price risk in mutual contracts

15 According to § 326 paragraph 2 sentence 1, the debtor retains the right to the
consideration if his performance by one of him fails him
attributable circumstance has become impossible at a time in
which the creditor is in default of acceptance. The delay in
acceptance thus causes the mutual contract that the price or
Remuneration risk, which according to § 326 para. 1 sentence 1 normally the
debtor has to bear is transferred to the creditor.
In case d, V can, although he is free of his performance according to § 275 para
has been, nevertheless demand the purchase price (§ 326 Abs. 2 S. 1).
5. Other effects
16 - The creditor's default entitles the debtor to deposit the item
that is still owed (§ 372 S. 1; " § 15 para. 1 ff.). However, if
the liability relates to the surrender of a
property or a registered ship, then the
Debtor give up possession after prior warning
(§ 303).
– During the default of acceptance, the debtor needs a money
debt not to pay interest (§ 301).
– If the debtor is obliged to hand over or replace benefits (e.g.
according to §§ 292, 346 f., 987 ff.), this is limited
his obligation during the delay in acceptance to the
actually drawn benefits (§ 302).
– Finally, the debtor can demand reimbursement of the additional
expenses incurred by the creditor as a result of the default in acceptance
have arisen, e.g. costs for storage or maintenance
of the object owed (section 304).
If V had offered flawless wine in case c, K would have been in default of acceptance; K
would then have had to reimburse the V for the storage costs according to § 304.
Since K would then have violated his acceptance obligation (§ 433 Para. 2), would have to
he these costs also as damage caused by delay according to §§ 280 paragraph 1, 2, 286 he
set.
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§ 27. Disturbance of the business basis 337
Default of creditor, §§ 293 et seq.
I. Requirements 1. Eligibility
for benefits 2. Ability to perform
(§ 297)
3. Offer (Section 293)
a) Factual (Section 294) b)
Literal (Section 295) c)
Dispensability of an offer (Section 296)
4. Non-acceptance (§§ 293, 298)
II. Legal consequences
1. Limitation of liability of the debtor (Section 300 (1)) 2. Transfer of the
risk of performance to the creditor (Section 300
paragraph 2)
3. Transfer of the price risk to the creditor (§ 326 Para. 2

p. 1)
4. Other effects: Section 372 sentence 1, Sections 301, 302, 304
§ 27. Disturbance of the business basis
Literature: Armbrüster/Prill, debt contracts in times of the corona pandemic, JuS 1

2020, 1008 and 1144; Bacher, The corona pandemic and the general rules on
performance disruptions, MDR 2020, 514; dauner love/
Dötsch, procedural questions about § 313 BGB, NJW 2003, 921; Eckelt, Contract
Amendment Law, 2008; Eidenmüller, The Spinnerei Case: The doctrine of the basis of
business according to the case law of the Reichsgericht and im
Light of the modernization of the law of obligations, JURA 2001, 824; Feldhahn, The
Disruption of the Business Basis in the Reformed Code of Obligations system, NJW
2005, 3381; Jung, System crises and the disruption of the (big) business basis, JZ
2020, 715; Köhler, The doctrine of the basis of business as a doctrine of risk exemption,
in: 50 years of the Federal Court of Justice, publication from science, 2000, Volume I,
295; Kumkar/Voß, COVID-19 and that
Business Foundation Institute, ZIP 2020, 893; Lettl, The adaptation of
Contracts of private law, JuS 2001, 144, 248, 347, 456, 559, 660; lover/
Zeyher/Steinbrück, Right to performance disruptions in the light of the COVID-19
Pandemic, ZIP 2020, 852; Loyal, cancellation of contract due to disruption of the
business basis, NJW 2013, 417; Lüttringhaus, negotiating obligations
Disruption of business basis, AcP 213 (2013), 266; Picker, Reform of the Law of
Obligations and Private Autonomy, JZ 2003, 1035; Riehm/Thomas, The performance disorder
https://doi.org/10.17104/9783406758829-239
Insurance law and its limits in times of Covid-19, JURA 2020, 1046;
Riesenhuber, Contract adjustment due to disruption to the basis of the business -
Dogmatics, design and comparison, BB 2004, 2697; Riesenhuber/Domröse, Der
Fact of the business fundamentals disturbance in § 313 BGB - dogmatics and
Case-solving technique, JuS 2006, 208; Rösler, disruption of the business basis
after the reform of the law of obligations, ZGS 2003, 383; ders., basic cases of disruption
the business basis, JuS 2004, 1058; 2005, 27, 120; Scherpe, Property legal settlement of
terminated non-marital partnerships, JZ
2014, 659; Scholz, The relationship between compensation and disruption of the business
basis, NJW 2020, 2209; Thole, Renaissance of the Doctrine of the
Duty to renegotiate § 313 BGB?, JZ 2014, 443; Walker, reversal of community-related
donations after failure of the community, FS Rüßmann, 2013, 355; Wieser, The right to
contract adjustment
due to disruption of the business basis, JZ 2004, 654; Wolf/Eckert/Gerking/
Künnen/Kurth, The Civil Law Effects of the Covid-19 Act –
an overview, JA 2020, 401.
Case a: V rents his balcony to M for Shrove Monday so that M can

can watch the carnival procession passing under the balcony. However, the carnival
procession was canceled at short notice due to a severe storm.
Does M still have to pay the rent? " Paragraphs 5, 6, 7, 8, 16
Case b: V sells his property to K. When calculating the purchase price, the parties use
the price just published in the Municipal Gazette
usual property price of 200 EUR per square meter. After the conclusion of the contract, it
turns out that the amount reported in the Official Journal is based on a
error is based; in fact, the usual price level is EUR 300 per sqm.
Effects on the purchase contract? " Paragraphs 8, 9, 11, 14
Case c: V gives his future son-in-law S EUR 100,000, so
who can finance the construction of a family home for himself and V's daughter T. The
house is built on S's property, S and T marry and live in the house for five years. Then the
marriage will be divorced. S and T
move out and S rents out his house. V demands back the EUR 100,000 from S. "
Paragraphs 5, 6, 7, 8, 10, 11
Case d: A, B and C are professional soccer players. Her employment contracts with her
club are limited until June 30, 2020, because the respective season usually ends on this
date due to association law. Due to a through the
The interruption in game operations caused by the corona pandemic lasts
Playing time six weeks longer. When do the employment contracts of the three players
end? " Paragraphs 5, 6, 7, 8, 10, 12, 13
I. Legal Provision and Importance

The fundamentals of contracts can be severely affected by the
fact that either the data available at the time the contract was concluded
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Circumstances subsequently change unexpectedly or only subsequently

turns out that the circumstances assumed at the time of the conclusion of the contract
actually did not exist. In such cases
the question arises as to whether the parties are nevertheless bound by
the contract with unchanged content. This was long before the
Reform of the law of obligations, the legal institution of the absence or omission of the
Business basis developed.
After the First World War, it was primarily used to adjust existing contractual 2
relationships to the drastic economic changes of the inflationary period, but later to
adjust contracts in general
those subsequently changed or not recognized by the contracting parties
Circumstances. As the legal basis for the doctrine of business basis
the principle of good faith (§ 242) was mostly used.
According to the general opinion, the contract adjustment was dependent on strict
conditions; because through them the principle "pacta sunt servanda"
not leveraged and a contracting party not from those to be borne by it
Contract risks are relieved.
Since January 1st, 2002, the doctrine of the disruption (= missing or 3

Omission) of the business basis in § 313 a legal basis.
It is therefore no longer necessary to refer to § 242.
By § 313 but the previously recognized principles
not be changed.1 Therefore, for the interpretation of § 313, the
Jurisdiction and the literature from the time before the debt legal reform
continue to be consulted. Section 313 covers both
the cases of the so-called large business basis, those for the general
social and economic structure is important and the disruption of which
leads to entire system crises, as well as the so-called small business
basis, the disruption of which is only evident in individual contracts
affects the equivalence ratio of performance and consideration.
II. Requirements
According to Section 313, a disruption to the basis of the contract can 4
exist in the form of its subsequent cessation (paragraph 1) or its original
absence (paragraph 2).
1 BT-Drs. 14/6040, 175.
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1. Elimination of the objective business basis (Section 313 (1))
a) Subsequent change of essential contractual circumstances.

Section 313 (1) presupposes that circumstances which, although not content,
but have nevertheless become the basis of the contract after the conclusion of the contract
have changed severely. The provision puts only on objective
circumstances. This follows by implication from paragraph 2, which refers to the
ideas of the parties, i.e. related to subjective circumstances. from
this division of the objective and subjective basis of business
The legislature also proceeded from paragraphs 1 and 2.2
Examples of large business basis: social disasters such as war,
Currency collapse, pandemics or environmental disasters can disrupt the
equivalence between performance and consideration
ren.
Examples of small business basis: Procurement obstacles eg due to a crisis in
the supplier's country or due to insolvency
of the manufacturer can make it difficult for a party to perform the service owed
to provide.
5 It is questionable when a circumstance “became the basis of the contract”.
The prerequisite for this is that the circumstance was assumed by at least one
contracting party to be essential for the conclusion of the contract when the
contract was concluded and that the other
party to the consideration of this circumstance in good faith
should have let in. The business will of the parties must
have built up the circumstance.3
In case a, the organization of the carnival procession is the business basis for
the rent of the balcony, especially since this would otherwise not have been rented
and would also not have been rentable. She's through the cancellation
subsequently omitted. In case c, the joint use of the house by S and T was probably
the basis for V's gift.4 Otherwise, V would have had no reason to give S EUR
100,000. If
This also applies to internal donations between the partners in a marriage or
a marriage-like partnership applies if the marriage/community later breaks down is
disputed.5 In case d, the player and the club are at the Be
2 Bundestag printed papers 14/6040, 176.

3 RGZ 103, 328 (332); BGHZ 25, 390 (392); 89, 226 (231); BGH NJW 2001, 1204 (1205); 2005, 2069
(2071); 2006, 1037ff.
4 BGH NJW 2015, 690 (691); 2015, 1014 (1015) Manm Wellenhofer JuS 2015, 271.
5 Affirmative BGH NJW 2014, 2638 f.; NJW-RR 2013, 404 (405); NJW 2011, 2880 (2881 ff.), according
to which a rescission is possible both according to the rules of the cessation of the business basis
and according to Section 812 (1) sentence 2, 2nd case (condiction of misuse of purpose)
comes into consideration. aA about Scherpe JZ 2014, 659 (662 ff.), Sorge JZ 2011, 660 (661 f.) and
Walker FS Rüßmann, 355 (358 f., 361 f.), according to which only § 812 paragraph 1 sentence 2, 2.
Case intervenes. See also Brox/Walker SchuldR BT § 40 paras. 32, 36.
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extension of their employment contracts to 30.6. assumed that up to

On that day the game time is fully processed and ends.
b) Circumstances outside the scope of the contract. The missing or 6

Circumstances that have ceased to exist must not have been part of the contract.6
Otherwise, the legal consequences of the disruption are to be determined through
(supplementary) contract interpretation or from the statutory provisions (§§ 275,
280 et seq., 323 et seq.). In these cases is
no room for the application of Section 313 ("margin no. 13).
Example: A cinema operator sells tickets for a film screening that

but then canceled because the showing of the film was banned by the competent
authority. Here the screening of the film was part of the contract. the
Cinema operator has become free due to legal impossibility (§ 275
Paragraph 1). The buyers of the tickets can claim the price already paid in accordance with
§§ 326 para. 4, 346 reclaim. Section 313 is not applicable. against
in case a the V is not owed the performance of the carnival procession. Therefore
there is no impossibility. In case c, too, there is no permanent joint use of the house
financed with the money donated
Subject of the donation contract between V and S. In the case of a donation
among (divorced) spouses, according to the BGH, legitimacy
of a child may be the legal basis for the gift if both parties
have the idea that the donated item will also benefit the
supposed common child is used.7 If in case d not
even through interpretation comes to the conclusion that despite the contractual
Reference to 30.6. the employment contracts should in any case be limited to the end
of the season is with the extension of the season
over 30.6. a circumstance outside the employment contract
(i.e. the regular end of the season on June 30th) has been dropped.
c) No conclusion of contract if this change is anticipated. Furthermore, Section 7

313 (1) presupposes that the parties, if they had foreseen this change, would not
have concluded the contract or would not have concluded it with this content.
This is a case
in which the hypothetical causal course is taken into account. the
The presumed will of the parties is to be determined by interpretation.
If in case a the cancellation of the carnival procession had been known, would have
M not rented the balcony of the V. Had V known in case c that the marriage
is divorced from T and S after a few years, he would not have S any
100,000 EUR given away. In case d, the parties would have the employment contracts
not until 30.6. temporary, but in such a way that a regular termination of the
(extended) playing time with the entire squad would have been possible.
6 BGH NJW 2012, 2728.

7 BGH NJW 2012, 2728 (2729 f.).
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8th
d) Unreasonableness of sticking to the unchanged contract.
For one part, adherence to the unchanged contract must take into
account all the circumstances of the individual case, in particular the
contractual or legal risk distribution, be unreasonable.
If the legislature has made a risk distribution in other provisions for
the effects resulting from the misconceptions of the parties,
application of Section 313 is excluded
about the disruption of the basis of the transaction ("marg. 19).8 Is it missing ?
such an allocation of risk is only of an unreasonable nature
to go out if sticking to the contract is too intolerable,
results that are incompatible with law and justice
would lead;9 otherwise the principle “pacta sunt
servanda". It also plays a role in assessing the unreasonableness
a role whether the party concerned aware of a risky business
with a possibly speculative character and whether
a change in circumstances could at least be foreseen as possible.
Example: In case a, it depends on whether there were indications of a storm and a

cancellation of the train when the contract was concluded. Otherwise is
it is unreasonable for M to adhere to the rental agreement. In case b, which, however,
relates to a case of the subjective business basis within the meaning of Section 313 (2),
the seller would have known the actual price level on the
agreed purchase price of EUR 200 per sqm. Because the usual prices are taken as a
basis, it can also be a speculative transaction
no talk. It is therefore not reasonable for the seller to be held to the agreed price of
EUR 200 instead of the usual price of EUR 300 per sqm. In case c, S and T only
shared the house for five years. Even if you take into account that the failure of a
marriage
today can no longer be regarded as an exceptional case is that of V zur
Business basis made co-benefit of the T but unexpectedly quickly
been terminated.10 In case d, it would be unreasonable for the club for competitive
reasons alone to relegate to the remaining championships
or possibly qualifying for a European competition
not being able to use players A, B and C in decisive games
to.
8 BGH ZIP 2018, 2112 para. 15.

9 BGHZ 84, 1 (9); 121, 378 (393); 133, 316 (321); cf. more recently BGH NJW
2015, 690 (692); 2015, 1014 (1015) Manm Wellenhofer JuS 2015, 271; 2015, 1523
(1524) Manm Wellenhofer JuS 2015, 1125.
10 Cf. BGH NJW 2010, 2202 (2207); confirmed in NJW 2019, 3511 para. 11 ff. On the
need for an unreasonableness test in individual cases in the case of “failed” in-law gifts,
also BGH NJW 2015, 690 (692) and 2015, 1014
Man Wellenhofer JuS 2015, 271.
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2. Absence of the subjective business basis (Section 313 (2))
According to § 313 paragraph 2, there is a subsequent change 9

objective circumstances equal when essential ideas that
have become the basis of the contract later turn out to be inaccurate. The
norm concerns the original absence
the subjective business basis. After the justification of the law
This is supposed to be about cases of common motive error as well as those
cases in which only one party has wrong ideas, but the other party makes this
mistake without its own
has accepted ideas.11 The legal classification of these
cases was controversial before the reform of the law of obligations. In § 313 paragraph 2 has
the legislature deliberately regulated them as an application of the business
basis.
Examples: In case b, the "usual property price" is not as content

of the purchase contract has been agreed. But the parties both had the erroneous
notion that EUR 200 per square meter was the usual price level
to go out It is a disruption to the basis of business in the
form of mutual motive error.
The parties to a contract of sale for a plot of land yet to be surveyed
agree on an approximate size of the area drawn in a scaled plan, and the actual
size of the
The plot of land measured later differs significantly from this idea
from 12
When concluding a treatment contract, hospital operators and

patient mistakenly assumes that there is statutory health insurance,
which will bear the costs of the hospital stay.13
III. legal consequences
Section 313 provides for two different legal consequences in the event of a disruption 10
to the basis of the transaction:
1. Right to adjust the contract
Pursuant to Section 313 Paragraph 1, the contracting party who cannot

reasonably be expected to adhere to the contract can request an adjustment
to the contract. This adjustment took place before the reform of the law of obligations
11 BT-Drs. 14/6040, 176.

12 BGH NJW-RR 2004, 735.
13 BGH NJW 2005, 2069 (2071).
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law without the need for an explanation. Section 313 sees one
other construction. Thereafter, the authorized contractual partner
a right to contract adjustment, which he must assert against the
other contractual partner. This achieves
that the parties first negotiate the adjustment themselves.
If they do not agree, the claim for adjustment may be pursued
through a lawsuit either for participation in the
worded amendment to the contract or is directly aimed at the
adjusted service.14
In case c, an adjustment of the gift contract in the sense in
Consider that V can reclaim part of the EUR 100,000
after deducting the five-year usage option for T
amount remains. The assessment is a case-by-case decision
Judge of fact is responsible.15 On the other hand, the BGH in a case in which the
Daughter of the donor and her life partner who received the gift separated less than
two years after the donation, rejected a contract adjustment and granted the donor
the right to withdraw from the donation contract.16 In case d, the duration of the
employment contracts could be extended to the
over 30.6. be adjusted beyond extended playing time.
2. Right to withdraw from the contract or to terminate the

contract
11 According to Section 313 (3) sentence 1, the disadvantaged party can withdraw from the contract
withdraw if an adjustment of the contract is not possible
or is not reasonable for the other part.
Example: In case b, an adjustment to the actually usual price level (EUR 300
instead of EUR 200 per square meter) can be unreasonable for K if he
according to his financial capacity a maximum limit for the
has set the purchase price.
Through the wording in Section 313 Paragraph 3 Sentence 1, the legislature

clarified that annulment of the contract can only be considered on a
subsidiary basis and that it requires a legal declaration, namely a
declaration of rescission. The resignation triggers the legal
consequences of §§ 346 et seq. The services already exchanged are therefor
to return.
14 Bundestag printed papers 14/6040, 176; BGH NJW 2012, 373 (376); critical of this Thole JZ 2014, 443
(444ff.).
15 BGH NJW 2010, 2202 (2207).
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In case c, a rescission of the V with the consequence that he could reclaim the
entire amount from S according to § 346 para. 1 is ruled out if an adjustment of the
contract ("margin no. 10) is possible.
In the case of continuing obligations, the right to (extraordinary) 12
termination takes the place of rescission (Section 313 (3) sentence
2). In contrast to rescission, the termination only brings about a
termination of the continuing obligation for the future. A reversal of
the services exchanged in the past according to §§ 346 ff. or
according to §§ 812 ff. does not take place. On the termination of
continuing obligations "§ 17 para. 15 ff.
If, in case d, a contract adjustment is ruled out because it is unreasonable for a
player due to a planned change of club, for example, the agreed contract term
remains until June 30th; because the possibility of withdrawal or termination provided
for in this case in § 313 Para. 3 BGB does not help here.
business disruption
I. Requirements
1. Either: Elimination of the objective basis of the contract (§
313 Para. 1) a) Subsequent change of essential contractual
changes
states
b) Circumstances not part of the
contract or: lack of the subjective
business basis (§ 313 Para. 2) = contractual ideas incorrect
2. No conclusion of contract if the change is foreseen or if
you are aware of the incorrect idea 3. Unreasonableness of
sticking to the unchanged Ver
wear
II. Legal
consequences 1. priority: right to contract adjustment (section
313 (1)) 2. subsidiary: right to withdraw or (in the case of
continuing obligations) to terminate (section 313 (3))
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IV. Differentiation from other legal institutions

13 Even before the codification of the omission of the business basis
in § 313 the differentiation from other legal institutions was difficult.
This demarcation problem still arises.
1. Contract Interpretation
If the parties consider the lack or omission of the business basis

and, for this case, a contractual agreement
have met, this takes precedence over Section 313. Such an agreement
is to be determined by (possibly supplementary) contract interpretation. with her
it may be an adjustment clause or a termination agreement. If the
interpretation is that the contract
was concluded under the condition subsequent of the change in
certain circumstances, the occurrence of the condition pursuant to
Section 158 (2) on the invalidity of the legal transaction without the
need for an attempt at adjustment or a declaration of withdrawal.
In case d, the employment contracts between the soccer professionals and their club
include the possibility that the season will extend beyond June 30th. extended beyond,
although expressly not regulated. But if there is evidence
is that from the point of view of the respective recipient horizon, both sides with the
30.6. meant the end of the season, you might already be able to get through
simple interpretation based on the recognizable will of the parties or, in any case, through
a supplementary interpretation based on the hypothetical will of the parties, come to the
conclusion that if the season is extended due to the pandemic, the employment contracts
will also end later
should be. Then there is no need to resort to the rules on disrupting the basis of the
transaction. If the duration of the playing time itself
not only by a few weeks, but well beyond 30.6. extended beyond
is to check whether (e.g. because of an already agreed change of club) for the
player there is an important reason for premature termination of the contract through
extraordinary termination according to § 626 BGB.
2. Avoidance of errors
14 In principle, the right to contest errors (§§ 119 et seq.)
represents a special regulation that takes precedence over Section 313. However, that is true
not for the mutual motive error in which essential
Ideas of the parties that become the basis of the contract
are, turn out to be wrong. Rather, it is according to
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§ 313 para. 2 to a disturbance of the subjective basis of the contract

("margin no. 9; case b).17
3. Impossibility
Disturbance of the business basis is also to be distinguished from 15
impossibility. Section 275 takes precedence over Section 313 in its area of
application; because the question of an adjustment can only arise if the
debtor has not already become free under Section 275. In the following
cases, however, it can be problematic whether the scope of Section 275 is
affected at all:
a) Disruption of purpose. If the owed performance success can no longer 16

be brought about because this has already occurred without the debtor
doing anything (achievement of purpose; " § 17 marginal number 9) or
because the object on which the owed performance was to be provided
has ceased to exist (loss of purpose; " § 17 10), the rules on impossibility
apply.
If, on the other hand, the owed performance success can still be
brought about, but the creditor no longer has an interest in it (purpose
disturbance), there is no case of impossibility. Rather, Section 313 applies
in principle.18 What is required, however, is that the intended purpose was
important not only for one contracting party, but also for the other party
when the contract was concluded.
This is the case, for example, when the purpose is important for the
calculation of the price.
If in case a the Shrove Monday procession is cancelled, there is no impossibility;

because the demonstration of the Shrove Monday procession was not a contractual
obligation of the V and the contractual obligation (allowance of the balcony) can still
be fulfilled. But the business basis for renting the balcony on Shrove Monday has
ceased to exist ("paragraph 5 et seq.).
b) Economic impossibility. One speaks of economic impossibility when 17

the performance is possible in itself, but there are such difficulties that the
debtor cannot be expected to perform it because the “victim limit” has been
exceeded
can.
17 For the relationship between the mutual motive error and the open calculation error, see
Brox/Walker BGB AT § 18 marginal number 21.
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Examples: The production costs for an item increase 15-fold after the conclusion of the
contract due to unforeseeably increased raw material costs
on.
According to the will of the legislature, these cases are not covered by Section
275 (2). They are therefore not part of the impossibility, but are to be solved
according to § 313 on the basis of the transaction (see already " § 22 marginal
number 21).
18 c) Personal impossibility. In the case of performance to be rendered personally,

Section 275 (3) stipulates that the obligor can refuse performance if it cannot be
reasonably expected of him, weighing up the impediment to his performance with
the obligee's interest in performance.
Example: The singer refuses to perform because her child is life-threatening

seriously ill.
In such cases, Section 275 (3) generally takes precedence over Section 313.
4. Warranty rights
19 Within the scope of the defect rights, these take precedence over Section 313.
Otherwise, the distribution of risk on which Sections 434 et seq. are based would
be changed.19 This is also the case if the claim for defects has become statute-
barred20 or the sales law defect rights have been effectively waived. 21
5. Misuse of purpose condition
20 A purpose pursued by the creditor is not achieved both in the case of disruption
of the business basis and in the case of a misconduct clause pursuant to Section
812 (1) sentence 2, 2nd case22 . The boundary between a purpose agreement
required for § 812, which can also be tacit, and the classification of the purpose
as the basis of the transaction is almost fluid.23 In the case of gifts from parents-
in-law that are made to the child-in-law with regard to the marriage of their own
child, the BGH holds after the breakdown of the marriage, both a claim for
repayment under the rules of
19 BGH ZIP 2018, 2112 para. 16.

20 RGZ 135, 339 (346).
21 Cf. BGH NJW 2012, 373 (374); BGHZ 98, 100 (103).
23 For differentiation, see also Scherpe JZ 2014, 659 (660 ff.).
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Elimination of the business basis as well as a claim according to § 812

Para. 1 sentence 2, 2nd case possible.24 According to another view,
a misconduct condiction is out of the question in this case because the
purpose pursued with the donation is not part of the legal transaction
(Donation), but only its business basis.25 Basically, the claim from §
812 paragraph 1 sentence 2, 2nd case against
contractual principles on the business basis subsidiary,26
especially as these provide a more flexible legal consequence (contract
adjustment).27
6. Termination for Cause

Insofar as a continuing obligation is to be canceled for the future 21
(cf. § 314; "§ 17 para. 19 et seq.), the termination is superseded
important reason § 313 (§ 313 Abs. 3 S. 2). The right of termination
is excluded according to § 313 Abs. 3 S. 1 if the disruption
can be eliminated by a reasonable adjustment.
24 BGH NJW 2010, 2202 et seq.

25 Walker FS Ruessmann, 355 (366).
26 Palandt/Grüneberg BGB § 313 para. 15; str.
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§ 28. Overview of the requirements of a

claim for damages
1 Literature: Ady, The reform of the law on damages 2002, ZGS 2002, 237;
Däubler, The reform of the law on damages, JuS 2002, 625; Deutsch/Ahrens, Tort
Law: Torts, Compensation for Damages and Pain and Pain, 6th edition 2014;
Geigel, The liability process, 27th edition 2015; Homann,
Typical problems of tort law and their systematic classification, JuS 2002, 554; Chr.
Huber, The new law on damages, 2003;
Lange/Schiemann, Compensation for Damages, 3rd edition 2003; Mohr,
Fundamentals of Compensation Law, JURA 2010, 168; Prince of Saxony Gessaphe, Improved
Victim protection in road traffic and compensation for pain and suffering, JURA 2007, 481;
Rauscher, The damage law reform - comparison of the new regulations with
the previous legal situation –, JURA 2002, 577; Wagner, The Second Damages
Law Amendment Act, NJW 2002, 2049; Walker, Fault in civil law, Ad Legendum
2015, 109.
Case a: R attacks the walker S to rob him. S beats him
to the ground with an uppercut. To ward off R's hound, S tears
a slat from the E's garden fence and hits the dog
who then lets go of him. Then S steps on R, who is lying on the ground
and breaks three of his ribs. R demands compensation because he 100 EUR for
paid the dentist, EUR 50 for the vet and EUR 200 for the surgeon. E wants the cost
of repairing the fence reimbursed.
"Paragraphs 3, 5, 7, 8, 9
Case b: A passenger is injured when the train driver brakes suddenly
got to. He demands compensation from Deutsche Bahn AG. " paragraph 8
If someone suffers an involuntary loss of their rights or
legal interests and this damage is caused to them by
someone else, they can only demand compensation if the law
provides a basis for a claim.
A distinction is made between claims for damages arising from the contract and from
Law. A contractual claim for damages is when
the law ties the obligation to pay damages to a breach of contract (disruptions in
the contractual obligation; " §§ 20 ff.). Statutory claims for damages are in particular
the claims from §§ 823 ff. (unauthorized
actions)1.
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§ 28. Overview: Prerequisites for a claim for damages 351
The fact that someone has to pay someone else compensation 2

does not have a punitive character. As the provisions of the
Criminal Code in particular show, punishment always presupposes
fault; the amount of the penalty depends on the severity of the
fault. However, in most cases civil law also makes the obligation
to pay compensation dependent on the fault of the person causing
the damage (e.g. Sections 280, 276; Section 823); however, it also
recognizes liability without fault and without illegality, as the
numerous cases of strict liability show (" para. 8)2 . The extent of
the obligation to pay compensation does not depend on the degree
of fault in the individual case (exception in the case of contributory
fault on the part of the injured party , § 254, as well as in the limited
liability of the employee, " § 20 para. 21 f.). As a rule, the person
who caused the damage, regardless of the form of his fault (intent
or negligence), has to compensate for the entire damage caused
by him in an attributable manner. The right to damages is primarily
determined by the idea of compensation; The aim and purpose of
compensation for damages is to compensate for and compensate
for the success caused by the damaging event.
Only in exceptional cases, in which compensation and compensation is not possible (e.g.
in the case of non-reimbursable non-material damage, such as psychological impairments),
is the idea of satisfaction added (cf. "Rn. 4 f.).3
A liability for damages has several prerequisites that come forth

usually be checked in the following order:
I. Fact
An action or omission must violate a contractual obligation or, 3
insofar as it is a question of damages due to tort, a protected legal
interest or right.
A special feature arises when you omit it. For example, if a child
suffers bodily harm because it is not fed for a long period of time,
everyone has caused the harm to the child through their behavior
(omission of nourishment). In terms of the facts, however, only
those persons who have a guarantor position, e.g.
2 See also Brox/Walker SchuldR BT § 54.

3 See also Brox/Walker SchuldR BT § 52 para. 7 ff.
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352 9th chapter. liability for damages
tern (from law), the nurse (from

Contract). Therefore, within the framework of the objective facts of the case,
it must be determined whether there was an obligation to act at all. This can
result from law, contract, previous actions. play here
the traffic (safety) obligations4 also play a role. You are also
in the case of only indirect violations of legal interests.
Examples of action: V destroys the thing sold to K; he hurts with it
his contractual obligation to transfer ownership and handover (cf. § 22). –
In case a, S has the body and property (dog, cf. § 90a) of R as well
the property (fence) of E violated by his actions (§ 823 Para. 1).
Examples of an omission: V refrains from making the sold item available to K

to deliver on the agreed date (cf. § 23). – The father refrains from being
Save child from falling out of window. The facts of the
However, the permitted action is only fulfilled here if it was possible for the father, as
guarantor, to intervene at all.
II. Unlawfulness
4 Furthermore, a claim for damages regularly presupposes
that the breach of duty or breach of rights (goods) is unlawful
is. The behavior of the tortfeasor must violate a legal prohibition or
-breach the bid.
The unlawfulness is expressly mentioned in Section 823 (1).
However, a breach of contract only triggers an obligation to pay
damages if it is unlawful. However, the illegality often does not need
to be specifically checked because
Fulfillment of the objective elements of the offence, as a rule, also
constitutes illegality;5 as in criminal law, what constitutes an element
of fact indicates illegality.
5 A special examination of illegality is required if
if there are indications of a justification (e.g. self-defence,
consent of the injured party). Anyone who invokes the exceptional
fact of a justification must provide proof.
In case a, S realizes the objective facts of § 823 paragraph 1

positive action. The injury of the R by uppercut is through self-defense
(§ 227), damage to the dog by civil-legal defenses

5 Cf. Brox/Walker SchuldR BT Section 45 marginal number 50.
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§ 28. Overview: Prerequisites for a claim for damages 353
emergency (§ 228 in conjunction with § 90a) and the damage to the fence due to an
emergency of attack (§ 904 Sentence 1) justified. Therefore, there is no illegality
so that a claim for damages from § 823 para. 1 does not apply. On the other hand is the
Infliction of damage by kicking not justified by self-defense, since the
Attack of the R is already averted and § 227 paragraph 2, among other things, a current one
attack requires; there is no justification here, so that
the unlawfulness is to be affirmed.
The participant in a competitive game (soccer) agrees to injuries that cannot be avoided
if the game is played in accordance with the rules; after that sets
a claim for damages against a teammate requires proof that
the tortfeasor did not behave according to the rules.6 Even in the event of a minor violation
of the rules, a claim for damages can be excluded for lack of responsibility ("paragraph 8;
e.g. foul in the heat of the moment).
If the area of application of § 823 Para. 1 is extended to the 6

established and exercised commercial enterprise and the right of
personality with the case law and the entire hM,7 then in
In these cases, however, the illegality is always specifically
determined.8
In rare exceptional cases, even a lawful act will trigger one 7

liability for damages. This is how the perpetrator acts in the emergency of attack
§ 904 against the owner of the thing lawful (cf. § 904 sentence 1); the
However, as compensation for this, the owner who is subject to toleration can claim compensation from him
claim damages incurred (section 904 sentence 2).
In case a, S is liable to compensate E for the damage to the fence according to § 904
sentence 2.
III. responsibility
As a rule, the law makes a liability for damages dependent on the 8th
tortfeasor also being responsible for the actual, unlawful act causing
damage ("§ 20 para. 1 et seq.).
In case a, S unlawfully and culpably caused R's broken ribs; he is therefore liable for
damages in accordance with Section 823 (1). On the other hand, R must compensate S
for the damage suffered (fence repairs at E) (§ 823 Para. 2 in conjunction with § 249 StGB).
According to special laws, for example, liability for accidents

involving motor vehicles, railways and air traffic is also accepted without fault
6 Cf. BGHZ 63, 140; BGH NJW 1976, 957; OLG Celle VersR 1980, 874.
8 Details: Brox/Walker SchuldR BT § 45 para. 52 et seq.
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(so-called strict liability).9 This liability requires neither illegal action

nor fault. It is here
namely not about having to take responsibility for illegal and
culpable action; because the respective behavior (e.g. operation of a
motor vehicle, a train) is even permitted. Rather, strict liability is
based on the idea that the person
who lawfully engages in a hazardous activity and resulting therefrom
benefit that has to bear the damage that outsiders thereby
suffer that the danger materializes.
In case b, Deutsche Bahn AG is liable for the passenger according to § 1 HPflG
damages.10
Failure to do so ("paragraph 3) shall exceptionally affect the guarantor

no responsibility if it is unreasonable for him to avert the violation of
the legal interest.11
Example: The department store detective watches his wife play a piece
pocket soap without paying. It is not reasonable for him to intervene against her.
IV. Damage
9 By breach of a contractual obligation or a

Legal (good) iSv § 823 paragraph 1, damage ("§ 29 marginal number
1) must have been caused. Between the duty or legal (good) violation
and the damage that has occurred must be causally linked.
In case a, R is entitled to the physical injury caused by S

Medical costs and the E incurred the repair costs for the fence due to the damage to
the fence. This means that the financial loss and
the so-called liability-filling causality ("§ 30 para. 6) before.

10 Cf. Brox/Walker SchuldR BT § 54 para. 20 et seq.
11 See Palandt/Grüneberg BGB on unreasonableness as a reason for excluding liability
Section 276 para. 7.
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Section 29 Damage and injured party 355
Section 29 Damage and injured party
Literature: Armbrüster, basic cases for damage law, JuS 2007, 508; 1
Arntz, Compensation for pain and suffering in the light of empirical happiness research,
NJW 2017, 3329; Bach, Life is No Harm, NJW 2019, 1915; Benecke/Pils, The Substitute
for the Interest in Use – Substitute for Use of Objects Used Commercially as a Weakness
of the Difference Method, JA 2007,
241; Bensalah/Hassel, Critical aspects of the day-by-day calculation of pain and suffering
damages, NJW 2019, 403; Bitter, depreciation through loss of use, AcP
205 (2005), 743; Bredemeyer, The Principle of “Third-Party Damage Liquidation”, JA
2012, 102; Brockmann/Künnen, contract with protective effect for third parties and
Third party liquidation, JA 2019, 729; German, Compensation for breach of contract and
strict liability, ZRP 2001, 351; ebbing,
Compensation for immaterial damage, ZGS 2003, 223; Exner, Internet access failure as
financial loss?, JuS 2015, 680; Fleckner, Compensation for damages when acting in one's
own name for the account of others, in: Perspectives on commercial law, 2008, 3; Gomille,
The third-party liquidation im
System of liability law, JURA 2017, 619; Henn, on the raison d'être
the so-called "third-party liquidation", 2011; Horlach, Legal traineeship exam – civil law:
liquidation of third-party damages and impaired joint and several liability – falling under the
Ferris wheel, JuS 2009, 242; Jaeger, failure of telephone,
Fax and the Internet: Deprivation or Economic Damage?, NJW
2013, 1031; ibid., Calculation of compensation for pain and suffering in the case of liability
for endangering facts, ZGS 2004, 217; Katzenmeier, survivor’s benefit –
Claim for compensation for mental suffering, JZ 2017, 869; idem., The new regulation of
the claim to compensation for pain and suffering, JZ 2002, 1029; Knuetel, Die
Weaknesses of the "concrete" and "abstract" damage calculation and that
positive interest in default, AcP 202 (2002), 555; Leitmeier,
Reassessing “Life as Damage”?, NJW 2020, 2844; looshelders/
Makowsky, Relativity of Obligation and Legal Status of Third Parties, JA
2012, 721; Luther, Compensatory damages instead of third-party liquidation, AcP 213
(2013), 572; Luckey, Updates on the claim for damages – between “tag-” and
“Scheingenau”, NJW 2019, 3361; Martens, damages
for lost theatrical delights?, AcP 209 (2009), 445; Medicus, General
Damage law - In particular, the demarcation between property and
Non-financial damage, determination 50 years BGH, Vol. I, 2000, 201; Mohr, Calculation
of the damage based on the difference hypothesis, JURA 2010, 327; Müller/Großmann,
Contract with protective effect for third parties and third-party liquidation in the light of the
relativity and creditor interest dogma, Ad
legend 2020, 304; Neuner, The pain and suffering, JuS 2013, 577; Oetker,
Mail-order sales, freight law and third-party damage liquidation, JuS 2001, 833;
Petersen, Third party damage and third party damage liquidation, JURA 2020, 17; San
den/Danner/Küppersbusch, Compensation for loss of use 2013, Beil. 1/2013
https://doi.org/10.17104/9783406758829-350
to NJW issue 1–2/2013; Spickhoff/Deuring, Liability for the preservation of life?, JZ

2019, 815; Stamm, The Resolution of Third-Party Claims Liquidation
Ways of joint and several liability, AcP 217 (2017), 165; ders., legal development of
Third-party damage liquidation by way of an original and purely tort law
Third-party claims for damages analogous to § 844 Para. 1 BGB, AcP 203 (2003), 366;
ders., (Original-)Referendarexamen-Civil Law: Liquidation of Third-Party Damages -
Always trouble with the craftsmen, JuS 2017, 56; Steffen, The normative traffic
accident damage, NJW 1995, 2057; Thüsing, compensation for
Non-financial damage in the event of a breach of contract, VersR 2001, 285;
Verweyen, Contrasting development tendencies in the liquidation of third-party claims?, JURA
2006, 571; Wagner, Compensation for deaths – The new survivor’s benefit, NJW
2017, 2641; ders., relatives' compensation, FS Stürner, 1.
Sub-volume, 2013, 231; ibid., The Second Damages Law Amendment Act,
NJW 2002, 2049; Walker, Compensation for moral damages
German Civil Law, FS Ulusan, 2016, Vol. III, 743; Weiss, Third-party damage
liquidation - old and new challenges, JuS 2015, 8; Wietfeld, Der
Scope of claims for damages instead of performance after justified
Refusal to perform, AcP 215 (2015), 716; Wittschier, The claim to
Survivor's benefit in the case of fatal accidents at work, JZ 2018, 490; ders., the
Schwacke list as a basis for estimating the reimbursement of rental car costs at the
normal rate, NJW 2012, 13.
Case a: A has untrue, defamatory facts in letters to three people
asserted about B. The recipients of the letters no longer bought from B, and B lost out
on a profit of EUR 1,000. B required by
A Compensation and compensation for pain and suffering. " Paragraphs 2, 4, 6
Case b: The driver K negligently injured the actor S, so that
the theater performance has to be cancelled. S demands that K lose his earnings.
The theater entrepreneur T and the innkeeper W of the theater restaurant claim their
lost profit. " Paragraphs 12, 13
Case c: What are the rights of S's wife if she has a nervous breakdown at the sight
of the accident and she incurs medical expenses?
" Paragraphs 12, 13
Case d: V sends the purchased item to K through the transport company T.

Through his fault, the thing is destroyed. K demands compensation from T. "
Paragraphs 14, 18
I. Concept of damage
Damage is any involuntary loss
goods. In contrast, voluntary sacrifices are considered expenses
referred to (" § 10 para. 2).
The damage is determined by looking at the current
situation with the situation as they exist without the damaging event
would be compared (cf. Section 249 (1)).
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Examples: After the traffic accident, the left fender of the car was dented, the
driver's left thigh was broken; without the accident, the driver would have been in
the hospital for the eight weeks
had to be able to earn money as a commercial agent. X's honor was violated by the
insulting newspaper article.
II. Types of damage
The question of the extent to which damage is to be compensated is determined 2

depending on the type of damage.
1. Material and immaterial damage
a) Material damage. Material damage means financial damage. Such is

the case when the current actual value of the asset is less than the value
the financial situation in which the injured party is without the entry
of the damaging event (so-called difference hypothesis or difference method).
Financial losses are fundamental
replaceable in kind and in money.
An asset is defined as a good or item that is
money can be measured.
Examples: Declining assets through confiscation, destruction or damage to an

item, through the loss of a claim (lost income;
EUR 1,000 in case a) or through expenses for the procurement of a
replacement item. Also the maintenance burden of the parents for an unwanted
A child born after incorrect medical treatment (failed sterilization) or counseling
(about the safety of certain contraceptives) may be subject to compensable financial
loss
represent.1
In certain cases, it can be difficult to classify damage as pecuniary 3

damage. Will about the possibility of use
If an item is temporarily suspended, the existence of a pecuniary loss is
doubtful if the person concerned does not make any expenses to obtain
compensation.
Case law sees the temporary loss of the ability to use a privately used car as a
damage that can be replaced.
1 BGH NJW 2007, 989 (990); BVerfG NJW 1998, 519.
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the if the person concerned does not rent a replacement car.2 For calculation
In practice, the regularly updated tables on compensation for loss of
use3 are used,4 which are published annually and updated in the NJW.
On the other hand, in the case of exclusively commercially used
Vehicles are not considered to have an intrinsic value solely due to their
constant availability and operational capability, which would have to be
compensated independently of any actual loss of earnings.5 Loss of use
damage that can be compensated for requires a measurable economic disadvantage. Tha
in the case of damage to a commercially used vehicle, it is also
if the injured party has an equivalent replacement vehicle available
stands, whose rental costs are reimbursed
§ 253 is to be compensated, however, the withdrawal of the possibility

of using a caravan,7 a fur coat,8 a swimming pool9 and a motor sports
boat10 was classified. After the decision of the Grand Senate of
BGH11 should always consider compensation for loss of use if it is an
asset of general central importance
acts, on the constant availability of which the economic livelihood is
typically dependent. Not only the stock of assets,
but also the possibility contained in it to realize the
To use goals in life represents an independent value and is also
protected.12 Accordingly, the buyer can for the temporary withdrawal of the
Possibility to use the purchased housing, compensation for damages
Failure to demand only if the space for his lifestyle of
was of central importance and he wanted to live in it himself.13 To that extent
However, it does not matter whether the buyer has been deprived of the
existing possibility of use or whether (because of the late handover by the
developer) is denied the possibility of use from the outset.14
In the opinion of the BGH15 , it can represent compensable financial damage
2 BGHZ 40, 345; 45, 212; 88, 11; BGH NJW 1988, 484; 2005, 277; NJW-RR 2008,
1198; NJW 2013, 1149 (1151).
3 See most recently NJW 2011, supplement to issue 1-2.
4 BGH NJW 2005, 277; 2011, 1947 (1948) (Deviations from the tables are possible due to individual
circumstances).
5 BGH NJW 2019, 1064 para. 28 ff. Manm Schwab JuS 2019, 484.
6 BGH NJW 2008, 913 et seq.
7 BGHZ 86, 128.
8 BGHZ 63, 393.
9 BGHZ 76, 179; BGH NJW-RR 2008, 1198 (mobile home).
10 BGHZ 89, 60.
11 BGHZ 98, 212; on this Medicus JURA 1987, 240; Schiemann JuS 1988, 20; confirmed by
BGH NJW 2013, 1072; 2014, 1374 mManm Schwab JuS 2014, 938 and note Oetker
JZ 2015, 102; NJW 2018, 1393 para. 6 f.
12 BGHZ 98, 212 (214 f.).
13 BGHZ 117, 260; BGH NJW 2014, 1374 (1375) Manm Schwab JuS 2014, 938.
14 BGH NJW 2014, 1374 f. Manm Schwab JuS 2014, 938.
15 BGH NJW 2013, 1072 (1074) Manm Spindler JZ 2013, 897 (negated, however, for the loss of private
use of a fax machine); critical to the BGH Exner
JuS 2015, 680.
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ask if the owner of a DSL connection is deprived of the opportunity

will be allowed to use its access to the Internet, even if it does so
no additional expenses are incurred or revenue is lost. In the case of temporary
deprivation of the possibility of using a motorcycle
differentiate:16 If the motorcycle was the only motor vehicle available to the injured
party and if it was not used exclusively for leisure purposes, the same applies to him
as to the deprivation of the possibility of using a car
compensation for loss of use. If, on the other hand, the injured party has a car in
addition to the motorcycle and the motorcycle is primarily used
the hobby of the injured party or to give him a different driving experience compared
to driving a car, there is no compensable pecuniary loss.
b) Immaterial damage. Immaterial damages are those that 4

are not reflected in a reduction in assets.
Examples: Physical pain, psychological impairments, defamation (case a). On the

other hand, human life is never immaterial damage, and the preservation of human
life - even if it is suffering - does not lead to a claim for compensation. That turns out
from the constitutional protection of human dignity (Art. 1 Para. 1

GG) and the fundamental right to life (Art. 2 para. 2 sentence 1 GG). With this
reasoning, the BGH17 in a case in which a seriously ill patient
for several years without consulting his carers and relatives
was kept alive artificially, a claim for compensation by the heirs of the
patient turned away.
With regard to the ability to compensate for immaterial damage

the legal situation changed on August 1, 2002.18 According to what was then new
inserted § 253 paragraph 1 because of non-pecuniary damage
compensation in money only to the extent determined by law
cases are required.
aa) Compensation for pain and suffering according to Section 253, 4a

Paragraph 2. Such a legal provision can be found in Section 253,
Paragraph 2. According to this, cheap compensation in money can
also be demanded for damage that is not financial damage if it is due to an injury
of the body, health, freedom or sexual self-determination is to be
compensated. This general claim for compensation for pain and
suffering applies both to fault-based tort
16 BGH NJW 2018, 1393 para. 9.

17 BGH NJW 2019, 1741 esp. para. 14, 20 mAnm Omlor JuS 2019, 577; also Bach NJW 2019, 1915,
Weishaupt JR 2020, 219 and Spickhoff/Deuring JZ 2019, 815.
18 Second Damages Law Amendment Act v. July 19, 2002, Federal Law Gazette I 2674.
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tisch19 and contractual liability for damages as well as with the

no-fault strict liability.20
Until July 31, 2002, according to § 253 old version, compensation in money for
immaterial damage was possible with the exception of tort liability for pain and suffering (§ 847
aF) excluded. This was the case in cases of purely contractual liability
and strict liability no compensation for pain and suffering. In the case of immaterial damage,
however, this only eliminated a claim for money; the aggrieved party may, as far as this is
possible, demand in rem restitution of the immaterial damage
always demanding. - § 253 old version was based on the now outdated consideration of the
historical legislature that it goes against German legal and moral awareness to put the
immaterial life goods on the same level
to provide property and immaterial damage with money
outweigh.21 However, case law had long since changed
overruled the assessment of § 253 old version and affirmed a claim for compensation for
immaterial damage in the event of serious violations of personal rights.22
5 The extension of the compensation for pain and suffering to the contractual
liability primarily affects the involvement of an assistant. In
such cases may result in tortious liability on the part of the principal
according to Section 831 fail because the latter succeeds in proving
exculpation (Section 831 (1 ) sentence 2)23 . On the other hand, an
exculpation is not possible within the framework of contractual liability under Section 278
Differences between § 831 and § 278 "§ 20 Rn. 39 ff.). The business owner
is then liable for damages and according to § 253 paragraph 2
Compensation for pain and suffering (which would not have been the case according to § 847 old version).
6 bb) Compensation for violation of personal rights. at

the listing of the facts that trigger a claim for pain and suffering according to
Section 253 (2) is the general right of personality
although not mentioned. But that is a monetary compensation in these
Cases under the conditions developed by case law do not preclude. This
claim has been made before
08/01/2002 directly from § 823 (and not from § 847 old version)
derived,24 and it therefore exists independently of the new § 253
paragraph 2.

21 Prot. I, 622.
22 BGHZ 26, 349; 35, 363; 39, 124; BVerfGE 34, 269; Brox/Walker SchuldR BT Section 52
15 et seq.
24 BGH NJW 2005, 215; Brox/Walker SchuldR BT § 52 para. 16.
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In case a, B can according to § 823 paragraph 1 (honor as a protected legal interest)25 besides
also request monetary compensation in accordance with Section 253 (2) in addition to
compensation for his pecuniary loss of EUR 1,000.
cc) survivor's benefit. Another one determined by law 6a

case of monetary compensation for non-pecuniary damage
the survivor's benefit according to § 844 paragraph 3.26 After that, in the case of a
Killing of those liable to pay compensation to the bereaved at the time of
injury to the deceased was in a special personal close relationship to
pay appropriate compensation in money for the mental suffering
inflicted on him (section 844 (3) sentence 1). A special personal
closeness is assumed if the
Surviving spouse, life partner, one parent or
was a child of the deceased (section 844 subsection 3 sentence 2). This regulation
primarily benefits the survivors of accident victims (e.g. culpably caused
plane crash).
Until the addition of Section 844 (3), the immaterial damage suffered as a result of the
death of a person close to you was generally not eligible for compensation. the
The BGH only approved in exceptional cases close relatives of accident victims who
witnessed the accident and thus suffered what is known as shock damage themselves
have suffered an appropriate compensation for pain and suffering.27 The same applies if
the shock damage is not caused by an accident in the actual sense, but by incorrect
medical treatment of a close relative
was triggered.28 The claim for compensation under Section 844 (3) is opposed
not dependent on damage to the health of the bereaved.
2. Normative damage
Of the financial loss calculated using the difference method, which 7

always presupposes an actual financial loss, the
so-called normative damage. At the normative damage
a pecuniary loss is assumed on the basis of an evaluative consideration,
although when comparing the two financial situations
mathematically no disadvantage. The details are very controversial.29
Example: T has hospitalized the salesman V. Therefore

he has to pay him the hospital costs and the lost profit (loss

26 Newly added by law of July 17, 2017 with effect from July 22, 2017 (Federal Law Gazette I
p. 2421). On Section 844 (3) also Brox/Walker SchuldR BT Section 45 marginal number 3.
27 BGH NJW 2015, 1451 f.
28 BGH NJW 2019, 2387 Rn. 8 mAnm Klose and Anm Mäsch JuS 2019, 1022.
29 Cf. the overview in Medicus JuS 1979, 233.
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of the commissions that V would have received as a commercial agent without T's actions)
substitute. However, if V is an employee and insured against illness in statutory health
insurance, the health insurance company bears the hospital costs and the employer pays
V despite the loss of work
Wage continues (cf. § 3 Continued Pay Act - EFZG). So V suffers none
loss of wealth. However, this must not mean that T does not have to pay any
compensation; because the health insurance and the continued payment of wages
are intended to protect V from the economic consequences of a temporary loss
protect his workforce, but not exonerate the injuring party T. On the other hand, V should
not make any profit from his injury by additionally
collects the hospital costs and wages from T. These amounts must
rather the insurance carrier or the employer are entitled because they
have prevented financial disadvantages for the injured party through their services. The
law achieves this result by enforcing the claims of the
V by law to the insurance carrier (Section 116 SGB X) and to the employer (Section 6
EFZG).
According to this, normative damage presupposes two things:30 The
occurrence of a loss of property does not exist because this does not exist
by the tortfeasor, but has been compensated in some other way
is. On the other hand, the legal assessment must show that
thereby the tortfeasor should not be exonerated.
The doctrine of normative damage covers some of the cases that used to be
discussed in the damage calculation in the context of benefit sharing
and for which such a decision was rejected ("§ 31 para. 23). It deals with the problems of
these cases as soon as the damage occurs
and not only when calculating the damage.
3. Performance and fidelity damage

8th
In the area of legal transactions, the law distinguishes between
Performance and fidelity damage. What damage can be compensated
depends on the basis of the claim.
a) Performance damage. Performance damage (= performance or
positive interest) is the damage that the partner incurs as a result
is that the other has not met. Here the injured party has to
be placed as it would be if it had been fulfilled.
The most important example: According to Section 280 (3) (“Section 22, para. 50 et
seq.), the creditor can demand damages from the debtor instead of performance. If he had
can sell the item owed for a profit of around EUR 400
that his fulfillment interest.
30 BGH BeckRS 2016, 112172 mAnm Walker LMK 2017, 388008
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b) loss of confidence. Damage to trust (= trust or negative 9

interest) is the damage that the partner suffers as a result
is that he trusted in the validity of the legal transaction. the
The injured party must be placed as he would be if he
hadn't heard of the deal.
Examples: § 122 (in the case of nullity of the not seriously meant [§ 118] or
the contested declaration of intent pursuant to §§ 119 f.); Liability for pre-contractual breach
of duty ("§ 25 marginal no. 15). Here the creditor can, for example, substitute
demand his expenses (postage, telephone costs); these would be him
namely not arisen if the transaction had never been mentioned.
c) Limitation of the loss of confidence due to the interest in

performance. The loss of trust is usually less than the 10
performance loss. However, this does not always have to be the case. In som
In some cases, the law limits compensation for loss of confidence
the amount of the interest in performance (e.g. § 122).
Example: M rented from V in writing from July 1st. a holiday apartment for one month for
EUR 1,500. Since he had made a mistake (he wanted to rent from August 1st), he challenged
his statement because of an error in the statement (Section 119 (1)). V
can demand compensation for the loss of confidence (section 122). Did he with consideration
another rental offer for the month of July on the rental agreement with M
If 1,400 EUR rent is rejected, that is his negative interest. This would amount to EUR 1,600
if a rental offer of this amount was made to him
would have been. However, it should be noted that if the contract with M had been valid, V
would only have received EUR 1,500 for the month of July; herein would
his interest in fulfillment exists. According to Section 122 (1), however, the legitimate interest
(EUR 1,600) is only up to the amount of the interest in performance (EUR 1,500)
to replace. The beneficiary (V) shall by destroying the
declaration of intent are not better off than they would have been had the declaration been
valid.
4. Direct and indirect damage
Direct damage means damage to 11

violated legal interests themselves, including indirect consequential
damage.
Example: direct damage is injury to the body, indirect damage

on the other hand, the loss of earnings as lost profit. What is disputed is why
medical expenses are to be expected.
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The obligation to pay compensation arises regardless of whether

the action or omission caused the damage directly or indirectly.31
III. injured party

1. Directly and indirectly injured party
12 An action can harm several people (case b). In order to
However, it is not said that all injured parties have a claim for compensation
for the damage against the person who caused the damage. Rather, it is to
be checked for each individual injured party whether there is a basis for a claim
for the compensation demanded.
Accordingly, in the event of a breach of contract, only the contractual partner
entitled to compensation if you withdraw from the contract in favor of third parties ("§ 32
Rn. 2, 10, 16) and from the obligation with protective effect for
Third ("§ 33 Rn. 13 ff.) once refrains. In tort
only has a claim for damages in whose person
the facts of the case, for example, §§ 823 para. 1, 2, 826 are fulfilled (exceptions:
§§ 844, 845).
In case b, only S has a claim for damages from § 823 paragraph 1, since
K only negligently injured his body. T and W also have it through
the behavior of K suffered damage; however, only their property is violated, and the
property is not a legal interest protected in Section 823 (1). Since you also have no
claim for damages from the other provisions
tortious acts (esp. §§ 823 para. 2, 826), K needs their
damage cannot be compensated. In case c, on the other hand, the wife herself is in her
injured health (section 823 (1)).
13 Only the injured person is entitled to compensation, in his person

the conditions for a claim for damages are met
(so-called directly injured party). Other persons who as a result of
injury to the directly injured party,
without an act that entitles you to compensation for damages (e.g.
breach of contract or tort) has been fulfilled
– so-called indirectly injured parties – are generally not entitled to
compensation.
In case c, the wife is directly injured; in her person is the
Fact of § 823 paragraph 1 (negligent damage to health) given.
31 months II, 18
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In contrast, in case b, T and W are only indirectly injured; they are merely
damaged in their assets without the facts of § 823 para. 1
(no violation of the legal interests and rights mentioned there), § 823 para. 2
or § 826 are met.
This limitation of the group of injured parties entitled to compensation

is commanded; otherwise the obligation to pay compensation would be
of a totally unreasonable extent. The law only allows a claim for damages
by persons who have been indirectly injured who are particularly worthy
of protection in narrowly defined exceptional cases (see §§ 844, 845)32.
2. Third Party Liquidation

If the tortfeasor has violated his contractual obligations towards the 14
contractual partner and is therefore not this, but a third party
a financial loss has occurred, the injuring party needs to do so
not to pay any compensation for what has been said so far. Because
the contractual partner has a claim because of the breach of duty,
but no own damage that would have to be compensated; the third has
damage, but no contractual claim against the
Injuring party because no breach of contract has been committed against him
would.
Example: In case d, V is released from his obligation to perform (§ 275 Para. 1). He
but retains the right to the purchase price because according to § 447 the risk of
sinking (so-called risk of price) had already passed to K when it was handed over to
the transport person.33 V has a claim against T because of
Violation of the transport contract, but no damage to be compensated. K has
a damage, because he does not get the purchased item and still the
must pay the purchase price to V; but he has (unless § 421 para. 1 sentence 2 HGB
intervenes) no claim against T because he is not his contractual partner.
A corresponding situation is in a tort

possible: Here the violation of legal interests can occur in the case of one person,
the resulting financial loss must have occurred to the other party.
In case d, V has a claim against T in accordance with Section 823 (1) (infringement
of property), but no damage. K has damage, but none
Claim against T from Section 823 (1) because he was at the time the thing was destroyed
not yet owned it.

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The result that the tortfeasor does not have to pay any
compensation in such cases and the injured party is left with the
loss is unfair. The jurisprudence and the hM im
Written documents therefore allow, under certain conditions,
that the injured party asserts the damage caused by the third party against
the injuring party (third-party damage liquidation) and forwards
compensation to the injured third party.
15 a) Requirements. Third-party damage liquidation, which is not

regulated by law, has a gap-filling function. That's why she comes
into account if the damage caused cannot already be asserted on
the basis of a legal regulation or a contractual agreement. This
results in the following requirements for liquidation of third-party
claims:
– First, the factual requirements of a basis for a claim must have
been met in relation to a person, but this
person must not have suffered any compensable damage (claim
without damage).
– Secondly, there must be an injured party opposite
but the factual requirements for a basis for a claim have not
been met (damage without a claim).
– Thirdly, the damage dealt must happen to be from the
beneficiaries have been transferred to a third party
(random damage shift).
The randomness of damage shifting is just the point of view
which the tortfeasor should not derive any benefit. It must be assessed from the point of
view of the perpetrator. There is therefore a lack of randomness when the damaging party
contributed to the shifting of the damage through a contractual agreement.
In the event of such an agreement (contract in favor of third parties; contract with
protection for third parties; to "§ 32 and " § 33), this is then the legal basis for a claim for
damages, so that third-party liquidation is not required.
16 b) Legal Consequences. The legal consequence of third-party

damage liquidation is that the damage is claimed:
The beneficiary is given the opportunity to
to liquidate damage incurred by third parties.
So that the goal of third-party damage liquidation, the damaged
The non-aggrieved creditor of the claim for compensation must be
obligated internally to the aggrieved third party to provide a
replacement or a claim for compensation to a third party
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to assign the claim for damages or to transfer the collected damages. This
obligation arises from
many cases from § 285. After that, the beneficiary must dem
hand over the (claim) for damages to the injured third party as his creditor
instead of the performance that has become impossible for him
(cede), which he against the tortfeasor for causing it
who has acquired impossibility. If Section 285 does not apply, it follows
the obligation to assign or transfer in case of doubt from the contractual
relationship between the claimant and the injured party.
c) case groups. The third-party liquidation must be seen as a breach of 17

the principle that each creditor only owns his own
damage may demand compensation, remain the exception. She is therefore
only in the following case groups, which cannot be generalized,
accepted:
aa) Liquidation of third-party damage is permissible in the case of 18
mandatory risk relief. This is particularly the case with mail order purchases.
If the purchased item is lost during transport (case d), the seller is released from
his obligation to perform (§ 275 Para. 1). But he keeps it
Claim to the purchase price (§ 447)34. Does the transport company have the
the seller is entitled to a claim for damages against him for breach of the transport
contract and for breach of property (Section 823 (1)); however, the seller has no
substitute
Damage. Rather, it stands as if duly fulfilled
would; he has been released from his obligation under Section 433 (1) sentence 1
and still receives the purchase price. The buyer has the damage because he
does not receive the purchased item, but has to pay the purchase price. He has no
claim against the transport company (unless Section 421 Paragraph 1 Sentence 2
HGB applies); because he is neither its contractual partner, nor was he
owner of the destroyed item. From the perpetrator's point of view, it is a coincidence
that the damage caused by him is not with his contractual partner
(seller) but occurs with a third party (buyer).
If § 447 did not exist, then the seller would have according to § 326
Paragraph 1 sentence 1 no claim to the consideration (the purchase price);
then he would not only be a beneficiary, but also himself
injured and could demand compensation. From the regulation of § 447,
which only the relationship between seller and
34 Brox/Walker SchuldR BT § 3 paras. 13, 19 et seq.
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Buyer, but not the interests of the transport person should be treated
they have no advantage. Therefore, as an exception, the seller entitled to
claim can compensate the damage of the third party (the buyer)
assert. The buyer is authorized by the seller the assignment
to demand the claim for damages (cf. § 285) and to take action against
the transport person himself after the assignment has been made. Has
the seller compensates the buyer for the damage to the transport company
already liquidated, the buyer can demand the return of what he has received
according to Section 285.
19 However, this case group of third-party damage liquidation with mandatory risk relief
is only of limited importance. So it needs that
Third-party damage liquidation not if § 421 HGB intervenes. According to this provision,
the consignee can assert the claims arising from the contract of carriage against the
carrier in his own name.35 Furthermore, at the
When solving a case, it must always be taken into account that Section 447 (1) does not
usually apply to the sale of consumer goods in accordance with Section 475 (2). So long
in such cases, therefore, the risk has not yet passed to the buyer
the seller himself is the injured party in the event of destruction during transport because
he loses his claim to the purchase price. Then the seller does
no third-party damage to the carrier, but your own
damage applies.
20 In part, the damage caused by mail-order sales is also compensated without this
The legal institution of liquidation of third-party damages solved.36 According to this, the
seller entitled to claim should compensate the transport person for a
assert your own damage because the risk has shifted to the buyer
relates only to the internal relationship between seller and buyer and is not to be taken
into account in relation to the damaging party. This claim for compensation
the seller must assign to the buyer according to Section 285.
21 A risk relief is also in the relationship between the Er

ben and the legatee.
Example: The testator has named E as the sole heir in the will
and further determines that V receive a specific image as a legacy
target. Before E hands over the picture to V, D destroys it. E would have as
Owner of the picture (Section 1922) a claim for damages under Section 823(1).
against D. But E has no harm because of his obligation to
transfer of ownership of the picture to V (§ 2174) has become free (§ 275 (1)); how
in the case of mail-order sales, the creditor (here the legatee) bears
the risk of loss for which the debtor is not responsible. V has the damage; but this has
no claim against D. Here, too, E can deny
35 On this Homann JA 1999, 978; Herber NJW 1998, 3297.

36 Büdenbender NJW 2000, 986 mN.
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assert damage of V against D; he must then according to § 285 the replacement

forward to V.
bb) In the case of indirect representation, the indirect one acts 22

"Representative" not as a representative in the name of someone else,
but in his own name, albeit on behalf of someone else. For example, D
commissions K as a commission agent (cf.
§§ 383 ff. HGB)37 to buy certain goods, then K
in his own name with the seller V for the account of D. If V violates his
seller obligations by e.g
delivers late ("§ 23 para. 3 ff.), then only K can have a claim against him;
because he is a contracting party to the purchase contract. K has
but no harm; in particular, he is not liable to D for damages because he
is not at fault. Only D is damaged;
but he has no claim against V because he is not his contractual partner
and V has not committed any tort against him (§§ 823 et seq.)
has committed. The damage shift from K to D is out of sight
of the V also happened by chance.
If K had acted as D's direct deputy to V,
he would have concluded the contract of sale in the name of D. Then would have
the injured D as a contractual party of the V against this contractual claim
for damages. If now the law the indirect
allows representation, then this does not serve the purpose
to relieve the tortfeasor (V) of his obligation to pay damages. Much more
here the indirect representative (K) can damage the
Liquidate third parties (D) in their interest.
cc) Furthermore, according to hM, liquidation of the third-party damage 23
can be considered in the custody of third-party property.
Example: A has taken custody of a valuable painting from E.
For electrician work, the journeyman who has been working carefully for ten years
G executes work for his master M in A's house, G's negligence causes a fire in which the
painting is destroyed. A would against M
although claims for breach of duty according to Section 280 (1) in conjunction with Section 278; he has
however, did not suffer any damage as he was exempted from the obligation pursuant to Section 275 (1).
to return the painting and thus from an obligation to compensate E
has become free. Only the E is damaged. His claim from § 823
Para. 1 against G may not be feasible, since G “nothing
to fetch” is. A claim by E against M based on tort fails on proof of exculpation according to
§ 831 Para. 1 Clause 2. M should not therefore
be released from his liability because (in his view) happened to be a stranger
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thing has been damaged. Therefore, A has the right to assert the contractual claim for
compensation for the damage suffered by E.
24 The application of third-party damage liquidation is also not applicable in these cases
undisputed. After all, the injured party has his own criminal offense here
Claim from Section 823 (1) and possibly also against the principal
from § 831 para. 1, and it can be doubted whether the liquidation of third-party damage
has the purpose of relieving the injured party of the realization risk
relieve.
25 dd) Finally, a random damage shift with the

Consequence that the beneficiary and the injured party fall apart,
also occur in the so-called trust relationships if the
Although the trustee is the owner of the claim, the trustor is
damaged.38
Example: G has his claim against S to secure a loan
bank B ceded. Since S is in default and arrives late
B pays, G has to pay interest on the loan to B for a longer period of time. Here it is
Bank as trustee (owner of the claim assigned as security) is entitled to compensation
for damage caused by default (§§ 280 Para. 1,
2, 286), but it has not suffered any damage at all, because G continues to accrue interest
paid the loan. G has because of the longer interest payment
although suffered damage, but he was after the security assignment as
The trustor is no longer legally the owner of the claim against S, so that he
also has no claim to damage caused by delay. In this case, bank B may liquidate the
damage incurred by G against S when asserting its claim under Sections 280 (1), 2,
286, and it must make this claim
or forward the liquidated amount to G. That doesn't follow here
§ 285, because it is not about a case of impossibility, but from the trust relationship
between G and B.
26 ee) There is no case of third-party liquidation in the case of the so-called

Chains of buyers.39 Sells A to B, who then sells it to C, C in turn
to D and if the performance becomes impossible through the fault of A, so
B has a claim for damages against A (§§ 280 Para. 1, 3, 283).
He has been released from his performance towards C (§ 275
paragraph 1); but his damage consists in the fact that he does not have the
purchase price can demand (§ 326 Abs. 1 S. 1). The non-delivery
of B to C can also cause damage to the latter (e.g
lost profit). Finally, the behavior of the
A for D result in damage. For the damage of C and D needs
38 BGH NJW-RR 1997, 663; NJW 1995, 1282.
39 See BGHZ 40, 91 (100); 51, 91 (93).
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§ 30. Causing and attribution of the damage 371
A not to admit. A damage liquidation in the interest of third

parties is ruled out. It only comes into consideration if the
violation of a legal interest only results in damage that,
exceptionally, does not occur to the bearer of the legal interest, but to a thir
In the present case, however, B suffered its own damage as a
result of A's breach of contract. There is no divergence between
entitlement to claim and damage, i.e. a shift in damage. If A
also had to make up for the damage suffered by C and D, the
longer the chain of buyers, the greater the scope of his obligation
to pay compensation. The law wanted to prevent such an
extension of liability.
Third Party Liquidation
I. Prerequisites 1.
Claim without damage
2. Damage without claim
3. Accidental shifting of
damage Case groups: a)
Mandatory risk relief (§ 447) b) Indirect
representation c) Custody of third-party
property d) Trust relationships II. Legal
consequence 1. Damage is claimed =
claimant may liquidate third-party damage 2.
Obligation of the claimant to assign the claim or to pay
damages to the injured party (often from Section 285)
§ 30. Causing and attribution of the damage

Literature: Armbrüster, basic cases for damage law, JuS 2007, 605; Medicus, 1
The psychologically mediated causality in civil law, JuS 2005, 289; Mohr,
Attribution of indirect consequential injuries, JURA 2010, 567; Musielak,
causality and attribution of damages in civil law, JA 2013, 241; Breach of values,
liability of the person who caused the accident for secondary damage caused
by medical treatment, NJW 2008, 2962.
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Case a: Through the fault of taxi driver T, passenger F misses his

Zug and is therefore unable to complete a deal that gives him EUR 10,000
would have brought profit. He demands this amount from T." Rn. 8
Case b: Would T also have to reimburse the hospital costs if F with a
later train crashed? " paragraph 8
Case c: suffered in a traffic accident culpably caused by A
Officer B sustained a head injury. The attending physician determines that B has
hidden arteriosclerosis, which leads to his early retirement.
B demands compensation from A because of a reduction in his salary. " paragraph 5,
14
Case d: Must A, who is to blame for a traffic accident, compensate property
owner E for the damage caused by impatient drivers driving across his property in
order to be able to avoid the scene of the accident? " Paragraph 23
I. Causation
Any claim for damages presupposes that the person causing the
damage caused the damage. His behavior must therefore be the
cause of the damage.
Example: A burns the book borrowed from B. This is what happens with B
to property damage.
1. Equivalence Theory
2 Causation (= causality) in the scientific sense
before when a specific event precedes a specific other event
necessarily entails. This is followed by the equivalence or
conditional theory. After that, cause is any condition that isn't
can be thought away without losing success (condition sine qua non
formula).1 The “equality” of all for the
Damage causative conditions comes in the concept of
to express "equivalence".
However, the equivalence theory must be modified in cases of
so-called double causality. One speaks of this when the same damage through
several circumstances (e.g. defective building material and faulty processing)
has been caused and each of these causes is sufficient on its own
would have to do all the damage. Then all circumstances are to be regarded as
causal, although none of them as a conditio sine
1 See only BGH NJW-RR 2017, 329 para. 17 man Riehm JuS 2017, 1022; NJW 2011,
2960 paragraph 35.
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qua non can be qualified. Otherwise the damage could be at no

be traced back to the causes that have actually become effective.2
Any human behavior can be the cause, i.e. both a positive

action and an omission. An omission can – like a
positive action - causing a breach of duty or rights (goods).
So it makes no difference whether V, who is keeping E's dog in custody
poisoned the dog or let it starve. In both cases he hurts
his obligation under the custody agreement and the property of E.
In contrast to positive action, an omission sets in, i.e. a 3

Doing nothing, no causal process in motion. Here the causality
is checked according to the formula that an omission is causal if
the omitted action cannot be added,
without losing success with a probability bordering on certainty.
So the causality of the omission is not real, but only imaginary
causal relationship.
2. Causality that justifies and fills out liability

In order to be able to affirm the causation of damage within 4
the meaning of the equivalence theory, a double causality test
may be necessary. Namely, if the factual basis of the claim is
the achievement of a certain success
presupposes (violation of a right [good] in § 823 para. 1 or in
the breach of certain protective duties within the meaning of Section 241 (2)),
a distinction is made between causality that gives rise to liability and causality
that fulfills liability.
In the case of other breaches of duty that are sufficient to justify liability,
without assuming a specific success (e.g. late delivery of the
purchased item; production of a defective work), only a single causality check is
required, namely in relation to the connection between the breach of duty giving rise
to liability and the damage (causality that fills the liability).
a) Causality giving rise to liability. Causality that gives rise to 5

liability is the causal connection between human behavior and
the infringement of rights (goods).3
2 BGH ZIP 2014, 1532 (1533) manm Keil EWiR 2014, 651 and note Riehm JuS 2014,
833; NJW 2013, 2018 (2019); NJW-RR 2012, 728 (730).
3 Brox/Walker SchuldR BT § 45 para. 28 et seq., 60.
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Examples: Burning the borrowed book causes property infringement. In case c, A

injures B's body and health.
6 b) Liability-fulfilling causality. Causality that fulfills liability is the causal

connection between the infringement of rights (goods).
and the damage.4
Example: If A shoots B illegally and intentionally and wounds his leg, he has the
offense of § 823 para. 1
fulfilled (= causality justifying liability). If B incurs medical costs and loss of earnings
as a result of the physical injury, these financial losses are caused by the physical
injury as consequential damage (= causality that fills the liability).
The liability-filling causality is not yet in the structure of the report

connection with the factual behavior of the opposing party, but only after the
determination of a compensable damage to examine.
II. Attribution
7 The causation iSd equivalence theory is only a coarse sieve,
through which, in the case of liability for damages, all those damages are
eliminated for which the behavior of the damaging party is not responsible
condition sine qua non is. However, you cannot prevent it
even the remotest damage is attributed to this. Have so
eg also the parents, grandparents etc. of the injuring party a cause for
set the damage caused by it. One could endless
form causal chains. Criteria have been developed to limit the limitless
obligation to pay damages, through which a limit is drawn up to which the
perpetrator can be held liable for the consequences of his or her behavior
are attributable to. These are the adequacy (1) and
to take into account the protective purpose of the violated standard (2),
the lawful alternative behavior (3), the hypothetical causality (4) and the
causal contributions of the injured party himself
or a third party (5). These criteria are no longer relevant
causality in the scientific sense, but an attribution from an evaluative point
of view. These can lead to the damage that has occurred not being
attributed to the injuring party
and therefore cannot be replaced by him. Individual of these
Criteria play primarily in connection with liability
4 Brox/Walker SchuldR BT § 45 marginal number 60.
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founding causality, others play a role predominantly in the liability-

fulfilling causality.
1. Adequacy Theory
According to this theory, harm is only then to the actor 8th
attributable if the condition set by him in general and not only under
very peculiar, very improbable and according to the regular course of
things
disregarded circumstances to bring about a
success was suitable.5 Thus, within the scope of the causality
justifying liability, the most distant legal (good) violations
and within the framework of liability-filling causality the most distant
Consequences of damage excluded because these cannot be
attributed to the person acting. On the other hand, all damage that is
not entirely improbable has been adequately caused. in the adequacy theory
it is therefore not a question of causality; rather it works
to the attribution of damage consequences based on an evaluative
Consideration6 and a judgment of probability.
In case a, there is the lost profit, in case b, on the other hand, it is not
reimburse the hospital costs.
When assessing whether the cause is general to bring about 9

of success, the (subjective) prognosis of the tortfeasor is irrelevant;
that would bring one into the realm of culpability. What is decisive is
rather the objective predictability, ie
the prognosis of an objectively judging third party. The jurisprudence7
is based on the knowledge of an optimal, i.e. an almost omniscient
observer; thus the limit of adequacy becomes very
extended so that it comes close to the equivalence theory.8
Example: When the husband kicks in the door to the apartment in which
the BGH sees his separated wife staying with a friend
it as adequate that the acquaintance was frightened from the eight meter high
Window jumps,9 see also "Rn. 23.
5 Cf. RGZ 133, 126; BGH NJW 2002, 2232 (2233); 2018, 944 paragraph 16.
6 Cf. BGHZ 18, 286.
7 BGHZ 3, 261.
8 Also critical Looschelders SchuldR AT § 45 para. 13 ff.
9 BGH NJW 2002, 2232 (2233).
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10 After what has been said, the causal chain can consist of any
number of links. The only prerequisite for the attribution of the
consequences of damage is that there is adequate causality between
the individual links.
Examples: The physical injury reduces the earning capacity of the injured
person; this results in the foreclosure of his property, where the injured person
suffers further damage.10 The accident victim
the leg has to be amputated; because of the lower stability
he falls years later, causing further bodily harm.11
If a spectator ignites pyrotechnics at a football game, it is entirely appropriate
that the organizing club should be penalized by the association
is occupied and suffers damage as a result.12
11 On the other hand, a causal chain is terminated when between two
there is no adequate causality. If this is missing, then are
all subsequent damage is no longer adequately caused by the
damaging party. One speaks of an interruption of the causal
connection.
Example: Bodily injury - admission to the hospital - there flu infection -
therefore extension of the hospital stay - theft
of purse by nurses - therefore non-payment of a liability - resulting in court
costs. Up to the extended hospital stay caused by the flu infection and the
associated
associated costs, there is an adequate one for bodily injury
causal relationship; because this infection in the hospital is not beyond all
probability.13 However, stealing a purse is
not typical during hospitalization. That's why this damage was done
no longer adequately causally caused by the physical injury.
2. Protective purpose of the standard
12 In certain cases, even if there is adequate causality, it is due to

the only quite exceptional conditions as causes
be excluded, there is no justification for attributing the damage to
the perpetrator. So it is generally accepted that
a liability for damages due to the limited scope of protection
violated norm (contractual obligation or legal regulation) can be
excluded.
10 RGZ 141, 169.

11 RGZ 119, 204.
12 BGH NJW 2016, 3715 para. 12 man Mäsch JuS 2017, 261; Walker NJW 2014, 119
(120).
13 RGZ 105, 264.
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The protective purpose of the standard is whether damage is also

to be replaced if he is not in the case of lawful conduct
would have arisen, but was not prevented by the violated norm
should be. Basic idea of the doctrine of the protective purpose of the standard
is that every obligation and every norm encompasses a specific area of interest
and that the perpetrator is only responsible for violations of this protected area.
liability is a requirement
So always that the damage in the area of protected interests
located.
The scope of protection of the standard is in addition to the adequate Verursa

must be observed in the event of any claim for damages.
a) Protective purpose of a contractual obligation. This is one in case of injury 13

contractual obligation without further ado. Because every contract protects
according to its respective content and purpose, only very specific interests of
the contractual partners. However, the damage adequately caused by the
violation of the contractual obligation may lie outside the protected area of
interest.
Examples: The bank negligently breaches its duty to provide the customer with a
favorable opportunity to sell his shares. The customer is so excited about the losses
incurred that he calls a doctor
visit and pay. The bank suffered this damage as a result of injury
adequately caused by their contractual obligation. But since the duty to advise
is not intended to protect customers from damage to their health, their injury cannot
result in any claims for damages due to the damage to their health.
The information and treatment obligations of a doctor in connection with life-

sustaining measures serve the (possibly by a supervisor
exercised) right of self-determination of the patient. The resulting obligation, the
medical indication for life-sustaining measures
not erroneously affirming has the purpose of not making the dying process unnecessary
to charge. On the other hand, these obligations do not pursue the purpose associated with the
To prevent continued life and the continuation of life-sustaining measures associated
economic burdens. With this justification
the BGH14 refused the heir of a patient without consultation
with his caregiver or relatives for years despite an irreversible illness
artificially kept alive to award damages for the treatment and care costs incurred.
14 BGH NJW 2019, 1741 para. 32 f. man Omlor JuS 2019, 577; also Bach NJW
2019, 1915 and Spickhoff/Deuring JZ 2019, 815.
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A hospital contract15 is intended to protect a patient to a much greater extent

protect against the risk of virus infection than an employment contract. suffered
If a patient in the intensive care unit suffers health damage from a cold due to poor
cleaning and the resulting increase in viruses, this is attributable to the hospital
operator. same can
but do not apply to an employer if an employee works in the repair shop of an auto
repair shop. In this case, too, the
Dirt in the hall has an adequate causal connection to the damage to health, since it
is not beyond all probability
that the viruses not killed during cleaning cause the common cold.
However, the employment contract of a car mechanic does not generally oblige the
employer to protect the employee from a common cold
Zen.
The treatment or consultation contract between the doctor and the patient aimed
at preventing pregnancy can serve to
protect partners from unwanted maintenance burdens.16
The spectator at a football game storms the game during the game
Place and caused by this disruptive behavior that the club from
sports court is sentenced to a fine for insufficient safety precautions. Due to his
behavior he has a duty to protect (§ 241
Paragraph 2) of the contract that entitles him to enter the stadium and to watch from
a certain place. There is adequate causality between breach of duty and damage to
the association. the
Damage (fine) should also fall under the protective purpose of the contractual obligation
fall; because the duty not to behave in a disruptive manner serves not only that
protection of the other spectators and the teams, but also to
to protect the organizing association from damage.17
14 b) Protective purpose of a statutory provision. The examination of
For the purpose of the standard, it is equally to be employed in the non-
contractual area. For Section 823 (2), this already results from the fact that the
violation of a protective law is necessary.18 But also for all other claims for
damages - in particular also for Section 823
Paragraph 1 - is to be checked in each individual case whether the violated norm
The purpose is to prevent the damage that has occurred.
In case c, the damage caused by the reduction in salary does not apply
to replace according to § 823 paragraph 1. Because the ban on injuring the body
and health of another is not intended to protect against the injured person discovering
a hidden illness and the injured person earlier in the disease

16 BGH NJW 2007, 989 (990) with further references
17 OLG Rostock NJW 2006, 1819 (1820).
18 Brox/Walker SchuldR BT § 46 paras 2-12.
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retirement than would otherwise have happened.19 Early retirement due to

incapacity to work (cf. e.g. § 44 BBG) is one of the general life risks that every civil
servant has to bear. However, only the special risks that the
hit the injured party precisely because of the violation of his legal interests and to
which he would not be exposed without this violation.
By the attribution criterion of the protective purpose of the norm 15

that of adequacy is not superfluous (str.). The adequacy
is based on empirical knowledge and general predictability. On the other
hand, the protective purpose of the standard follows from the abstract
goals of the legislature to prevent certain damage.
Example: If someone gives another unlawfully and culpably a

has inflicted a scratch and as a result the injured person suffers particularly great
damage because of his abnormal constitution (hemorrhage), this lies
Although within the scope of the violated norm (§ 823 Para. 1: Bodily harm).
According to the adequacy theory, however, it cannot be replaced because the
particularly improbable circumstances (bleeders) must be disregarded
senior
3. Lawful Alternative Conduct

With the objection of lawful alternative behavior, it is asserted that 16
damage cannot be compensated because it was
lawful conduct would also have arisen.
Example: Employee N resigns without notice without notice and remains the
work away. Employer G demands reimbursement of the costs for a
Newspaper advert looking for another worker. N power
claims that the notification costs would also have arisen if he had given notice in
due time.20
If the damage could also have been caused by lawful conduct, that
does not change the fact that the
damage that has actually occurred as a result of the breach of contract is adequate
was caused and is covered by the protective purpose of the obligation to
fulfill the contract. However, it is not based precisely on the illegality of the
breach of contract. Therefore, in this respect also from
In the absence of an unlawful connection (in the case of this
terminology is much disputed). Whether the objection of lawful
alternative behavior is significant depends on the purpose of the respective
19 BGH NJW 1968, 2287; see also BGHZ 27, 137.

20 Cf. BAG SAE 1984, 217 Manm Brox.
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last standard ab.21 This consists in the occurrence of damage

prevent and compensate. However, the damage that can be caused by
lawful behavior can be tolerated
neither prevent nor offset the right to damages. When
i.e. a duty of conduct should fundamentally prevent certain damage
(protective purpose), but cannot prevent it in individual cases because the
damage would have occurred even if the duty of conduct had been
observed, the objection of the legitimate
Alternative behavior usually to exclude the obligation to compensate.
If the costs for the newspaper ad had also been incurred in the example,
if N had given notice of termination of his employment in compliance with the statutory
notice periods, G could pay these costs
do not ask for a replacement. At most, N would have to pay for the damage that
caused by the hasty termination of the contract, in the case of contractual
However, compliance with the notice period would not have occurred (i.e. only the
so-called premature damage).22
If, on the other hand, it is a question of damage caused by a breach of

a contractual obligation to pay, the BGH is of the opinion that the debtor
can not claim that, on the basis of a contractual agreement, within a certain
period of time
can withdraw from the contract. A prerequisite for the consideration of the
lawful alternative behavior is that the same damage would have actually
occurred if the behavior had been in compliance with the law; the
the mere possibility of lawfully bringing it about is not enough
from.24 This follows from the protective purpose of the obligation to pay,
which exists independently of a contractual right of withdrawal.
For a long time it was disputed whether the doctor who violated his duty
to provide information can successfully claim that the patient had
consented to the treatment even if the information was properly provided.25
The duty to provide information was widely advocated
the doctor should in any case respect the patient's freedom of choice
to back up. In § 630h para. 2 p. 226 it is now clarified that the treating
person is based on the hypothetical consent with lawful
Alternative behavior (proper education) can invoke.
21 BGH NJW 2017, 1104 para. 24; 2012, 2022 (2023); 1993, 520; 1986, 576.
22 Cf. BAG SAE 1984, 217 mN.
23 BGH NJW 2012, 2022 (2023).
24 BGH NJW 2017, 1104 para. 24.
25 For the status of opinion, see MüKoBGB/Oetker § 249 marginal number 222.
26 §§ 630a-630h on the treatment contract (on this Brox/Walker SchuldR BT § 22)
came into force on February 26, 2013 (Federal Law Gazette I 277).
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4. Hypothetical causality
Hypothetical causality must be distinguished from lawful alternative 17
behavior. Here the injuring party does not refer to it, he
could also have caused the damage through lawful conduct. Rather, he
asserts that the damage would be wholly or
partly also occurred without his actions due to other circumstances that
already existed or occurred later (“reserve causes”).
Example: B's car, which was negligently damaged by A, is completely

destroyed in a fire before it can be repaired.
Whether and to what extent such a hypothetical causality or

"Reserve cause" are taken into account in favor of the damaging party
must, is disputed in literature and case law.
The Reichsgericht had the consideration in settled case law
such "reserve causes" rejected. It had this problem as well
as viewed by the historical legislator27 as a question of causality and
had come to the conclusion that a causal connection, once in place, could not be
called into question again by events that occurred later.28 Today there is
essentially agreement that it is
This is not a problem of the causal connection, but a
such of the attribution context. The Supreme Court
Case law29 has also considered hypothetical causes of damage in certain cases,
but has so far avoided a conclusive statement. In science, the view is sometimes
taken that such
“Reserve causes” should always be taken into account.30 A widespread one
view differs according to the type of damage; in the event of direct damage
("§ 29 Rn. 11) reserve causes should be irrelevant, in the case of indirect damage
be considerable.31
It can be inferred from various legal regulations that

the consideration of a hypothetical causal connection
can by no means be generally denied. A "reserve cause" may
however, only be taken into account where this is with the sense and
purpose of the compensation regulation is compatible. Therefore have to
individual case groups can be distinguished.
27 months II, 769.

28 Cf. RGZ 141, 365; 144, 80; 169, 117.
29 BGHZ 10, 6.
30 Esser/Schmidt SchuldR I AT § 33 IV.
31 Larenz SchuldR AT § 30 I mN.
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18 a) Relevance by operation of law. Hypothetical causality must be

taken into account by law in the following cases:
aa) According to the law, accidental liability in the event of default
by the debtor (section 287 sentence 2; "section 23 para. 74) and the
confiscation of property (section 848) does not apply if the impossibility
or the loss also occurred without the behavior of the debtor bb) A
19 hypothetical causal course must also be taken into account when
compensating for lost profits in accordance with section 252 sentence
2. According to this, the profit that could probably be expected in the
usual course of things or under the special circumstances is to be
compensated i.e. it can be determined that the injured party’s income
situation has improved, for example as a result of his or her ability or
the favorable economic situation, the person causing the damage must
also make compensation for the lost betterment; on the other hand, it
must then also be taken into account, to the detriment of the injured
party, that he presumably a favorable job as a result of illness, a
declining economy or a lack of professional training would not have kept
in the long run.32
Example: The director of a factory was dismissed in 1944 because a local group
leader of the NSDAP suspected him of having acted illegally. He asserted against
the claim for damages that at the end of the war the director would have been
dismissed anyway as an old party member.33
20 b) Significance of previously existing reserve causes (damage

systems). A hypothetical event must also be taken into account where
the injuring party injures a person or thing that is already damaging at
the time.
Examples: A shoots B's terminally ill dog. S becomes unable to work due to an
injury caused by V and suffers a loss of earnings until retirement. However, this
would have occurred at a certain point in time even without the injury by V because
S had already been ill.
The damage-prone system carries weight in the attribution of damage.

The damage due to the previous illness is not to be attributed to the
injuring party.34 The injuring party only has the value of the one with the
32 So BGHZ 10, 6.
33 BGHZ 10, 6.
34 BGH NJW 2016, 3785 para. 9.
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To replace damaged system affected object. Under certain

circumstances, this can mean that there is no obligation to pay
compensation at all.35
However, the consideration of “cause reserve”, which is permissible in the cases

mentioned, often fails due to difficulties in proof. Because the damaging party must
prove that the hypothetical damage event was already created and would have actually
occurred.36
c) Insignificance of reserve causes occurring later. 21

On the other hand, such reserve causes that only arise after the
tortfeasor’s obligation to pay damages has arisen must be
disregarded, even if they had caused the same damage.37
Otherwise, the subsequent event would have the effect of culpably
canceling out the claim for damages – which regularly arose with
the tortfeasor’s intervention. This does not correspond to the purpose
of the law, which is clearly shown in the cases in which someone
else would have had to answer for the "reserve cause" if it had
become effective. If the injuring party could claim that the other party
later culpably caused the same damage, then the injured party
would not receive compensation for his damage at all; because the
later tortfeasor could assert that his behavior was not the cause of
the damage that had already occurred.
Example: A steals X's wallet. A cannot claim that B would have robbed X in the
same way on the next street corner. X only has a claim for damages against A, but
not against B. If the hypothetical cause (robbery of B) were taken into account in the
claim for damages against A, then X would get nothing.
Even if a later event damages the already damaged, not (yet)

repaired item again and the second tortfeasor pays for the damage
caused by him, the first tortfeasor remains liable.
Example:38 A car body part is damaged in a car wash. The injured party claims
the fictitious repair costs ("§ 31 Rn. 5). According to this, the same part is destroyed in
an accident. The insurance of the second tortfeasor pays the repair costs.
35 Cf. also BGHZ 20, 275; 29, 207.

36 BGHZ 8, 288; BGH VersR 1969, 43.
37 Cf. BGHZ 29, 215.
38 BGH NJW-RR 2009, 1030.
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operator of the car wash is not released from his liability to pay damages for the initial
damage caused by him. He would have
also have to pay compensation if the injured party caused the initial damage
could have had it repaired immediately.
22 However, one limitation must be made: In the case of consequential damage such as
such as a continuing reduction in earnings or in the event of default
similar long-term benefits, it is necessary to consider the "cause of
reserve". This thought can be derived from the legal
Evaluation, for example, in Section 844 (2), according to which the
hypothetical causal course must be taken into account in the obligation
to pay a monetary annuity regulated there. As far as the "reserve cause",
if it had become effective, the liability for damages of one
would have triggered third parties, here too it remains unconsidered.
Although it can be accepted if the injured party does not have a replacement
receives for such consequential damages that would later accrue to him anyway,
without having received compensation for this in the form of a claim for compensation.
It would be incomprehensible, however, if he did so without a claim for compensation
would remain because someone else would have caused him the same damage. Since the
"Secondary tortfeasor" cannot be held liable for damages (he did not cause the specific
damage), the "first tortfeasor" must remain liable for damages.
5. Attribution of damage-causing action by Ver

last itself or a third party
23 According to what has been said, the tortfeasor must in principle also
Damage attributable to misconduct by the
injured himself or a third party.
Examples: A young person sentenced to youth detention for driving without a license
escapes from the police officer by jumping out of the window. The officer who wants to
arrest him jumps after him and injures himself
included. In case d, the drivers drove over E's property as a result of the traffic accident
caused by A.
Even such external causes would always be the responsibility of the injuring party
imputed only because he himself had some cause for that
third-party behavior, the liability risk of the tortfeasor could increase
immeasurably. That is why the case law
endeavors to the extent that the objective attribution by a
restrict judgmental consideration. It depends on whether that
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Section 31. Type and scope of damages 385
behavior of the injuring party has prompted the decision to act by the
injured party or the third party and whether the injured party or
third party was allowed to feel challenged in the way he chose.39
These cases are therefore also discussed under the concept of
challenge cases. A challenge justifying attribution is to be answered
in the affirmative if the person causing the damage
caused third parties or the injured person to behave “at least to some
extent an acceptable motivation”.40 The
The damaging party is only liable for the increased risk caused by him,
not for the general life risk of the injured person.
Examples: The officer involved in the pursuit of the youth from the
jumped the window and injured himself in the process has no claim for damages
against the young person; because the thing with the jump out of the window
The associated increased risk of persecution is disproportionate to the purpose
of the persecution.41 The case should be assessed differently when it comes to
the arrest of a dangerous violent criminal; because here will
expected by the police to take greater risks of persecution. – According to the
BGH, an acquaintance of a separated wife may feel challenged to jump out of
the eight meter high window for fear of the husband breaking into the apartment
by force.42
However, he may have to be accused of contributory negligence.
In case d, E cannot demand compensation for his damage from A because A

did not “challenge” the behavior of drivers.43 E can only
stop at motorists who have driven over his property. That these
cannot be found is part of E's general risk
the driver driving too fast in the fog, who drives into a slower moving truck, also
for the personal injury and damage to property that this causes
occur that other vehicles drive into his car.
Section 31. Type and scope of damages
Case a: A would like to repair B's car, which he negligently damaged in a 1

traffic accident, in his garage. B refuses and demands payment of EUR 2,000
for repairs and EUR 300 as reduced value.
" Paragraphs 5, 6, 8
39 ZB BGH NJW 2012, 1951 (1952); 2001, 512 (513).

40 BGH NJW 2012, 1951 (1952); 2002, 2232 (2233); 1978, 421; 1987, 2926.
41 Cf. BGHZ 63, 189.
42 BGH NJW 2002, 2232 (2233 f.).
43 Cf. BGHZ 58, 162.
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Case b: In case a, B demands repairs to the car. A claims the car

be scrap; the restoration costs more than a new car." Margin 9
Case c: Merchant K, who bought goods from V for EUR 1,000, makes
according to § 376 HGB compensation for non-performance asserted by the
Difference to the market price (EUR 1,200), i.e. EUR 200 required. V wants but
only pay 100 EUR because K is with another seller with the goods
for the price of EUR 1,100. " Paragraphs 19, 20
Case d: B who has been seriously injured by A's culpable conduct
is, demands compensation from A. A thinks B should be credited
what his fellow athletes collected for him after the accident
and what he got from his accident insurance. " Paragraphs 27, 28
Case e: B has the tires on his car changed in U's workshop. u
does not tighten the screws properly. B wonders about the unfamiliar ones
Driving characteristics of the car, but does not care about it. A
wheel comes off. B drives into the ditch. U don't want to replace all the damage. "
Paragraphs 36, 39
Case f: What is the legal situation if the driver of B picks up the car?
" Paragraph 49
I. Type of damages
2 Literature: Armbrüster, basic cases for damage law, JuS 2007, 411;
Förster, damage law - systematics and the latest case law, JA 2015,
801; Gsell, No billing on a "new vehicle basis" without specific cover transaction,
NJW 2009, 2994; Heinrich, damage calculation after purchase
a replacement vehicle, NJW 2005, 2749; Hirsch, Damages after a traffic accident
– repair costs or replacement costs?, JuS 2009,
299; Koch, Reimbursement of towing costs, NJW 2014, 3696; G.
Müller, The new law on damages, DRiZ 2003, 167; Peetz, Motor vehicle total loss
and sales tax, ZGS 2004, 370; Rebler, Accidental damage – consideration of the
interest in integrity and the 130% limit in settlement,
MDR 2017, 132; Reinking, Delimitation of claims for damages
Sales and work rights with a view to § 249 paragraph 2 sentence 2 BGB, ZGS 2003,
143; Sanden/Völtz, property damage law of motor transport, 9th edition 2011;
Schnell, The subsequent impossibility of in rem restitution in general damage law,
2006; Vuia, Mercantile depreciation as part of property damage, NJW 2012, 3057;
Wellner, Typical cases
the settlement of motor vehicle damage, NJW 2012, 7; Wittschier, repair costs
within the 130% limit, NJW 2008, 898; Zschieschack, problems of
Accounting for vehicle damage after a traffic accident in the case law of the Federal
Court of Justice, JURA 2008, 801.
The damage can be caused by production in kind or by money

be replaced (§§ 249 et seq.).
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1. Natural production
As a rule, the damage is to be compensated for in kind (restitution
in kind); according to § 249 para. 1 the condition is to be established,
which would exist if the circumstance obliging compensation
would not have occurred. This does not mean that the previous
situation has to be restored; for that is not possible, since what is
done cannot be undone.1 Rather, it is of the law
the creation of an economically equivalent condition wanted.2
Examples: Repairing the damaged item; Revocation of the defamatory
statement. In the event of destruction of fungible items (§ 91), restitution in rem is
possible through the delivery of items of the same type and quality.
If a motor vehicle is damaged, the procurement of a (equivalent) 3

replacement vehicle is a form of production in kind.3 This also
applies to what is known as an economic (as opposed to a technical)
total loss; here remains the injured party
the production claim from § 249, if it is possible for him
to procure an equivalent replacement vehicle with economically
reasonable effort.4
The injured party basically has the form of production in kind
to choose the one that requires the least effort (§ 249 Para. 2 S. 1: "necessary
amount of money"; efficiency requirement).5 Therefore, calculate approximately
the reimbursable cost of removing a vehicle illegally parked on the private property
at the local cost of the
Towing and preparatory work directly related thereto.6
The principle of cost-effectiveness plays the greatest role in the repair of
car damage. The damaged vehicle owner must, when asked whether to have his
damaged vehicle repaired or a replacement vehicle
wants to buy, compare the repair costs (possibly estimated by an expert) (including
the reduction in value) with the replacement costs. For the calculation of repair
costs allowed
generally the usual hourly rates of a brand-related specialist workshop are taken
as a basis, provided that the injured party does not exceptionally (e.g. more than
three years old vehicle that does not have a checkbook anyway)
1 RGZ 165, 260.

2 RGZ 76, 146; strspr.
3 BGHZ 115, 364; BGH NJW 2007, 1674 (1675).
4 BGHZ 115, 375.
5 BGH NJW 2014, 3727 (3728) man K. Schmidt JuS 2015, 269; 2003, 2085; 2006, 2179
(2180); 2007, 1674 (1675); 2008, 437 (438); 2009, 3022 (3023); 2010, 608; 2010, 2118 f.;
2010, 2722 (2723); 2010, 2725 f.; 2010, 2727.
6 BGH NJW 2014, 3727 f. Manm K. Schmidt JuS 2015, 269; plus Koch NJW 2014,
3696.
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maintains) must refer to the use of a less expensive, but equivalent non-branded
workshop (" Rn. 41).7 Bei
the comparison between replacement and repair costs
The latter in principle up to the amount of (not by any residual value
reduced) replacement value; because a
Residual value is not realized in an actual repair.8 These fictitious
Repair costs up to the replacement value without deduction
of the residual value can also be demanded if the vehicle is dead
not repaired, but in unrepaired condition at least six months
continues to be used; because in this case, too, the residual value is not
realized by the creditor.9
Since the injured party's interest in integrity is regularly stronger than his
If you are interested in purchasing a replacement, it is compatible with the
principles of damage law that the injured party should be reimbursed for such costs
Repair of the vehicle will be awarded the expense of a
Exceed replacement procurement within limits. The BGH has repeatedly one
Surcharge of 30% on the replacement value (not reduced by the residual
value),10 if the injured party expresses his interest in integrity by actually having
the vehicle repaired
and continued to be used for at least six months.11 Whether the repair costs are
move within the 130% limit will usually have to be determined by an expert; it
comes down to the gross repair costs
(i.e. including VAT) an.12 If the injured party succeeds in
to carry out professional repairs within the cost of the replacement value
contrary to the expert’s estimate of more than 130% of the replacement value,
he can demand reimbursement of these costs.13 If, on the other hand, the
repair costs exceed the 130% limit,
cannot refund 130% of the replacement value
can only be brought about by the fact that the injured party is granted a discount
on the actually higher costs.14 The 130% limit is admittedly
complied with, but the repair is not professional and complete according to the
If the expert's specifications are carried out, the repair costs in excess of the
replacement value are non-refundable.15 The need for continued use for six
months does not mean that the
The claim for damages does not become due until six months after the accident; otherwise
the injured party would have to pre-finance the repair costs, which he often does
7 Cf. BGH NJW 2020, 1795 para. 8; 2017, 2182; 2013, 2817; 2010, 606 (607 f.); 2010,
2725; 2010, 2727.
8 BGH NJW 2003, 2085 (2086); 2005, 2541; 2007, 588 (589).
9 BGH NJW 2008, 1941; 2006, 2179 (2180).
10 BGHZ 115, 364 (371); BGH NJW 2003, 2085 (2086); 2005, 1108 (1109); 2007, 1674
(1675); 2008, 437 (438); 2009, 1340 f.
11 BGH NJW 2008, 437 (438); 2008, 439; 2008, 2183; NJW-RR 2010, 377.
12 BGH NJW 2009, 1340 f.
13 BGH NJW 2012, 52; 2011, 669 f.
14 BGH NJW 2011, 1435 (1436).
15 BGH NJW 2012, 52 (53); confirmed in NJW 2015, 2958.
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will not be possible at all. Rather, it is due immediately. he pays

Damager or his insurer, he can pay the amount above the replacement value
subject to a right of repayment.16
In the reverse case, too, in which the cost of procuring a replacement exceeds
the cost of repairs, the principle of cost-effectiveness can be restricted by the
injured party's interest in integrity. So it is recognized that
in the event of significant damage to a brand-new vehicle (no more
than 1000 km), even after a professional repair has been carried out
loses the character of being new, the injured party bears the higher costs of
acquiring a new car (step by step against transfer of ownership
of the damaged vehicle). However, such a damage settlement “on a new car basis”
presupposes that the injured party
actually acquires an equivalent new vehicle.17
If the injured party makes use of the procurement of a replacement vehicle in
the event of a total loss, he can only be reimbursed for the replacement value
less any residual value.18 In principle, what matters is not the residual value
estimated by the expert, but the residual value actually achieved.19
2. Monetary Replacement
Monetary compensation means that the damage is compensated by a monetary payment 4

is made amends. The amount of money must be such
that the injured party is thereby put in a position to compensate for the damage
fully compensated.
Whether the injured party can demand monetary compensation in individual
cases instead of the fundamentally owed production in kind and whether the
to fulfill his obligation to pay damages by making a monetary payment
is able to be determined according to §§ 249-251. The law solves here
the conflict of interest between creditor and debtor according to reasonableness
aspects.
a) In the event of personal injury or property damage. In the event of injury 5

to a person or damage to property, the
creditor the amount of money required for in rem restitution
demand (§ 249 Abs. 2 S. 1; power of replacement; " § 8 para. 14 ff.).
The reason for this lies in the fact that the creditor is not forced
should be to get involved in the debtor's manufacturing experiments
senior
16 On the due date for damage calculations in the area of the 130% limit BGH NJW
2009, 910.
17 BGH NJW 2009, 3022 (3024); confirmed by BGH NJW 2020, 3591 para. 8.
18 BGH NJW 2000, 800 (801).
19 BGH NJW 2006, 2320.
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In case a, B is entitled to repair costs of EUR 2,000. A

also has to bear the additional costs incurred by the workshop commissioned by B
caused by improper work.20 Among the manufacturing costs
also includes the financing costs that the injured party incurs as a result of having
to take out a bank loan because the injuring party does not
pays.21
The amount of money required under Section 249 (2) Sentence 1 can also be
demanded in the event of damage to a vehicle if a repair has not been carried out
not taken place, but the injured party continues to use the vehicle, which is still
roadworthy or has been made roadworthy again, for at least six months (fictitious
repair costs based on an expert report)22.
However, from the point of view of the obligation to mitigate damage (§ 254 Para.
2), the injured party must be referred to a repair option that is cheaper than the one
taken as a basis by the expert, provided that this
is readily accessible and qualitatively equivalent.23 In addition, see
Section 249 (2) sentence 2 newly added on August 1, 2002 stipulates that the
sales tax to be paid for a repair or replacement purchase24 is only included in the
amount of money to be paid if and to the extent that it has actually been incurred,
i.e. not with fictitious damage calculation. If the injured party
i.e. neither allows a repair that is subject to VAT to be carried out nor
replacement purchase of a new vehicle (privately) VAT is due, he cannot refund
VAT on the basis of a
Request an expert opinion.25 The relevant point in time for the calculation of the
fictitious repair costs is in the event of a legal dispute over them
Costs not the time of the accident, but that of the last oral
negotiation of facts in the process. Interim cost increases are therefore at the
expense of the party causing the damage.26 If the injured party has his vehicle
professionally repaired after obtaining an expert report
and the actual repair costs as estimated by the appraiser
fall below the costs, the amount of money is limited to the costs actually incurred,
even in the context of a fictitious damage calculation; otherwise, the injured party
could enrich himself in the event of damage, what
is not the purpose of the compensation.27 If the injured party opts for the fictitious
claims settlement, he cannot demand reimbursement of the costs actually incurred
as part of a repair that has been carried out. A combination
from fictitious and concrete claims settlement is inadmissible.28
20 BGHZ 63, 182.

21 Cf. BGHZ 61, 346.
22 ZB BGH NJW 2008, 1941; 2003, 2086 mwN; 2011, 667 (668).
23 BGH NJW 2019, 852 para. 6, 9.
24 BGH NJW 2005, 2220.
25 BGH NJW 2017, 1310 para. 11; 2013, 3719 (3720).
27 BGH NJW 2014, 535 f.
28 BGH NJW 2017, 1664 Manm Schwab JuS 2017, 1111.
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A special case is when the damage consists of the loss of reasonable property. In
principle, the injured party then has the right to choose between in rem restitution and
monetary compensation. However, if the injured party purchases a replacement himself
and thereby compensates for the loss of assets, his claim for damages is limited to
monetary compensation.29
b) After a deadline for in rem restitution has expired without result. 6

The obligee can give the obligor a reasonable deadline for production
by declaring that he will refuse production in kind after the deadline has
expired; after the time limit has expired without result, he is entitled to
monetary compensation and no longer to in rem restitution (section 250).
In case a, B will not proceed under section 250; because he can already demand
monetary compensation according to § 249 paragraph 2 sentence 1 (damage to
property). However, if he sets a deadline with a threat of refusal (section 250), A has the
right to pay damages through in rem restitution until the deadline expires, which B does
not want. – The creditor should also be discouraged from taking the route of Section 250
if he attaches importance to natural production (e.g. due to a shortage of labour, currency
collapse); because after the fruitless expiry of the period, he only ever has a claim to
monetary compensation.
c) In the event of impossibility of in rem restitution. If production in 7

kind is not possible or is not sufficient to compensate the creditor, the
debtor must pay compensation in money (section 251 (1)).
If A's vehicle suffers a technical total loss in an accident for which B is responsible,
production in kind is not possible. A can demand compensation from B for the
replacement value of his car (Section 251(1)). – If the replacement value cannot be
determined due to the lack of a market price (e.g. self-built model boat), the amount of
money to be paid must be determined by comparing it with similar objects that have a
market price.30 – After the destruction of a database on the hard drive of a commercially
used one If the computer does not restore the lost files, the court must estimate their
value in order to calculate the claim for compensation under Section 251 (1) (Section
287 ZPO) . tion of operating processes must be taken into account.
29 BGH NJW 2008, 2430 (2431).

30 BGHZ 92, 85 (93).
31 BGH JZ 2009, 742 mManm Schiemann.
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8th
The law leaves open the possibility that the creditor may seek
partial in rem restitution and, if this is not possible, monetary
compensation (Section 251 (1): to the extent).
The creditor demands repair of the damaged motor vehicle and money for the
reduction in value (case a). B is also entitled to the reduced market value of EUR
300. This is not a future damage that will only have an effect when the car is sold at
a later date. Rather, there is a current loss of value in this respect; because a large
part of the public has a price-influencing reluctance to purchase accident-damaged
motor vehicles (vehicles involved in an accident!), primarily because of the suspicion
of hidden defects
9 d) In the case of disproportionately expensive in rem restitution. The

debtor can pay monetary compensation if the production in kind is only
possible with disproportionate expenses (section 251 (2)). Reason:
The debtor should be protected here if, exceptionally, in rem restitution
is not reasonable. Whether the requirements are met must be
determined in each individual case by weighing up the interests of the
debtor and creditor.
In case b, A is entitled to compensate B in money. The amount of money is to be
measured in such a way that B can buy a suitable vehicle.
If the buyer according to § 437 No. 3 or the customer according to §

634 No. 4 claims damages due to a defect in the purchased item or
the work because supplementary performance according to § 439
Paragraph 4 or § 635 Paragraph 3 is refused due to the disproportionate
costs 439, paragraph 4 and 635, paragraph 3 specifically aim to ensure
that the seller or entrepreneur should not be burdened with the
disproportionate costs, neither by way of supplementary performance
nor by way of compensation.
Expenditure for the medical treatment of an injured animal is not

already disproportionate if it increases its value
32 Cf. BGHZ 35, 396; BGH NJW 1980, 281; 2005, 277 (279).
33 On the so-called exemption costs: BGHZ 61, 325.
34 BGH NJW 2013, 370 for work contract law and ZIP 2014, 1532 (1535 f.) for that
purchase right.
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significantly exceed. This is expressly determined by Section 251 (2) sentence 2. for
the determination of proportionality is decisive, what a sensible animal owner would
have spent in place of the injured party.35
In this respect, case law takes into account, among other things, how high the
annual maintenance costs for the animal are.36 In my opinion , this is a less than
convincing criterion.
e) In the event of immaterial damage. In the case of immaterial damage ("§ 29 10

Rn. 4 ff.) there is compensation in money according to the since 1.8.2002
applicable Section 253 (2) into consideration. The prerequisite is that
because of an injury to the body, health, freedom
or compensation for sexual self-determination is to be paid.
II. Damage Calculation

Literature: Bruns, Diesel Scandal and Compensation for Use, NJW 2020, 11
508; Exner, The failure of Internet access as a financial loss?, JuS
2015, 680; Fervers/Gsell, Sharing of Benefits and Usage Benefits for Manipulated
Diesel Vehicles, NJW 2020, 1393; Huber, Failed equalization of benefits in the event
of damage to state property, NJW 2005, 950; Klöhn, Use credit and tortious interest
in the VW diesel scandal, ZIP 2020,
341; Knütel, The weaknesses of the "concrete" and "abstract" damage calculation
and the positive interest in non-compliance, AcP 202 (2002),
555; Medicus, New perspectives in tort law – commercialization, punitive damages,
collective damage, JZ 2006, 805; Meier/Jocham,
The assumption of profitability - expenditure as damage?, JuS 2018, 1168;
Butcher, equalization of benefits in service chains - relocation or elimination
of the damage?, JZ 2008, 498; Möller, The Prevention Principle of Damage Right,
2006; Mohr, Normative concept of damage and calculation of damages according to
the principles of in rem restitution, JURA 2010, 645;
Peters, Equalization of Benefits in the Contractual Supply Chain, JR 2008,
177; Pfeifer, death claim: Contributes to lost profit replacement ability
Homicides, AcP 205 (2005), 795; Schiemann, The Riddle of Equalizing Benefits, FS
Picker, 2010, 695; Mold, lost profits from speculation
as damage caused by delay?, WM 2000, 946; Schmitz-Herscheidt, The maintenance
damage in practice, VersR 2003, 33; Schur, The Linking of Reciprocal
Benefits, JuS 2006, 673; Staudinger, crediting of benefits and interest calculation
Diesel Scandal, NJW 2020, 641; Wetzel, The change in the damage calculation
according to Section 249 (2) sentence 2 BGB, ZGS 2002, 434; Witt, damage calculation
in accidents involving motor vehicles, NJW 2010, 3329.
35 BT-Drs. 11/5463, 7.
36 BGH NJW 2016, 1589 para. 17 (three times the amount of the annual maintenance costs)
Man Mäsch JuS 2016, 650.
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The financial loss is calculated by comparing the current situation with

the situation that would exist without the damaging event ("§ 29 para. 1).
It consists of the financial loss and the lost profit. Does the damaging
However, if the event also brought a pecuniary benefit to the injured party,
the damage can be reduced to this extent (benefit compensation).
1. Loss of property
12 The loss of wealth (damnum emergens) can take the form of a decrease
in assets (e.g. the window pane is broken).
and in an increase in passive assets (e.g. the glazier has
a requirement for the insertion of a new window pane).
a) Objective value. The creditor of a claim for damages

can always demand replacement of the common value. Understood
the value that the item to be replaced has for everyone
(premium commune). It is to be determined according to purely objective
standards; It is not taken into account which asset loss is currently incurred
was inflicted on that injured party.
According to some legal provisions, the compensation is determined according to

the market value (example: Section 429 (3) HGB).
13 b) Subjective value. According to §§ 249 et seq., it can also replace the

value that the object has for the creditor (pretium singulare). This follows
from the meaning of compensation for damages, according to which the
injured party should be put in the same position as he would be without
the event obliging the compensation for damages would stand.
If, for example, an item from a collection belonging to the creditor has been
destroyed, the damage suffered by the injured party is not limited to
Loss of this piece but also in the depreciation of the collection.
This example shows that the individual value mostly outweighs the common value
exceeds.
14 c) love value. In contrast, the personal lover or

The memory value that the item has for the injured party,
cannot be replaced (affection interest). In this respect, one is missing
calculable asset; becomes an intangible interest
generally not replaced in money (section 253 (1)).
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Example: The grandmother's inherited brooch has a special memorabilia value

for the injured party. Only the individual pecuniary loss is to be compensated. –
However, it is possible that the appreciation of an object (e.g. a work of art or a
vintage car) is reflected in the price;
then it is a market value.
2. Lost Profits
Since the injured party is to be put in the same position as he would 15
be without the damaging event, the damage calculation is also
determine whether the event at the creditor an enlargement
of the property prevented. Therefore, § 252 sentence 1 makes it clear that
the damage to be compensated also includes the loss of profit (lucrum
cessans) includes.
Examples: The dentist who injured his wrist in a traffic accident

runs his own practice, is due to the injury at his dental
activity is permanently impaired and suffers a loss of earnings as a result.37 The
wrongly advised investor misses out on investment interest because he received
an amount of money that would have been available to him with the right advice
would not have been able to invest at the usual interest rates.38
16
As evidence of a loss of profit for the creditor
can be very difficult in individual cases, § 252 S. 2 eases the burden
of proof:39 The creditor must demonstrate the circumstances from which
the profit could be expected with probability;40 then
it is assumed that the profit would have been made. Section 252
S. 2 thus facilitates the proof of profit; the probability
the expectation of profit is sufficient. The debtor can make the guess
refute by proving that the profit from another
reason would not have been made.
The wording of § 252 S. 2 is misleading, it is downright a beginner's trap. The 17
wording makes it seem as if just the profit too
be replaced, the one at the time of the damaging event with probability
was foreseeable. But that is not the case. Because otherwise, for example, the
owner of a lottery ticket could not demand the main prize from the thief
later just fell on this lot; this gain could at the time of theft
not likely to be expected. The history of the origin of
provision proves that the practice has received an instruction for the
37 On the calculation of the loss of earnings BGH NJW 2018, 864 para. 13 ff.
38 BGH NJW 2012, 2266.
39 Cf. BGH NJW 2018, 864 para. 15; BGHZ 29, 393; BAG NJW 1985, 2545.
40 BGH NJW 1964, 661.
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should be given. The probability of winning must therefore be assessed from a

retrospective prognosis (time of the last oral hearing in the process),41 so that the
further course of things after the damaging event must also be taken into account. -
From the purpose of § 252 S. 2 as a rule to facilitate proof, it also follows that the
word "applies" does not have the meaning of a fiction or an irrefutable presumption.
Rather, it is a rebuttable presumption.42 If, for example, a commercial agent who
was injured in a traffic accident sues the perpetrator for his loss of earnings, the
judge is already very free to determine the amount of damage under Section 287
18 ZPO, since he can claim the lost income Commission can estimate.43 In addition,
the presumption of proof of § 252 sentence 2 helps. The injured party will have to
show, for example, what he earned in the corresponding period of the previous year.
If profits have increased over the last year, the judge will have to use the commissions
of other comparable people in the industry to determine the damage.
If the injuring party asserts that the injured party could not have traveled for a week
anyway for family reasons, then he has to prove it.
If the proof is successful, the damage to be compensated is reduced accordingly.
3. Concrete and abstract damage calculation

19 In principle, the damage suffered by the creditor must be calculated in concrete terms;
it can, in exceptional cases, also be calculated in the abstract.
a) Specific damage. Concrete damage is the damage that results

from the special circumstances of the individual case, in particular
from the institutions and precautions taken.
Examples: The buyer had to buy at a higher price because the goods were not
delivered. – The seller was only able to sell the goods at a lower price because the
buyer refused to accept them.
The difference between the price of the hedging transaction and
the contract price is the actual damage.
In case c, the specific damage is: EUR 1,100 (cover purchase price)
minus 1,000 EUR (contract price) = 100 EUR.
20 b) Abstract damage. Abstract damage is damage that
occurs in the ordinary course of events. The law only grants
the creditor this type of damage calculation in exceptional
cases (e.g. § 288 Para. 1; § 376 Para. 2 HGB44).
41 BGH NJW 2018, 864 para. 14.
42 BGHZ 29, 393.
43 BGH NJW 2018, 864 paras. 12, 15.
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The difference between the market price and the contract price is the
abstract damage. The injured party will choose this type of calculation if he
cannot or does not want to prove a higher specific damage.
In case c, the abstract damage is: EUR 1,200 (market price) minus EUR
1,000 (contract price) = EUR 200. V cannot successfully claim that the
specific damage to K is less; because K has permissibly opted for the abstract
calculation in accordance with Section 376 (2) HGB.
4. Benefit Sharing
a) Importance of advantages for the damage calculation. If the damaging 21

event brought the injured party an advantage in addition to damage, this
must be taken into account when calculating the damage. This follows from
the meaning of the law on compensation for damages: the damage suffered
should be made good, but the injured party should not be better off than he
would be without the event (ban on enrichment under damage law).45 One
speaks of equalization of benefits (compensatio lucri cum damno).
This does not mean that the tortfeasor has a counterclaim with regard to
the benefit of the injured party. The value of the advantage is only one item
in the calculation of the damage.46 The person who caused the damage
must compensate for the difference between the damage and the advantage.
Examples: A jockey strains the racehorse against the owner's prohibition.
He wins the race, but the horse dies. The jockey has to replace the value of
the horse (damage) minus the prize money (advantage). – In the case of
damages due to a defect in the purchased item pursuant to § 437 No. 347 ,
the equalization of benefits means that the buyer of a defective item may not
be in a better position than if the item was properly performed.
For this reason, the expenses required to remedy the defect, which the
buyer would have had to make even if the purchased item was free of
defects, cannot be compensated affirmed according to § 826,49 before one
45 BGH NJW 2020, 1962 para. 65 man Arnold JuS 2020, 684 and Schmidt-Kessel/ Möllnitz EWiR 2020, 395;
ZIP 2014, 1532 (1534) Manm Keil EWiR 2014, 651 and note Riehm JuS 2014, 833; also Gsell JZ 2020,
1142; BGH NJW 2007, 2695 (2696).
46 RGZ 146, 275.

48 BGH ZIP 2014, 1532 (1534) manm Keil EWiR 2014, 651 and note Riehm JuS 2014,
833.
49 See Brox/Walker SchuldR BT, § 47 marginal number 5, 15.
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Clarification of this question by the Federal Court of Justice overwhelmingly assumed that
the eligible purchaser of an Emission Modified Vehicle is the
take into account the advantages of use drawn by way of the equalization of advantages
In its judgment on the diesel scandal on May 25 , 202051, the BGH confirmed that
the principles of benefit sharing also apply to a claim
from intentional immoral damage according to § 826 apply. That can to
result in the buyer's claim for damages being completely consumed by the sharing
of benefits.52 To calculate the sharing of benefits, the kilometers previously driven
by the buyer (e.g
100,000 km) is compared with the expected total mileage of the vehicle (e.g.
300,000 km).53 This leads to the following formula:
Benefit of use (in euros) = gross purchase price × kilometers driven
total mileage.
With the example numbers mentioned, the benefits of use would increase
of 10,000 euros from that to be reimbursed by way of damages
Purchase price deducted, leaving damages in the amount of 20,000 euros train
in order to pay for the return of the vehicle.
22 b) Conditions for the consideration of benefits. So

simply the damage calculation when considering an advantage
is, it is so difficult to answer the question of whether there is a chargeable advantage
in the individual case. The law does not contain any general information about this
Rule; the legislature has left the answer to this question to science and
practice.54
According to case law, when calculating the damage from
a priori not to consider such advantages that come with the
damaging event with no adequate causal relationship
stand.55
However, even adequately caused advantages can only be taken into
account if they correspond to the sense and purpose of the obligation to pay
damages.56 The interests of the parties involved must be taken into account here.
50 For example OLG Hamm NJW-RR 2019, 1428 para. 71 et seq.; OLG Karlsruhe ZIP 2019, 863
(874 f.); OLG Koblenz NJW 2019, 2237 Rn. 82 et seq. AM Riehm NJW 2019, 1105, the
the hypothetical depreciation of a non-defective vehicle that the buyer substitutes
of the exhaust-manipulated vehicle would have acquired. On the other hand, Fervers/
Gsell NJW 2020, 1393.
52 BGH NJW 2020, 2796 para. 11 man Arnold JuS 2020, 1079; also Gsell JZ
2020, 1142.
53 The BGH (NJW 2020, 2796 para. 12 ff. and 2020, 1962 para. 80 ff.) made this calculation
expressly not objected to.
54 months II, 19
55 Cf. BGHZ 49, 61; 81, 275; BGH NJW 1990, 1360.
56 BGHZ 10, 107; 91, 210; BGH NJW 2012, 50 (51); 2006, 499.
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For example, an advantage should not be credited as unreasonable if it

would unfairly favor the person who caused the damage.57 On the
other hand, the injured party must claim a discount for employees
have it credited to the repair invoice; because he
should not earn anything from the damage.58
c) Third-party services that cannot be taken into account. The law 23

indicates in some provisions that the tortfeasor
should not be relieved by services provided by third parties. In addition
to the legal regulation, case law and teaching are in further
case groups came to the same conclusion; that's what it's all about
partly to cases that lead to normative damage ("§ 29 para. 7)
be counted.
aa) According to Section 843 (4), the claim for damages becomes one
physically injured is not excluded by the fact that this one
other maintenance has to be granted. From this provision is the
legal assessment that the injuring party is not exonerated
should be if another si the maintenance of the injured party
chert.59
If the parents of the child who is culpably injured by A conclude a treatment contract
with the doctor in their own name, this arises for the child
no damage according to the difference hypothesis, but a normative one
Damage.
bb) entitlements to continued payment of wages that an employee has in the 24

event of incapacity to work through no fault of their own (cf. Section 616; Section 3 EFZG).
on socio-political aspects and reasons of humanity.60
They should protect the conscript and not the offender,
who caused the incapacity to work.
The employer is harmed because of the payment of wages without corresponding
consideration. Section 6 EFZG contains a compensation regulation. After that goes
the employee's right to compensation for the (normative)
Damage to the employer insofar as this passes to the employee
has paid the salary and the social security contributions to be paid by him.
cc) Benefits from social security or due to the 25

Civil service law should not relieve the tortfeasor. That turns out
57 BGHZ 10, 107; BGH NJW 2006, 499; 2007, 2695 (2696); NJW-RR 2009, 1030
(1031).
58 BGH NJW 2012, 50.
59 On the meaning of Section 843 (4) BGH NJW 2004, 2893.
60 months II, 463.
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from the legal provisions (see for example § 116 SGB X, "§ 29
paragraph 7; § 76 BBG), according to which the claims of the injured
party by operation of law with their origin on the insurance carrier or the
pass over employer. Because of this statutory transfer of claims, the
problem of equalizing benefits does not arise here;
for the injured party gains no benefit.
26 dd) The same applies to damage insurance (fire,
Theft). Insofar as the insurer compensates the injured policyholder for
the damage, the claim for damages is opposed
the damaging party to the insurer (§ 86 VVG).
27 ee) Benefits from a private life or accident insurance of the injured
party are not creditable; because the injured party
has taken out insurance in his interest and has not paid the insurance
premiums for the purpose of relieving the injuring party of his obligation
to pay damages (case d)61. – On the other hand, the tortfeasor has
the insurance is taken out and the insurer pays the
injured party, this must be taken into account when calculating the
damage; because that was what the policyholder intended.62
28 ff) Voluntary services provided by a third party according to their will
intended to benefit the injured party are not taken into account63
(case d). It is different when the third party ultimately performs
wants to exonerate the tortfeasor (cf. § 267).
29 d) Assignable claims for damages against third parties. Located
the damage is the loss of a thing or a right and exists
therefore a claim for damages against a person, then this
only obligated to compensate if the injured party asserts the claims
assigns to him by virtue of ownership or by law
against third parties (§ 255).
Example: A lends her jewelry to her friend B. This becomes the B as a result
stolen by D through her fault. A has a claim for damages
against B. She can also demand that D hand over the jewelry.
It can be inferred from § 255 that neither B nor D can claim that A has obtained an
imputable advantage because she has a claim against the other. A is free to
choose whom to contact. receives them
returned the jewelry by D, she no longer has any claim against B, since it is now
lack of damage. However, you can also demand compensation from B.
If B substituted, A would be enriched since they are still taking action against D
61 Cf. BGHZ 19, 94; 73, 109.

62 Cf. RGZ 152, 200.
63 Cf. BGHZ 21, 117.
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can. It would not be justified if A ended up getting damages from B and the jewelry
from D. She must therefore assign her claims against D to B.
Section 255 is therefore based on the idea of equalizing benefits. Only the way is 30
specifically regulated here: There is no offsetting when determining the damage.
Rather, all claims that the injured party has against a third party due to ownership of
the thing (or due to the right) are to be assigned. The assignment must take place
step by step. The tortfeasor claimed has a right of retention (§ 273; " § 13 para. 2 ff.).
5. Particularities when replacing old with new
When replacing the old with a new one, the injured party not only receives 31
compensation for the damage, but also an additional pecuniary advantage. But that
contradicts the basic idea of the right to damages (ban on enrichment under damage
law). This problem can occur both with natural production and with money replacement
ten.
If A has culpably damaged B's suit and B decides to have it made in kind, the
suit cannot be patched because this type of compensation is unreasonable for B,
who is not wearing a patched suit. For the same reason, the delivery of a
corresponding suit that has already been worn by someone else is out of the
question. All that remains is the transfer of ownership of a new suit of appropriate
quality. However, this would put the creditor in a better position, since the damaged
suit was no longer as good as new.
If the creditor (B) opts for monetary compensation (section 249 (2) sentence 1),
a monetary payment to mend the suit is ruled out for the reasons mentioned. If the
debtor (A) pays the used value, then the creditor can only use this amount to buy a
used suit; but that is out of the question for him. If he wants a new suit, he has to
add an amount himself in order to be able to buy it. If he is not able to do this, the
problem arises as with natural production. The same applies if damages are claimed
due to a defect in the purchased item (§ 437 No. 3). If the removal of the defect
(e.g. removal of dry rot in the purchased house) involves work that the buyer would
have had to do even without the defect and which leads to an increase in the value
of the purchased item, the costs incurred for this are to be considered from the point
of view of “new deduction for old” cannot be substituted.64
64 BGH ZIP 2014, 1532 (1535 f.) Manm Keil EWiR 2014, 651 and note Riehm JuS
2014, 833.
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32 The solution will be found as follows: First of all, it must be determined whether
the creditor should have the damaged item repaired
or delivery of a used replacement item is reasonable as compensation. This is
more the case with a car than with a piece of clothing. If the suit has already been
patched, one repair will suffice. But if only the delivery of a new thing is an option,
then
is this in the case of production in kind regularly against compensation of the
To provide added value (idea of benefit sharing65; str.). at
Monetary replacement is from the replacement cost of a new item
make the appropriate deduction. Only in exceptional cases is the added value
not to be compensated or a deduction from the replacement price is inadmissible
if this is unreasonable for the injured party,
because otherwise he could not procure the new thing (§ 242).66
If A causes B's car to be a total loss, he must reimburse the nominal value without
deduction if the car has only driven 1000 km.67 At
a higher mileage, a deduction from the new price must be made (rule of thumb: 1%
for every 1000 km).
6. Reimbursement of pension costs

33 Literature: Canaris, civil law problems of department store theft,
NJW 1974, 521; Dauner/Echtler, Principles for calculating maintenance costs, VersR
1986, 717; die., Arithmetic method for determining the
Reserve maintenance costs – maintenance costs for vehicles in the freight and
Passenger transport, VersR 1988, 335; Klimke, Principles for the calculation
of maintenance costs, VersR 1985, 720; Ruhwedel, Provision costs and their
replaceability, JuS 1982, 27.
It is disputed whether the so-called precautionary costs are also to be

reimbursed by the damaging party. This means expenses that were incurred before the
Damage to be made in order to avoid or reduce the damage.
Examples: A transport company maintains reserve vehicles for vehicle breakdowns

caused by external damage. A department store busy
House detectives, has surveillance cameras installed and sets catch bonuses
for catching shoplifters.
In my opinion, the question is whether the injured party is entitled to the proportionate
can demand reimbursement of costs for these measures from the damaging party,
to answer as follows:
65 BGHZ 30, 29; BGH NJW 2004, 2526 (2528).

66 BGH NJW 2004, 2526 (2528); MüKoBGB/Oetker § 249 para. 351 with further references.
67 BGH NJW 1982, 433; 1983, 2694.
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a) Costs of damage prevention or mitigation. Is the 34

Preventive measure also in the interest of the injuring party, because
the extent of the damage is kept small, the injuring party is obliged to
reimburse the proportionate costs. That already results from § 254 paragraph 2
S. 1, according to which the injured party is held in the interests of the damaging party
is to avert or mitigate the damage (" para. 41).
The reserve maintenance of vehicles by the transport company comes
to the benefit of the tortfeasor; because without them he would have the (higher) loss of earnings
to replace. It is therefore justified that he takes the (lower) share
reimbursed for the costs of the precautionary measure. However, the prerequisite is that
the injured party the expenses to reduce the damage
made and was allowed to consider necessary. The precautionary expenses are to be
reimbursed up to the amount of the damage that would have occurred without
precautionary measures.68
b) Costs of damage assessment and settlement. met the 35

On the other hand, if the injured party takes the preventive measure only in their
own interest, it does not benefit the injuring party, so that the provisions in § 254
Para. 2 Clause 1 does not intervene. Therefore, the injuring party does
not have to reimburse the proportionate costs.
The caught shoplifter has compensation for the stolen goods
afford to; He has processing costs (share of detective and office expenses).
but not to be reimbursed.69 The offender is only obliged to reimburse the suspended
catch bonus to the extent that it is not unreasonably high.70
III. Contributory fault of the injured party
Literature: Hilpert-Janßen, traffic accident - the limits of contributory negligence using 36

the example of the "bicycle helmet decisions", MDR 2014, 689;
Looschelders, The liability law relevance of extra-legal rules of conduct in sport, JR
2000, 265; Mohr, calculation of damages in the way
the compensation and crediting of contributory negligence, JURA 2010, 808;
Morell, The Role of Facts in Determining "Duties"
in the sense of § 254 BGB using the example of the bicycle helmet, AcP 214 (2014), 387;
Schnabel, failure to raise statute of limitations as contributory negligence, NJW
2000, 3191; Stoll, Action of the injured person at their own risk as an argument against
liability, determination 50 years BGH, vol. I, 2000, 223; Waas, participation in culpability
within the meaning of § 254 BGB by concluding a contract
68 Cf. BGHZ 32, 284; 70, 199.

69 BGHZ 75, 230.
70 BGHZ 75, 230.
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the tortfeasor, JR 2001, 1; Walker, Civil Litigation, Ad Legendum

2015, 109.
1. Meaning
If the injured party himself upon the occurrence or enlargement of the
damage in an attributable manner (case e), it would
contradict the principle of good faith if it is dated
The damaging party could demand compensation for the entire damage.71 Therefore
it depends according to § 254 in the case of contributory fault on the part of the injured party
It depends on the circumstances of the individual case whether a
claim for damages is reduced or even completely waived. It should
be noted that § 254 is not an independent basis for a claim, but a
objection to a claim for damages.
While in common law a contributory negligence excluded the claim for compensation,
unless the tortfeasor had acted intentionally,
§ 254 moves away from this all or nothing principle. The rule clears
empowers the judge in the trial to freely assess the particular circumstances of the
individual case.
Many claims for damages from traffic accidents are made just because of this
not settled out of court because the injuring party and the injured party are not each other
be able to agree on the proportionate distribution of the damage § 254
leads. If the court has declared in a fundamental judgment (§ 304 ZPO) that the claim
for compensation is based on the merits, e.g
half is justified, the litigants often agree out of court on the amount to be compensated.
2. Requirements
37 a) Fault of the injured party. According to the wording of § 254
fault of the injured party must have contributed. With that is
not a fault of the injured party towards another
(cf. "§ 20 Rn. 2 ff.) or generally the violation of a legal obligation,
because there is no legal obligation towards the
Damager, which the injured party could culpably injure. Section 254
is based on fault against oneself (breach of duty). If the injured
party has exercised the necessary care in traffic
to avoid harm to oneself, one can give him
don't blame it. But this disregard of the care that a decent and
sensible person should take to
71 Critical to the derivation from good faith Looschelders SchuldR AT § 50 para. 4.
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avoidance of personal damage (fault in the non-technical sense)

leads, according to § 254, to the fact that the injured party
to bear at least part of the damage caused thereby
72 Only such circumstances can be taken into account to the
detriment of the aggrieved party that actually occurred and were
(partly) the cause of the damage. The tortfeasor pays for that
Burden of proof.73
Here, too, culpability presupposes culpability (cf. § 276 para. 1 38

p. 2; " § 20 para. 4 ff.). In contrast, according to another view74 § 254 should also
to be applied if the injured party is incapable of culpability, so that a
incapacitated would have to have his misconduct taken into account. However, it
contradicts the legislative aim of protecting minors if
the risk of the damaging party's liability being wholly or partially shifted to the person
who, for lack of insight, is unable to protect himself from the dangers.
Sections 827, 828, which are to be applied accordingly, are decisive for the ability to be
at fault, whereby the idea of section 829 is also used
can.75 Therefore, contributory culpability, for example, in the case of a still separates
not seven-year-old injured child regularly (cf. but
"Rn. 45 ff.). In addition, every degree of fault (intent, negligence; § 276; "§ 20 Rn. 7 ff.)
must be taken into account.
The fault of the injured party can refer to an action or omission; 39
it may occur upon or after the damaging

event exist.
Examples: The pedestrian walks on the right side of the road in the dark,
instead of using the pedestrian walkway on the left; he
is hit and injured by a cyclist riding without lights. He would have
jump to the side at the last moment and thereby avoid the accident. He does not allow
a doctor to treat the injury he has suffered; this increases the damage. See also case e.
Two cases of negligence are in § 254 para. 2 40
P. 1 especially mentioned:
aa) The injured party culpably failed to notify the damaging party
aware of the risk of unusually high damage
to make that the tortfeasor neither knew nor needed to know.
72 convicts; see only BGH NJW 2014, 2493 (2494) mwN manm Keil EWiR 2015, 411
and note Mäsch JuS 2015, 455.
73 BGH NJW 2013, 2018 (2019).
74 Esser/Schmidt SchuldR I AT § 35 I 3 b.
75 Cf. BGHZ 37, 102.
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A general indication that damage could occur is sufficient

not; rather, the concrete threat of damage must be presented in more detail
so that the other person is made aware of the consequences of an action that
obliges him to pay damages.
Example: The bank customer informs his bank that the money transfer must be
made on the same day, otherwise he could lose a
patent threat. In any case, if he fails to provide this information, he cannot be compensated
claim all damages.
41 bb) The injured party culpably failed to pay the damage

avert or mitigate.
He is obligated to do everything that is reasonable for him to avert or reduce it

to do one's own harm. For example, the cyclist must brake when he
realizes that a car is giving way to him. The vehicle occupant must wear a seat
belt.76 Motorcyclists must wear a protective helmet.77 On the other hand, cyclists
are not at fault if they are not wearing one
Helmet rides and suffers a head injury in an accident that occurs while wearing
of a helmet would have been prevented or mitigated; because there is neither
a corresponding legal obligation nor a general traffic awareness
on the need to wear bicycle helmets.78 The cyclist riding without a helmet therefore
does not ignore the care that a sensible person uses to avoid personal injury. –
The accident victim must seek medical treatment and, if necessary, undergo an
operation that is not particularly dangerous or painful,
if there is a chance of healing or at least improvement. Can he as a result
he no longer practice his previous job because of his injury
to retrain someone else. In individual cases, however, it must always be checked whether
such action is reasonable for the injured party. If he incurs any expenses as a
result (e.g. operation costs, retraining costs), they must be reimbursed by the
damaging party as part of the damage.79 The owner of an accident- damaged vehicle
As an exception, the motor vehicle must have the repair carried out at a less
expensive, brand-independent specialist workshop if it is due to
the age of his vehicle and the fact that it is not anyway
checkbook is maintained, no legitimate interest in the repair
has a (more expensive) branded specialist workshop.80 The same applies if the
Schädiger explains and proves that the “independent” workshop corresponds to a
brand-bound workshop in terms of quality standards.81 If he be
76 BGHZ 74, 25 et seq.; see also BGHZ 83, 71; BGH NJW 1993, 53; 2001, 1485.
77 BGH NJW 1965, 1075.
78 BGH NJW 2014, 2493 (2494 f.) (related to an accident in 2011) mManm Keil
EWiR 2015, 411 and note Mäsch JuS 2015, 455.
79 BGHZ 32, 280.
80 Cf. BGH NJW 2010, 606 (609); 2010, 2118 (2119); 2010, 2725 f.; 2010, 2727; 2010,
2941.
81 BGH NJW 2020, 1795 para. 8; 2017, 2182 paragraph 7; 2015, 2110.
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If you sell a damaged vehicle, you can generally use the valuation prepared by an
expert as a guide (in the case of sale to a used car dealer); but he can from the point
of view of
obligation to mitigate damage, a reasonable, more economical possibility of exploitation
(e.g. sale to a specialized buyer of residual values)
to perceive.82
However, the duty to mitigate damage does not include the injured party
whose car suffers a total loss at the beginning of a vacation trip, obtains a replacement
vehicle instead of the
continue driving with a rental car; but he is not allowed to go to the first place
offer, but has to obtain one or two competing offers.83 – Taking out a loan to pre-
finance the settlement of claims is only reasonable in exceptional cases for the injured
party.84
b) Material or operational risk of the injured party. Although § 254 42

If it is assumed that the injured party is at fault, this provision must also
be applied if the injured party is not at fault, but only at a risk to property
or business
has contributed to the injured party from the point of view
is attributable to strict liability85.86 The consideration
such a property or operational risk is justified by the
Section 254 is based on the idea that the damage is to be borne by all
those involved who are responsible for the causes of the damage
attributable for any legal reason.
Example: Through the fault of cyclist A, the approaching car of

B damaged. Here, B must take into account the operational risk of his car according to Section 254
have his claim for damages from Section 823 (1) taken into account; because after
§ 7 paragraph 1 StVG87 he has to answer for the operational danger of his car. the
However, the operational risk must not be taken into account if the collision with A for
B was caused by force majeure (cf. § 7 Para. 2
Road Traffic Act)88.
Section 254 must also be taken into account if the person who 43
caused the damage is liable for damages based on strict liability
and the injured party is partly to blame for the occurrence of the
damage. The application of Section 254 in the event of contributory negligence
82 BGH NJW 2010, 2722 (2723 f.); 2010, 2724 f.

83 BGH NJW 1985, 2637 (2639).
84 BGH NJW 1989, 290.
85 Brox/Walker SchuldR BT § 54.
86 Walker Ad Legendum 2015, 109 (117).
87 Cf. Brox/Walker SchuldR BT § 54 para. 3 et seq.
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of the injured person under strict liability is in several

cases even determined by law (e.g. § 9 StVG;89 § 4 HPflG).
If the polluter only out of strict liability for damages
obligated and a property or operational risk on the part of the injured
party also caused the damage, Section 254 shall also apply. In
various cases of strict liability, the
Legislators specifically ordered that on the part of the injured party
a property or operational risk attributable to this must be taken into account (e.g. Section
17, Paragraph 1 of the Road Traffic Act)90.
43a c) Operating risk to be borne by the injured party in the case of

limited employee liability. § 254 is applied analogously,
if the fault of the tortfeasor is not contributory fault
of the injured party, but an operating or damage risk to be borne by
the latter.91 This is of importance in the case of limited employee
liability (" para. 21 f.).
If an employee is engaged in an operational activity
causes damage to the employer, the fault of the employee is weighed
against the operational risk to be borne by the employer in analogous
application of Section 254. This would have to
Employers namely also bear if he himself all operational
would carry out activities. The analogous application of § 254 leads
according to established case law of the Federal Labor Court,
Core is recognized by customary law, to the following flat-rate liability
solution: In the case of slight negligence on the part of the employee
outweighs the operational risk to be borne by the employer, so that
the employee is not liable at all. In the case of average negligence
the employee agrees with a to be determined in each individual case
(not necessarily half) share in the damage. At rough
In the case of negligence, a limitation of liability can only be
considered under strict conditions. If the worker the damage
intentionally brought about, the operating risk takes a back seat
and the employee is fully liable for compensation.
44 d) Self-endangerment of the injured party. Also when acting on

own risk, i.e. if the injured person deliberately endangers himself
(e.g. someone lets himself be taken away by a drunk driver
89 Cf. Brox/Walker SchuldR BT § 54 para. 15.

90 Cf. Brox/Walker SchuldR BT § 54 para. 15.
91 Walker Ad Legendum 2015, 109 (117).
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men and had an accident), the BGH applies § 254.92 He has the
Construction of a (fictitious) contractual disclaimer.
e) Contributory negligence of the legal representative or assistant of the 45

injured party. Section 254 is to the detriment of the injured party even then
to be taken into account if his legal representative or assistant
partly to blame for the damage. Section 254 (2) sentence 2 states: The
provision of Section 278 applies accordingly. This unfortunate wording has
given rise to some controversy. Around
In order to understand this, it is essential to first clarify the responsibility for
third-party negligence ("§ 20 para. 23 ff.).
aa) It follows from the corresponding application of Section 278 that
the injured party the fault of his legal representative
("§ 20 para. 26 f.) and his vicarious agent ("§ 20 para. 28 ff.) must be taken
into account.
bb) According to its position, Section 254 (2) sentence 2 only refers to the 46
§ 254 para. 2 sentence 1 mentioned cases of negligence.
A corresponding application of § 278 is also in a
Co-causation according to § 254 paragraph 1 required. Section 254 (2) sentence 2 is therefore
read as paragraph 3, which refers to paragraph 2 and to paragraph 1. This
is an editorial oversight.
cc) § 278 requires an existing obligation. Therefore 47
The permanent supreme court case law applies it only then
accordingly, if already at the time of the damage
contractual relationship between the tortfeasor and the injured party
consists.93
Example: Master M sends his assistant G on his bicycle

an errand. Another cyclist R violates the right of way. it's coming
to the accident in which the wheel of the M is damaged. R is after the M
§ 823 liable for damages. Even if G due to careless driving
is partly to blame for the accident, § 278 according to § 254 paragraph 2 sentence 2 is therefore not
apply accordingly because there was no obligation between M and R.
Outside of contractual obligations, liability for assistants only arises if the 48

facts of Section 831 (liability for vicarious agents; " Section 20 marginal no.
43)94 are met. This standard of liability
92 BGHZ 34, 355.

93 Since RGZ 62, 346.
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must also apply if the injured party's actions

Vicarious agents countered as contributory fault
is.95 Therefore, § 254 para. 2 sentence 2 is to be read as follows: The provisions of the
§§ 278, 831 apply accordingly.
In the example above, M must take into account a contributory fault
let if § 831 is given. Can M lead the exoneration evidence (§ 831
Paragraph 1 sentence 2; " § 20 para. 42)96, § 254 does not apply; R must compensate for
the damage in full.
This case law is often rejected in the literature. It

the view is taken that within the framework of § 254 there is always
(even if there was no previous obligation)
§ 278 to apply accordingly. Namely, if unauthorized
Action of the injured party could exonerate themselves according to § 831, then
would the injuring party be responsible for the behavior of the injured
party's assistant; that is unfair. This accusation is ultimately directed
against the exculpatory evidence of Section 831.
49 dd) Although the case law for the application of § 278
an existing liability or something of a liability
Assuming something similar,97 it has defined the term vicarious agent
more broadly. It is not necessary for the accomplice to have acted in
fulfillment of an obligation of the injured party towards the injuring party;
Rather, for the application of Section 278
within the scope of § 254 it is sufficient that the injured party has used
the auxiliary person to safeguard his own interests.98
In case f, B must accept responsibility for his driver's contributory negligence in accordance
with Section 278. This attribution cannot be justified with § 166 paragraph 1;
because it is not about the legal consequences of a declaration of intent.
50 If the requirements of Section 254 are met, the obligation to pay

compensation and its scope depend on the circumstances, in particular on it
depends on the extent to which the damage was predominantly caused
by one or the other party (section 254 (1) old version). The judge must
i.e. in the event of a dispute, take into account all the circumstances of the individual case. there is
especially to the degree of mutual causation in mind
95 RGZ 77, 211; BGHZ 1, 248.

96 See also Brox/Walker SchuldR BT § 48 para. 6 et seq.
97 Cf. RGZ 75, 258.
98 Cf. BGHZ 3, 46.
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of adequacy ("§ 30 Rn. 8). In addition, the degree

mutual culpability against each other.99
As a result, the damage can be distributed according to quotas; It is
also possible that the person who caused the damage has to
compensate for the full damage (e.g. if he did it intentionally, but the injured party
only acted with slight negligence )100. However, the reverse case is
also conceivable, that the obligation to pay damages due to § 254
does not apply (e.g. if the injured party is particularly at fault
but the damaging party is only liable for a property or operational risk
through no fault of their own).
99 See BGH VersR 1968, 1093.

100 See BGH NJW 1982, 1756; cf. also BGH NJW 2002, 1335, according to which missing
The lender's distrust of the word of his friend
borrower in relation to his guilt in providing information is irrelevant.
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10th chapter. Participation of third

parties in the obligation
§ 32. Contract in favor of third parties
1 Literature: Kannowski/Zeller, beginner's homework - civil law: secondary

claims in the contract in favor of third parties, JuS 2006, 983; Looschel ders/
Makowsky, Relativity of the obligation and legal status of third parties, JA
2012, 721; Petersen, The third-party effect of performance obligations, JURA
2013, 1230; idem., The Third Party in General Law of Obligations, JURA 2014,
580; Rah bari, The scope of the contract in favor of third parties according to §§ 328 ff.
BGB, ZGS 2010, 172.
Case a: K buys a washing machine from V in his own name for his mother
M, with the agreement that M himself can demand transfer of ownership of
the machine from V. As a result of improper installation, water damage occurs
in M's apartment. Who is entitled to a contractual claim for damages?
" Margin 1, 2, 4,
16 Case b: K buys a television set from dealer V. Since V does not have the
model in stock, he agrees with his wholesaler G that he should deliver directly
to K. From whom can K demand performance? " Paragraph 3, 6
Case c: In order to secure a dowry for his godchild P, merchant K opens a
savings account at bank B in P's name and pays in EUR 50,000. He agrees
with the bank that the money should belong to P in the event of his death. After
the death of K, his heirs and the P demand the money from B. " paragraph 9
I. Types and delimitation

1. Species
While in the case of a contractual obligation the debtor usually

only has to pay to his contractual partner, in the case of a contract
in favor of a third party he must render the service to a third party.
The debtor is referred to here as the promisee, the obligee as
the promisee and the third party as the beneficiary.
Example: K (promise recipient) buys a washing machine for his mother
(beneficiary) from V (promise person) (case a).
There are two types of contract in favor of third parties.
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§ 32. Contract in favor of third parties 413
2
a) Real contract in favor of third parties. In the case of a genuine or
qualifying contract in favor of a third party, the third party acquires a claim
against the debtor from this contract (section 328 (1)).
Examples: Husband's life insurance contract in favor of his
Wife; Purchase contract in case a.
3
b) False contract in favor of third parties. To a spurious (he authoritative)
contract in favor of third parties, which is not covered by §§ 328 et seq
is recorded, it is when the debtor makes a payment to a third party, but the
third party has no claim to the performance
target.
In case b, K acquires no claim against G; he can only demand delivery of the device
from V. Creditor of G is V alone; only this one has one
Claim against G for performance to K.
Deviating from the rule of § 362 para. 1, the debtor is authorized and
obliged to meet his liability through performance
to be performed by a third party. Apart from that, there are no legal ones
Special features compared to a contract in which third parties are not
involved. In "Rn. 7 ff., therefore, only the real contract is in favor
third party treated.
2. Demarcation
Whether in the individual case a genuine, ie the third party authorizing, or 4

if there is a false contract in favor of a third party, this must be determined
by interpreting the contract (§§ 133, 157). Unless expressly stated
Agreement (as in case a) has been made, all the circumstances, especially
the purpose of the contract, must be taken into account (§ 328
paragraph 2).
5
Sections 329 and 330 of the law also contain rules of interpretation. So
are life insurance or annuity contracts in favor of a
Third parties as well as the agreement of compensation to third parties in
contracts for the takeover of assets or property in case of doubt as real
treat contracts in favor of third parties (§ 330).
The legislature rightly assumes that in the case of contracts, which
are intended to provide for a third party, who should generally be granted their own claim
against the promisor.
6
Opposite is a contract by which someone is opposed
obliged to a debtor to satisfy his creditors (satisfaction
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414 10th chapter. Participation of third parties in the obligation
takeover), in case of doubt a non-genuine contract in favor of third parties

(§ 329).
For example, if F promises his friend S to pay his bank debts, like this
should the parties normally not want the bank to have an additional debtor; because
F only wants his friend and not the bank
help. - In general, a legal claim of the third party will have to be denied if the
agreement between creditor and debtor only
serves to facilitate the execution of the contract. So in case b by the
Delivery of G to K avoids the detour via V.
II. Legal relationships between the parties involved
7 In the case of a genuine contract in favor of third parties, the legal

relationships are between the promisee and the promisee (coverage
relationship), between the promisee and the third party
(benefit or currency ratio) as well as to distinguish between promises
and promises to third parties. The coverage ratio will
so called because the promising one out of him (in any case
in the case of paid contracts) the consideration, i.e. the cover for
acquires its service to the third party. The grant or value ratio provides
information about the legal reason for the
Promise recipient assigns the performance to the third party through the
promisee.
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1. Coverage Ratio
a) Contract between the promisee and the promisee. The principle of 8th
freedom of contract applies to the contract between the promisee and the
promisee. The contract in favor of third parties is not an independent type of
contract in addition to those in
Special part of the contract types regulated by the law of obligations. Much more
can be any typical (e.g. purchase, rental contract) and atypical contract
(e.g. accommodation, leasing contract) as a contract in favor of third parties
getting closed.
A claim by the third party never arises from Section 328 (1) alone, but always only in
connection with a claim from Section 433 or
Section 535.
The identity of the third party does not need to be precisely determined at
the time the contract is concluded; it is sufficient that it can be determined.
Example: Agreement on a guarantee between manufacturer and wholesaler in favor of

the end user who has not yet been determined.1
b) Form of contract. The general rules apply to the form of the contract in 9
favor of third parties. The contract is free of form, provided that
Law does not exceptionally provide otherwise, such as in
Section 311b.
It is questionable whether the contract in favor of third parties is not then one
Form is required if it is concluded to cover a legal transaction that requires a
form in the value date.
Example: The uncle promises his nephew a sports car (cf.

§ 518). He concludes a corresponding sales contract with the car dealer
in favor of the nephew.
It is agreed that the coverage ratio remains unaffected by the formal

requirements of the value date.2 This applies
even if it has been agreed that the service will be provided to the third party
is to take place after the death of the promisee (§ 331
Para. 1) and in the value date a gift mortis causa
(§ 2301) exists.
In case c, the savings contract between K and B in favor of P was not required
the form of § 518 or § 2301. Due to the effective contract
1 Cf. BGHZ 75, 75.

2 BGHZ 54, 145; 66, 9 (12).
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P obtains a claim against B for payment of the credit (sections 488, 328, 331). The
main problem in this case, however, is whether a donation contract has come about
between K and P or whether P is exposed to a claim for enrichment by K's heirs in the
absence of such a legal basis.3
10 c) Legal status of the third party. The coverage ratio is decisive for the
legal status of the third party in relation to the promisor. This determines
whether the third party acquires the claim immediately, later or under certain
conditions (cf. §§ 328 Para. 2, 331 Para. 1). The coverage ratio also
determines whether the contracting parties can withdraw the legal position
they have acquired from the third party (§§ 328 Para. 2, 332, 331 Para. 2).
This relationship is also decisive for the objections which the promisee can
raise against the third party (§ 334; " Rn. 14).
11 d) Legal Status of Promise Recipient. Whether, in addition to the third

party, the promisee can also assert the claim against the promiser also
results from the coverage ratio. In case of doubt, he is entitled to do so;
however, he can only demand performance from the third party (section
335).
2. Value date ratio

12 Normally, the promisee will only cause the promisee to make a payment
to the third party if he is obliged to do so to the third party. This obligation
can be based on a contract (e.g. purchase, donation) or law (e.g.
maintenance obligation).
If the third party has received performance from the promiser without such
an obligation existing in the relationship between the promisee and the third
party, the promisee can demand return of what has been performed without
legal grounds (section 812).4
3. Relationship between promiser and third party

13 Since the third party has the right against the promiser on the basis of the
Coverage ratio, i.e. without his intervention, receives, admits the Ge
3 See, for example, BGHZ 46, 198; RGZ 83, 223 (so-called Bonifatius case); Brox/Walker ErbR para.
760 et seq.; Medicus/Petersen BürgerlR No. 394 et seq.
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set up for him the possibility of rejecting the right; then applies
the right retrospectively as not acquired (section 333).
III. Objections and defenses of the promisee
Because the performance obligation of the promiser is opposite 14

to the third party from the cover relationship, the promiser
can counter the claim of the third party with the objections
which are based on this relationship (section 334). Can the
promisee open up to the promisee?
nullity of the contract, the third party must also object
to be valid.
According to the case law, the promisee with a claim against the promisee should not
against the claim of the third party
can offset because there is a lack of reciprocity.5
Regarding the objections i. S. of § 334 also include those with the

Contract-related objections (e.g
§§ 320, 273).
IV. Performance disruptions
The question of the impact of performance disruptions is 15

problematic because legal relationships are not only between
contractual partners, but the beneficiary third party has its
own claim against the promiser.
1. Default by the Promise Recipient
There are no particular difficulties if the default is caused
by the promise recipient. Then the promisee has the rights
from the promisee against the promisee
§§ 280 et seq. He can also raise this against the third party ("margin no. 14).
2. Default by the Promiser

In the event of a default by the promiser, 16
both for the third party and for the promisee
Rights arise:
5 BGH MDR 1961, 481.
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a) Claim for damages. Insofar as the promiser claims damages due

to a default in performance
should be, can regularly the injured third party, but also the
promiseees assert the claim (section 335); the
However, the recipient of the promise must demand performance from the third
party.
In case a, both M and K have a claim under Sections 280 (1), 437
No. 3 to; However, K can only demand performance from M.
17 b) Right of withdrawal. The third party is not entitled to withdraw

(Section 323). The resignation transforms the contractual relationship ("§ 18
2, 16 et seq.). However, the third party is not involved in this at all. The
contractual partner of the promisor is solely the recipient of the promise.
Therefore, only he can exercise the right of withdrawal. If the
third party has already acquired a claim that can no longer be withdrawn
(§ 328 Para. 2), but according to hM his consent is required
3. Default by the third party

18 If the third party violates the acceptance obligation (e.g. according to § 433 Para. 2) or
if he is responsible for the impossibility of performance, the promiser
can assert his resulting powers against the promisee, who must allow
the behavior of the third party to be taken into account.7
§ 33. Obligation with protective effect for third parties
1 Literature: Brors, trust or contract - is there liability for appraisals according to § 311
Para. 3 BGB?, ZGS 2005, 142; Brockmann/Künnen, contract with protective effect for third
parties and third-party damage liquidation, JA 2019,
729; Finn, On the liability of the expert for erroneous appraisals
to third parties, NJW 2004, 3752; Fischer, Contractual Third Party Liability
Lawyers, tax consultants and auditors, DB 2012, 1489; Fras sek, Scope of a contractual
adviser's liability and involvement
Third parties in the scope of pre-contractual obligations - BGH NJW-RR
2003, 1035, JuS 2004, 285; Haferkamp, The contract with protective effect for
Third parties after the reform of the law of obligations – an obsolete model?, in: Dauner-Lieb/
6 RGZ 101, 275; Jauernig/Stadler BGB § 328 para. 17.

7 Lange NJW 1965, 660; RGRK/Ballhaus BGB § 328 para. 27.
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§ 33. Obligation with protective effect for third parties 419
Konzen/Schmidt, The new law of obligations in practice, 2002, 171; mockery/

Kühne, The contract with a protective effect in favor of third parties – basis and scope of
claims, JuS 2012, 1063; Leyens, expert liability:
Compensation for financial losses in a three-person relationship according to commoner
Law, JuS 2018, 217; Looschelders/Makowsky, Relativity of the obligation and legal status
of third parties, JA 2012, 721; Mäsch, law of obligations BT: Travelers within the scope of
protection of the contract between airport and airline, JuS
2017, 884; Müller/Großmann, contract with protective effect for third parties and
Third-party liquidation in the light of the relativity and creditor interest dogma, Ad Legendum
2020, 304; Papadimitropoulos, obligations with
Protective effect in favor of third parties, 2007; Pinger/Behme, The contract with
Protective effect for third parties as the legal basis for expert liability towards third parties,
JuS 2008, 675; Rohe/Winter, The Practical Case – Bourgeois
Law: Contract with protective effect for third parties, JuS 2003, 872; Schwab, basic cases of
culpa in contrahendo, administrator liability and contract with protective effect for third
parties according to the new law of obligations, JuS 2002, 773, 872; Black,
Subsidiarity of contractual third-party protection, AcP 203 (2003), 348; Tribe,
Legal development of third-party damage liquidation by way of an original
and purely tort claims for third-party damages analogous to Section 844 (1).
BGB, AcP 203 (2003), 366; Sutschet, protection claims and protection obligations
Third parties in the light of § 311 III BGB, FS Ehmann, 2005, 95; Walker, The Civil Liability
of Soccer Players and Clubs for Injuries to an Opponent, FS Tolksdorf, 2014, 143; Breach
of values, objections
in the case of a contract with a protective effect for third parties and competing tort claims,
FS Huber, 2006, 637; Zenner, The contract with protective effect
For the benefit of third parties - An institute in the light of its legal basis, NJW 2009,
1030; Belonging, inconsistent case law of the BGH on (legal adviser)
Contract with protective effect in favor of third parties, NJW 2008, 1105.
Case a: The cleaner of landlord V polishes the stairs improperly, so that the tenant's son
and his friend fall and
hurt. You demand compensation from V. " Paragraphs 4, 8, 9
Case b: Mother M wants to buy a dress from V for her daughter T. When
When they enter the store, T slips on a banana peel that V has there
leave. T demands compensation for their damage. " Paragraphs 5, 8, 9
The obligation is a special connection between certain persons. This

reflects its relative character. Accordingly, there are not only the
performance, but
also the duty to protect within the meaning of Section 241 (2) only in
relation to the persons involved in the contractual relationship. These are in
In the event of a contractual obligation, the contracting parties
or (at the pre-contractual stage) the future contractual partners
("§ 5 Rn. 8). Only they can make contractual claims for damages
against each other and be subject to such claims. in the
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Relationships with other people, on the other hand, exist in principle alone
tort legal protection.
2 Jurisprudence and literature have differed in principle since
agreed for a long time that third parties who are not involved in the contractual relationship
are liable according to contractual principles and may be entitled. The legislator
has taken up this development in the course of the reform of the law on
obligations: an obligation with obligations
Section 241 (2) can also arise for persons who are not themselves to become a
party to the contract (section 311 (3) sentence 1; "§ 5 marginal no. 9).
Liability of the third party on a contractual basis is dealt with in the

Cases of personal liability of representatives from cic due to claims
special trust or because of a considerable self-interest in the conclusion of the contract as
well as in cases of the so-called guardian and expert liability
(Third-party liability from cic; " § 5 para. 10 ff.).
3 In the following, on the other hand, the authorization of a

go to third parties not involved in the contractual or pre-contractual obligation.
One speaks here of the contractual (= contract
with protective effect for third parties) or pre-contractual third-party protection (=
pre-contractual obligation with protective effect for third parties).
I. Meaning and Legal Basis
1. Meaning
4 The legal institution of the contract with protective effect for third parties
was developed by case law to address the weakness of tortious claims for
damages by creating a contractual
to overcome demands. This can be made clear with the following example:
In case a, the tenant's son would only have a tortious claim against the landlord (section
831); Claims from the contract (in connection with § 278) did not apply because the
son is not a party. The landlord did not need compensation
to pay if he could prove exonerating (§ 831 Abs. 1 S. 2). This
The result was felt to be unfair, particularly in cases where
according to the purpose of the contract, a contractual service should also benefit third
parties (e.g. rental agreement for a family apartment). Around
exclude the possibility of exoneration, one strives to these people
to be included in the contractual scope of protection and thereby one
to give a contractual claim for damages (in connection with § 278).
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But even in cases where it is not a matter of standing up for 5

assistants, it can be important to assign a contractual basis for liability.
This follows from the fact that
§ 823 paragraph 1 the violation of a legal interest or an absolute
Legally presupposed and therefore does not intervene in the case of mere
financial damage1 as well as from the different distribution of the burden of proof
in Section 823 on the one hand and Section 280 (1) sentence 2 on the other.
If in case b the fault of V cannot be proven in the process, T prevails

only if they base their claim on a contractual basis
can. Because here, according to Section 280 (1) sentence 2, the V must prove that
he is not accused of fault.
2. Legal Basis
The legal basis for the protective obligation 6
for third parties has always been controversial. Legal training was
originally based on Section 328. The contract in favor of third parties and
however, the contract with a protective effect for third parties differs
essentially from each other ("Rn. 17). It has therefore long been agreed
that §§ 328 et seq. do not in principle apply to the contractual relationship
are applicable with a protective effect for third parties. In some cases
the extension of protection obligations to third parties can be justified with
a supplementary interpretation of the contract (§§ 133, 157).2 In part
is the extension of liability towards third parties - at least for
the pre-contractual area – on the principle of good faith
Faith (§ 242) supported. The effects of the various justifications are small;
because the (pre-)contractual obligation
with protective effect for third parties has long been recognized as
common law.3 Since the reform of the law of obligations, the pre-
contractual obligation with protective effect for third parties has been found in Section 31
Paragraph 3 an additional basis.
II. Requirements
The requirements of a contractual obligation with a protective effect 7
for third parties are not regulated by law, not even in § 311 para. 3. Es

2 On this justification approach, for example BGH NJW 2018, 1537 para. 16; NJW-RR 2017,
888 paragraph 15.
3 March JuS 2013, 935 (936).
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there is agreement that the recognition of this legal institution is not

may result in any third party who, as a result of the conduct of the
debtor has suffered damage, a claim for damages
from the contract concluded between the creditor and the debtor
can derive. Because that would make the legal distinction
between direct and indirect injured parties and disregards the rule that
liability arises from a contract
the bond that binds the creditor to his partner is established.4 Rather, the
extension of the contractual duties to protect beyond the group of
contracting parties is only narrow
Boundaries developed by case law, considering.5
1. Closeness to performance
8th The third party must be exposed to the dangers of the contractual
relationship in the same way as the obligee (so-called “proximity to
performance” of the third
beparty)6
narrow, and the group of people involved must
and be manageable.
Examples: In accordance with regulations, the danger zone of a tenancy agreement

includes those people who live with the tenant in the apartment or work together in
the rented office.7 That is
in case a to be affirmed for the son of the tenant, for his friend on the other hand
deny – The transfer of the obligation to spread from the landlord to a third party also
serves to ensure safe access to the rental property. The ones who live there
Tenants therefore come out with the main service as intended
Contract between the lessor and the third party.8 - In the case of a rental contract for
commercial premises, the conditional and security owner of the goods of the lessee
must also be considered to be close to performance. - A
Footballer is within the scope of the contractual obligation between the
clubs playing against each other included; because it is intended to be exposed to
the dangers of playing the game.9 – At a
Legal advice contract between a lawyer and his client
is the required close relationship to a third party (e.g. a relative
4 BGH NJW 1968, 1929.

5 Cf. BGH NJW 2020, 3169 para. 12 et seq.; NJW 2018, 1537 para. 18; NJW-RR 2017, 888
para. 17; previously BGHZ 51, 96; BGH NJW 1970, 40; 1975, 868; 2008, 2245
(2247).
6 BGHZ 70, 327 (329); BGH NJW 2008, 2245 (2247) (negative for the bank customer in
relation to the contractual relationships between the banks involved in cashless payment
transactions); NJW 2010, 3152; NJW 2020, 3169 para. 15.
7 BGH NJW 2010, 3152 (3153).
8 BGH NJW 2008, 1440 (1441).
9 Walker FS Tolksdorf, 2014, 143 (152).
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of the client) only if the performance of the lawyer in accordance with the objective
interests of the third party with regard to the purpose of the contract, typically
may impair.10 The scope of protection of a contract between doctor and patient
aimed at contraception includes their (marital
or non-marital) partner affected by contraceptive failure
is affected because he has to pay for the maintenance of the unwanted child
11 On the other hand, the father (who is not married to the mother) is within the
scope of protection of a contract aimed at providing information about contraception
of a child already conceived at that time is not included due to a lack of performance
proximity.12 - In case b, T is exposed to the dangers of the pre-contractual obligation
between V and M (§ 311 Para. 2) just like M.
2. Protection or inclusion interest of the creditor

The creditor must have a legitimate interest in the inclusion 9
of the third party within the scope of protection of the contract. First took
the case law only states this if the creditor is due
of a legal relationship with personal rights impact for the
"Welfare and woe" of the third party is jointly responsible.13
In case a, the answer is yes for the tenant's son and in case b for T,
because they are in a custody relationship with the creditor under family law. - Such
a duty of care can also result from a service or
employment relationship14 (cf. § 618). That's why every football club has one
Interest in the inclusion of his players in the scope of protection of the contractual
obligation with the opposing club.15
Another example: In the case of a contract between a health insurance company
and a medical expert consulted by the latter, the insurance company has a special
interest in protecting the policyholder,
if the report affects the insurance company's willingness to pay for treatment; because
such an expert opinion affects legal interests (life and health) of the policyholder,
their protection
and protection he from his contractual partner (insurance) in particular
dimensions may expect.16
Even today, the responsibility for the "weal and woe" 10

of the third party is still recognized as sufficient reason for the creditor's
interest in inclusion. But in the meantime the
10 BGH NJW 2020, 3169 para. 15.

11 BGH NJW 2007, 989 (991).
12 BGH NJW 2002, 1489 (1490).
13 BGHZ 56, 273.
14 BGH NJW 2010, 3152 (3153).
16 BGH NJW 2002, 2625 (2626).
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case law, the creditor's interest alternatively with another point of view: In the
absence of a duty of care, it is also affirmed if the service promised in the
contract also serves as the basis for dispositions of the third party with
particular financial consequences from the point of view of the contractual
partner and the third party relies on the service has made such arrangements.17
Example: The buyer is included in the scope of protection of a contract that the
seller concludes with an expert for the appraisal of the object for sale, if the appraisal
is to become the basis of the purchase decision.18
3. Recognisability for the debtor
11 The prerequisites mentioned under 1. and 2. must be recognizable for the

debtor when the obligation arises;19 because he must be able to know the
risk he is accepting. However, it is sufficient that he can delimit the protected
group of people according to general characteristics; he does not need to
know the persons included in the scope of protection.
A large number of lenders whose names are not known can therefore also fall within
the scope of protection of an appraisal order for the valuation of a property if the
appraiser knew or had to expect that the property was to be used as security for
obtaining a loan.20 For a football club, this is without further ado recognizable that the
opposing club has an interest in the inclusion of its players in the scope of protection
of the contractual obligation existing between the clubs. On the other hand, there is no
recognizable third-party relationship in the case of a contract for the veterinary
examination of a horse if the client plans to use the examination results for prospective
buyers but does not inform the veterinarian of this.21
4. Third party's need for protection The

12 third party must be in need of protection. This is regularly lacking if he
himself has a contractual claim of comparable content
17 BGH NJW-RR 2017, 888 paragraphs 16, 19; NJW 2002, 3625 (3626); 2001, 514 (516) and
3114 (3116).
18 BGHZ 127, 378.
19 BGHZ 75, 323; BGH NJW 1985, 2411; 2004, 3035 (3038).
20 BGH NJW 2004, 3035.
21 OLG Hamm NJW-RR 2015, 891 f.
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has.22 A merely tortious claim eliminates his need for protection

not against it.
Examples: The subtenant is not in need of protection if he is against the
Tenant as his sub-landlord has a claim under Section 536a; he is therefore
not included in the scope of protection of the main lease and has none
Claim for damages against the main lessor.23 The motor vehicle buyer who has a claim
for supplementary performance against the seller cannot demand damages from the
expert whom the seller calls for the assessment
of the vehicle.24 The aggrieved employee of the contractor who, according to the
principles of the contract with protective effect in favor
third party a claim for damages due to a breach of the duty to protect
has the customer is not also still in the scope of protection of an between
the customer and a vicarious agent engaged by him, whose fault is to be attributed to
the customer in accordance with Section 278; suits him
therefore no further claims for damages against the vicarious agent
of the customer zu.25 On the other hand, in the case of a football game, it is from a player
injured players of the opposing club, to the protection of the
to be involved in a contractual obligation existing between the clubs in order to have a
contractual claim for damages against the opposing club; because he only has a tortious
claim against his opponent, which does not exclude his need for protection.26
III. effects
1. Indemnification
13
If and to the extent that the above conditions are met,
in addition to the contractual or pre-contractual obligation between
the creditor and the debtor, a contractual obligation between the
debtor and a third party. Due to this debt relationship without
primary performance obligations, the debtor is responsible
certain protection obligations within the meaning of Section 241 (2) also in relation to the
third party. In the event of their injury, they have their own
Claim for compensation for the damage caused as a result, viz
both bodily harm and property damage.27 The debtor's obligation
to pay damages is based on contractual principles
22 BGHZ 133, 168 (173); BGH NJW 2004, 3630 (3632); NJW-RR 2011, 462 (463)
Man Schinkels LMK 2011, 315341; critical Black AcP 203 (2003), 348.
23 Cf. BGHZ 70, 327 (330).
24 BGH NJW-RR 2011, 462 (463) mAnm Schinkels LMK 2011, 315341; " § 5 para. 11.
25 BGH NJW 2018, 1537 para. 26.
27 BGHZ 49, 353.
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(§ 280); Section 278 applies in particular, which, in contrast to Section 831

does not provide for an exemption.
14 The development of the obligation with protective effect for
Although third parties started with the violation of protective duties, they
did not stop there. In certain cases, the judiciary has a right to the third
party
also awarded compensation for damages that are based on the violation
based on the main obligation. This isn't about one anymore
claim for compensation for damage to integrity, but a claim for damages
instead of performance.
Example: The testator hired a lawyer to set it up

a will. However, this remained culpable until the death of the testator
idle. The Federal Court of Justice gave the designated heirs a claim for damages
against the lawyer, although the latter was only obliged to fulfill the testator's
obligation.28 - The Federal Court of Justice ruled accordingly in the expert case
("paragraph 10).
2. Debtor's objections
15 According to the applicable legal concept of § 334
the aggrieved third party must not be entitled to more rights than they
the creditor would be entitled to under the obligation.29 A
contractual limitation of liability between creditor and debtor is therefore
also at the expense of the protected third party according to hM.30
On the other hand, the legal status of the third party through its inclusion
in the protection area but also not deteriorated. Its tortious
Claims for damages therefore remain with him and are accepted by a
contractual limitation of liability between creditor and debtor
recorded.31
16 According to Section 254, the third party must allow themselves to be held
responsible for their own contributory negligence. In any case, the creditor must be at fault
then have a claim-reducing effect if this legal representative
or vicarious agent of the injured party (sections 254 (2) sentence 2, 278).
This applies equally to contractual and legal claims for damages. Whether
the third party beyond
according to the legal concept of § 334 a contributory negligence of the believer
28 Cf. BGH NJW 1965, 1955.

29 Cf. BGHZ 33, 247.
30 BGHZ 56, 269 (272 et seq.).
31 Cf. BGHZ 56, 269 (275).
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gers must always be credited is extremely controversial. the

In any case, the question should be answered in the negative for the tortious
claim for damages;32 because the legal position of the third party should
are not made worse by the obligation with protective effect for third parties.
IV. Demarcation
1. Contract in favor of third parties
The contract with a protective effect for third parties has certain parallels 17
to the contract in favor of third parties (Section 328; see "Section 32). This
becomes particularly clear if, in the case of a contract with protective effect,
the third party is also granted a claim for breach of the main obligation to
perform ("Rn. 14). The key difference is there
in that in the case of a contract with a protective effect, the third party has no
right to performance of the debtor's contractual performance.
2. Third Party Liquidation
From the damage liquidation in the interest of third parties differs 18

the obligation with protective effect for third parties in that the
third party receives its own claim for compensation against the debtor.
In the case of third-party liquidation, on the other hand, the creditor does it
claim of the third party.
In the case of third-party damage liquidation, the damage is used as the
basis for a claim. On the other hand, in the case of a contract with a protective
effect for third parties, the basis for a claim for damage is invoked.33
Contract with protective effect for third parties
I. Requirements
1. Third party performance proximity
2. The creditor's interest in protecting the third party
3. Recognisability for the debtor
4. Need for protection of the third party
32 Negative also Looschelders SchuldR AT § 9 para. 15.

33 Medicus/Petersen BürgerlR No. 839.
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II. Effect
1. Own claim for damages of the third party under the conditions
of § 280
a) Obligation (contract with protective effect)
b) breach of duty
c) Responsibility (§§ 280 Para. 1 S. 2, 276, possibly § 278)
2. Effect of objections by the debtor from the contract also
against the third party (legal concept of
§ 334)
§ 34. Change of creditors
1 Literature: Ahcin/Armbrüster, basic cases for the right of assignment, JuS 2000,
450, 549, 658, 865; Coester-Waltjen, Set-off upon assignment, JURA
2004, 391; Haertlein, The legal status of the debtor of an assigned
Claim, JuS 2007, 1073; Huffer, Is the debtor aware of the assignment of titled claims?,
ZGS 2005, 256; Lorenz, Basic Knowledge – Civil Law: Assignment, JuS 2009, 891;
Lange/Kretschmann, Problems relevant to the exam
Assignment, JA 2020, 569; Peters, The assignment, § 402 BGB and the right of the
debtor to informational self-determination, AcP 206 (2006), 843; Peter sen, The
Assignment, JURA 2014, 278; idem., claims for assignment, JURA
2014, 406; idem., The Third Party in General Law of Obligations, JURA 2014, 580;
Piekenbrock/Rodi, Against the Disposability of the Protection of Section 407 Paragraph 1
BGB, AcP 219 (2019), 735; Regenfuss, The protection of the debtor against uncertainty
as to the identity of the creditor, JA 2017, 81 and 161; Reichold, offsetting after advance
assignment, 2006; Schilken, On the Interpretation of
Section 407 (2) BGB: Debtor protection and extension of legal force in the event of
assignment of the sued claim before lis pendens, ZZP 130 (2017), 271;
Schreiber, Contractual and legal subrogation, JURA 1998,
470; Schwarz, debtor protection by § 406 BGB in the case of advance assignment,
World Cup 2001, 2185; ibid., On debtor protection when offsetting assigned claims, AcP
203 (2003), 241; Walker, The importance of attachment for the assignability of monetary
claims according to § 400 BGB, FS Musielak, 2004, 655.
Case a: V sells a claim against S for payment of EUR 500

EUR 450 to K and assigns it to K. It later turns out that G is entitled to the claim. Did K
acquire the claim? What is the legal situation,
if G approves the assignment? " paragraph 10
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§ 34. Change of creditors 429
Case b: Dealer H has purchased furniture from factory F under retention of title and has
assigned all claims from future resales of this furniture to F. When he later needs a new
bank loan, he also transfers the aforementioned claims to bank B for their security. Who is
entitled to the claims? " Paragraph 17
Case c: In case b, H's customer K pays the purchase price for a cupboard
to H. Has he become free? " Paragraph 23
Case d: In case b, customer K pays the bank because he only found out about the
assignment to the bank. " Paragraph 27
I. Types of Change of Creditor
The law recognizes three types of change of creditor. Sections 398 ff.
regulate the legal transfer of claims (assignment) ("Rn. 2 ff.). According to
Section 412, these provisions apply accordingly to a statutory change of
creditor (cessio legis).
Examples of statutory transfer of claims: § 268 paragraph 3 (" § 12 marginal number 6),
§ 426 paragraph 2 (" § 37 marginal number 28) and § 774.1 Practically significant: § 86
VVG and § 116 SGB X (transfer of a claim for damages to the private insurer or public
insurance carrier; "§ 29 para. 7). With the death of a person, their assets, including their
claims, pass to the heirs (§ 1922 para. 1).
Finally, a change of creditor can also be effected by state

act of sovereignty.
The main example is the execution of the judgment creditor against a claim of the
judgment debtor, which he is entitled to against a third party (§§ 829, 835 ZPO)2 : If the
attached monetary claim is transferred to the attaching creditor in lieu of payment, then the
attached claim goes with the Delivery of the transfer decision to the third party. – A
distinction must be made between the usual transfer for confiscation (§§ 835 f. ZPO)3.

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II. Concept, meaning and special types of

assignment of claims
1st term
2 Assignment (cession) is between old and new creditor
concluded contract through which the previous creditor (cedent)
transfers his claim against the debtor to the new creditor (cessionary)
(section 398). The assignment of claims is therefore the legal business
transfer of the creditor's right to a third party.
3 The assignment is - like the transfer of ownership (§ 929) - a
disposition; because this transfers an existing right directly. With the
conclusion of the contract, the previous creditor loses
the requirement. The assignment is therefore not a binding transaction.
Of course, it is regularly based on such a business, which often
is made at the same time as her.
Example: The father gives his son a claim for his birthday.
The father's declaration contains the offer as well as the gift contract
as well as for assignment; the thanks of the son is the acceptance of both
Offers. Since the assignment of the claim results in the performance promised as a gift,
the promise of gift does not require the
Form (Section 518 (2)).
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The assignment is - like the transfer of ownership - as an abstract disposal 4

transaction in its existence independent of the underlying
underlying causal transaction. Is there a causal transaction missing or is it (e.g
due to rescission) void, the validity of the assignment remains unaffected;
however, in these cases the previous creditor is entitled to a claim for enrichment
(Section 812) against the new creditor for reassignment.
According to Section 413, the rules on the assignment of claims also apply 5
accordingly to the transfer of other rights (e.g. intellectual property rights,
industrial property rights).
2. Meaning
The assignment is of considerable importance in economic life. So 6

For example, the buyer assigns a claim to which he is entitled to the seller with
his consent instead of paying the purchase price.
Likewise, the creditor is in a position to sell and assign his claim that is not yet
due to another person in order to
to raise cash ahead of schedule. Practically significant
are also the security assignment and collection assignment
(“Rn. 7 f.).
3. Special Species
Special types of assignment are assignments by way of security and 7

the collection assignment.
a) Assignment by way of security. In the case of assignment by way of

security, the assignor assigns a claim to which he is entitled to the assignee in order to
to provide security for a claim against him, the assignor (cf. also assignment by
way of security). Banks, for example, can assign claims to their customers to
secure a loan. This type of security is called the pledging of receivables
preferred because the pledging requires a notification to the debtor in order to

be effective (section 1280), which is advantageous for the creditor
of the claim can have a credit-damaging effect.
The security agreement on which the assignment is based is decisive for the rights
and obligations of the new creditor in relation to the assignor.
This determines, for example, whether the assignee is entitled to the assignment
to notify the debtor to collect the claim or to transfer what has been obtained
to keep. When the loan has been repaid and the other obligations
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terms (e.g. payment of interest) are fulfilled, the assignee must, by way of security
transfer the assigned claim back. It is also possible to agree
that the assignment is conditional upon the repayment of the loan
target; then the claim automatically reverts to the guarantor with the repayment.
8th b) Collection assignment. In the case of collection assignment, the

assignor assigns the claim to the new creditor solely for the purpose of the
latter collecting it for him. Unlike the security assignment, the
Collection assignment therefore regularly not in the interest of the assignee,
but that of the assignor.
Example: A creditor assigns his claims against his debtors

to a collection agency. This becomes the creditor of the claims. It can she im
claim your own name as a party.
III. Conditions of Assignment

1. Contract
9 A contract between the previous and new creditor is required, stating
that the latter should be entitled to the claim (section 398 sentence 1). A
consent of the debtor or just a notification to him
it is not required for the effectiveness of the transfer of claims; the
The debtor does not need to know anything about the assignment, and he
certainly does not need to participate.
The rules of §§ 104 et seq. apply to the contract. Limited legal capacity is sufficient
for the purchaser of the claim, since the assignment is only for him
brings legal advantage (§ 107).
The contract of assignment does not usually require any form. That's true
even if the justification of the claim requires a specific form
(e.g. purchase price claim in the property purchase contract; § 311b
Paragraph 1). In exceptional cases, a form is required (example:
assignment of a mortgage claim; § 1154).
2. Existence of the claim

10 A prerequisite for the transfer of the claim is that the claim exists and
that the assignor is also entitled to it. Unlike the acquisition of property,
there is no bona fide acquisition of a claim
by an unauthorized person (but cf. "Rn. 21). When acquiring the
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ownership of a moveable thing, the good faith of the acquirer in the

ownership of the possessing seller is protected (cf.
§ 932); here the purchaser should rely on the legal certificate caused
by the possession of the property (cf. Section 1006 (1) sentence 1).
may. In the case of the acquisition of a claim, on the other hand,
there is a lack of facts that – such as possession when acquiring
property – provide sufficient evidence for the entitlement of the assignor
and thus sets a legal semblance on which the assignee can rely
can.
In case a, K has not acquired the claim unless G deals with the
Assignment agreed. It is impossible for V to fulfill his obligation to K (§ 275 Para. 1). The
contract of sale between V and K is
nevertheless effective (§ 311a Para. 1). However, K does not need the purchase price
to be paid (Section 326 (1)). Under the conditions of § 311a Para. 2 in conjunction
§§ 280 et seq. K can demand damages. On the other hand, if G approves the assignment,
the claim is transferred to K (§ 185); the contract of sale is fulfilled. G has against
V a claim to enrichment from § 816 paragraph 1.4 - About the special nature of the
Protection of creditors in § 405 "Rn. 21.
3. Transferability of Claim
As a rule, every right is transferable. Something else can 11
however, result from the law or the special nature of the law.
a) Content change exclusion. According to Section 399, a transfer

is excluded if the performance cannot be made to a creditor other
than the original creditor without changing its content.
Example: An employee's entitlement to holiday entitlement is

cannot be assigned because its purpose is linked to the person entitled.
b) Exclusion by agreement. The transfer can also 12

be excluded by agreement between creditor and debtor (section
399).
Example: In order to avoid the extra work in accounting, agreed
the employer with the employees that these are also their garnishment-free
Wage claims not to be assigned to third parties. An employee steps up anyway
Repayment of debts from installment purchases non-garnishment wage claims
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to the seller, who knows nothing about the agreement in the employment contract. the
The employer who is aware of the assignment is entitled to pay the employee.
Because the claim was not assignable because of the agreement;
the assignment is void, so the employee is still a creditor
demand is.5 Since there is no protection of good faith here, it comes
does not indicate the ignorance of the seller. Because the exclusion of assignability
was only agreed to protect the debtor (= employer).
has been made, the latter can waive his protection and through his consent
make the assignment effective (concept of § 185).
An assignment can also be excluded by implication. So

can be about the agreement between bank and customer, about the
business relationship to maintain secrecy, to be interpreted as a prohibition
on assignment.
However, despite the agreement pursuant to Section 399, the
assignment is effective if the legal transaction that gave rise to the claim is for
both parts is a commercial transaction (details: § 354a HGB).6
According to a draft law by the federal government from December 2020
is to be excluded by the new § 309 No. 9 formally agreed prohibition of assignment
for monetary claims of the consumer against the user and made more difficult for
other rights. This should
who shy away from enforcing their claims in court
obtained to sell the claims to third parties who then collect them.
13 c) Exclusion in the case of non-seizure. An irredeemable claim

cannot be assigned (section 400). This provision is intended to
Creditors also in the interest of the general public the subsistence level
receive. Therefore, the creditor cannot effectively waive this protection.
The garnishment limits result primarily from
§§ 850 ff. ZPO.7
Section 400 does not preclude an assignment if its protective purpose
is not thwarted. For example, G transfers his non-attachable pension claims against
the tortfeasor S to his employer on the condition that
this pays corresponding amounts, this assignment is valid; because she
only becomes effective once the employer has paid G. That's it
Protection of G and the general public preserved.8
5 See also BGHZ 40, 156.

8 BGHZ 4, 163; 13, 360; 59, 109.
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d) Exclusion for other reasons. The law still knows 14

numerous other cases in which assignment is not possible.
Examples from the law of obligations: §§ 473, 717.
Even without an express legal order, an assignment can be

excluded due to the special nature of the legal relationship
being.
Examples: family rights, insofar as they are of a highly personal nature (marital
cohabitation, parental care; otherwise: demand for equalization of accrued gains, § 1378).
– The assignment of a medical or legal fee claim without the consent of the patient or
client is prohibited pursuant to Section 134
in connection with Section 203 (1) of the Criminal Code, because the doctor or lawyer
would be obliged under Section 402 to give the new creditor the opportunity to assert the claim
to provide the necessary information, which would lead to a breach of medical
confidentiality or the lawyer's duty of confidentiality.9 On the contrary
the assignment of loan claims are not subject to banking secrecy
nor data protection, although the resulting duty of confidentiality may conflict with the
assignor's duty to provide information under Section 402; for in this case § 203 of the
Criminal Code contains no sanction, and in this respect there is no legal prohibition.10
4. Identifyability of Receivable
In the interests of legal certainty, there must be clarity as to 15
whether and to what extent a claim is still the same as the old one
or is already due to the new creditor. Therefore, a claim that is
to be assigned must be sufficiently specific, at least
but be definable. The assignment agreement must therefore be made in
such a way that, without further action on the part of the parties, content, amount
and debtors of the claim are determined at the latest at the time
when they arise. There is also an assignment within these limits
future claims possible.
If the owner of an apartment building that is still under construction assigns all rent
claims or those for the first floor, the requirement of determinability is fulfilled, even if the
tenant and the amount of the rent are not yet certain. On the other hand, it is different if,
for example, only the rent is due for a
of the apartments, which is not specified in more detail, is transferred.
9 Cf. BGHZ 115, 123 (130); 116, 268 (272 f.); 122, 115; BGH NJW 2005, 507 (ban on assignment
denied in the specific case because the assignor already comprehensively handles the matter
knew).
10 BGH NJW 2007, 2106 (2107 f.); from the BVerfG NJW 2007, 3707 f. for constitutional
declared legally unobjectionable.
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16 From the point of view of determinability, there are also no

objections to a global assignment. It is present, for example, when all
be assigned to future claims from a business operation. Limitations
can, however, result from § 138 (Knebe lung).11
IV. Effects of Assignment
1. Subrogation of Claim
17 With the conclusion of the contract, the claim goes to the new creditor
about (§ 398 S. 2). After the effective assignment, the previous
creditor is not in a position to claim this (to which he is no longer entitled)
transfer the claim to someone else.
In case b, F and not B acquires the claims (principle of priority).12
The assignment results in special obligations of the assignor

(§§ 402 f.).
18 In contrast, there is no transfer of claims in the collection mandate.
This is only a direct debit authorization. the
The creditor does not assign the claim, but authorizes another to
claim the claim in his own name (not as a representative of the
creditor) to collect. The creditor keeps his claim
and can revoke the authorization unilaterally.
The direct debit authorization is legally permissible. It is regarded by case law as
consent based on Section 185 to the disposition (withdrawal) of a right of the
consenting party.13 It is regarded by hL as a
judicial development of the law recognized under customary law.14
2. Transfer of ancillary and preferential rights

19 Accessory security rights (e.g. liens, guarantees)
are worthless for the previous creditor after the assignment;
therefore they go with the main claim by operation of law (section 401 (1))
to the new creditor.
11 BGH NJW-RR 1990, 1459.

12 BGHZ 30, 149; 32, 361.
13 BGHZ 4, 164; 70, 393ff.
14 Cf. Rüssmann JuS 1972, 170; Palandt/Grüneberg BGB § 398 para. 32.
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Section 401 is not mandatory, however. If, for example, the non-transfer of a
pledge is agreed, it expires (cf. § 1250 para. 2).15
Also rights conferred on the creditor in foreclosure or

give preference in the event of insolvency are dissolved with the claim
to the new creditor (Section 401 (2)).
Is a promissory note issued for the assigned claim
been made, ownership of it belongs to the new one by operation of law
creditors (§ 952). The latter can reclaim it from any possessor (section
985).
3. Debtor's objections and defenses
a) Principle: continued existence vis-à-vis the new creditor. 20

Through the assignment, the claim is transferred as it existed in the
person of the old creditor. That's why everyone stays
There are objections and defenses that the debtor has against the
had previous creditors (section 404). The legal status of the debtor
is therefore not worsened by the assignment.
The debtor can therefore rely on the assignee that
the claim has become statute-barred or has been deferred by the assignor. The
objection need not have existed at the time of assignment; it
it is sufficient that it is based on the obligation between the previous creditor and the
debtor.16 For example, the debtor can claim
claim that he is due to a circumstance that arose after the assignment
withdrawn from the purchase contract, so that he no longer has to fulfill the assigned
purchase price claim. The same applies to a only after
the assignment declared termination of a continuing obligation.17
If a claim is effectively transferred several times,

the debtor can therefore object to the last assignee according to §
404 with all objections that he had against one of the foremen.
b) Exception in the case of assignment upon presentation of documents. To 21

Section 405, however, the debtor is not heard with two objections:
Has he only issued a certificate of indebtedness (§ 117) and

if it has been presented to the new creditor upon assignment, so
this is caused by his trust in the debtor
15 RGZ 85, 363.

16 Cf. BGHZ 25, 27 (29); BGH NJW 1986, 920; NJW-RR 2004, 1347 (1348).
17 BGH NJW-RR 2004, 1347 (1348).
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Legal appearance protected (rare case of bona fide acquisition of a

claim). The new creditor does not have the protection of Section 405 if
he knew the facts or was negligently unaware (Sections 405, 122 (2)).
If G has assigned a claim that has not arisen because of Section 117, for which S
has issued a promissory note, to the bona fide G1, the latter acquires the claim
specified in the promissory note. S must therefore perform at G 1.
If the bona fide G 1 assigns the claim to G 2, the latter becomes a creditor of the claim
even if he is in bad faith; for he acquires from the entitled person. On the other hand,
if G 1 was in bad faith, G 2 can only acquire it from the non-authorized person in good
faith.
The same applies if the assignment of the claim is excluded by
agreement between the creditor and the debtor and the debt document
does not state that it is unassignable (§§ 405, 399).
However, good faith protection only applies to legal purchases. These

rules are therefore not applicable to a subrogation by operation of law or
public act.
V. Debtor protection
22 The debtor is not involved in the assignment; he cannot look after his
interests. It therefore needs special protection. He can exclude the
assignability of the claim through a contract with the creditor (§ 399, "Rn.
11 f.).
On the other hand, despite the assignment, he retains all objections (§
404, "Rn. 20). However, the law provides for further protective provisions
before.
1. Ignorance of the subrogation
23 a) Payment to the assignor. If the debtor makes payment to the

previous creditor without being aware of the assignment, he is making
payment to the wrong one; but the new obligee must allow this
performance to apply against him (section 407 subsection 1; case c), his
claim expires. He can only hold on to the previous creditor; the agreement
on which the assignment is based, Section 826.18 but in any case
Section 816 ( 219 ) can be considered as the basis for a claim.

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Section 407 also applies if the debtor enters into a legal transaction 24
with the previous creditor without knowledge of the assignment
of the claim (e.g. deferral, waiver of the claim). Because it
it is a protective provision in favor of the debtor
it is up to him whether he makes use of this protection.20 So he can
also the performance rendered to the previous creditor
Section 812 reclaim and settle by paying to the new creditor
release from his obligation to perform.21
Waiving the protection of Section 407 is advantageous for the debtor if he could
offset against the new creditor. At a
The debtor will be interested in such a set-off if he has to fear that his claim against
the new creditor will be lost
is difficult to realize, he is safe on the other hand, from the previous one
creditor to get back the service rendered.
Legal transactions and legal acts that the previous creditor carries out 25
to the detriment of the debtor (e.g. notice of termination, reminder) are
ineffective; Section 407 is not applicable because it is intended to
intervene only in favor of the debtor.
b) Extension of legal force. Section 407 (2) gives the debtor appropriate 26
protection in the process: If G files a claim against S after the claim has
been assigned to G 1, S can, if aware of the assignment, argue that G
no longer has the claim due to the assignment to, so that
the lawsuit is dismissed. However, if S does not know anything about the assignment
and if he submits a judgment dismissing the action for other reasons, this would not
rule out a new legal dispute between G 1 and S, because the first
Judgment is only effective between the litigants (G and S). To do this for S
To avoid unfortunate result, § 407 para. 2 determines that G 1 the im
Legal dispute between G and S allow the judgment passed against you to apply
got to. Section 407 (2) as a norm protecting the debtor means only one
judgment favorable to the debtor.
§§ 265, 325 ZPO apply to an assignment after filing an action.
c) Multiple Assignments. The debtor protection also applies 27

a if G after the assignment of the claim to G 1 again
(ineffective) to G 2 and S has no knowledge of the first (effective)
assignment. S performs in knowledge of the second assignment
to the unauthorized G 2, it is protected by Section 408 (1) in the same
way as in Section 407 (case d).
20 HM; aM Piekenbrock/Rodi AcP 219 (2019), 735 (740 ff.).

21 BGHZ 52, 154; BGH LM No. 3 on Section 407; aA OLG Dresden MDR 1995, 559.
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28 The same applies to a transfer resolution in the enforcement (Section 408 (2)). If a
claim of G against S has been seized in favor of X and it has been transferred to X (§§
829, 835 ZPO), these measures are ineffective if G had already assigned the claim
beforehand. Nevertheless, S is protected if he is unaware of the assignment if he pays
to the person (X) named in the attachment and transfer order
is.22
2. Offsetting
29 Section 406, which is difficult to understand based on its wording, contains two
ratings; one corresponds to § 404, the other to § 407.
a) Continued effect of the set-off situation towards the new
creditor. If the debtor was able to set off a counterclaim
against the old creditor (section 387), his legal position
should not be impaired by the fact that the claim is assigned.
Although the claims are no longer reciprocal, the debtor
should retain the option of offsetting.
Examples: G has since March 1st. a claim against S. This acquires on 1.4. a due
and similar claim against G. On 1.5. G assigns his claim to G 1. If S has no knowledge
of the assignment, then he can set off against G according to Section 407. If he learns
of the assignment, he can also set off against G 1 (§ 406; basic idea of § 404).
If the claim of S only became due after the assignment of the main claim by G, S
can still effectively offset afterwards. Although § 406 only makes an exception to
reciprocity, not to the other offsetting requirements (" § 16 para. 4 et seq.). However, it
is sufficient that these exist at the time of the offsetting declaration, because without
assignment the debtor could now offset , and no disadvantage shall accrue to him
through the assignment.23
30 b) Creation of the offsetting situation with respect to the

new creditor. If the debtor acquires the counterclaim against
the previous creditor only after the assignment, the two
claims have never been offset against each other.
Nevertheless, the bona fide debtor should be protected
according to the basic idea of Section 407 and be able to
offset if he was not aware of the assignment at the time the
counterclaim was acquired.24
651.
23 BGH JZ 1962, 92; but note BGHZ 19, 153.
24 On the requirement of good faith BGH NJW 2002, 2865 (2866).
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The following cases must be distinguished:

G enters his claim on 15.3. at G 1 off. S acquires on 1.4. a counterclaim against
G. If S is aware of the assignment upon acquisition, he will
not protected; because he knew beforehand that he would not set off
could. On the other hand, if S had no knowledge of the assignment, he can still
offset because he trusts in the possibility of offsetting
to be protected when acquiring the claim.
If, in the example above, S's counterclaim only occurs after the acquisition
by S and later than the assigned claim, offsetting according to § 406 old version is
out of the question. Rather, it is only permissible
if the counterclaim is made before knowledge of the assignment or
no later than the assigned claim became due.25 Reason: here
the debtor could not have relied on a possibility of offsetting even without assignment
(cf. " § 16 marginal number 9)26.
"Acquisition" in the sense of § 406 only means the first acquisition of a claim,
but not the repurchase after a security assignment; because economically the claim
assigned as security still belongs to the assets of the assignor. The holder of the
counterclaim therefore does not have to
fear losing his right to set-off due to an interim security assignment.27
3. Notification of assignment and submission of documents
a) Notification of assignment. The previous creditor can notify the debtor that 31
the claim has been assigned. Through this ad
is avoided on the one hand in the interest of the new creditor that the
Debtors because of § 407 paragraph 1 still with discharging effect on the
previous creditor makes. On the other hand, the debtor must
can leave the notice of assignment: Even if the claim
has not been assigned or has not been effectively assigned, the assignor must
allow the performance of the debtor to the assignee to apply against him because
he has the legal semblance of an effective
assignment (section 409 (1) sentence 1). But here's that too, though
the law is silent, as with §§ 407, 408, the debtor is only worthy of protection if he
does not know the true facts.28
The same applies if the old creditor issues a deed of assignment to the new
creditor and it is presented to the debtor
25 Cf. BGHZ 19, 153.

26 Exception: BGHZ 63, 338 (342 f.).
27 BGH NJW 2003, 1182.
28 Unlike the hM, eg BGHZ 29, 82; Looschelders SchuldR AT § 52 marginal number 62.
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In order to destroy the legal semblance created by the notification, it can be

withdrawn with the consent of the person designated as the new creditor (Section
409(2)). The obligation to give consent can result from the contract or Section 812.
32 b) Delivery of the deed of assignment. To protect the debtor,

Section 410 (1) sentence 1 stipulates that he has a right to refuse
performance vis-à-vis the new creditor until the deed of assignment
is handed over to him. The provision does not justify a counterclaim
and thus no right of retention according to § 273, but an independent
right to refuse performance, which the debtor can object to the new
creditor right creditor is claimed.30
A termination or warning by the new creditor without the submission of documents

is ineffective if the debtor immediately rejects it with this reason (section 410 (1)
sentence 2). The debtor cannot then be put in default by the reminder. On the other
hand, the mere existence of the right to refuse performance under Section 410 (1)
(without immediate rejection) or denying the assignment is not sufficient to prevent the
debtor being in default.31
However, the debtor is not required to be secured in accordance with section 410
(1) if the previous creditor has notified him of the assignment in writing (section 410
(2)). Then a rejection of a reminder is ruled out.
Furthermore, the debtor has no right to refuse performance in good faith in accordance
with Section 410 if the assignor is unable to make any other claims based on the
situation in the case and the debtor is therefore not in need of protection.32
Assignment (§§ 398 et seq.)
I. Requirements
1. Assignment
contract 2. Existence of the assigned
claim 3. Specificity or determinability of the claim 4.
Transferability of the claim a) Exclusion in the event
of a change in content (§ 399, 1st case)
29 BGH NJW 2012, 3426 f.; 2007, 1269 (1271).

30 BGH NJW 1993, 1468 (1469).
31 BGH NJW 2007, 1269 (1271 f.).
32 BGH NJW 2012, 3426 f.
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§ 35. Assumption of debt and assumption of debt 443
b) Exclusion by agreement (Section 399, 2nd case)

c) Exclusion if the claim cannot be attached (Section 400 in
conjunction with Sections 850 ff. ZPO) d) Exclusion for
other reasons II. Effects 1. Transfer of the claim to a new
creditor 2. Transfer of ancillary and preferential rights (section 401)
3. Persistence of objections by the debtor to the new creditor

(section 404); Exception: Section 405 4. Protection of the
debtor a) Exemption in the case of performance to the old
creditor (Section 407
paragraph 1)
b) Binding of the new creditor to the legal force of a judgment

against the old creditor that is more favorable to the
debtor (section 407 (2)) c) Exemption in the case of
performance to the wrong creditor in the event of multiple
assignment (section 408 (1)) d) Preservation of a the
possibility of offsetting existing creditors against the new
creditor (§ 406) e) Creation of an option for offsetting
the new creditor (§ 406)

f) Protection of the debtor's confidence in the validity of the
notified assignment (section 409 (1))
§ 35. Assumption of debt and assumption of debt
Literature: Bartels, The contractual assumption of debt in the structure of mutual ongoing 1
obligations, 2003; Grigoleit/Herresthal, The assumption of guilt, JURA 2002, 393; ibid., The
assumption of guilt, JURA 2002, 825; Leible, The assumption of guilt, memorial for
Unberath, 2015, 269; Lorenz, Basic Knowledge – Civil Law: Assumption of Debt,
Assumption of Performance and Contract, JuS 2019, 424; Nörr/Scheyhing/Pöggeler,
Successions, 2nd edition 1999; Wagemann, The disturbed contract transfer, AcP 205
(2005), 547.
Case a: S concludes a contract with S 1 in which S sells his business to S 1 and S 1
assumes a business debt of S; the creditor approves the assumption of the debt. S 1 later
refuses to perform because he has effectively challenged the contract with S because of
his fraudulent misrepresentation. " Paragraph 13
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Case b: S 1, who has assumed the purchase price debt from S, asserts against the
creditor G demanding payment: 1. G has given S
the purchase price was deferred for six months; 2. He (S 1) had effectively withdrawn
from the business acquisition agreement concluded with S, on the basis of which he had
assumed the purchase price; 3. he offsets his own counterclaim; 4. He is offsetting a
counterclaim by S.
" Paragraph 16
I. Term, meaning and delimitation
1st term
The law recognizes two types of assumption of debt: the liberating one
(= privative) and the cumulative (= assumption of debt).
a) Liberating assumption of debt. Liberating assumption of guilt

means that a new debtor takes the place of the old one (change of debtor).
The old debtor is relieved of his debt. the
Legal transaction debtor change is the counterpart to
legal change of creditor (= assignment).
It is therefore regularly possible for the party to an obligation to assign rights to a third
party, and the latter also assigns the party's debts
takes over. With the transfer of individual rights and the assumption of individual debts,
the third party has not yet become a party to the entire obligation. For such a change of
party in the entire obligation (contractual assumption) there is a permanent obligation in
particular
(e.g. rental contract, employment contract) a need. Such a contract
determines the law only for some special cases as a consequence of another
legal transaction; the purchaser of the property enters into the rental contracts (§ 566) 1
and the purchaser of a business enters into the employment contracts (§ 613a) 2 . However
a contractual transfer of contract is not regulated by law; their admissibility can be
justified with private autonomy. Is always required
the consent of all parties involved.3
2 b) Cumulative Assumption of Debt. Cumulative Assumption of Debt

means that the old debtor is not released from the debt,
but that the new debtor joins the old debtor as a joint debtor (joining the
debtor; in addition and to distinguish from the
Guarantee: "Rn. 19 et seq., 21).

2 Brox/Rüthers/Henssler ArbR Rn. 704 et seq.
3 Cf. BGHZ 95, 88.
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2. Meaning
In practice, there are many possible uses of assumption of debt: 3
when selling a business, the purchaser assumes the existing debts
(cf. also Section 25 HGB);4 he only has to pay a correspondingly
lower purchase price for this.
When building the house, the craftsmen stopped working because
the builder no longer met his current payment obligations; a solvent
tenant who wants to move in as quickly as possible assumes the
debt of the client or joins them so that work can continue. The
purchaser of a property assumes the mortgage on the property,
offsetting it against the purchase price (cf. also Section 416; "Rn.
14).
3. Demarcation
The assumption of debt is to be distinguished from other legal 4
institutions. What is wanted in the individual case must be
determined by interpreting the agreement.
a) Assumption of performance. In the case of assumption of
performance (§ 329; "§ 32 para. 6), a third party undertakes towards
the debtor to fulfill his debt to the creditor. Here only the debtor has
a claim against the third party (for exemption from the obligation);
the creditor can still only hold on to his debtor.
b) Guarantee Agreement. In the case of a guarantee contract, 5

the third party undertakes (informally) to be responsible for a specific
result, regardless of the existence of an obligation, or to assume
liability for future damage that has not yet occurred.5
This liability for success is not accessory, i.e. independent of fault; it therefore
presupposes a willingness to commit to that effect. Examples: Statement to a bank: I am
campaigning for short-term cover to be provided for checks that someone else has drawn
on the bank.6
c) Acceptance of contract. The assumption of a contract means 6

that one party leaves an existing contractual relationship due to a
contract or by operation of law and a third party takes their place.
5 BGH NJW 1958, 1483.
6 BGH NJW 1967, 1020.
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ter enters into the contract as a party. All rights arising from the
existing contractual obligation go to the third party
and obligations of the departing party.7 On the other hand, accepts
only in the case of the liberating assumption of debt by the new debtor
the fault of a contractual party without entering into the contractual
relationship in their place.
The law provides for a legal contract transfer in certain cases

before (" para. 1).
II. Prerequisites for the discharging assumption of debt
7 In the liberating assumption of debt, the new debtor and

the creditor particularly worthy of protection. Since the new debtor is
burdened with a debt, the debt can only be assumed with his
will happen. On the other hand, the creditor must agree if someone
else takes the place of the previous debtor
(perhaps less solvent) should occur. In contrast, the old debtor is not
worthy of protection because he is released from his debt.
The law takes these interests into account in §§ 414 f.
A liberating assumption of debt can be of two different types
Because of:
1. Contract between new debtor and creditor

8th According to Section 414, the debt can be transferred from a third party by contract
be taken over by the creditor.
Due to the possible adverse consequences of the relieving assumption of debt for
both contracting parties, strict requirements must be placed on their declarations of
intent. A will of the creditor, on his previous
Debtors to waive must be clearly expressed or
are clear from the circumstances. Just issuing an invoice
to a third party not involved in the obligation and their settlement
through this is not sufficient for a liberating assumption of debt.8
The contract between the new debtor and the creditor does not require any form, it
unless the obligation assumed (e.g. because of Section 311b (1))
is in need of form. – If the contracting parties agree that the claim cannot be recovered
from the old debtor and is therefore of no value to the creditor, the new debtor can
make a promise of donation
are available to the creditor, which requires the form according to Section 518 (1).
7 See BGH NJW 1985, 2528.

8 BGH NJW-RR 2012, 741 f.
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2. Approved contract between old and new debtor

A contract between the old and new debtor is not sufficient. 9
In addition, the creditor's approval must be given (section 415
(1) sentence 1), because otherwise he would lose his previous
debtor without his will.
a) Explanation, refusal and effect of approval.
Approval can only be given when the old or new debtor has
informed the creditor of the assumption of the debt (section 415
(1) sentence 2).
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The two contracting parties should thus be able not to allow the takeover to take
place until they have agreed, for example, on the transaction on which the assumption
of debt is based. Accordingly, an approval of the obligee who, without notice, is
otherwise granted by the
contract has become ineffective.
10 Old or new debtors can notify the creditor at or after the

notification set a deadline for the declaration of approval
(§ 415 para. 2 sentence 2) in order to end the state of limbo. Like any
declaration of intent, approval can be express or
be explained conclusively. However, mere silence is not enough
from (special case: mortgage assumption, § 416; "Rn. 14). Up to
Approval, the parties can change the transfer agreement
or revoke (§ 415 para. 1 sentence 3), because until then the legal status
of the creditor is not affected by such changes. Will
the approval (§§ 182 et seq.) is granted, it affects the point in time
of the conclusion of the contract (§ 184). If the approval is refused, the
assumption of debt is deemed not to have taken place (§ 415 Para. 2
p. 1). If the change of debtor does not occur, then the contract is
between the old and the new debtor to be interpreted in case of doubt that
the new debtor is in any case obliged to the old debtor
is to satisfy the creditor (sections 415 (3), 329; assumption of performance;
“section 32 marginal number 6).
The assumption of § 415 paragraph 3 that a mere assumption of performance is

wanted is refuted if the parties in the event of refusal
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approval have made a different arrangement or if it is clear from the contract that one of
the parties should bear the risk of failure to assume the debt.9
b) Legal construction of the assumption of debt. is disputed, 11

how the assumption of debt according to § 415 is to be legally explained.
The prevailing theory of disposal sees the contract between the old and
new debtor as a disposal by the unauthorized party
about the creditor's claim, which he approves as the entitled party (section
185 (2) sentence 1). Both the wording of the
Section 415 as well as the law materials.10
The offer or contract theory, on the other hand, sees an offer to the 12
creditor in the notification pursuant to Section 415 (1) sentence 2
by its approval. According to this view, § 415 has no independent meaning
compared to § 414. The replacement of the debtor is also in the case of §
415 by a contract
between the new debtor and the creditor.
Consequences of the theory dispute: 13
If, for example, the new debtor contested the transfer agreement because of fraudulent
misrepresentation by the old debtor (case a), then from the point of view of the contract
theory the fraud by a third party (who was not on
old debtor involved in the conclusion of the contract) takes place; so that would be the explanation
of the new debtor only contestable if the recipient of the declaration
(Creditor) knew or should have known about the deception (section 123 (2) sentence 1).
With formal application of the theory of disposal, the new debtor could
challenge his statement regardless of whether the creditor knew or should have known of
the deception; for here is the deceptive old debtor
contracting parties themselves (§ 123 Para. 1).11
However, purely constructive considerations cannot justify a different result. Even if §
415 follows the disposal theory, must
the creditor, as in the case of Section 414, is protected in his trust in the existence of the
transfer agreement.12
3. Special case: Mortgage assumption

Is aimed at securing a claim of the creditor against the debtor 14
whose property has been mortgaged and assigned to the
debtor transfers the property to the purchaser, the latter also becomes (in rem) debtor of
the mortgage upon acquisition of the property, during the sale
9 BGH NJW 1991, 1822.

10 months II, 144ff.
11 So BGHZ 31, 321.
12 More details: Brox JZ 1960, 369 ff.
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The third (personal) debtor of the claim remains. The aim of the seller and the buyer
will be that the buyer becomes the personal debtor of the claim instead of the seller,
especially if he has assumed the debt by offsetting it against the purchase price. This
can be done under Section 414 or Section 415. Section 416 brings relief: Since the
creditor is less worthy of protection in this change of debtor than in the cases dealt
with so far because he is secured by the mortgage on the property, it is sufficient here
for the assumption of the debt that, after notification by the seller, he can do so within
six been silent about it for months. In deviation from § 415, mere silence counts as
approval. Details: § 416.
III. Effects of the liberating assumption of debt
1. Change of debtor
15 The new debtor takes the place of the previous debtor in the case of the
discharging debt assumption (cf. § 414).
2. Objections The
16 new debtor can present reasons that speak against the validity of the
takeover transaction. In the case of its nullity, there was no change of debtor.
To challenge
" Paragraph 13.
The debtor's claim is not changed by the change of debtor. Therefore, the
new debtor can raise the objections against the creditor that arise from the
legal relationship between the creditor and the old debtor (section 417 (1)
sentence 1; e.g. deferral; case b, 1.).
On the other hand, the new debtor cannot derive any objections from the
legal relationship between the old and new debtor on which the assumption of
debt is based (§ 417 Para. 2; abstraction principle; e.g. withdrawal from the
causal transaction; case b, 2.).
Objections arising from the relationship between the new debtor and the
creditor are possible (the new debtor can offset a claim against the creditor to
which he is entitled; § 387; case b, 3.).
The new debtor cannot offset a claim to which the old debtor is entitled
(section 417 (1) sentence 2; case b, 4.); because then the assumed debt would
be repaid from the assets of the old debtor.
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3. Ancillary and Preferential Rights
a) Ancillary rights. In the case of an assumption of debt, ancillary rights remained 17

(e.g. guarantees, liens) exist, then the
affects the legal position of the persons who have ordered such an ancillary
right; they may be more likely to be used because the new debtor is less
solvent. Since the assumption of blame takes place without their intervention,
they must be protected. The
Law takes these interests into account: guarantees and liens
(on movable property) for the assumed claim expire
(Section 418 (1) sentence 1); the mortgage passes to the owner
(§§ 418 paragraph 1 sentence 2, 1168 paragraph 1). The creditor thus loses rights;
but he is also not worthy of protection because without his consent
(§§ 414, 415) an assumption of debt is not possible. on the other hand
the guarantor or lien holder then does not require any protection,
if he agrees to the assumption of debt; therefore, the rights mentioned
remain in place in the event of consent (section 418 (1) sentence 3).
b) Preferential Rights. Did the creditor have one against the old debtor 18
Claim that would have priority in insolvency proceedings (e.g. wages),
and if the debt is assumed by the new debtor, this can also
the preferential right associated with the claim is not transferred in the insolvency proceedings
the assets of the new debtor can be asserted (section 418 (2);
Reason: protection of the other creditors of the new debtor).
IV. Contractual assumption of debt
1. Term and rationale
a) term. Contractual assumption of debt means that the creditor 19

contract gives another person as a debtor in addition to the previous debtor.
There is a practical need for contractual assumption of debt

Especially if the creditor does not want to lose his previous debtor despite the
assumption of the debt by another. The position of the creditor is strengthened by
the contractual assumption of debt, since he is responsible for
his claims get an additional debtor.
b) Justification. The contractual assumption of debt can - like the liberating 20

assumption of debt - either by contract between the
acceding party and the creditor (" para. 8) or by contract between the old
debtor and the acceding party (" para. 9).
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will. In the latter case – unlike in the case of the assumption of a liberating
debt – the creditor does not need to be involved. the
The creditor is not worthy of protection here because his legal status has changed
only improved by the joining of the joiner.
2. Delimitation from the guarantee

21 The guarantee (sections 765 et seq.)13 is part of the contractual assumption of debt
differentiate. The guarantor undertakes to pay for someone else's debt
to stand up the guilt of the guarantor is directed in their respective
Stock after the main debt. In contrast, when
Accrual of guilt the acceding party assumes the guilt as their own; he
wants to be liable regardless of the guilt of the debtor and regularly becomes so
only be willing if doing so is in their own legal or economic interest. The
guarantor, on the other hand, wants to vouch for someone else – for
example as a courtesy. These differing interests also result in a difference
in the form of the
Legal transaction: The guarantor should be warned; therefore determined
§ 766 the written form of the guarantee declaration. The joiner
knows he takes the blame as his own and pursues in the process
own interest. So he doesn't need to be warned, like this
that the assumption of debt does not require a formal form.
22 Whether there is a guarantee or a contractual assumption of debt in an
individual case must be determined by interpretation, taking into account
the different interests.
The wording used alone is not decisive
on; the entire circumstances and, above all, the purpose of the
Agreement. The hM14 rightly demands for the (form-free) assumption of debt
a personal economic or legal interest, since the warning function of Section 766 can
be dispensed with due to this personal interest.
Example: Married couple X is threatened with an eviction lawsuit due to rent

arrears. The adult son S of married couple X, who lives with them, explains
the landlord that he will be responsible for the parents' rent debts.
This is not a formal guarantee, but a valid assumption of debt
because the son has his own economic interest in maintaining the rental agreement.
From what has been said, it follows that a formally invalid guarantee is not
according to § 140 may be reinterpreted as an assumption of debt.

14 BGH NJW 1986, 580.
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3. Effects
a) Joint and several liability. In the contractual assumption of debt are dem 23
Creditors of the old debtor and the acceding party as joint and several debtors
("Section 37 para. 1 et seq.) obliged.
b) objections. According to § 417 24

Paragraph 1 S. 1 the objections in the person of the old debtor
incurred up to the point at which the debt is assumed, towards the creditor
assert. Sections 422-425 ("Section 37 para. 13 et seq.) apply to objections
raised by the old debtor at a later date.
If the accession agreement was concluded between the old debtor and the acceding
party, objections arising from the coverage ratio between the two debtors can also be
raised against the creditor, contrary to Section 417 (2), as long as the accession agreement
has not yet reached the creditor
has been notified; because it is not worthy of protection for that long.
V. Statutory assumption of debt
In some cases, an assumption of debt arises by operation of law. 25

According to the former § 419 on the acquisition of assets on 01/01/1999
was repealed, only § 613a para. 1,
2, § 25 HGB and § 2382:
Becomes a business or part of a business on the basis of a legal transaction
transferred to a new owner, the acquirer steps in according to § 613a
Paragraph 1 into the obligations from the existing employment
relationships, for which the seller is also liable pursuant to Section 613a Paragraph 2.
If the acquirer of a trading company runs it under the
previous company, he is liable according to § 25 HGB for the business
debts of the previous owner.15
Pursuant to section 2382, the purchaser of an inheritance is liable to the creditor
of the estate for the liabilities of the estate.16

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11th chapter. majority of creditors and

debtors
Literature: Petersen, majority of creditors, JURA 2014, 483; Selb,
Majorities of Creditors and Debtors, 1984; Weitnauer, majority of persons on
the creditor and debtor side, FS Hauß, 1978, 373.
At least two people must be involved in an obligation. However,
this does not rule out the possibility that there are several people on
both the creditor and debtor sides.
The participation of several persons in an obligation is primarily
regulated in §§ 420-432. These provisions are based on the
distinction between divisible and indivisible benefits (cf. §§ 420-430
on the one hand and §§ 431 f. on the other hand). The law provides
for three different forms of arrangement for a majority of persons on
the debtor side, namely joint and several debtors ("§ 36 marginal
number 1 ff.), Joint and several debtors ("§ 37 marginal number 1
ff.) and debtor association ("Section 38 marginal number 1 ff.) For a
majority of persons on the creditor side, this corresponds to partial
creditors ("§ 36 para. 4 f.), joint creditors ("§ 37 para. 32 ff.) and
creditor community ("§ 38 para. 3 ff.).
Section 36. Partial Debtorship and Partial Creditorship
1 Literature: Jürgens, partial guilt - total guilt - accumulation, 1988; K

Schmidt, Proportional Liability of BGB Partners, NJW 1997, 2201.
Case a: In order to benefit from a volume discount, K 1 and K 2 jointly
order a tanker of heating oil from V with the agreement that each of them
should receive half the oil and also pay half the purchase price. V wants to
withhold the delivery to K 1, who has already paid, until K 2 also pays his
purchase price. "Rn. 1, 2, 4 case b: In case a, K 1 wants to exercise the right
of withdrawal granted to the buyers. " Rn. 5
I. Partial Debt
Partial debtorship exists if each of the debtors is only obliged to
perform part of the performance (cf. Section 420).
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Section 36. Partial Debtorship and Partial Creditorship 455
The agreement of a partial liability is only divisible

performance possible. A service is divisible if it can be divided into parts
that differ in quantity but are of the same quality without loss of value
is decomposable (e.g. fungible things, money); because only then is one
Splitting into several independent debts possible.
In case a, there is a partial debtorship with regard to the payment obligation. Each of
the two buyers owes an (independent) part of the purchase price debt. The seller cannot
collect the entire purchase price from one of the
Buyer does not demand, even if the other to pay by him
is unable to pay the price owed.
Partial debtorship refers to independent debts of the individual debtors. 2

That's why everyone can
repay their debt (e.g. by payment or offsetting). On the other hand, the
partial debts are based on a uniform obligation. Therefore, a withdrawal
or termination can only be made by
be declared to all or to all (cf. § 351).
In case a, the V is entitled to the objection of the unfulfilled contract (§ 320) to K 1 and
K 2, even if only one of them (K 2) has not yet paid (§ 320 Para. 1 S. 2) .
According to Section 420, where there is a majority of debtors, partial 3

debtorship (with equal shares) should form the rule. The division of a
However, liability is generally divided into several partial liabilities
not fair to the interests of the creditor. Enforcing his
Demand is made more difficult for him because he has to take action
against all partial debtors. Besides, he bears the risk if the claim brings
cannot be recovered from a partial debtor. That's why it has
law in the practically most important cases of the debtor majority,
namely in the case of contractual and tortious claims, for protection
the creditor is ordered to be jointly and severally liable (cf.
§§ 427, 840 paragraph 1). Partial debts only exist if they
be specifically agreed by the parties.
II. Partial creditorship
Partial creditorship exists when each of several creditors is entitled to 4

demand only part of the performance from the debtor
is. What has been said about partial debtorship applies to them
accordingly on the creditor side (cf. § 420).
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456 11th chapter. majority of creditors and debtors
In case a, there is partial creditorship with regard to the claim for delivery of the
heating oil. Each of the two buyers has an (independent) claim right to delivery of half of
the oil. The seller will by delivery
of the total amount to one of the buyers is not released from his obligation to the other
buyer.
5 If the parties have justified partial claims, then everyone is entitled

creditors own, independent of the claims of others
partial creditor existing right of claim, which he is able to dispose of
independently. Therefore, he can also claim damages due to impossibility
or delay regardless of
assert the other partial creditors. His legal position therefore does not
differ significantly from that of an individual creditor. The uniform
emergence of the partial claim rights has an effect
but eg insofar as the creditors only jointly from the contract
can withdraw (§ 351) and in the case of a mutual contract
The debtor is entitled to the objection of the unfulfilled contract (§ 320
Para. 1 S. 2) because of the entire consideration of the creditors.
If K 1 could withdraw from the contract alone in case b, the interests of the V would
not be sufficiently taken into account because he continued to work with K 2 for the
would have to deliver at a reduced price. K 1 is also not legally able to get through
to effect his declaration of withdrawal on the legal relationship V – K 2. As
the rescission, the reduction can only be exercised uniformly
(Section 441 (2)).
§ 37. Joint debtors and joint creditors
1 Literature: Bartels, The joint and several security debt as accessory credit security,
JZ 2000, 608; Ehmann, Joint Debts – Saying Goodbye to Unified Joint Debt?, AcP 211
(2011), 491; Hoffmann, Security communities in the system of a differentiating theory of
collective guilt, AcP 211
(2011), 703; Medicus, performance condition and joint and several liability, FS W. Lorenz,
2001, 229; Meier, The joint creditorship – an unknown entity because it is superfluous?,
AcP 205 (2005), 858; ders., debtor majority in the European
Contract Law, AcP 211 (2011), 435; Pfeiffer, joint and several debtor settlement and
Statute of limitations, NJW 2010, 23; Schmieder, The disturbed joint guilt – a norm
conflict, JZ 2009, 189; Schünemann/Bethge, “General equal treatment” of joint and
several debtors, JZ 2009, 448; Selb, the multiple limping
Joint and several liability, FS W. Lorenz, 1991, 245; Sohn, Principles of joint and several
debtor settlement, NJW 2019, 2579; Tribe, The joint blame on that
Advance, NJW 2003, 2940; ders., Coping with the "disturbed total
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§ 37. Joint debtors and joint creditors 457
fault”, NJW 2004, 811; Walker, liability privileges, JuS 2015, 865; Zerres, The total
debt, JURA 2008, 726.
See also the evidence before "§ 36.
Case a: D 1 and D 2 together steal jewelry worth EUR 10,000 from G. G

demands compensation for the damage incurred from D1, D2 and the insurance
company V, with which he is insured against theft. " paragraph 11
Case b: B 1, who has vouched for G's loan debt of EUR 500 alongside B 2,
wants to settle the amount when it is due. G refuses to accept the banknotes
because he wants to claim B 2. On the way back, B1's money is stolen. G sues B
2 for payment.
" Paragraph 13
Case c: G 1 and G 2 have set up a joint account with the S-Bank and agreed
with them that each individual can dispose of the credit balance. G 1 is suing S for
payment of the remaining balance. S then pays the amount to G 2 . " Paragraphs
33, 36
I. Joint and several liability
By far the most common form of a debtor majority is joint

and several liability. In this case, several debtors have to
effect performance in such a way that the creditor can demand
it from each debtor in whole or in part, but only once in total
(section 421). With the performance by one debtor, the others
are also released (section 422 (1)).
Joint and several debtors are the safest form of debtor
majority for the creditor, because he will be satisfied even if
only one of the joint and several debtors is able to pay.
1. Creation of the joint and several liability

a) Statutory order or rule of interpretation. In numerous 2
cases, the existence of joint and several liability results from
a statutory order or on the basis of an interpretation. aa) If
several persons are jointly responsible for the damage
caused by a tortious act, they shall be jointly and severally
liable (Section 840 (1)).1
Example: If A and B injure C during a fight, each of them is obliged to
compensate C for the entire damage according to §§ 823 Section 1, 830.
According to Section 840 (1), A and B are jointly and severally liable to C.
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Insofar as A pays damages to C, B is released from its obligation to C.
3 bb) Several debtors of an indivisible performance are jointly and

severally liable, regardless of the legal basis (§ 431), never as
partial debtor.
Examples: Obligation to return the rental property; other disclosure obligations.
4 If, on the other hand, several contract to one not individually, but only
commit to a jointly renderable service (e.g. performance of a choir or
orchestra), this is regularly not used as an agreement on joint liability,
but a joint (joint ownership) debt ("§ 38
Rn. 1 ff.) to be understood. Because in the case of joint and several liability, according to § 421
Creditors demand full performance from each individual debtor, and
it cannot be assumed that the individual debtors want to commit themselves to a
performance that is not possible for them alone.
5 cc) In the case of a joint (not necessarily simultaneous) contractual

obligation for a divisible service, there is doubt
to assume that the debtors want to commit themselves jointly and
severally (section 427; exception to section 420; "section 36 para. 1 et seq.).
Section 427 is not a legal order by the
Joint liability, but still a legal rule of interpretation in this sense.
Example: Neighbors order heating oil together.
6 dd) A joint liability is also found at both

legal obligations (§ 769; § 78 Para. 1 VVG;
Art. 47 para. 1 WG) as well as in the case of statutory obligations
(§§ 42 para. 2 sentence 2, 53, 1833 para. 2 sentence 1, 2219 para. 2; § 93 para. 2 sentence 1
AktG; Section 43 (2) GmbHG). Joint and several liability often arises
as a legal consequence of certain legal transactions:
§§ 613a paragraph 2, 2382 paragraph 1 sentence 1; § 25 paragraph 1 sentence 1 HGB. To mention
Finally, there are the cases of personal liability in the case of some
partnerships (§§ 1437 Para. 2 S. 1, 1459 Para. 2 S. 1, 1480 S. 1,
2058; § 128 sentence 1 HGB).
7 b) General joint and several liability. About the mentioned

In addition to special cases, § 421 contains more predominant today
Considers a general fact for the justification of a
joint and several liability. The only thing that is disputed is whether he takes this off
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conclusively regulates.2 According to hM, an additional criterion

is required beyond the wording of the law.3 aa) Four requirements
can be derived from the wording of Section 421: - Several 8th
persons must be debtors to a creditor.
– These persons must owe the creditor “a performance”.

This does not necessarily presuppose that the objects of
performance are identical; it is sufficient if the performance is
intended to satisfy the creditor's interest in performance (e.g.
production in kind and monetary compensation)4.
– Each debtor must be obliged to effect the entire performance.
This is not the case if the debtors can only perform the service
jointly ("§ 38 para. 1). In the case of a divisible service,
according to § 420, partial liability is to be assumed in case of
doubt.
- Finally, § 421 presupposes that the creditor is only entitled to
demand performance once (cf. also the repayment effect in §
422). A cumulative debt does not exist if the debtor is to satisfy
the creditor's interest in performance several times (example:
the creditor orders the required wine from two suppliers as a
precaution). bb) Within the hM, which sees only the minimum
requirements for joint and several debts standardized in § 421, 9
there is disagreement as to which additional criterion should be
applied to the existence of joint and several debts.
The doctrine of a uniform reason for guilt can be considered

outdated. In particular, it cannot be reconciled with Section 769.
Primarily the older case law focused on the community of purpose
between the debtors.5 According to this, it depends on whether
the obligations to achieve the same purpose are connected with
one another. However, this requirement does not go beyond that
of the identity of the interest in performance ("Rn. 8).
Today, for the existence of a joint debt, it is predominantly 10
required that the liabilities are of the same level or rank
2 For example, Staudinger/Looschelders BGB § 421 para. 8 f.

3 Eg Medicus/Lorenz SchuldR I marginal no. 892.
4 BGHZ 43, 227.
5 Cf. BGHZ 43, 227; 58, 216; 59, 97.
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be.6 According to this, equality is to be affirmed, for example, in the case of

several causes of the same damage, such as in the case of secondary
offenders7. Jurisprudence assumes equal responsibility and thus
a joint debt, for example, if several contractors through
faulty services cause defects (in the plaster) that can only be removed
uniformly (by applying new plaster).8
The liability of the veterinarian commissioned by the buyer for a
faulty pre-purchase examination of a horse and the liability of the
seller because of a material defect of the horse are considered to be of the
same level because both have to pay for the financial disadvantages of the
buyer resulting from the payment of the purchase price.9
On the other hand, in the relationship between a primary debtor and a
secondary debtor, such as between the principal debtor and the guarantor10,
there is no parity. Also to be denied is the
Equal status between the claim for compensation increased
Needs according to Section 843 (1) against the tortfeasor and the (subsidiary)
maintenance claim of the injured party according to Sections 1601 et seq
his parents.11 In the remaining cases, in which the equal status of the
obligation cannot be clearly established, the
Acceptance of joint and several liability can only be justified in individual cases
be able. The value decisions on which the law (§§ 421-426) is based and the
one to be determined by interpretation are decisive
party will. In particular, one can assume that the legislature has dealt with the
cases of the cessio legis (e.g. § 774 para. 1 sentence 1) and des
Section 255 does not fall under the provisions of Sections 421 et seq. and therefore not
wanted to be understood as joint responsibility. Rather, here should be one
The debtor is liable first and the other second.
11 In case a, only D 1 and D 2 are jointly and severally liable (§§ 840, 830).
Although V is responsible for G's same interest in performance, she is not jointly
and severally liable in addition to D 1 and D 2. § 86 VVG, according to which G's claim
against D 1 and D 2 to V, rather shows that the legislature did not intend joint and
several liability in the relationship between the insurance company and the
damaging party. – If the owner places his property in safe custody and it is stolen
through the fault of the custodian, then it lies
6 In particular the BGH: BGHZ 106, 313 (319); 137, 76 (82); BGH NJW
2012, 1070 f.; 2012, 1071 f.; 2004, 2892 (2893); critical about Looschelder's guiltR
AT § 54 para. 22 f.
8 BGH NJW 2003, 2980.
9 BGH NJW 2012, 1070 f.; 2012, 1071 f.
10 Brox/Walker SchuldR BT § 32 paras. 27, 36 et seq.
11 BGH NJW 2004, 2892 (2893).
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no joint liability, even if the same interest in performance is assumed

between the custodian and the thief. From § 255 it follows that the
Depositary for replacement only against assignment of the owner against the
the rights to which the thief is entitled. A repayment community as in
of joint and several debts, where fulfillment by one debtor also releases the other
debtors towards the creditor (Section 422 (1)), so that no
The law does not want the creditor to have a claim that could be assigned to the
paying debtor.
2. External relationship with the creditor

If a joint and several obligation has arisen, then this is determined 12
The relationship between the joint debtors and the creditor in detail
§§ 421-425.
a) Obligation of each debtor to perform in full. the

As long as the performance owed has not been effected, the creditor can
claim against any of the debtors in whole or in part as he sees fit (section
421).
The creditor's freedom of choice are subject only to the principle of good faith
and belief set limits. He acts illegally, for example,
if he only takes action against a certain joint and several debtor in order to
to cause harm to precisely this debtor.12
b) overall effect. Fulfillment by a joint and several debtor 13

pays off the debt. For this reason, the other joint and several debtors
are also released from the creditor (section 422 (1) sentence 1). the
the same effect occurs in the case of performance in lieu of fulfilment,
deposit and offsetting (§ 422 Para. 1 S. 2; note with the
offsetting § 422 para. 2).
On the other hand, the creditor releases the debt of a joint and several debtor
(§ 397), it is possible that the parties to the release contract only want
to release this joint and several debtor from the debt; then stay
the obligations of the other joint and several debtors from the decree
untouched. But is the agreement between the creditor and
the joint and several debtors to be interpreted that by the decree also
if the creditor's claim against the other joint and several debtors is to be
settled, these are also released (section 423).
If the creditor is in default of acceptance towards a joint and several debtor
(sections 293 et seq.), this also has an effect on the relationship between the creditor and
12 BGH NJW 2010, 861 (863).
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gers to all joint and several debtors (section 424) because the unaccepted
performance would have freed the other debtors at the same time.
In case b, therefore, not only is the joint debtor B 1, but also B 2

due to default of acceptance of the G according to §§ 300 para. 2, 275 ("§ 26 para. 13 f.) of
released from his performance (§§ 424, 769).
In addition, a contributory negligence of the injured party acts that this

must be credited in relation to a joint and several debtor,
also in favor of the other joint and several debtors.13
14 c) single action. All other facts that only occur in the person of a joint
and several debtor generally do not affect the legal relationship between
the co-debtor and the creditor (§ 425
Paragraph 1).
Section 425 (2) states the due date of the claim

termination and disruptions to performance (delay,
impossibility) the limitation period (including its restart,
suspension and suspension of expiry), the union of claims
and guilt as well as the final judgment. So the creditor can
E.g. only demand compensation for damage caused by delay from the
joint and several debtor, in whose person the requirements of §§ 280
Para. 1, 2, 286 are fulfilled. The list is not final.
Therefore, for example, the forfeiture ("§ 7 Rn. 17) affects
a joint and several debtor does not have a claim against another joint and
several debtor.14
Notice of termination is to be distinguished from the notice of maturity referred

to in Section 425 (2). If, for example, a loan agreement concluded with several
borrowers as joint and several debtors is terminated
the termination can only be given to all borrowers in the same way.15 It follows
from the uniformity of the loan agreement that it cannot be given to one borrower
at the same time
performed and terminated against another.
3. Internal relationship of joint and several debtors
15 a) Compensation claim. To prevent the one the the

creditor makes a claim, also in relation to the joint and several debtors, the
debt ultimately has to be borne, justifies § 426 para. 1
13 BGHZ 90, 86 (90 f.).

14 BGH NJW-RR 2002, 478 (479).
15 BGH NJW 2002, 2866 (2867).
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a compensation obligation. According to this, unless otherwise specified,

the joint and several debtors in relation to one another
committed to equal shares. Section 426 (1) sentence 1 provides an
independent claim that must be distinguished from any claim arising from
a special legal relationship (e.g. order). He expires
according to § 195 in three years.
The origin of the claim relevant for the start of the limitation period
(§ 199 Section 1 No. 1) does not only lie in the payment by the joint debtor entitled
to compensation, but already in the justification of the joint debt.16 The further
necessary knowledge of the party entitled to compensation of the
Circumstances justifying the claim and the person obliged to make compensation
(section 199 (1) no. 2) presupposes that the person entitled to claim is aware of the
actual circumstances underlying a claim by the creditor
justify against himself and against the party obliged to make compensation, as well as
of the circumstances that are decisive for the joint and several liability and the
obligation to compensate in the internal relationship.17 The correct legal assessment
of these facts is not a prerequisite for the start of the limitation period.
aa) As long as no one has satisfied the creditor, each joint debtor is 16
obliged to cooperate in the satisfaction of the creditor, in order in this way
to prevent one of the joint debtors from being claimed for the amount due
to him in the internal relationship
Share addition to prevent.18 This can result in the duty towards
the remaining joint and several debtors, the debt proportionately
to repay creditors.19 Anyone who fails to meet this obligation
is liable to the other joint and several debtors according to general rules (e.g
§§ 280 para. 1, 2, 286) for damages.20
bb) If a joint and several debtor more than the allotted to him 17
has repaid part of the debt, he has a claim for compensation against the
other joint and several debtors. Because this compensation too
to lead to a one-off and final settlement
several debtors who are obliged to pay compensation to the person entitled to compensation
regularly not as a joint debtor, but as a partial debtor
(Exception e.g. in Art. 47 Para. 1, 3 WG).
Debts S 1, S 2, S 3 and S 4 to G as joint debtor EUR 1,200 and
has S 1 paid off the claim of G by payment, then he can of the
other three joint debtors demand payment of EUR 300 each.
16 BGH NJW 2010, 60 (61); on this Cziupka ZGS 2010, 63; Peters ZGS 2010, 154.
17 BGH NJW 2010, 60 (62).
18 BGHZ 23, 363; Hm.
19 BGH NJW 1994, 2231 (2232); see also MüKoBGB/Bydlinski § 426 para. 13.
20 BGH NJW 1974, 693 (694).
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18 cc) If compensation cannot be obtained from one joint and several debtor
(e.g. due to lack of funds), then all others have to bear this loss according
to the distribution standard of Section 426 (1) sentence 1. In this respect,
the joint and several debtors entitled to compensation arise
further claim (section 426 (1) sentence 2).
If, in the example, S 4 has no assets, then the amount allotted to him is
from 300 EUR to S 1, S 2 and S 3 equally (§ 426 Para. 1 S. 1), i.e. each
100 EUR, so that the entitled S 1 of S 2 and S 3
can demand an additional payment of EUR 100 each.
19 dd) In the vast majority of cases, the amount is not recalculated

the distribution scale provided in § 426 para. 1 sentence 1, because "a
otherwise is determined”. Is the joint and several liability based on a
jointly concluded legal transaction (§ 427), then have the
Joint and several debtors mostly at the same time an agreement on the internal
balance struck. In the absence of an express agreement,
such a situation can result from the circumstances of the individual case.21
However, a quota that deviates from Section 426 (1) sentence 1 can arise
also from the content and purpose of the respective legal relationship
between the joint and several debtors or from the nature of the thing, i.e. from
the special design of the actual event.22
Often the law itself makes a different provision about the
internal load sharing.
Examples: An “other determination” of internal liability

is obvious if the sole repayment of debt by one of the separated or
divorced spouses was taken into account when calculating the
maintenance due to the other.23 Because by reducing the
The part entitled to maintenance already contributes economically to the maintenance
on debt settlement. This suggests that it should not be claimed again as
part of the joint and several debtor settlement.
If in a non-marital partnership due to the
If one of the partners is to bear the costs of living together (e.g. rent)
chosen by the partners, this excludes others
Determine a compensation claim according to § 426 paragraph 1 sentence 1. That's true
even if the partners separate and the
21 On the question of whether another provision within the meaning of Section 426 (1) is
already to be assumed if one spouse continues to repay the joint debts alone after the
separation and the other does not claim separation maintenance, see BGH NJW
2005, 2307.
22 BGH NJW 2008, 849 (850).
23 BGH NJW 2008, 849 (850).
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existing payment obligations towards the creditor (e.g. landlord)

have only been fulfilled after the separation.24
In the case of joint and several liability of the vicarious agent in addition
the principal (section 840 subsection 1) alone has to bear the damage in the internal
relationship with the vicarious agent (section 840 subsection 2). See also Sections 840 (3), 841,
1833 para. 2 p. 2; § 17 Road Traffic Act.
According to hM, the legal concept of § 254
to be consulted.25 The amount of the compensation claim is therefore based on
the extent to which the damage was predominantly caused by one or the other
joint debtor has been caused; this applies both to cases where fault-based liability
and strict liability coincide, as well as to
Co-debtors from fault liability. The measure of causation and
If one party is at fault, in individual cases this can lead to the entire damage being
imposed on him.
ee) A disruption of the joint and several liability occurs if 20

the liability of a joint and several debtor towards the creditor is
excluded or limited. The disclaimer and the
Limitation of liability can be based on an agreement or on law.
(1) The disclaimer agreement between

one of the joint and several debtors and the creditor affects the
external relationship with the creditor and the internal relationship with the
joint and several debtors.
Example: S 1 takes G in his car; both agree on the case

of accidental damage a disclaimer. In the case of one of S 1 (= first tortfeasor) and
S 2 (= second tortfeasor) equally negligently to blame
Accident causes the G a damage of 2,000 EUR.
Externally, the creditor has against the debtor, with

which he has agreed on the exclusion of liability (= S 1 as the first
tortfeasor), no claim due to the waiver of liability. In addition, there
are several possible solutions:
First solution: The creditor can claim the full amount of the damage 21
(non-liability beneficiary) secondary tortfeasors (S 2) demand compensation. This
has no claim for compensation against the first tortfeasor (S 1) because of this
of the waiver of liability has not become the debtor, so that there is no joint and
several liability. This solution must be rejected because the agreement
of a disclaimer between the creditor and the first tortfeasor
to the detriment of the second tortfeasor, who would ultimately have to bear the
entire loss alone.
24 BGH NJW 2010, 868 (869).

25 BGH NJW 1983, 623.
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22 Second solution: The second tortfeasor must compensate the creditor for the entire
damage; however, he can demand compensation from the first tortfeasor (in the
example in the amount of EUR 1,000), since the liability waiver agreement is only of
importance in the relationship between the contracting parties, i.e. between the
creditor and the first tortfeasor. This solution advocated by the BGH26 has an effect
on the detriment of the first tortfeasor who is favored by liability: he loses the advantage
gained through the waiver of liability through the recourse of the second tortfeasor; he
is worse off than he would be if he were solely responsible for the damage. But that
was not the intention of the parties to the waiver agreement; the first tortfeasor
benefiting from this should not be able to be claimed at all, i.e. neither directly by the
creditor nor indirectly via the second tortfeasor.
23 Third solution: The creditor can only claim against the second tortfeasor who is not
the beneficiary of liability to the extent that the second tortfeasor would have to bear
the damage internally to the first tortfeasor if a waiver of liability had not been agreed.
In the example, the G's claim for damages against S 2 is therefore limited to EUR
1,000. S 2 has no claim for compensation against S 1.
24 This solution is represented by the hM27 ; she is interest

right. The first tortfeasor with liability is not obliged to pay
compensation either externally to the creditor or internally to
the second tortfeasor. The second tortfeasor is only obligated
towards the creditor to the extent that the damage would
remain with him after the internal relationship had been settled,
if there were no waiver of liability; through the creditor's waiver
of liability towards the first tortfeasor, the second tortfeasor
should ultimately not be in a better or worse position than
without this waiver of liability. The creditor, however, has to
bear the disadvantage that he only receives a part of his
damage, because he wanted it that way - through his waiver of liability.
If the second tortfeasor has compensated the creditor for the entire damage
without being aware of the waiver of liability or if he has been ordered to compensate
for the entire damage, he must be entitled to a claim for compensation against the first
tortfeasor. However, the latter can demand reimbursement of the amount paid by the
creditor because of his waiver of liability (supplementary interpretation of the contract).
25 (2) This applies to the agreement of a limitation of liability
the same as when agreeing a disclaimer.
26 BGHZ 12, 213; 58, 220; see also BGH NJW 1992, 2286.
27 Cf. BGHZ 61, 51; 155, 205; BGH NJW 2005, 2309 (2310); Larenz SchuldR AT § 37
III mN in footnote 38; Medicus JZ 1967, 398; MüKoBGB/Bydlinski § 426 para. 61;
Walker JuS 2015, 865 (873 f.).
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In the example case, if G and S 1 have agreed that S 1 is

only responsible for that care in the event of accidental damage to G
which he uses in his own affairs, and it comes
to the accident as a result of slight negligence on the part of S 1 and
S 2, S 1 is not liable to the G if he has exercised his customary care.
According to the previously represented view, G can only use the S 2 in the amount of
Half of the damage he suffered, so paying 1,000
EUR.
(3) A statutory exemption from liability can apply, for example, in the case of an 26
accident at work,28 an accident at work involving a civil servant and employee liability
("§ 20 Rn. 21 f.) occur.
Example: Employee A suffers an accident at work, which is caused by his work

colleague S 1 (= first offender) and non-employer S 2 (=
Secondary tortfeasor) was caused negligently, bodily harm. acc.
§§ 104, 105 SGB VII is not S 1 to A for compensation for personal injury
Committed. However, insofar as professional association B renders benefits to A as a
result of the accident, A’s claim for damages goes against S 2
according to § 116 SGB X to B. B asserts the claim for damages that has passed to
S 2.
The interests correspond to the contractual exclusion of liability.
Here the BGH rightly followed the third solution mentioned above.29 The on
The injured party's claim for damages against the second tortfeasor, which has been
transferred to the employers' liability insurance association, is limited to what the latter
would ultimately have had to pay internally without the regulation of §§ 104 f. SGB VII
senior
(4) A legal limitation of liability is in §§ 708, 27

1359, 1664 para. 1 provided for partners, spouses and
parents; they are only liable for the care they take in their own affairs
maintain apply. Here, too, what must apply in the event of
agreed limitation of liability (" para. 25) was said.
However, the BGH applies the above limitations of liability to
Participation in road traffic not in,30 so that the problem of disturbed
Joint liability insofar does not appear. Otherwise, the BGH originally followed the
second solution, according to which the beneficiary of liability in the internal relationship
was subject to compensation;31 this view was later rightly abandoned.32
28 Brox/Rüthers/Henssler ArbR para. 420 et seq.

29 Cf. BGHZ 51, 37; 61, 51; 94, 173; BGH NJW 2004, 951; 2005, 3144 (3145).
30 Cf. BGHZ 46, 313; 53, 352; 61, 104.
31 Cf. BGHZ 35, 322.
32 BGH NJW 1988, 2667.
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Overall, the third solution is to be preferred, so that a

Exclusion of liability and a limitation of liability must be taken into account
when the injured party makes a claim against the joint and several debtor
who is not the beneficiary of liability.33
28 b) Subrogation of the creditor's claim against the others
joint and several debtors. To the legal status of the person entitled to compensation
To strengthen joint and several debtors, § 426 para. 2 orders that on him
the creditor's original claim is transferred to the extent that he
creditor has satisfied and from the other joint and several debtors
may request compensation. With this statutory subrogation of claims,
the law primarily aims to ensure that any security rights (e.g. mortgages,
liens) existing on the creditor’s claim are retained by the satisfying joint
and several debtor
(§§ 412, 401). He is therefore entitled to two legally independent claims:
on the one hand, the compensation claim under Section 426 (1), and on
the other hand the claim of the creditor that has passed to him under
Section 426 (2). Objections and defenses to any of the claims
oppose, do not affect the other in principle.
If, for example, the claim passed under Section 426 (2) is time-barred,
because a shorter period of limitation than the regular period of limitation was agreed for him
(cf. Section 202 (1)), the joint debtor entitled to compensation is not
prevented, against the joint debtor who is obliged to pay compensation from § 426 para. 1
to proceed, for which the regular limitation period of § 195 applies. The party liable for
compensation may use the statute of limitations against the creditor
would have been entitled to, not object to the person entitled to compensation under
Section 426 (1).34
29 However, the entitlement to claim under Section 426 (1) has an effect
within the scope of Section 426 (2) insofar as the original claim of the
creditor only passes if the satisfactory joint and several debtor pursuant
to Section 426 (1) or on the basis of a contract of
can demand compensation from the other debtors.
Example: S 1 has G's loan claim of EUR 1,200
repaid and therefore has a compensation claim against S 2, S 3 and S 4
of EUR 300 each, then the original claim of the creditor is only transferred to him in this
amount (EUR 900).
33 Walker JuS 2015, 865 (874).

34 BGH NJW 2010, 62; 2010, 435 (436).
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Just as for the claim according to § 426 paragraph 1, the debtors who 30
have the same obligation also have no longer as a total, but as a
to stand up for partial debtors.

If a joint and several debtor has only partially satisfied the creditor, 31
then the statutory subrogation cannot be to the detriment
of the creditor can be asserted (section 426 (2) sentence 2). This means:
The remaining claim remaining with the creditor goes
the claim transferred according to Section 426 (2) sentence 1 (e.g. in
insolvency proceedings or in the case of satisfaction from a property;
§ 1147) before.
joint and several liability
I. Requirements (Section 421)

1. Several debtors of the same creditor
2. A performance owed (not necessarily more uniform
object of performance, but on the same interest in performance
of the creditor)
3. Obligation of each debtor to perform in full
4. The obligee's claim to a one-off payment only
5. Equality of liabilities (hM)
II. Effects
1. In the external relationship with the creditor
a) Obligation of each debtor to perform in full
(§ 421)
b) Overall effect of performance/deposit/offset by one debtor
also in favor of the other debtors (section 422)
c) Overall effect of a waiver agreement with a debtor also

with respect to the other debtors if the will of the parties
is appropriate (§ 423)
d) Overall effect of the default in acceptance with respect to
one debtor also with respect to the other debtors (Section
424)
e) Overall effect of contributory negligence towards a
Debtors also towards the other debtors
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f) Individual effect of other facts such as termination,

Default, fault, statute of limitations only in relation to the
individual joint and several debtors (section 425)
2. In the internal relationship of joint and several debtors
a) Compensation claim of the claimed
Debtor against the other joint and several debtors (§ 426
Para. 1) (here possibly the problem of the disrupted joint and
several liability)
b) Transfer of the claim (including all existing securities) of the
creditor to the joint debtor in the amount of his right to
compensation (section 426 (2))
II. Joint Creditorship

32 In the case of joint creditorship, each of the creditors can
Debtors demand full performance; the debtor only needs to perform once
(Section 428), and the performance becomes a creditor
he is released from his guilt (cf. §§ 429 para. 3 sentence 1, 422 para. 1 sentence 1;
" para. 34).
Joint creditorship can be contractually agreed
(Section 311 (1)). In contrast to partial creditors (§ 420; " § 36 para. 4) - there
is no presumption in favor of them. Legal transaction
it is seldom justified. The overall requirement is true for each
Beneficial to the creditor in that he does so without the involvement of the rest
can demand the entire contractual performance from the debtor; At the same
time, however, he runs the risk that the debtor will release himself from his
obligation by making a payment to a fellow creditor. If the performance is
indivisible, then according to § 432 there is usually one anyway
Community claim ("§ 38 Rn. 10). Legally ordered
are total claims only in the case of § 2151 paragraph 3.35
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1. External relationship with the debtor
Every joint creditor has an independent right to claim the entire 33

performance from the debtor, but this is only owed once (section 428
sentence 1).
In case c, G 1 and G 2 are joint creditors; therefore each of them can

Demand payment of the entire balance from S.
The debtor has the choice of which joint creditor he shares

intends to have a liberating effect (section 428 sentence 1). That applies even then
if a creditor has already filed an action (section 428 sentence 2; case c).
However, when setting up a joint account, it is one
Married couple desired joint creditorship and one for each spouse
Individual power of disposal granted (so-called "or account"), should
the bank's (dispositive) right to choose through the account contract
(Section 428) typically be excluded, leaving the bank to the
spouse who seeks payment.36 A benefit to the
non-demanding general creditor then has no debt-discharging
Effect.
In the event of conflicting instructions from the joint holders of an oder account,
is the account-keeping institute to the temporal priority of the instructions
bound. If it violates this by not observing an earlier contractual payment
request from a joint account holder, it can file a complaint against the latter
for breach of duty pursuant to
Make § 280 paragraph 1 liable for damages.37
a) overall effect. In various provisions, the law has taken account of the 34
fact that the debtor can only pay once
has to perform and may choose the recipient of his performance from among
the several creditors (section 428).
aa) Since the debtor only has to perform once, when a creditor is satisfied
by performance, performance on performance expires
instead, deposit or set off the claim rights of all
Creditors (sections 429 (3) sentence 1, 422 (1)).
bb) The same effect occurs according to Sections 429 (3) sentence 1, 423,
if a joint creditor agrees with the debtor in a release agreement that the
entire obligation is to be rescinded
36 BGH NJW 2018, 2632 para. 19 man Schwab JuS 2018, 1094; OLG Nuremberg NJW
1961, 510; OLG Cologne FamRZ 1987, 1139.
37 Cf. BGH NJW 2018, 2632 para. 25 f.
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target. However, such an overall effect presupposes that the joint creditor
has a corresponding power of disposal.38
cc) The total claims of all creditors expire according to Section 429
Paragraph 2 also if the claim and debt are in one person
unite (confusion; "§ 17 para. 7). The debtor could namely
as joint creditor choose the performance to himself.
dd) The default of acceptance of a joint creditor has an effect
Section 429 (1) also against the other creditors because the acceptance
would have effected fulfillment by the joint creditor.
35 b) single action. All others, in the person of a believer

The facts that occur only have an effect in the relationship between him and himself
the debtor (see Sections 429 (3) sentence 1, 425). For example is this
If the legal relationship between a creditor and the debtor is void or
subsequently changed, the legal status of the other creditors remains
unaffected.
According to Sections 429 (3) sentence 1, 425, a joint creditor need not be held
responsible for the culpable conduct of a co-creditor. Also one
As a rule, termination is only effective against the terminating creditor; However,
design rights are shared only by the joint creditors
can be exercised.39 The statute of limitations runs separately for each creditor.
Finally, the assignment of a claim by a joint creditor has no effect on the legal
position of the others.
2. Internal relationship of joint creditors
36 Since the performance of the debtor to a joint creditor also

brings claims of the others to lapse, justifies § 430 for
the recipient of the service has an obligation to compensate his fellow
creditors. For the compensation obligation, it is irrelevant to which
way the total claims have expired. Section 430 therefore applies, for example
also in the case of offsetting, even if it has been declared by the debtor.
According to § 430, the joint creditors are to be equal among themselves
entitled to shares; Accordingly, when the debtor performs, the creditors are
obliged to compensate in equal parts.
However, this only applies unless otherwise specified, so that the
Creditors can arrange the settlement differently by agreement.
38 BGH NJW 1986, 1862.

39 BGHZ 59, 187.
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In case c, the bank paid G 2 with discharging effect; whether this

may ultimately keep the value of the service depends on the internal relationship
between G 1 and G 2.
The compensation obligation presupposes that the relevant joint creditor
has received more from the debtor than corresponds to his share. However, the joint
creditor who has only received his share is exceptionally subject to the same
obligation if a residual debt cannot be collected from the debtor and the other joint
creditors would therefore get nothing.
joint creditorship
I. Prerequisite: Agreement or statutory order (Section 2151 (3)) of

joint creditors
II. Effect
1. External relationship with the debtor
a) Independent claim right of each creditor to the
entire service (section 428 sentence 1)
b) Obligation of the obligor to perform only once to a creditor
of the obligor's choice
(§ 428 sentence 1)
c) Overall effect of performance/deposit/offset against a

creditor also against the
other creditors (sections 429 (3) sentence 1, 422 (1))
d) Overall effect of a release agreement with a creditor also
against the other creditors
(Sections 429 (3) sentence 1, 423)
e) Overall effect of a union of claim and
Guilt (confusion; Section 429(2))
f) Overall effect of a creditor's default of acceptance
also towards the other creditors (section 429 (1))
g) Individual effect of other facts (Sections 429 (3) sentence 1,
425)
2. Internal relationship of joint and several creditors: obligation to
compensate (section 430)
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Section 38. Debtor and creditor community
1 Literature: Aderhold, basic structures of the complete hand, JA 1980, 136;

Coester-Waltjen, joint ownership, JURA 1990, 469; Hadding
On the majority of creditors according to § 432 BGB, FS E. Wolf, 1985, 107; Langenfeld,
The internal relationship in the majority of creditors according to §§ 420 to 432
Civil Code, 1994; Medicus, majority of creditors, JuS 1980, 697; Rütten, majority of creditors,
1989; van Venrooy, The late hander - BGH
NJW 1980, 2464, JuS 1982, 93; Weber-Grellet, The total hand - a mystery game?, AcP 182
(1982), 316.
See also the evidence before Section 36 and Section 37.
Case a: V who sells a painting he owns to K for EUR 10,000

dies before the contract is fulfilled and is succeeded by his son S and his
Daughter T inherits. Who should K contact for the delivery of the painting? " paragraphs 1, 2
Case b: In case a, S demands EUR 10,000 from K, but in any case EUR 5,000.
" paragraphs 4, 6
Case c: M has rented a house that is fractionally owned by E 1 and E 2

stands. E 1 wants M to do half the battle for itself. " Paragraphs 8, 9
I. Debtor Community
A debtor community exists when a claim is directed against
several people together, i.e. the performance
can only be achieved by everyone together. In law it is only for
joint ownership provided.
The applicable law recognizes three basic forms of joint
ownership: company (section 705), community of property (section 1415) and
Community of heirs (§ 2032). The special feature of joint
ownership lies in the fact that assets belong to several people
jointly; this special fund
(the corporate assets at the company, the common property at
the marital community of property, the undivided estate in the
Community of co-heirs) depends on the private assets of the individual
the persons involved separately. There is only one
Share of the special purpose fund in total, not
but to the individual objects belonging to it (items, claims); the
individual participant cannot dispose of an item belonging to
the special fund.
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Section 38. Debtor and creditor community 475
In case a, the painting and the purchase price claim against K belong to the
Estate as special assets. Neither of the two co-heirs can do this alone
Transfer ownership of paintings or assign the claim (cf. § 2040 para. 1).
For a joint hand debt, all joint hands have in common 2

with the jointly owned special assets.
In case a, the debt originating from V (delivery of the sold painting) has passed
to the children as heirs (section 1967 (2)). Both jointly owe the K (in their joint
ownership affiliation).
Assignment and transfer of the painting (cf. § 2059 para. 2).1
In order to be able to enforce into the special fund, an enforcement

title against all joint hands is required (§§ 736, 747
ZPO; in the case of enforcement against the joint property of the spouses, see Section 740
Para. 1, 2 ZPO).2
However, deviating from the wording of § 736 ZPO, a title against the is sufficient
for enforcement against the assets of a BGB company
BGB society as such.3
In addition to the liability of the entire hand, there is in most cases

joint and several liability of the individual joint hands
their private assets.
This results for the community of heirs from § 2058, for the general partnership
from § 128 HGB and for legal obligations
of joint hands to a third party from §§ 427, 431.
II. Community of Creditors
In the case of a community of creditors, the creditors are only entitled 3

to the claim jointly; the performance can only all creditors
be done together. The law recognizes such a joint entitlement to claims
in the case of joint ownership ("Rn. 1), the fractional community (§§ 741
et seq.) and the
Obligations that are aimed at an indivisible performance
(§ 432).
1 Details: Brox/Walker ErbR § 41 para. 6 ff.

2 Brox/Walker coercive full law Rn. 35 et seq.
3 BGH NJW 2001, 1056 (1059).
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1. joint ownership
4 A joint claim entitlement arises when
the receivable belongs to a joint ownership special fund.
A total hands call is only available to total hands in theirs

connectedness to. If the debtor only renders the service
owed to one of the joint hands, the claim does not expire.
In case b, S and T are jointly entitled to the purchase price claim; pays K
one of the heirs, the purchase price claim does not expire. Therefore, S can from K
nor demand payment itself.
5 Because of its community bond, it is joint hands

Assets compared to other (unbound) private assets
the general dealer becomes independent. For this reason,
the debtor cannot offset against a joint claim with a claim
that he is only entitled to against a single joint claimant
(cf. § 719 para. 2; lack of reciprocity).
6 Claims of the community of owners can regularly only
by all together (e.g. Section 709 (1)) or by a specially
appointed administrator or managing director.
In the case of a community of heirs, however, the law allows the individual joint owner to
assert a joint hand claim in his own name
close; however, he must demand performance of the entire community of hands
(cf. § 2039 sentence 1; case b: payment of the purchase price to S and T).
2. Fractional Credit
7 In the case of a fractional creditorship (§§ 741 ff.), each
of several persons has a (individual) right to an ideal fraction.
Unlike partial creditorship, the object on which
community relates, not actually shared; rather everyone has
the participator only has a (ideal) right to the (real) undivided
object, limited by the co-authorization of the others. in the
In contrast to joint ownership, a fractional community
consists of only a single item; each partner one
A fractional community is - unlike a joint owner of a joint
ownership community - authorized to independently dispose of
his non-material share in the object (§ 747 Sentence 1).
The practically most important case of a fractional community is co-ownership by fractions.
Co-ownership can arise if, for example, grain of A and
of B is inseparably mixed (§§ 948, 947 para. 1) or E 1 and E 2 ge
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Section 38. Debtor and creditor community 477
jointly acquire a plot of land (cf. §§ 1008 et seq.), without being connected to form a
joint hand.
If there is a community of fractions, the joint entitlement also 8th
extends to the claims accruing to the community.
Examples: claim from § 823 paragraph 1 against the person who poisons the grain
that is jointly owned by A and B; Receivable from a legal transaction relating to the
property jointly acquired by E 1 and E 2 (case c: rental).
In principle, there is no fractional community for rights to claims 9

that can actually be divided, but rather a partial creditorship, to which
the special regulations of §§ 420 ff. ("§ 36 para. 4 f.) apply. It is
different, however, if the claims from an already existing Fractional
community (e.g. co-ownership) are adults.
If such claims linked to the common object were to be broken down
into individual rights according to Section 420, then, contrary to the
assessment of Sections 755, 743, each party entitled to a fraction
could freely dispose of their individual right and exploit it for
themselves, regardless of any encumbrances. At the same time, the
common administrative law of Section 744 (1) would be largely
undermined. In addition, it would burden the debtor because he
would have to take into account the internal relationship of those
entitled to a fraction when making partial payments.
Although in case c the performance of M (the rent) is divisible, none of the co-
owners is entitled to half the rent. The costs and burdens of maintaining the house
are first met from the rent that is due; only the remaining surplus is distributed among
E 1 and E 2. Therefore, both are only entitled to the rent together. The performance
that is divisible in the natural sense is therefore indivisible in the legal sense.
3. Joint entitlement to claims for indivisible services (§ 432)
Finally, a joint entitlement of several creditors arises when the 10

claim is aimed at an indivisible performance (Section 432 (1)).
However, this regulation only applies if there is no other legal
community between several creditors (e.g. joint creditors, joint
ownership) and the regulations applicable to them supersede § 432.4
4 Erman/Böttcher BGB § 432 para. 6.
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Example: If X and Y take a taxi at the train station taxi rank because each of them
wants to go to the airport, their request is for transportation, i.e. for an indivisible
service. If there is no other legal community between X and Y, the following rules come
into consideration.
11 a) External relations. In the external relationship vis-à-vis the
debtor, every creditor can demand performance for all or deposit
for all in accordance with section 432 (1). Since all creditors are
only entitled to receive jointly, payment to only one of them does
not release the debtor.
In contrast to joint creditorship, each creditor can dispose of his
or her co-authorization, ie his or her claim that payment will be
made to him or her.
In the example, X can dispose of his right to be transported to the airport, for
example, assign it to his friend.
The existing autonomy of the claim is also clear from the fact
that according to Section 432 (2) facts that only occur in the
person of a creditor do not work for and against the other creditors.
12 The interests therefore partially coincide with those of the joint

creditorship (§§ 429 Para. 3, 425). However, since in the case of
Section 432 - unlike Section 428 - only all creditors are jointly
entitled to receive the performance, a corresponding application
of Sections 422, 423 is out of the question.
Therefore, filing for only one creditor or waiver by only one creditor does not affect
the eligibility of the others.
Likewise, the termination or reminder issued by one creditor has no legal effect on the
others.5 The joint entitlement to claim also means that the creditors are not in default
of acceptance if the debtor only offers the performance to one of them (cf., on the
other hand, § 429 para. 1). It is different, however, if the debtor has offered performance
to all creditors and one has rejected it because the debtor is here prevented from
fulfilling all of them.6
13 b) internal relationship. The internal relationship of the

community creditors is based on §§ 741 et seq., unless other
legal or legal regulations apply.
5 Cf. Mot. II, 172.

6 MüKoBGB/Bydlinski § 432 para. 11.
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paragraph index
The numbers in bold refer to the paragraphs in the book,
the lean on their margins.
BGB §§ 13 BGB §§ BGB §§

3 7, 4 63, 19 123 6 12, 19 9a, 146 4 23
1, 3, 14, 19, 56, 25 18, 148 4 23
22, 23 22 35 13 151 37
14 3 7, 4 63, 12 125 4 17, 19, 21, 154 62
16, 19 1, 3, 26, 11 9, 22 156 15 13
14, 19, 23 22 64 157 2 10, 4 33, 7
26 20 27 126 4 19 1, 9-10, 13,
31 20 27 126a 4 19 20 44, 46, 23
42 37 6 126b 4 19, 48, 19 12, 32 4, 33 6
53 37 6 26, 30 158 6 9, 18 6, 27
86 20 27 127a 4 19 13
89 20 27 128 4 19 159 18 6
90 37 129 4 19 164 3 16
90a 28 3, 5 130 18 4, 19 25, 166 19 13, 22 68,
91 8 2, 31 2 23 10 31 49
93 10 6 133 2 10, 4 33, 7 167 4 22
99 18 18 1, 20 44, 46, 168 18 4
100 3 9, 18 18, 21, 23 12, 32 4, 175 13 7
23 78 33 6 179 5 1, 8 8
104 1 3, 34 9 134 4 7, 15, 33, 182 35 10
105 2 30, 23 10 6 9, 15, 11 184 35 10
107 16 10, 23 10, 9, 22 64, 34 185 12 8, 34 10,
34 9 14 12, 18, 35 11
108 2 30 138 4 3, 5, 15, 187 19 28, 23 27
109 18 4 33:6 8-9, 188 19 28, 23 27
111 16 10, 18 11 15, 9 12, 11 193 19 28, 23 27
116 13 9, 16, 19 9a, 195 9 11, 25 18,
117 4 21, 34 21 22 64, 34 16 37 15, 28
118 29 9 139 4 21, 55 199 37 15
119 1 5, 18 3, 19 140 35 22 202 37 28
54, 56, 27 14, 142 4 72, 17 17, 214 2 25, 7 1, 13
29 9-10 18 3, 22 64 1, 23 6
121 14 11 143 18 3 215 13 4, 16 8, 12
122 1 5, 5 1, 29 9– 145 1 3, 3 1, 7, 4 216 2 25
10, 34 21 70 217 9 11
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480 paragraph index
BGB §§ BGB §§ BGB §§

226 7 14 253 11 1, 29 3– 30, 32 14, 34
227 28 5 6, 31 10, 14 32
228 20 3, 28 5 254 2 16, 20 22, 274 13 10–11, 18–
232 10 7 22 37, 40– 19
241 1 2-3, 12, 2 41, 77, 25 4, 275 8 1. 5–6, 15,
1-2, 5, 11, 28 2, 31 5, 13 1, 15 7, 17
13-15, 17, 3 34-38, 40, 11, 20 46, 21
7, 10–11, 5 1– 42-50, 33 5 22 1–4, 7,
2, 11, 7 10, 16, 37 19 11:13-25,
18 2, 33, 255 31 29-30, 29-32 35, 37,
19 9a, 16, 17, 37 10-11 43, 51-56, 61,
20 14, 25, 31– 256 9 11, 10 1, 4 64-66, 70,
32, 21 3, 22 257 10 5 81-86, 23 4,
50, 23 3, 59, 258 10 7 6, 31, 59-60,
24 7, 25 1–3, 259 10 15-16 63, 24 8, 19,
9, 11, 18 30 4, 260 10 13, 16 27, 35, 26 4,
13, 33 1–2, 262 8 8-9 13-15, 27 6,
13 263 8 9-10 15, 17-18, 29
241a 3 7-9 264 8 11-12, 16 14, 18, 21, 23,
242 2 10, 13, 4 5, 265 8 13, 15 26, 34 10, 37
7 1–8, 11, 13– 266 7 1, 12 9, 23 13
14, 17, 8 7, 10 52, 65 276 4 15, 20 1–2,
10, 12 9, 13 2, 267 12 2-6, 31 4, 7 10, 13–
16 14, 18 13, 28 18, 22, 36, 38,
19 24b, 27 2– 268 12 3-6, 16 40, 43, 45, 22
3, 31 32, 33 6 4, 34 1 15, 38-39,
243 8 3, 5–6, 9 5– 269 6 1, 8 6, 12 43-44, 53, 86,
6, 12 17, 22 5, 12:15-16 23 73-74, 78,
26 5, 14 270 9 5, 12 14, 24 12, 21, 35,
244 97 17, 26 14 25 20, 26 12,
245 99 271 4 56, 6 1, 12 28 2, 31 38,
246 9 13, 10 4 19, 21ff., 33 18
247 23 32 16 9, 23 5, 277 18 27, 20 1,
248 9-14, 23-33 24 10, 26 3, 19, 23 73
249 1 3, 4 10, 8 10 278 3 11, 16-17, 5
16, 19 9a, 23 271a 4 49, 12 3, 20 1, 13,
50, 25 4, 29 1, 22ff., 23 23-29, 32-33,
31 2-6, 11, 27a 36, 38-39, 22
13, 31 272 12 19 38-39, 53, 68,
250 31 6 273 2 1, 13 1–7, 86, 23 78, 24
251 8 15–16, 31 4, 9:12-13, 35, 25 20, 29
7-9 20, 16 6, 5, 23, 31 45–
252 30 19, 31 15– 18 33, 23 6, 49, 32 1, 33 4,
18 24 10, 31 12 f., 16
https://doi.org/10.17104/9783406758829-479
paragraph index 481

280 1 9, 2 11, 15, 3 283 1 9, 2 15, 288 9 11, 23 32–
9, 11, 16, 4 55, 18 19, 20 33a, 75, 77, 31
5 2, 11, 6 7, 7 47, 21 6, 22 20 9 14, 23 33,
10, 10 14, 11 13, 28, 50–52, 54– 289 77
18 2, 19, 27, 33, 56, 61–65, 67,
19 4, 9a, 16 , 44, 70, 74, 86, 23 290 23 75, 78 9
20 9, 13a, 39, 45, 31, 34, 47, 56, 291 11, 23 77–78
47–48, 54, 21 1– 74–75 , 24 2, 23 78, 26 16 7
2, 5–6, 22 1, 6, 5–7, 19, 21– 292 1, 12 1, 7, 18,
28, 50–53, 55, 22, 24, 26, 35, 293 13 11, 19, 14
64, 67, 69, 73– 26 4, 29 26 21 2, 21 5–6, 22 43,
74, 86, 23 1–3, 5–6, 22 71, 23 8, 29a, 64,
9, 27, 29–31, 33– 73, 75, 79–80, 26 2, 5, 8, 10,
37, 49, 74–75, 284 86, 23 16, 56, 16, 37 13 26 5,
78, 24 2–5, 8–9, 78, 24 25, 35 15 6 7, 26 6, 14–
12, 15, 21–26, 22 2, 25–28, 15
30, 35, 25 1 – 5, 46, 86, 29 16, 294
8, 11, 14, 18, 26 18, 20–21, 25– 295
4, 12, 16, 27 6, 26 2 15, 6 7,
28 2, 29 8, 23, 285 11 10, 12 1, 296 26 7, 15
25–26, 32 15–16, 18, 13 20, 28, 297 26 4, 15
33 5, 13, 18, 34 18 2, 19 , 19 298 26 9, 14–15
10, 37 14 , 16, 35, 20 48, 21 299 26 10 20 18,
33 6 7,13 28, 18 286 6, 22 6, 23 1– 300 22 5, 44, 26
15, 19, 22 1, 56, 2, 7, 9–11, 13– 12–15, 37 13 26
61–63, 70, 74, 23 15, 18–22, 24– 16 26 16 26 16
1, 11, 17, 31, 34– 30, 31, 33, 35, 301 26 5, 16 4 15,
36, 38, 42–44, 42–43, 64, 73– 302 28–31, 33, 35–
281 46–48 , 50–54, 74, 76, 78, 26 303 43, 54, 60, 62,
56, 58, 62–65, 6–8, 16, 29 25, 304 64–65, 67–69 4
68–69, 78, 24 2– 37 14, 16 20 305 45, 52, 69 4 43–
3, 5–8, 11–13, 42, 23 29, 49, 44, 65, 69 4 50,
15–22, 24, 26– 73–74, 78, 30 55–56, 65, 22 11,
28, 30–31, 35, 25 18 64 4 54
8 2 11, 24 7, 25 305b
1–2, 5–6, 8–9, 305c
19–20
306
306a
287 307 4 46–47, 50–55,
282 60, 65–66, 69,
5 1, 16 14, 18 9,
20
https://doi.org/10.17104/9783406758829-479
482 paragraph index

41, 215, 23 312d 19 16, 17, 18 8, 10, 35–
45 30, 37 36, 21 5-6, 22
308 4 47, 49-50, 312e 19 17 1, 13, 36, 62,
56, 60-61, 69, 312f 19 16 81, 83-86, 23
12 26 f., 18 9, 312g 19 15a, 20, 1, 11, 17, 38,
18, 32, 23 41 22, 23, 24a, 42-44, 55,
309 4 46–48, 60– 30, 40, 47, 57-63, 65-68,
61, 65, 69, 48, 52, 56 78, 24 2–7,
11 1, 8, 13 7, 312h 19 57 25-33, 35 25
17, 16 14, 20 312i 19 52ff., 60 10, 27 6, 32
17, 36, 23 10, 312j 19 52, 55, 17
45 56 324 2 11, 17 12,
310 4 54, 60–67, 312k 19 52, 56a, 18 10, 36, 38,
69, 13 23, 19 58 19 16, 23 59,
2 312 l 19 58 24 7, 25 1–2,
311 2 14, 3 1, 9– 313 7 13, 9 4, 17 9, 20
11, 4 1, 55, 5 23, 18 5, 10, 325 18 2, 22 58,
1-4, 9-13, 7 27, 36, 21 6, 23 50, 55, 68,
12, 16 1, 14, 22 1, 21-23, 72, 24 2-3, 25
17 3–4, 19 4, 27 1, 3–4, 10, 20
17, 44, 54, 20 6-19, 21 326 2 7, 3 2, 15 7,
25, 39, 22 50, 314 17 12, 19– 17 11, 18 10,
25 1–2, 11– 22, 24-25, 15, 36, 21 5–
12, 14, 18, 20, 27 21 6, 22 1–2, 13,
33 1-2, 6-8, 315 6 1-4, 6-10, 16, 29-30, 33,
37 32 13 35-37, 39,
311a 22 1, 11, 14, 316 6 3, 8 42-43, 45-48,
31, 55, 64-65, 317 6 1-2, 10- 58, 60, 62,
67-70, 74, 86, 11, 13, 16 81-86, 23 35,
24 2, 4-6, 19- 318 6 12 38, 44, 50,
20, 22, 35, 34 319 6 9, 13-15 59-60, 63, 24
10 320 2 7, 3 2, 13 2-6, 26, 31,
311b 4 15, 20-23, 1, 12-18, 35, 26 4, 15,
25–27, 24 1, 20, 18 33, 27 6, 29 18,
25 13, 16, 34 22 31, 50, 26, 34 10
9, 35 8 23 6, 24 10, 327ff. 19 62ff.
311c 61 32 14, 36 2, 328 6 10, 32 1–4,
312 4 48, 19 2–3, 5 8-10, 17, 33
14, 20, 30, 57 321 13 1, 16 6, 17
312a 19 3-6 322 3 2, 13 12, 329 32 5–6, 35 4,
312b 19 7 ff., 24a, 18-19, 18 10
40, 48 33 330 32 5
312c 19 14 ff., 24a, 323 3 2, 13 28, 331 32 9-10
54, 56 17 12, 22, 332 32 10
https://doi.org/10.17104/9783406758829-479
paragraph index 483

333 32 13 356 18 4, 19 26, 385 15 13
334 32 10, 14, 33 29, 30, 46 386 15 14
15-16, 18 356a 19 1, 26 387 13 2, 16 1, 4–
335 32 11, 16 357 18 4, 10, 19 5, 18, 34 29,
336 ff. 11 7 1, 9, 34, 36, 35 16
339 11 1, 9-11, 18 37, 40, 49, 388 16 1, 10–11,
7 23 21 18
340 8 16, 11 1, 357b 19 1, 49 389 16 1, 6, 12, 18
12-13 358 19 45-51 35, 19 40
341 2 30, 11 1, 359 19 50 390 16 7-8
14-15 360 19 51 391 16 6, 14
342 11 1, 10–11, 361 4 48, 18 8, 392 16 12, 17-18
13, 15 19 34, 44 393 16 15, 18
343 11 3, 16 362 1 3, 2 3, 12 394 13 8, 16 16,
344 11 9 1, 7–8, 14 1, 18
345 11 10-11 4, 9a, 10, 32 395 16 18
346 2 15, 17 18, 3 396 16 13
18 1-3, 7, 10, 363 14 10 397 17 1–2, 37 13
13, 15, 17-29, 364 12 10, 14 6– 398 34 1–2, 9, 17,
31-33, 36, 19 7, 9 f. 32
35, 21 6, 22 365 14 6 399 34 11–12, 21–
48, 58, 63, 23 366 14 1, 4–5, 22, 32
53, 68, 70-71, 11, 16 13 400 34 13, 32
24 16, 25, 34, 367 14-12, 16-13 401 12 6, 34 19,
26 16, 27 6, 368 13-1, 14-13 32, 37 28
11-12 369 14 13 402 2 10, 34 1, 14,
347 18 13, 15, 31– 370 12-8, 14-13 17
33, 36 371 14 14 404 34 20, 22, 29,
348 18 15, 33, 22 372 15 1–4, 11, 32
48, 24 16 26 16 405 34 10, 21, 32
349 18 11, 36, 23 373 15 6 406 16 4, 12, 34 1,
68-69, 78 374 12 15, 15 6, 29-30, 32
350 18 1, 13-14, 10 407 12 8, 34 23–
36 375 15 7 27, 29-32
351 18 1, 12, 36 2, 376 15 7, 9 408 34 27–28, 31–
5 377 15 8 32
352 18 35 378 15 7, 10, 14 409 34 1, 31-32
353 11 6, 18 34 379 15 7, 10 410 34 32
354 18 7 380 15 6 412 12 6, 34 1, 37
355 7 16, 18 4, 19 381 15 6 28
2, 20ff., 24, 382 15 4 413 34 5
25, 26, 28, 383 15 3, 11, 414 35 7–8, 12–
33-36, 40, 48, 13-14 15, 17
49 384 15 12-13 415 35 1, 9-14, 17
https://doi.org/10.17104/9783406758829-479
484 paragraph index

416 35 1, 3, 10, 14 437 4-14, 5-11, 8 490 12 19, 17 19
417 35 16, 24 4, 14 6, 18 491 19 1
418 35 17-18 10, 19 50, 491a 25 11
420 36 ago, 36 1, 20 45, 47, 495 19 24, 46
3–4, 37 1, 5, 21 6, 22 14, 497 14 12
8, 32, 38 1, 9 35-36, 52, 506 2 4, 18 36, 19
421 37 1, 4, 7–10, 83, 23 30, 1, 24
12, 31 24 5, 16, 508 18 10, 36
422 35 24, 37 1, 8, 24-25, 30, 510 2 4, 19 24, 51
11, 13, 31-32, 35, 25 18, 512 18 36
34, 36, 38 12 32 16 514 19 48
423 37 13, 31, 34, 438 23 6, 25 18 516 1 2, 22 31
37 36, 38 12 439 4 14, 5 11, 518 1 2, 3 4, 4 29,
424 37 13, 31 18 15, 22 23 1, 32 9, 34
425 35 24, 37 12, 21, 35, 83 3, 35 8
14, 31, 35-36, 440 24 11 521 20 18, 20
38 12 441 17 11, 18 523 5 1, 14 6
426 34 1, 37 10, 30, 22 33, 524 51
15, 18-19, 36, 46, 83, 528 8 15
28-31 23 70, 24 530 18 4
427 36 3, 37 5, 19, 30, 36 5 535 1 3, 2 1, 2, 23
38 2 444 4 14-15 20, 32 8
428 37 32–34, 36, 446 18 22, 22 536 21 6, 24 6
38 12 45, 47 536a 4 43, 10 3, 20
429 37 32, 34-36, 447 12 11, 14, 1, 42, 33 12
38 12 16, 22 47, 539 10 3, 6-7
430 37 36 29 14, 18– 542 17 13, 15, 18,
431 36, 37 3 ago, 19, 26 18 5
38 2 448 12 11, 24 1 543 17 19
432 1 3, 12, 15 1, 450 15 13 546 17 18
37 1, 32, 38 3, 454 19 31, 32 550 4 18, 17 14
10-12 459 10 2, 6 552 10 7
433 1 1, 3, 7–8, 474 12 21, 19 1, 558 19 24a
12, 2 1–2, 6, 29 558a 19 24a
9, 17, 4 12, 20 475 12 16, 21, 566 4 18, 35 1
45, 22 30, 52, 22 47, 29 19 568 17 15, 18 5
23 20, 26 1–2, 476 4 14 569 17 19
5, 8, 16, 29 481 19 1 573 17 15
18, 32 8, 18 485 19 24, 47, 573c 17 15
434 4 14, 22 35, 48 575 17 14
23 48, 24 5, 488 2 21, 4 50, 9 579 13 16
10, 17, 31, 26 11, 19 45, 581 10 6
5, 27 19 32 9 598 3 3, 22 31
435 4-14, 22-35 489 9 12 599 20 18, 20
https://doi.org/10.17104/9783406758829-479
paragraph index 485

600 51 652 4 50 766 4 18, 35 21–
601 3 3, 10 2–3, 6 656 2 26 22
607 83 657 35 769 37 6, 9, 13
611 23 20, 24 4 662 3 3, 20 20, 774 34 1, 37 10
611a 4 69, 19 9, 20 22 31, 781 17 2
21 24 4th 812 1 11-12, 2 6,
612 6 1, 4 664 12 2, 20 38 24, 3 9, 13, 4
613 12 2, 22 9, 22 666 2 9-10, 10 25, 72, 13 5,
613a 35 1, 25, 37 6 9, 15 15 5, 17 2, 6,
614 13 16 667 13 1, 3, 20 18, 18 3, 19
615 12 2, 22 47, 38 44, 27 12, 20,
26 4, 11 670 3 3, 14, 4 32 12, 34 4,
616 22-47, 31-24 50, 10 3, 13 24, 31
617 29 1 813 16 12
618 2 9, 33 9 671 18 4-5 816 34 10, 23
619a 24 12 675 29 817 19 14a
620 1715, 18, 185 677 3 14 818 3 9, 4 71, 18
621 17 15 680 20 18 19, 24, 19 14a
622 17 15 681 2 9, 10 9, 15 823 1 2-3, 7-12, 3
623 17 15 683 3 14, 4 50, 12, 16, 5 2–3,
624 17 15 10 3-4 7, 9 2, 19 44,
626 17 19, 21, 24 688 33 20 12 ff., 13a,
630h 30 16 690 3 3, 20 19, 22a, 39, 28 1–
631 23 21 20, 23 73 6, 8-9, 29 6,
632 6 1, 4 691 12 2 12-14, 18,
633 21 6, 23 48, 693 3 3, 10 3–5 21–23, 30 4,
24 5, 17, 31 694 51 6, 14-15, 31
634 18 10, 19 50, 695 12 19 42, 47, 33 5,
22 14, 36, 83, 705 2 1, 38 1 37-2, 38-8
24 5, 35, 25 708 20 19, 37 27 826 1 9 4 5 10 5
18 709 38 6 2, 7 1, 14, 20
634a 25 18 713 2 9, 10 9, 13a, 29 12-13,
635 18 15, 22 21, 15, 12 2 31 21st 34 23rd
83 719 38 5 827 20 4, 34, 31
636 22 36, 24 11 723 17 19, 18 5 38
638 18 30, 22 36, 741 38 3, 7, 9, 828 20 1, 4-5, 31
83 13 38
640 26 2 743 38 9 829 31 38, 34 1
641 13 16 744 38 9 830 37 2, 11
642 26 1, 4 747 38 7 831 3 11, 16-17, 5
644 12 11, 22 45, 755 38 9 3, 7, 20 25,
47 762 2 26 39, 29 5, 23–
645 17 11 765 3 4, 22 31, 24, 31 48, 33
651k 24 6 35 21 4, 13
https://doi.org/10.17104/9783406758829-479
486 paragraph index

832 2 19 1113 2 21 2125 10 6
833 20 1, 42 1144 14 13 2131 20 19
840 2 19, 36 3, 37 1147 37 31 2151 37 32, 36
2, 11, 19 1154 34 9 2154 88
841 37 19 1167 14 13 2155 83
843 8 16, 31 23, 1191 2 21 2156 64
37 10 1204 2 21 2174 1 5, 3 6,
844 29 1, 12-13, 1214 10 15 29 21
60, 30 22, 33 1216 10 6 2219 37 6
1 1250 34 19 2301 32 9
845 29 12-13 1280 34 7 2303 10 1
847 29 4-6 1359 20 19, 37 27 2314 10 9, 13
848 30 18 1378 34 14 2367 12 8
873 4 20 1379 10 9 2382 35 25, 37 6
903 1 8, 18 27 1415 38 1
904 1437 37 6 AGG §§
28 5, 7
49
925 4 20, 23 1459 37 6
1 49
929 1 3, 7, 9, 2 18, 1480 37 6
49
15 10, 26 1, 1568a 4 11
28 49
34 3 1568b 4 11
10 49
931 15 10, 22 7 1601 1 5, 37 10
19 20 49
932 34 10 1664 20 19, 37 27
946 10 6 1833 37 6, 19 AktG §§
947 38 7 1835 10 3 93 37 6
948 38 7 1840 10 15
952 34 19 1890 10 15 ArbGG
953 18 18 1908i 10 3, 15 12a 23 33a
968 20 18 1922 2 22, 29 21,

BBG §§
970 10 3, 13 6 34 1st 44 30 14
971 15 1924 4 27 76 31 25
985 1 7, 3 9, 13 3, 1939 36
23 36, 34 19 1967 2 22, 38 2 BeurkG §§
987 3 9, 23 78, 26 1975 2 23 13 4 21
16 1976 17 7 13a 4 21
989 3 9, 23 36, 78 2018 10 13
EFZG §§
990 3 9, 23 36 2027 10 9, 13
3 29 7, 31 24
993 23 36 2032 38 1
6 29 7, 31 24
994 10 2-3, 23 78 2033 4 27
997 10 6 2039 38 6 EGBGB
1004 17 2040 38 1 Art. 240 § 1 13 21ff.
1006 34 10 2058 37 6, 38 2 Article 246 19 4, 5
1008 38 7 2059 38 2 Art. 246a 4 48, 19 16,
1049 10 3–4, 6 2151 37 32 26, 30, 31, 32,
1055 10 4 2124 10 3 39, 42, 46
https://doi.org/10.17104/9783406758829-479
paragraph index 487
EGBGB HGB §§ 17 20 11 f.
Art. 246b 19 16, 30, 31, 369 13 6 203 34 14
46 371 13 10 249 28 8
Article 246c 19 53 373 15 3 303 20 12
Article 246d 19 56a 376 31 1, 20
377 2 16 StVG §§
GBO §§ 379 2 10 7 20 1, 31 42
13 4 20 9 31 43
383 29 22
19 4 20 17 31 43, 37 19
421 29 14, 18–
20 4 20
19 TzBfG §§
29 4 20, 14 13 429 31 12 14 17 14
39 4 20
15 17 13, 16
HintG of the federal states §§
GG 1 15 4 16 17 14
Art. 1 2 12, 4 2, 29 4 7 15 4
Art. 2 UKlaG §§
2 12, 4 2–3, 11 15 4 1 4 59
13 22, 29 4 13 15 4 3 4 59
Article 3 4 4 21 15 4-5 4 4 59
Art. 4 4 5 22 15 5 5 4 59
Article 9 4 4
11 4 59
Article 20 7 2 InsO §§
Article 97 7 2 94 16 3
UStG §§
187 12 9
25a 8 15
GmbHG §§
43 37 6 JArbSchG §§
247 VVG §§
19-22 25 18
GVG §§ 22 4 7
78 37 6
132 24 15
KSchG §§ 86 31 26, 34 1,
GWB §§ 15 17 15 37 11
20 48
MuSchG §§ flat share
HPflG §§ 9 17 15 Article 39 12 9
1 28 8 Art. 47 37 6, 17
4 31 43 PBefG §§
22 48 ZPO §§
HGB §§ 29 12 16-17
checkG
25 35 3, 25, 37 6 259 22 16
Article 34 12 9
128 38 2 261 23 76
346 7 5 SGB VII §§ 265 34 26
347 20 14 104 37 26 287 31 7, 18
348 11 16 105 37 26 304 31 36
350 4 18 325 34 26
352 9 13 SGB X §§ 602 14 9
116 29 7, 31 25, 721 23 16
354a 34 12
355 9 14 34-1, 37-26 726 13 11
356 17 6 736 38 2
StGB §§
360 8 3 15 20 12 f. 740 38 2
https://doi.org/10.17104/9783406758829-479
488 paragraph index
ZPO §§ ZPO §§ ZPO §§

747 38 2 850 16 16, 34 1025 6 11
756 13 11 13, 32
757 12 9 883 2 18 ZVG §§
57a 12 5
802c 10 16 887 67
811 2 20 888 2 23, 4 69, 6
829 34 1, 28 7, 9, 15
835 34 1, 28 894 4 75
https://doi.org/10.17104/9783406758829-479
index
The numbers in bold refer to the paragraphs of the book,
the light to their margin numbers.
Amendment contract 17 3 – Individual legal protection 4 58

termination of contract negotiations – Content control 4 46ff.
25 14 remedy, deadline for 17 21 – Opportunity for information 4 37f.
mandatory cancellation regulations – Loan processing fees 4 46,
18 36 exhaust gas manipulation, 49
equalization of benefits 31 21 - Filling of gaps 4 56 -
warning 17 22, 25 6 conclusion – Surrender of use upon withdrawal
freedom 4 1, 6 ff. – commandments 18 18 - Framework agreement 4
4 8 – prohibitions 4 7 40 et seq.
– Legal consequences of non-
inclusion/ineffectiveness 4 55 et seq.
– right of withdrawal in general terms and
conditions 18 9 – surprising clauses 4 43
Principle of abstraction 1 11, 17 1, 35 – Ban on circumvention 4
16
54 – Injunctive Relief Act 4 59 –
Assignment s onwards Inadmissible clauses 4 48 et seq.
– Class actions 4 59 –
Consumer protection 19 2 –
Advantages and disadvantages 4 32 et seq.
General conditions of care 4
61 General Equal Treatment
Act 4 9
Alternative behavior, lawful 22 79, 30

16 Amazon Pay – effect of fulfillment
in the payment transaction 9 8 change
– Applicability of Sections 305 et seq. in of provider 19 57 contestation –
special cases 4 60 et seq., 19 2 – differentiation from withdrawal 18 3
– assumption of debt 35 13 offer and
Interpretation 4 44 f.
– Concept 4 29 ff. acceptance 3 1, 7 offer subject to
- Inclusion 4 34 ff. - reservation 26 5 emergency of attack
Supplementary contract interpretation 4 28 5, 7 default of acceptance
56 s .Creditors' Association
– Exemption from the reminder 23
10
– valid reduction 4 57
– Individual agreements 4 45 train
https://doi.org/10.17104/9783406758829-489
490 index
Prevention of acceptance, temporary – Term 16 1 –

26 10 claim 1 2, 2 2 claim basis as a fulfillment surrogate 16 2 –
competition 3 15 et seq. Explanation of 16 10 f.
– Contingent offsetting in the process 16
11
Employee as consumer 19 5 Employee – Maturity 16 9
liability 20 13a, 31 – Reciprocity of claims
43a 16 4
Loss of work 22 47 – Legal capacity 16 10 –
Right of withdrawal at work 19 9 Identical claims 16 5 f.
Employment relationship – warning 17
21 – Applicability of §§ 305 ff. BGB 4 – Auxiliary offsetting in the process 16
67 ff. 11
– Connectivity 16 6
– Employee liability, limited 20 13a, – Majority of claims 16 13
21 f., 31 43a – Termination – legal condition 16 11 – and
agreement, right of withdrawal 29 10 withdrawal 18 35 – and statute
– Set-off 16 16 – Time limit, form of limitations 16 8 – contractual
17 14 – Works council members 17 16 1
15 – Business interruption, no fault of – Contract in favor of third parties 32 14
their own – Claims for payment and debt relief 16
5
26 4 – Effectiveness of the claims 16
– Claims for continued payment of wages 31 7 f.
24 – effect 16 12 –
- erroneous 4 72 timing 16 11 – purpose 16 2
– Deadline 17 13 f.
– Default of creditor 26 11 Effort, grossly disproportionate 22 18 ff.
– Duties to protect 2 13
– Pregnancy 17 15 Expenses –
– unreasonableness of the service 22 concept 10 2, 22 76 –
22 frustrated 22 71
Malicious behavior 7 18 reimbursement of expenses 10 1 ff., 22 71 ff.
manner of performance 7 8 – Scope of application 22 73 –
Termination Agreement 17 1 Fairness 22 77 – Additional
– Precept of fair dealing 2 13, 19 expenses in the case of creditor default
9a 26 16 – Obligation to indemnify 10
– Right of withdrawal 19 9a 5 – In the event of an obvious
Doctor's obligation to provide information 30 16 imbalance 22 78
Release 4 23
Condition subsequent delimitation – Presumption of profitability 22 72 –
of withdrawal 18 3 set- Legal basis 10 3 – Impossible 22 11,
off 16 1 et seq. 71 et seq.
– Offsetting position 16 4 et seq. – Obligation to pay interest 10
– Exclusion 16 14 et seq. 4 – in case of delay in performance 23
– Condition 16 11 56
https://doi.org/10.17104/9783406758829-489
index 491
– Requirements 22 74 Instruction on the right of withdrawal 19

Compensation claim for total 30 f.
to blame 37 15 et seq. Reward Claim 3 5 Disadvantage,
Negotiating contractual terms 4 31 Posting inappropriate 4
general terms and conditions 4 36 50 et seq.
Principle of exclusion 1 3 Obligation to Intoxicants 20 4

provide information 2 9, 10 8 et seq. Enrichment, unjustified 3 13 – in the case
of waiver 17 1 – in the case of negative
– Inventory 10 13 acknowledgment of debt 17 2 – in current
– Consequences of non-performance/ account transactions 17 6 procurement
poor performance 10 14 – Legal basis risk, acceptance of a 20 50 ff.
10 8 ff.
Expenses clause 4 50
Interpretation 2 10 – of AGB 4 surrender of possession, entitlement to the 26th
44 f. 16
Claim 3 5 Special forms of distribution 19 2, 7
Exchange theory 22 58 ff. Inventory 10 13 Specificity of the service
Off-premises contracts – definition 19 8 6 1 ff.
et seq. Participation of third parties in the
obligation 32 1 et seq.
– Information obligations 19 16 f. Business interruption damage 23 30
– Right of withdrawal 19 18 et seq. Operating fines 11 5
Exclusion of the obligation to perform Operational risk of the injured party 31
– grossly disproportionate effort 22 18 42 ff.
et seq. Works council members, resignation
– Impossibility 22 3 ff. 17 15
– unreasonableness of highly personal operational risk 31, 43a
services 22 22 exclusion clause in Operational disruption, through no fault of 26
general terms and conditions 4 48 4
exchange – relationship 2 7 – contract Business takeover 35 25
3 2 fault in selection 20 36, 38 Notarisation, notarial 4 20 ff. – of the
obligation to transfer/encumber assets 4
25 – of powers of attorney 4 22
Movable business premises 19 8
Railway transport, responsibility of unconsciousness, culpability in the case
children 20 5 of 20 4 beer supply contract 2 4 equity 7
Base rate 23 32 2 willingness to commit 2 29 debt 8 6,
condition 12 11, 13, 16, 17, 26
– Distinction from withdrawal 18 3 – in
the case of offsetting 16 11 – in the case
of a declaration of withdrawal 18 11
Condition Theory 30 2 14
Limitation of permanent debt – modified 12 17
holds 17 14 fractional community 38 7 ff.
disability and possibility of Fractional creditorship 38 7 et seq.
Acknowledgment of GTC 4 38 Book money payment with 9 8
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492 index
Guarantee Clarity requirement 19 31

– Distinction from contractual service contract
assumption of debt 35 21 f. – Default of creditor 26 11
– Ancillary rights in the case of – unreasonableness of the service 22
assumption of debt 35 17 Button 22
solution in electronic business – temporary insignificant hindrance
transactions 19 56 22 47
Diesel exit manipulation, equalization
Casum sentit dominus 22 30 of benefits 31 21
Cessio legis 34 1 C. ics pre- Difference hypothesis/method 29 2,
contractual obligations Commodum – 7
ex negotiatione 22 27 – ex re 22 27 Difference Theory 22 58 ff.
– deputy 22 25, 27, 46 Compensatio Digital products -
lucric cum damno 31 contracts over 19 61 ff.
Dictated contracts 4 11
Diligentia quam in suis 20 19
Prohibition of discrimination 4 8
21 Dolo facit, qui petit, quod statim
Condition sine qua non 30 2, 7 redditurus est 7 18 Dolus – directus
corona pandemic – and legal 20 8 – eventualis 20 9 f.
impossibility 22 4, 30, 48, 53 – and
disruption of the business basis 27
4 ff., 10, 12 f. Double causality 30 2
Double void contract 4, 52 Double
Culpa in contrahendo see pre- written form clause 4 52 Double rental
contractual obligations Culpa in 22 27 Bonus 11 7 Third-party liability
eligendo 20 38 Culpa post 33 2 Third-party damage liquidation
contrahendum 7 11 29 14 et seq., 33 18
Damnum emergens 31 12
Services of general interest – Case groups 29 17 ff.
13 21, 24 Continuous obligations 2 – Freight contract 29 19
4, 17 12 ff. – Risk relief, obligatory 29 18 et seq.
– Deadline 17 13 f.
– Time limit, effectiveness of 17 14 – – buyer chains, so-called 29
Termination 17 15 et seq., 27 12, 21 – 26 – commission business 29 22
Right to refuse performance in a – custody of third-party property 29 23 f.
pandemic 13 21, 24 – Executed – legal consequences
without an effective contract 4 71 f. 29 16 – damage shift, accidental 29
15
– Protection obligations – Representation, indirect 29 22 –
2 13 – Successive delivery contracts Trust relationships 29 25 – Purchase
2 4 Cover ratio 32 7 et seq. of consumer goods 29 19 – Legacy
Offense capacity 20 4 29 21 – Mail order purchase 29 14, 18
detective costs, compensation from et seq.
shop thief 31 35 – Requirements 29 15
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index 493
Third-party protection of (pre-)contractual 33 3 Objections – in the

Enforceability of Claims case of the discharging assumption of
2 19 debt 35 16 et seq.
– when compensating for damage caused – Penetration and consumer protection
by delay 23 5 f. 19 50
– upon resignation 23 60 - in the case of a change of creditor 34
20 - in the case of assumption of debt 35 16
eBay auction – in the case of a contract with a protective effect

for third parties 33 15 f.
– Abuse of rights by the purchaser
7 15 – in the case of a contract in favor of third parties 32
14
– Means of distance communication 19 15
– in the case of contractual assumption of debt
E-commerce contracts 19 2, 16 et seq.
35 24
Marriage mediation 2 27
– in the event of a delay in performance 23
Affidavit 10 16 Personal liability of
4 objection processing 19 50 consent,
representatives
33 2 justifying 28 5 payment of money 9 8 direct
debit authorization 34 18 electronic
Assurance of characteristics, liability for 20
49 owner-owner relationship 23 36, 78 commerce 19 52 et seq.
ownership 1 7 inclusion of general terms

and conditions 4 34 et seq.
– Cost traps 19 17a –
Technical means of customer
protection 19 53 f.
Interest in inclusion in the contract with
Responsibility to receive in the event of
protective effect 32 9 f.
fulfillment for persons with limited
Plea of limitation 13 1 contractual capacity 14 4 Loss of profit
Objection of Unfulfilled Ver
31 15 et seq. – hypothetical causality 30
trags 13 1, 12 ff. 19 Claim for payment 19 35, 23 32
– exclusion 13 16 f.
Claims for continued payment of payment
– Maturity date of the counterclaim 13 31
15 24
– Mutual contract 13 13 – Mutual Evidence of exoneration 33 4, 13
benefits 13 14 – Good faith 13 17 – Freedom of decision 25 13 Liability
Requirements 13 13 et seq.
of heirs 2 22 Inheritance law
Applicability of Sections 305 et seq.
4 67 et seq.
– Obligation of the debtor to perform in advance Inheritance purchase 35 25
13 16 place of success 12 11 ff.
– Effects 13 18 Fulfillment 14 1 ff.
Insight to the knowledge of the responsibility – Execution of the owed service 14 1ff.
wordiness 20 5
objection – Occurrence of performance success 14 1
– lawful alternative conduct – Responsibility to receive 14 4 –
22 79 Performance agreement 14 3 – Final effect
– the impermissible exercise of rights 7 14ff. of performance 14 5 – Majority of claims 14
11 f.
https://doi.org/10.17104/9783406758829-489
494 index
– Performance in lieu of 14 Expiration of the obligations Before

6 ff. 14, 14 1 ff.
– Performance on account of performance 14 7 ff. – Set-off 16 1 ff. –
– receipt of receipt 14 13 – Extraordinary termination 17 19-25 –
actual performance 14 4 – correct Fulfillment 14 1 ff.
performance 14 2 – return of promissory
– Decree 17 1
note 14 14 – repayment 14 10 –
– Deadline 17 13-14 –
prerequisites 14 1 et seq.
Deposit 15 1 et seq.
- Confusion 17 7 -
– Effects 14 10 ff.
Claim for performance Negative acknowledgment of debt 17 2 -
Ordinary termination 17 15–18 -
– if impossibility 22 2 – if
Withdrawal 18 16 - Impossibility 17 8 -
temporary impossibility 22 16 jeopardy
of performance and withdrawal 23 61 Achievement of purpose 17 9 - Loss of
purpose 17 10 Substitute business 25 8
Power of replacement 8 14 et seq.
Vicarious agent -
term 20 28 ff.
– concept 8 14
– Liability for 20 23 et seq.
– of the creditor 8 16 – in
– Disclaimer for trading 20 17, 36 the case of damages 31 5 – of
the debtor 8 15 – and tax law 8
– indirect 20 29 –
15 contingent offsetting in the
subcontractor 20 29 –
process 16 11 subsistence level 2 21
negotiating agent 20 30 interest
in performance 2 8, 22 57, 25 4, 16, 29 8,
9 performance damage 29 8, 9
surrogate performance – offsetting 16 1
Maturity –
et seq. and set-off 16 9 – and setting
a deadline 23 38, 62 negligence
– Deposit 15 10 et seq. 20 14 et seq. – conscious 20 9 f.
– Self-help sale 15 14 – gross 20 18, 21 – slight 20 15,
Assumption of performance 32 6, 35 4, 10 21 – diligence in one’s own affairs
refusal to perform, serious and final 17 21, 20 19
23 17, 42, 61 f.
Supplementary interpretation of the contract Fair Dealing 2 13, 19 9a

in the case of invalid GTC 4 56
Factual contractual relationships 4
Significance of a deficiency 24 30 70 ff.
Recognizability of the nearness to Wrong performance 12
performance and the creditor's 10 Family law Applicability of §§ 305 ff.
interest in protection for the debtor BGB 4 67 ff.
Obligation with protective effect for Catch bonus (for shoplifting) 31 35
third parties 33 11 Defective employment/company
Decree 17 1 relationship 4 72
– in the amendment contract 17 3
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index 495
Distance contracts 19 14 et seq. - and freedom of contract 4 16 et seq.

– Burden of proof 19 – frustration of compliance 25 13,
15a – Definition 19 14 f. 16
– Information obligations 19 16 f. – Contract in favor of third parties 32 9
– Right of withdrawal 19 18 et seq. Freedom of form 4 16 et seq.
Means of long-distance communication Compulsory form 4 14 ff.
19 15 Fictitious repair costs – instead Continuation of a trading company
of small damages under the previous company
of the service 24 15 35 25
- relevant point in time 31 5 fictitious Freight contract 29 19
damage calculation 30 21, 31 3, 5 Exemption costs 31 8
financial services 19 16, 30 financial Obligation to indemnify 10 5
aid 19 1, 24 tax authorities 16 18 fixed Leisure events, consumption
transaction - absolute 22 6, 23 63 - protection 19 12
relative 23 44, 63 consequential damage Expiry of the
30 22 claim 1 2, 8, 2 1 – as a relative deadline – in the case of continuing obligations 17

right 2 18 – offsetting 16 1 ff. 12
ff. – after invoicing 23 19 setting a
deadline 23 38 ff., 62 ff. – and due
date 23 38, 62 duty of care 2 13
welfare relationship 33 9 ff.
– Enforceability 2 19 –
Fulfillment of multiple claims 14 11 f. Guarantor position 28 3, 8
Guarantee liability 20 1
– lapse 2 3 Guarantee contract delimitation of
– statute-barred 2 assumption of debt 35 5
26 – pledging 34 7 Generic guilt 8 1 ff.
transfer of claim sa change of creditor – delimitation 8 2 –
– statutory 34 1 – legal 34 1 – concept 8 1 – limited
ignorance of 34 23 et seq. 81
– Debt to bring 8 6
– Liability 20 51
Form 4 18 ff. – Debt to collect 8 6
– Species 4 18–19 – Specification 8 6 –
– Limitation of permanent debt Legal meaning 8 3 ff.
holds 17 14 - Sending debt 8 6 -
– Change of creditor 34 9 Species debt 8 2 -
– Termination of continuing obligations and piece debt 8 2 - and
17 15 set-off 16 5 - Risk of
– notarial certification 4 20 ff., 25 performance, transfer in default of
13 creditor 26 13 f.
– Written form 4 18 – impossibility 8 5 –
– Assumption of debt, contractual 35 21 reserve obligation 8 1
– assumption of debt, liberating 35 8 Fair bargaining 2 13, 19
– good faith 4 21 9a
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496 index
Possibility of use, loss of – Deposit 9 8

29 3 – Place of performance 12 17
Courtesy - – Reservation of performance 9 3
delimitation from the obligation 2 28 ff. – Nominal amount 9 1
– nominal amount 9 1
– Consequences – Disruption of the basis of business 9
2 31 Strict liability 28 8, 31 42 ff. 4
Danger relief, mandatory 29 – Transfer 9 8 –
18 et seq.
Impossibility 9 9 –
Risk of loss – upon Foreign currency debts
withdrawal 18 22
9 7 – Currency law 9 3 –
– Special cases of remuneration risk 22 Value debts 9 2 – Value
47
safeguarding clause 9 3 Validity
Counterclaim 16 4
reduction in general terms and conditions
consideration, refusal of the 26th 4 57 General clauses 4 5 Satisfaction,
9
idea of 28 2 bailiffs 2 19, 21 joint creditors
Risk of counterperformance 22 30, 45, 47,
37 32 et seq.
transition 26 13, 15 obligation to
counterperformance, loss of 22 30 et seq.
– Default of acceptance 37
Mutual contract 3 2, 13 13, 22
31 34 – External relationship with the debtor
37 33 et seq.
Reciprocity of claims 16
4 – satisfaction of a creditor 37
34
Mental activity, pathological disorder of 20 4
monetary compensation 31 4 ff. – Single effect 37 35
– Decree of Decree 37 34
- Calculation 31 31 - – overall effect 37 34 –
Exemption costs 31 8 - after mandated by law 37 32
fruitless expiry of a – Internal relationship of joint and several
Deadline for in rem restitution 31 6 – creditors 37 36
in the case of immaterial damage 31 10 – Confusion 37 34
– Or account 37 33 –
– Inferior value, more mercantile 31 8
– VAT 31 5 contracted 37 32
– in the event of impossibility of in rem community of hands 37 6, 38
restitution 31 7 1
– in the case of disproportionately costly joint hand creditorship 38
4 ff.
in rem restitution 31 9 – in the event
of injury to a person or Joint withdrawal 23 65
Damage to property 31 5 Joint and several liability 35 2, 23, 36 3, 37
One has to have money 9 9, 13 22, 1 et seq.
22 – Distinction from joint liability 37 4 –
8 Money debt 9 1 ff. General facts 37 7 et seq.
– Processing 9 5 –
Definition and content 9 1 ff. – Default of acceptance 37 13
– book money 9 8 – Claim for compensation 37 15 et seq.
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index 497
– External relationship with the creditor – Declaration of withdrawal 18 11

37 12 et seq. – Uniform reason for Management without a mandate 3
guilt 37 9 – Individual effect 37 14 – 14
Origin 37 2 et seq. Basis of business 27 1 ff.
– delimitation 27 13 ff., 22 21 –
– Subrogation of claims 37 28 et and contestation 27 14 – and
seq. – Joint contractual obligation to interpretation 27 13 – lack of
provide divisible performance 37 subjective 27 9 – legal regulation
5 – Joint ownership, personal and meaning 27 1 ff. – major 27 3 f. –
liability 37 6 – Overall effect 37 13 – minor 27 3 f. – and termination 27
Statutory order 37 2 – Equal status/ 21 – and defect rights 27 19 – legal
priority 37 consequences 27 10 et seq. – and
impossibility 27 15 – prerequisites 27 4
et seq.
10 f.
– Disclaimer 37 20 et seq.
– Limitation of liability 37 25 et seq.
– Internal relationship of joint and
several debtors 37 15 et seq. - Omission of the objective 27 4 ff. -
Economic impossibility 22
– Contributory negligence of the injured party 21
creditor 37 13 – in
– and misuse of purpose 27 20
the case of cohabitation 37 19
Gender-equitable language 2 12
– Debt forgiveness 37 13 Company law, applicability of §§
305 ff. 4 67 ff.
– Disruption of the joint and several
liability 37 20
Corporate relationship –
- Transfer of the claim of
defective 4 72 – duties to
– tort 37 2 – indivisible performance
37 3 – obligation of each debtor to protect 2 13 freedom of
perform as a whole 37 12 – statute of design 4 1, 12 ff., legal restrictions 4
limitations 37 15, 28 – creditor’s right to 15 right of design, withdrawal 18 1
choose 37 12 – community of ff., 23 69
convenience 37 9 injured party 29
12ff. beverages, spiritual 20 4
Commercial enterprise, established and
exercised 28 6
Industrial property rights 34 5
– Liquidation of third-party claims 29 14 Profit, lost 31 15 ff. - hypothetical
et seq. – (in)direct 29 12 f. causality 30 19 conflicts of conscience
Businesses, related 19 45 ff. 22 23
Business contact 3 10 f., 5 7 Transaction- Community of creditors 38 3 et seq.
like action 23 10 Terms and Conditions – Fractional community 38 7 et seq.
see General Terms and Conditions Legal – Fractional creditorship 38 7 et seq. –
capacity – offsetting 16 10 Joint entitlement to claim in the case of
indivisible services 38 10 et seq.
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498 index
– joint hand creditorship 38 – Assignment 34 9 et seq.

4 ff. – Notification of assignment 34
– Co-ownership 38 9 31 – Types 34 1, 7 – Set-off
Creditors’ interests 22 18 34 29 – Exclusion of
Creditors’ default 26 1 et seq. transferability 34
– Distinction from impossibility 11 et seq.
26 4 – meaning 34 6 –
– Prevention of acceptance, temporary term 34 2 ff.
26 10 – existence of the claim 34 10 –
– surrender of possession, authorization determinability of the claim 34
to 26 16 15 f.
– Business disruption, through no fault of one's own – by state act of sovereignty 34 1 –
26 4 Objections and objections by the debtor
– Obligation to deliver 34 20 f.
26 14 – Service contract law 26 – Extension of legal force 34 26
11 – Generic debts, transfer of risk of – Form 34 9
performance 26 13 f. – statutory 34 1 –
– Risk of consideration, transition 26 13, 15 collection mandate 34 18
– Obligation to provide consideration in – collection assignment 34
the event of impossibility 22 43 et seq. 8 – future claims 34 15 – payment
to the assignor 34 23 et seq.
– Relief from liability in 26 12 – deposit, – Right to refuse performance 34
entitlement to 26 16 – collection debt 32
26 6 – specification 26 13 f. - multiple assignment 34 27 - legal
certificate 34 10, 21, 31 - debtor
protection 34 22 et seq.
– Range of services 26 5 ff. - Promissory note 34 19, 21
– Entitlement to benefits 26 3 – - Assignment by way of security
Risk of performance, transition in the 34 7 - Security interests 34 19 -
case of generic debts 26 13 f. Transfer of the claim 34 17 - Transfer
– Ability to perform 26 4 – of ancillary and preferential rights 34
Additional expenses, claim for 19 - Transferability of the claim 34
compensation 26 16 – Non-
acceptance of the service 26 8 – 11 et seq.
Utilization, limited obligation to surrender – Transfer resolution 34 28 –

26 16 – Price risk, transition 26 13, Ignorance of the subrogation 34 23 et
15 – Creditor’s right of withdrawal in the seq.
24 33 – non-seizability 34 13 –
submission of documents 34 21, 32
– Debtor default, simultaneous 26 – contract 34 9 – requirements 34 9
8, 16 et seq.
– refusal of consideration – Effects 34 17 ff.
26 9 Similarity of claims 16
– Obligation to pay interest, non-existence 5 f.
of a 26 16 change of creditor 34 1 et Equal status/priority 37 10 f.
seq. Global assignment 34 16
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index 499
Gross negligence 20 18, 21 Large – Negotiating assistants 20 30 –

damages 22 61 et seq., 24 16 f., 20 f. Fault on the part of the assistant 20 33
et seq.
Fundamental rights 4 2 ff. – Culpability 20 34 – Representatives
Principle of - of legal entities 20
Priority 34 17 - 27
Contractual obligation 22 19 Liability without fault 20 44 et seq.
Land charge 2 21 Property -
– Procurement risk, takeover
Cancellation of a purchase one 20 50 ff.
contract 4 – Assurance of characteristics 20 49 –
24 Guarantee 20 48 et seq.
– Consignment 4 23 – Class debts 20 47 – by law
– Fictitious deal 4 21 20 46 – by agreement 20 45
– Obligation to transfer/ – according to the content of
Acquisition 4 20
the obligation 20 47 Exclusion of
Acquisition of claims in good faith 34 21 liability 20 10, 16 et seq., 21 – in
General Terms and Conditions 4 48, 20
Expert liability 33 2
17 – when using vicarious agents 20 35
f. – and joint and several liability 37
Liability –
term 2 20 –
culpa in contrahendo see pre- 20 ff.
contractual obligations – personal
Limitation of liability - limited
liability of the representative 33 2 – for
employee liability 20 13a, 31 43a - and
own fault 20 2 et seq.
joint and several liability 37
– Item 2 21 et seq.
– expert 33 2 –
25ff.
trustee 33 2
– contractual 33 15 –
Liability for third-party negligence 20 23
et seq. competitive relationship in sport 20
22a
– Meaning of § 278 20 23 f.
Relief from liability 20 16 ff. - limited
– Fulfillment of an obligation 20
31 f. employee liability 20 21 f. - statutory 20
– Vicarious agent 20 28 et seq. 18 f. - in default of creditor 26 12 -
– possibility of exculpation 20 42 – contractual 20 17 ff. - according to the
legal representative 20 26 f. content of the obligation
- Exclusion of liability 20 17, 36 -
Actions on the occasion of fulfillment 20
ratio 20 20
32 - Auxiliary within the meaning of §
278 20 26ff. – indirect vicarious agents Increased liability in default 23 73 ff.
20
29 – Liability for coincidence 23
– Obligation 20 25 et seq. 74 – Removal of limitations of
– substitution 20 38 liability 23 73 Acting at your own
– Differences between § 278 and § 831 risk 31 44 Customs of trade 7 5
20 39 et seq.
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500 index
Trading company, continuation under Information requirements

previous company 35 25 – off-premises
Main claim 16 4, 15 ff. – concluded contracts 19 16 et seq., 30
confiscated 16 17 – tortious 16 – operators of online marketplaces 19
15 – public law 16 18 – non- 56a – electronic commerce 19 55 f.
seizable 16 16 main performance
obligations 2 6 f., 17 household
effects 4 11 – Distance contracts 19 16 f.
– Consumer contracts 19 3 f. Content of
Doorstep selling 19 7, 9, 20 obligations 6 1 ff.
– Termination agreement of an Content control of AGB 4 46 ff.
employee 19 9 Collection mandate 34 18
– Consumer protection 19 7 Collection assignment 34
Challenging cases 30 23 Aid 8 Insolvency proceedings 35 18
offsetting in the process 16 11 Auxiliary Insolvency administrator, liability for 20
within the meaning of § 278 20 26 et seq. 26
Postage costs, reimbursement in the
Integrity interest 2 8, 12
event of cancellation 19 37 Survivor's
Integrity damage 25 4, 8, 33 14
benefit 29 6a deposit 15 1 ff. interest
– own economic or legal 35 22 –
– Exclusion of the right of withdrawal 15 negative 22 80, 29 9 f.
10 ff. – In default of creditor 26 16 –
Reason for deposit 15 2 – Deposit laws – trust- 29 9 f.
of the federal states 15 4 f.
– performance 29 8 f.
– positive 22 57, 23 31, 50, 29 8
internet, cost trap 19 56 internet
– Depository 15 1, 6 – Item auction – means of distance
capable of being deposited 15 3 –
communication 19 15 error about illegality/
Debtor’s right of withdrawal 15 7 f.
breach of duty 20 11 ff.
– Self-help sales 15 11 et seq.
– Procedure 15 4 ff. Contesting errors, demarcation from
disruption of the business basis 27 14
– Requirements 15 1 ff.
– Effects 15 7ff.
debt 8 6, 12 11 f., 16, 26 6 mortgage
2 22 mortgage assumption 35 14 Just-in-time contracts 23 43
hypothetical causality 27 7, 30
Buyer chains, so-called 29
17 et seq.
26 prospective purchaser
contract 4 22 purchase on trial
Intellectual property rights 34 5 - cancellation period 19 32
Immaterial damage 29 4 causal transaction 34 4 causality
Impossibility nulla est obligatio 22 s. causation or
2 Attribution
epitome of things 10 13 The debtor is aware of the impediment to
Individual agreements and general terms and conditions 4 45 performance 22 67 et seq.
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index 501
Ability to take notice of General Terms – phase-out period, social 17 25

and Conditions 4 37 Child, liability – Form 17 15
between 7 and 10 years 20 5 Legal – Basis of business, disruption of 17 23
action – (main/secondary) obligations
2 6 ff., 17, 19 – natural obligations 2 25 – reversal 17 18 – important
ff. reason 17 21 – notice period
17 15, 24 – declaration period
17 24 – ordinary 17 15 et seq.
– Duties to protect 2 11, 17 –
Gambling, betting, marriage agency 2 27 Customer 19 52 ff.
Filing a lawsuit 23 76 Clauses in general
terms and conditions – surprising 4 43 – shoplifting
inadmissible 4 48 et seq. – reimbursement of detective expenses 31 35
– Catch bonuses 31 35
Small damages 22 51 ff., 24 15, 20 f. Life as damage 29 4
Life risk, general 20 32, 30 14, 23 benefit
Gagging 34 16 1 2, 2 1 – third party’s right to
collective agreements, applicability of redemption 12 5 f.
sections 305 et seq. to employment
law 4 67 et seq. – Creditor’s right of redemption 12
Commission business 29 22 4
Condition in the event of misuse of purpose 27 – way 12 1 ff.
20 – specificity 6 1 ff. – to a
Confusion 17 7 in the case of joint third party 12 8 – third
creditors 37 34 Specification – of party, in damage law 31 23 ff. – by a third
the generic debt 8 6 – and creditor party 12 3 ff. – against payment 19 3, 5,
default 26 13 f. 9 – wrong performance 12 10 – subject 2
2 – to the creditor 12 7 – non-acceptance
Competition of grounds for claims 3 15 26 8
et seq.
Connectivity 13 5, 16 6
contacts, business 3 10 f., 5 7 – Damages instead of performance 22
compulsion to contract 4 8, 10 49 et seq. – The debtor in person 12
contractual penalty 11 2 cost traps on 2 – Divisible 36 1 – Partial performance
the internet 19 56 health insurance, 12 9 – Unordered 3 7 et seq.
damage calculation upon payment of 29
7 termination – delimitation 18 5 –
extraordinary 17 19ff. – Ordinary 17 15 – Impossibility 22 1 et seq.
et seq. – In the event of disruption to the Performance in lieu of 14 6 ff.
business basis 17 23, 27 12, 21 – Delimitation 14 7 ff.
Termination of continuing obligations 17 – Liability for defects 14 6
12 et seq. – Extraordinary 17 19 et seq. Performance on account of performance 14 7 et seq.
Range of services 26 5 -
dispensability 26 7 - actual
26 5 - unexpectedly early
26 10
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502 index
– verbatim 26 6 – Violation of protective duties 25

benefit expenditure 22 18 1 ff.
benefit entitlement 26 3 benefit – Contract in favor of third parties 32 15 et seq.
effect – final 14 5 – real 14 4 – Delay in performance 23 1 ff.
benefit success 12 11, 14 1 risk Ability to perform and creditors in default
of benefit 22 30 – transition 26 13 26 4 Refusal to perform, persistent
f.
17 21
Rights to refuse performance –
Performance action 12 11 towards the new creditor after assignment
obstacle to performance – 34 32 – defense of the unfulfilled
initial 24 20 – knowledge or contract 13 12 ff. – pandemic-related 13 21
negligent ignorance 22 67 ff. – post- ff. – the debtor 13 1 ff.
contractual 22 55, 24 21 interest
in performance 22 18, 22 performance
action 23 76 performance deficiency – Right of retention 13 2 et seq.
– remediable 24 8 ff., 26 ff. – Reservation of performance 9
irremediable 22 35 ff. , 24 19 ff., 35 3 Time of performance 12 18 ff.
service proximity 33 8 place of service – Term and meaning 12 18 ff.
12 11 ff. – provision 12 21
conditional performance 12 10a, 14 2,
23 29a lover value 31 14
– meaning and term 12 11 ff. – in the
case of monetary debts 12 17 – Delivery, unordered 3 7ff.
provision 12 15 ff. Linoleum roll case 25 12
– Obligation to deliver 12 Lucrum cessans 31 15
13 – Main performance obligations 2 6 f.
– Obligation to collect 12 12 Rights relating to defects 27
– Obligations to perform ancillary services 2 7 et seq. 19 Reminder 23 10 et seq.
– duty to send 12 14 – Consequential damage 24 22 et seq.
place of residence 12 15 f. Damage caused
Obligations to perform by defects - calculation
– exclusion in the case of impossibility 22 24 15 - compensation
3 ff. 24 14 mass transport, use of services 4
– highly personal 22 9 – 73 material damage 29 2 majority of
primary 2 5ff., 22 2ff. – creditors and debtors 36 1 et seq.
secondary 2 15 performance
disruptions – due to the
corona pandemic 22 4, 30, 48, 53 – legal Tenancy, expiry of the deadline for
basis 21 5 f. limited 17 13 minors, duties to protect
2
– Poor performance 24 1 ff. 14
– Disruption of the business basis 27 1 inferior value, more mercantile 31 8
ff. – Overview 21 1 ff. Indirect injured party 33 7
Indirect violations of legal interests
– Impossibility 22 1 et seq. 28 3
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index 503
Indirect representation 29 22 Co- – and due 23 38, 62

ownership 38 9 Contributory estate 2 22
negligence see Contributory Post-contractual impediment to
negligence Contributory negligence performance 22 55
of the injured party 31 36 et seq. Post-contractual obligations 7 11
Creation/restitution in kind 31
- Significance 31 36 2 f.
- Strict liability 31 42 ff. - of the Natural bonds 2 25 ff.
legal representative or assistant of Ancillary obligations 2 8 ff., 17 – good
the injured party 31 45 ff. faith 2 10 ancillary obligations 2 11
ancillary rights 35 17 Negative interest
– Act at your own risk 31 44 22 80, 29 9 f.
– Obligation to notify in the event of a risk
unusually high damage 31 40
Negative acknowledgment of debt 17 2
Nominal amount 9 1 New vehicle basis,
– for vehicle repairs 31 41 –
calculation of damage 31 3 Non-
breach of duty 31 37 – legal
acceptance of service 26 8 Non-marital
consequences 31 50 – damage to
cohabitation, joint liability 37 19 Non-
property or business of the injured party
performance 21 1 f.
31 42 et seq.
– Duty to mitigate damage 31 41 – Self-
harm by the injured party 31 44
Non-performance damage 23 31, 50,
29 8
– negligence 31 40,
46 Non-performance
– “Fault against oneself” 31 - Compensation for damage caused by
37 delay at 23 7 f. - Partial 23 65, 23
– Culpability 31 38 48 - Withdrawal 23 59 - Withdrawal in

case of uncertainty about the reason
Modified obligation to deliver 12 17
for 22 85 f.
monopoly position 4 10
Error of motive, common 27
9 Nominal amount 9 1
Sample revocation information 19 20, Notarial certification 4 20 et seq. and
26, 30 right of revocation 19 23 Self-
defence 28 5 Novation 17 4 – in current
account transactions 17 6 Utilization –
Claim for supplementary performance, non-
remediable poor performance 22 35 et seq.
limited obligation to surrender in the
Subsequent performance period 24 event of default by a creditor 26 16 –
11, 29 grace period – reasonable 23 Replacement for undrawn items in the
40 f. event of withdrawal 18 31
– provision in AGB 23 41, 45 –
availability 23 45 – dispensability 23
42 – unsuccessful provision 23 38ff., – Release upon resignation 18 18
et seq.
62 ff. Compensation for loss of use 23 30, 29
– Unsuccessful 23 47 f. 3
https://doi.org/10.17104/9783406758829-489
504 index
Consumer's obligation to compensate – Duty of care 2 13 –

for use 19 43 towards oneself 2 16 –
obligations to perform 2 5 et seq.,
Custody of someone else's property 29 23 f. 17 – post-contractual obligations 7
Obligations 2 16, 22 37, 31 37 – 11 – ancillary obligations 2 8 et seq., 17
Contributory negligence of the injured – ancillary obligations 2 11 – obligations
party 31 37 – Complaint 2 16 – 2 16 – primary obligations 2 5–14 –
Investigation 2 16 Objective value accountability obligations 2 8 f. , 10 15 –
system 4 5 Or account 37 33 Public Duty to mitigate damage 2 16 – Duty to
law 1 1 Online marketplaces 19 52, protect 2 11, 17, 25 1 et seq.
56a Victim limit 22 21, 27 17
– Secondary duties 2 15, 17 –
Duty of care 2 11 – Duty of loyalty
2 13 – Overview 2 17 – Breach
25 3 et seq.
Pacta sunt servanda
– Disturbance of the business basis 27 – Code of Conduct 2 11 –
2, 8 Obligation to pay interest 10
– Right of withdrawal 19 3 4 – Action in case of omission 28
pandemic 3
– performance disruptions 22 4, 30, 48, – to submit an affidavit 10 16 breach of
53
duty 21 2, 22 51 f., 25
– Consumer’s right to refuse performance
13 21 et seq. 3 ff.
– Disruption of the basis of business – Poor performance 24 1 ff.
27 4
– impossibility 22 51 f.
Partnership mediation agreement,
– Delay in performance 23 3, 27 Breach
content control 4 50 f.
of duty 20 3, 22 51 Positive breach of
Passive claim 16 4 lump-
contract 24 3 Positive interest 22 57, 29 8
sum damages 11 8 Personal impossibility
Price adjustment clause 4 50, 52, 53 Price
27 18 Personal data as subject matter of
risk 22 30, 45, 47 – Transition 26 13, 15
the contract 19 3 PayPal – fulfillment
effect 14 9a – buyer protection 14 10
– payment transaction 9 8 person, liability
Price clause 9 3
with 2 24 personal rights 28 6, 29 5 f.
Pretium –
commune 31 12 –
singulare 31 13
primary obligations 2 5 ff., 17
Impact on personal rights 33 9 Seizure priority, principle of 34 17 private
limits 34 13 Lien 2 22, 35 17 Obligations autonomy 35 1
1 2, 2 5ff. Private law term 1 1
Private enforcement 16 3
– Obligation to provide information 2 8 Private apartment consumer protection
f., 10 8 ff. – and claim 2 4 – obligation 19 9
to indemnify 10 5 Protestatio facto contraria 4 74
https://doi.org/10.17104/9783406758829-489
index 505
Qualified guilt 12 17 – after revocation 19 35 et

Receipt 12 8, 14 13 seq. – in the event of
termination 17 18 parallel reversal 19
Framework agreement on terms and conditions 4 47 restitution obligation 18 2, 17, 19 35
40 ff. right of withdrawal – exclusion 15 10
Installment delivery contracts 19 1 et seq.
Accountability 2 9, 10 15
Right 1 2 – Deposit 15 7 f.
– absolute 1 7 – Returning the item – costs
real 1 8 – relative 19 39 – as revocation 19 27
1 7, 2 18 duties of consideration 1 2,
Ground of justification 28 5 2 1, 12 ff., 19 9a withdrawal 18 1 ff.
Legal impossibility 22 4 lawful
alternative behavior 22 79
– Mandatory legal regulations 18 36
Legal condition 16 11 – Delimitation 18 3 et seq.
Legal advice contract – with
protective effect for third parties 33 8 – Default of acceptance 23 64, 67, 24
Willingness to be legally binding 2 29 33 – Possibility of offsetting 18 35 –
Reference to legal consequences 22 48 Exclusion 18 13 f., 23 66 ff., 24 30 ff.
Legal development 7 3 Legal transaction
– unilateral 3 5 ff., 16 10 – contract 3 1 ff. – Unconditionality 18 11 – Concept
and legal regulation
18 1
Legal interests, indirect – Remediable lack of performance 24 26
28 3 et seq.
Lis pendens, special features at 23 76 – Calculation of the replacement value 18
ff. 29 f.
– Liability 23 78 – Enforceability of the obligation to
– Litigation interest 23 77 perform 23 60 – Freedom of
Abuse of rights 7 15 objection 23 60 – Threatened
Appearance of law 34 10, 21, performance 23 61 – Declaration 18
31 Freedom of choice of law 4 11 f., 23 68ff. – Serious and definitive
14a, 15 Unlawfulness 28 4 ff. refusal to perform 23 61 f.
Link to unlawfulness 30 16
– Compensation for unused benefits
Reduction, valid 18 31 – Maturity 23 60 – Fixed
(GTC) 4 57 transaction, absolute 23 63 – Fixed
Rule violations in competitive games transaction, relative 23 63 – Bearing
28 5 the risk 18 22 – Mutual contract 23
Presumption of profitability 22 72 58 – Total cancellation 23 65
Reserve cause 30 17 ff.
Residual value
31 3 forfeit – in the event of default by a creditor 24 33
money 11 6 – and – obligation to perform 23
withdrawal 18 34 reversal 59 – several participants 18 12
https://doi.org/10.17104/9783406758829-489
506 index
– Period of supplementary performance 24 – Effect on the debt relationship

12, 29 – Period of grace, unsuccessful provision 18 1
23 62 et seq. – step-by-step fulfillment 18 33
– Non-performance despite due date 23 – Underdelivery 24 31
59 retroactive effect of offsetting 16
– non-performance, in part 23 65 – 12
surrender of use 18 18 et seq.
– Legal consequences 18 15 et seq. property law concept 1 7 f.
- Forfeit money agreement 18 34 - Material risk of the injured party 31
Reversal obligation 23 70 et seq. 42 ff.
Property liability 2 22
– Reimbursement of benefits received 18 Guardian liability 5 11, 33 2
17 ff., 23 71 – Compensation for Severability clause 4 53 Lettuce leaf
damages 23 72 – In the event of poor fall 25 12 Damage 28 1, 9, 29 1 et
performance 22 83, 24 26 ff. – In the event of a seq.
breach of the duty to protect 25 – Types 29 2 ff.
9 et – term 29 1
seq. – and securities 18 2 – – Business interruption damage 23 30
diligence, customary 18 27 – in the – Difference hypothesis/method 29
event of disruption to the business basis 2, 7
27 11 – partial delivery in the law on – interest in fulfillment 29 8 f.
sales/work contracts 23 48, 65 – partial – Performance damage 29 8 f.
withdrawal 23 65 – in the event of – Determination 29 1ff.
partial impossibility 22 84 – partial poor – fictitious repair costs 30 21, 31
performance 24 31 – irremediable lack 3, 5
of performance 24 - injured party 29 12 ff. -
immaterial 29 4 - life as
35 damage 29 4 - material 29 2 f.
– Fall of the primary claims 23 70 - (in)direct 29 11, 30 17 -
negative interest 29 9 f.
- in case of impossibility 22 81 ff. -
in case of uncertainty about the reason – non-performance damage 29 8 –
Non-performance 22 85 f. normative 29 7 – compensation for
– Invalidity 18 34f. loss of use
– Responsibility of the beneficiary 24 32 29 3
– violations of personal rights 29 5 f. –
– Responsibility of the creditor positive interest 29 8 – residual value 31
23 66 3
– Contract in favor of third parties 32 17
– Substitute for use 18 32 – in – Claim for compensation for pain and suffering 29 5 f.
the event of a delay in performance 23 – maintenance burden 29 2 –
57 ff. relocation, accidental 29 15 – loss
– Requirements 18 7 ff. of use
– Reservation in AGB 18 9 29 3
– Creditor’s right to choose 23 68 – Compensation – Financial loss 29 2 f.
for loss of value 18 21 et seq. – Interest in trust 29 9 f.
https://doi.org/10.17104/9783406758829-489
index 507
– Fidelity damage 29 9 f. – Remediable performance deficiencies 24

– causation and attribution 30 8 ff.
1 ff. – Calculation 24 14 ff., 20 f.
– benefit sharing 29 7 – replacement – difference theory 23 50 –
value 31 3 – upon payment of health lapse of primary claims 23
insurance 29 7 claims assessments 30 20 54 ff.
damage calculation 31 11 et seq. – – Replacement transaction
abstract 31 20 – claims of the injured party 25 8 – Replacement authorization
to be assigned against third parties 31 29 31 5 – Fixed transaction, relative 23
44 – Exemption costs 31 8 – Claim
for consideration, lapse 23 55 – Monetary
replacement 31 4 ff. – Larger 22 61
– affective interest 31 14 – lost ff., 23 52, 24 16 f.,
profit 31 15 ff.
– Claims for continued payment of wages 31 20 f.
24
– in the case of immaterial damage 31 10
– Replacement of old with new 31 31 ff.
– just-in-time contracts 23 43 –
smaller 22 61 et seq., 23 51, 24 15, 20 f.
– Catch bonus (when shoplifting)
31 35 – Entitlement to benefits, expiration 23
54
– fictional 30 21, 31 3, 5
– monetary substitute – Request for performance 23 39 –
31 31 – concrete 31 19 Refusal to perform, serious and final 23 42 –
Consequential damage 24 22 et seq.
– Costs of preventing/mitigating damage 31
34
– defect damage 24 14 –
– Costs of damage assessment/processing
reduced value, mercantile 31 8 –
31 35
contributory negligence 31 41 – after a
– shoplifting, reimbursement of detective
costs 31 35 – services provided by third fruitless expiry of a
Deadline for in rem restitution 31 6 –
parties 31 23 et seq.
– collector’s value 31 14 – grace period, unsuccessful determination 23
38 ff. – in the event of subsequent
production in kind 31 31 – new
car basis 31 3 – objective value impossibility 22 50 ff., 24 21 – production/
31 12 – subjective value 31 13 – restitution in kind 23 50, 31 2 f.; 31 7 –
loss of assets 31 12 – insurance non-performance, in part 23 48, 51 et seq. –
benefits 31 25 et seq. flat rate 11 8 – breach of duty in the form
of delay in performance 23 27
– Pension costs, reimbursement of 31 33
et seq.
– Equalization of benefits 31 21 et seq.
Compensation for
damages - warning instead of setting a deadline 23 - Quantity deficiencies 23 48 -
46 Obligation with protective effect for third
– in the case of initial impossibility 22 64 ff., parties 33 13 f. - Instead of the entire
24 20 – types 31 1 ff. service 22 62, 23
51 ff., 24 8 ff., 16 f.
https://doi.org/10.17104/9783406758829-489
508 index
– instead of performance 22 49 ff., 23 – Unlawfulness 28 4 et seq.

50, 24 8 ff., 25 5 ff., 19, 33 14 – – Rule violations in competitive matches
surrogation theory 23 50 – partial delivery 28 5
in sales/work contract law 23 48, 65 – - Damage, term 28 1, 9 - Fact
partial non-performance 23 48, 51 ff . 28 3 - Omission 28 3, 8 -
Responsibility 28 8 - Traffic
– VAT 31 5 safety obligations 28 3 -
– unrecoverable performance defects 24 Defense emergency 28 5 - Contractual
19 et 28 1 - Responsibility 23 28 f., 49, 28 8 -
seq. – in the case of impossibility of in in the case of intentional pre-contractual
rem restitution 31 7 breaches of duty 25 18 Duty to mitigate
– obligations to cease and desist damages 2 16, 31 41
23 46 – in the case of disproportionately
costly in rem restitution 31 9 – in the
event of injury to a person or
Damage to property 31 5 Flat-rate damages in the event of default
– Violation of protective duties 25 23 33a, 75 – in employment law 23 33a
1 ff.
– Violation of information obligations 19 damage lump sum clause in
17 – Contract in favor of third parties Terms and Conditions 4 48
32 16 – Responsibility 23 28 f., 49, 28 8 Damage shifting, random 29

– In the event of delay in performance 15
23 34 ff. Delivery of check as performance on
account of performance 14 9
Claim for damages 28 1 et seq. Fictitious land purchase transaction 4
– Aggressive emergency 28 21
5, 7 – in the case of defamation Donation to children-in-law 27 1, 5–11,
29 4 – in the owner-owner relationship 20 Donation upon death 32 9 obligation
23 36 to send 8 6, 12 14 – qualified 12 17
– Consent to violations 28 5 arbitrator 6 10 f.
– Guarantor position 28 3, 8
– strict liability 28 8
– satisfaction, thought of 28 2 – legal Referee 6 11 poor
28 1 performance 24 1 ff.
– Commercial enterprise, established – Scope 24 4 ff.
and exercised 28 6 – reimbursement of expenses
– causality, liability-filling 28 24 25 – term 24 1 ff., 10 –
9 remediable 24 8 ff., 26 ff.
– causal connection 28 9 – – Consequential damage 24 22 et seq.
indirect violations of legal interests – Damage caused by defects 24
28 3 14 – Subsequent performance period
– self-defence 28 5 24 12 – Right of withdrawal 22 83, 24 26 et seq.
– Personal rights 28 6 – Damages instead of the (whole)
– Duty to act when not doing 28 3 Achievement 24
8 ff. – partly 24 18, 31
– Ground of justification 28 5 – overview 24 1 ff.
https://doi.org/10.17104/9783406758829-489
index 509
– unrecoverable 22 35 ff., 24 19 ff., - Meaning 1 12 -

35 ff. Special 1 3, 12 - Subject
– Must be represented 24 11 1 2 - Validity 1 5 f. -
– Under-delivery 24 17, 31 Compensation Statutory regulation 1 3
for pain and suffering 29 4 f. f.
Shock damage 29 6a – Systematics 1 3
Written form 4 18 f. Modernization of the law of obligations
Written form clause, double fault 4 52 1 4 Promissory note, return 14 14
12 Theory of guilt 20 12 f.
– Term 2 20 – Assumption of debt 35 1 et seq.
without liability 2 25 ff. – – Delimitation 35 4 ff.
and liability 2 20 ff. – abstraction principle 35 16 –
Acknowledgment of debt, negative 17 2 challenge 35 13 – supply theory
debt discharge claim, offsetting with 35 12 – set-off 35 16 – meaning
payment claim 16 5 35 3 – liberating 35 1, 7 ff.
Accrual of debt, statutory 35 25

– Business takeover 35 25
– Inheritance purchase 35 25
– Term 35 1 f.
– Guarantees 35 17 –
– Continuation of a trading company
Objections 35 16 et seq.
under the previous company 35 25
– assumption of performance 35 4,
10 – form 35 8 – guarantee
Assumption of debt, contractual 35 19
et seq. agreement 35 5 – approval of creditor
35 9 – joint and several debtors 35 2 –
– Distinction from the guarantee 35 21 assumption of mortgage 35 14 –
f.
insolvency proceedings 35 18 – cumulative
– Term 35 19 –
35 1 f.
Justification 35 20 –
Form 35 21 – Joint and
several liability 35 23 – – ancillary rights 35 17
– liens 35 17 – private
Interest, own economic or legal interest
35 22 – Objections 35 24 – Effects autonomy 35 1 – privative
35 23 f. 35 1 – legal construction
35 11 ff.
Substitution of debt 17 4 – Withdrawal from the causal transaction 35
– in current account transactions 17 16
– change of debtor 35 15 –
6 Liability 20 4 Community of
state of limbo 35 10 – silence
debtors 38 1 f.
– joint ownership 38 1 – special 35 10 – deferral 35 16 –
assets 38 1 f. theory of disposal 35 11 –
Majority of debtors 36 3 theory of contract 35 12 –
Default of debtor see Delay in assumption of contract 35 1,
performance Law of obligations – 6 – prerequisites for the
general 1 3, 12 – term 1 1 et seq. exempting 35 7 ff.
– preferential rights 35 18
https://doi.org/10.17104/9783406758829-489
510 index
– Effects of the liberating 35 15 ff. – Requirements 33 7 ff.

– Effects 33 13 ff.
Debt conversion 17 4 – in Debt contract -
current account transactions 17 6 justification 4 1 ff.
Obligation – distinction from favours – Freedom of contract 4 1 et seq.
Need for protection –
ratio 2 28 ff. of the third party in the case of a
– Term 2 1 ff., 22 50 – protective obligation 33 12 – of the
Participation by third parties 32 1 ff. consumer 19 10, 23 scope of protection
– Continuing obligations 2 4, 13 – – in the case of a protective contract
Origin 3 1 ff.
– lapse 2 3 33 11
- in the broader/narrower sense 2 1 ff. Protection requirement
- in the sense of § 278 20 25 - content function 4 5 Protection interest of the
6 1 ff. creditor 33 9 Duties to protect 2 11 ff.,
– without primary performance obligations 2 17 - warning 25 6 - pre-contractual
14, 5 1 – obligations 2 17 – breach of the obligations 5 1 ff., 25 11 ff – minors 2 14
duty to protect 25 1 et seq. – without performance obligations 2
14 – rescission 25 9ff., 20 – statute of
– protective effect for third parties 33 1 limitations 25 18 – violation of 24 7, 25 1
ff. – from typical social behavior 4 73 – ff , commercial 34 5 protective purpose
disruption 21 1 ff. – similar to contract 33 – of the norm 30 12 – of legal regulations
13 – coincidence of legal and statutory 3 30 14 f. – of contractual obligations 30
15 ff. 13 pregnancy, termination at 17
Obligation with Schutzwir

liability for third
parties – delimitation 33 17 et seq.
– meaning 33 4 f.
– Objections of the debtor 33
15 f.
– Recognisability for the debtor
33 11
– Proximity to
performance 33 8 –
Contributory negligence
33 16 – Legal basis 33 6 – Damages 33 13 f.
– Need for protection of the third party 33 15
12 silence 3 7
- Protection interest of the creditor 33 Children-in-law, gift to 27 1, 5–11, 20
9
– good faith 33 6 – and Secondary duties 2 15, 17
contract in favor of third parties 33 self-harm of the injured party
6 31 44
– Interpretation of contract, supplementary 33 Self-help and right of removal 10 7 Self-
6 help sale 15 11 ff.
https://doi.org/10.17104/9783406758829-489
index 511
Self-remedy 22 53, 23 47 Surrogation theory 22 58 ff.

Security and amendment Synallagmatic contract 3 2
contract 17 3, 5 – in rem 2 22 – and
withdrawal 18 2 – and debt Partial creditors 36 4 f.
replacement/conversion 17 4 et seq.
Partial performance
12 9 – compensation for damages
instead of full performance 23 52 –
Assignment by way of partial poor performance 24 18,
security 34 7 special 31
connection 1 2, 7 special assets 38 1 f. – Short delivery 24 17, 31 partial
Diligence delivery contracts 2 4 partial
- medical malpractice 20 14 rescission 23 65 partial
- in personal matters 18 27, 20 19 f. - debtorship 36 1 ff.
of a prudent businessman 20
Installment transactions 2 4
14 Part-time residence rights contract 19 1
– required in traffic 20 14 – skills Executor, liability for
20 26
above average Text form – in
20 14
General Terms and Conditions 4 48
Due diligence 2 11
– in the case of cancellation instructions 19
Typical social behavior 4 73
30 – in the case of a declaration of
speculative transactions disruption of
cancellation 19 26 repayment 14 10 death,
Basis of business 27 8
liability of heirs 2 22 principle of separation
Species Guilt 8 2
1 9 f.
game 2 27
good faith 2 10, 7 1 ff.
proxy
– personal liability 33 – Delimitation and scope of application
2 – indirect 29 22 7 2 ff. – as a general legal principle
– Consumer protection 19 13
Deputy commodum 22 71
25, 27, 46 – change in the contractual obligation
Tax law Influence on the power to perform 7 13 – fraudulent
to substitute 8 15 Disruption – behavior 7 18 – manner of performance
of the business basis 7 13, 9 4, 7 8 – exclusion of set-off 16 14 –
22 21, 27 1 ff. – in the contractual significance 7 1 – justification in
relationship 21 1 ff. individual cases 7 6 – and fairness 7 2
– culpa in contrahendo 7 12 – culpa
Promise of punishment, independent post contrahendum 7 11 – dolo facit,
11 3 Road traffic, responsibility qui petit, quod statim redditutrus est 7
of children 20 5 18 – objection to the inadmissible
piece debt 8 2 exercise of rights 7 14 ff.
Subsidiarity of good faith
7
4 substitution 20 38
successive delivery contracts 2 4 – Individual use cases 7 7 ff.
surrogate 22 2, 11, 25 ff., 46 – Formal nullity 4 21
https://doi.org/10.17104/9783406758829-489
512 index
- and selection of joint and several debtors 37 – set-off 16 15

12 Unjust enrichment 3
– legal assessments/traffic habit 7 5
13 – for waiver 17 1
– Customs of trade 7 5 – for negative acknowledgment of
– specification 7 5 – debt 17 2 – in current account
post-contractual obligations 7 11 transactions 17 6
– Obligations in the contractual relationship 7 Ignorance, negligent (des
9 ff. debtor from the impediment to
– abuse of rights 7 15 – performance) 22 67 et seq.
subsidiarity 7 4 – and impossibility 22 1 ff.
further development of the law – Delimitation 17 8 ff., 22 6, 26 4, 27
7 3 – venire contra factum proprium 7 15
16 ff. – absolute fixed transaction
– forfeiture 7 17 – 22 6 – initial 22 10, 64 ff.
pre-contractual obligations 7 12 – – Default of acceptance 22 5, 43 et seq.
omission of the business basis 7 13, – reimbursement of expenses 22 11, 71
27 1 et seq. – contradictory behavior et seq. – permanent 22 17 – factual 22
7 16 – right of retention 13 7 duty of 20 – generic debts 8 5, 22 5 – obligation
loyalty 2 13 fiduciary relationships 29 to provide consideration 22 29 et seq.
25 freedom of type 4 12 et seq.
– monetary debts 9 9
– conflicts of conscience 22
Compulsory type 4 12 23 – highly personal obligations
to perform 22 9 – knowledge
surprising clauses in terms and conditions or negligent ignorance 22 67 et
4 43 seq.
surprise/taken by surprise – in – Specification 22 5 –
consumer purchase 19 7, 11 Risk of performance 22 5
– Right of withdrawal 19 – Moral 22 23 – Claim for
5 transfer – for collection supplementary performance 22 35ff.
2 21 – for the fulfillment – subsequent 22 12, 50 ff.
of monetary debts – non-compliance with the performance time
98 22 6
Transfer resolution 34 28 – objective 22 4
Reinterpretation, void guarantee – personal 27 18 –
35 22 Prohibition of avoidance 4 breach of duty 22 51 f. –
54 Sales tax in the event of qualitative 22 14 – legal 22 4
damages in cash 31 5 Unordered – rescission 22 81 ff.
delivery/service 3 7 et seq.
- Damages 22 11, 49 ff., 64 ff. - Deputy
commodum 22 25, 27, 46 - Partial
Free of charge 2 30 debt 22 5 - Subjective 22 7 ff.
Insignificance of a defect 24
30
Tort 3 12 – Surrogate 22 2, 11, 25 ff., 46
https://doi.org/10.17104/9783406758829-489
index 513
– partly 22 13, 33 – Currency debts 9 7

liability of the creditor 22 37 et seq. Currency ratio 32 7, 12
Venire contra factum proprium 7
– Must represent 22 15, 53 –
complete 22 13 f. 16 Responsibility – of
– Inventory debt 22 5 the creditor 22 37 ff., 24 32 – in the
– temporary 22 7, 11, 16 f., 34 – elective case of a claim for damages 28 8 – of the
debt 8 13 – economic 22 21, 27 17 non- debtor 20 1 ff.
seizability 2 21, 16 16 – and assignment Class actions against general terms
34 13 awareness of wrongdoing 20 11 ff. and conditions 4 59 liability 1 2 –
obligation to indemnify 10 5 – iSd §
278 20 31 – imperfect/natural 2 25 et
Maintenance burden as damage 29 seq.
2 Consumers 3 7, 19 1, 3 –
Maintenance claims, set-off 16 16 workers 19 9
– Use of general terms and conditions
refrain 4 62
– Duty to act 28 3 – Right of withdrawal 19 18 et seq.
– Penalty 11 11 Consumer protection 19 1 et seq.
– causation 30 3 – Change of provider in the case of permanent debt
– reasonableness of action 28 8 circumstances 19 57
Injunctive Relief Act 4 59 - special forms of distribution 19 2, 7 -
negligence 31 40, burden of proof 19 60 - electronic
46 commerce 19 52 et seq.
Entrepreneurs 3 7, 19 1, 3 –
information requirements 19 16 f. – Penalties 19 50 – Distance
– Use of general terms and conditions contracts 19 14ff. – Contracts
4 60 concluded away from business
Disproportionate effort 22 premises 19 8 et seq.
18 et seq. - Cost traps 19 56 -
Inability 22 7 – Need for protection 19 10, 23 -
financial 22 8 Representation 19 13 - Technical
Invalidity of contracts - protection means 19 53 - Prohibition of
obligations 2 14 - pending right of circumvention 19 59 - Indispensability
withdrawal 19 21, 35 inadmissible 19 58 - Consumer loan agreement
exercise of rights 7 14 et seq., 19 19 1, 24, 48 - Purchase of consumer
24b unreasonableness - sticking to the goods 19 1, 29 19 - Associated
unchanged contract 27 8 - highly transactions 19 45 et seq.
personal services 22
– Contracts for digital products 19
61 ff.
– Right of withdrawal 19 18 et seq.
22 Consumer contracts 19 3 – in
– the performance by the debtor the area of services of general interest 13
25 5 21, 23 – information obligations 19 4
Update obligation 19 64
https://doi.org/10.17104/9783406758829-489
514 index
– Agreement on fees 19 5 Purchase of – Contract for current/future 4 25 f.

consumer goods 22 47, 29 19
Associated transactions 19 45 et seq. Financial loss 29 2 f.
Agreed payment, acceptance, review Mail order business, specification 8 6
deadlines 4 49, 12 Fault 20 1, 7 ff. – of the auxiliary person
22 ff. 20 33 ff. – against oneself 31 37 –
Agreement loans 17 4 Club contributing 31 36 ff.
penalties 11 4 Forfeiture clause
4 55 Constitution – importance – Guilt theory 20 12 f.
for the exercise of contractual – negligence 31 40,
freedom 4 4 ff.
46 – Assumption 3
– Protection and limitations of 16 – Theory of intent 20 11 ff.
contractual freedom 4 2 ff. Culpability 20 4 et seq. - if the
Premature damage 30 16 injured party is at fault 31 38 - the
Disposition 1 9 – Amendment auxiliary person within the meaning
contract 17 3 – Assignment 34
of Section 278 20 34 fault principle 20
3 f.
1 attribution of fault 20 24 mail order
– Set-off 16 10 – Decree
17 1 purchase 22 47, 29 14, 18 et seq.
– negative acknowledgment of guilt

17 2 Insurance, statutory 10 16 insurance
benefits and damage calculation 31 25
– mortis causa (legacy)
36 et seq.
supply task, public 4
Remuneration risk 22 45, 47 10
proportionality 22 19
Damage caused by delay, replacement of the 23rd
Behavior, contradictory 4 74 2 ff.
Code of Conduct 2 11
– Business interruption damage
Negotiators, liability for
20 30 23 30 – Enforceability of the claim 23
5 f.
Statute of limitations
2 25 – and set-off 16 8 – in - dispensability of the reminder 23
15 et seq.
the case of joint and several liability 37
15, 28 – pre-contractual duties to protect 25 - Claim for payment 23 20 -
18 Action for performance 23
Means of transport Right of withdrawal 19 5 14 - Refusal of performance, serious
Traffic safety obligations 28 3 and final 23 17 - Time of performance,
Traffic custom 2 10 determinable 23 16 - Time of
Traffic areas, consumer protection performance, specific 23 15 - Order for
19 9 payment 23 14 - Reminder 23 10 et seq.
legacy 3 6, 29 21
Property – – Non-performance damage 23 31
limited liability 2 23 – unlimited – Non-performance 23 7 f.
liability 2 21 – Breach of duty in the form of delay
– Obligation to transfer/ in performance 23 3 – Invoice 23
Load 4 25 23
https://doi.org/10.17104/9783406758829-489
index 515
– Invoicing, deadline after 23 19 ff. – Prohibitions on transactions

4 7 – Exercise 4 4 f.
– Entrepreneurs 23 22 – – Freedom of form/constraint 4 16 ff.
Consumers 23 22 – – Freedom of design 4 1, 12 et seq.
Responsibility 23 28 f. – Freedom to choose the law 4 14a,
– Delay damage 23 30 f. 15 – Protection and limitations 4 2 et seq.
– Damage caused by delay 23 30 f. – Type freedom/compulsion 4 12 ff.
– Interest on arrears 23 32 f. – and constitution 4 2 ff.
– Payment statement, equivalent – Contract in favor of third parties 32 8
23 24 Content of contract 6 1 et seq.
State of Defense 28 5 Contract – – Specificity/determinability 6 1 –
General Terms and Conditions 4 Determination by a party 6
28 et seq. 2 ff.
– Determination by a third party 6
- offsetting by 16 1 - unilaterally 10 f.
binding 3 4 - creation of obligations – Determination by declaration of intent 6
3 1 et seq. - mutual 3 2 et seq., 13 13, 22 5, 12 – Determination at reasonable
31 - over current/future assets 4 25 f. - discretion 6 6, 13 f.
sovereignly dictated 4 11 - content 6 1 ff.
– Determination at will
6 15
– Determination at discretion 6 8 f.
– with a protective effect for third parties 5 Contract with protective effect for third
11, 33 1 et seq. parties see Obligation with protective
– Right of withdrawal 18 7 et seq. effect for third parties Conclusion of
– Disturbance of the business basis 27 1 contract 4 1 et seq. - electronic commerce
ff. – Synallagmatic 3 2 – Imperfect
bilateral obligation 3 3, 22 31 19 53
– factual contractual relationships 4
70 ff.
– associated 19 48 f. – Use of services in mass transport 4 73 –
– Pre-contracts 4 75ff. – Typical social behavior 4 73 – Use of
in favor of third parties 32 1 et seq. general terms and conditions, see General
Contract initiation 5 6 Contract Terms and Conditions – Preliminary
adjustment 27 2 – Right to 27 agreements 4 75 et seq.
10 contract interpretation 22
19 – and disruption of the – Prerequisite for revocation right 19
business basis 27 6, 13 Contract conditions 22 et seq., 54
4 29 Contract binding, principle of 22 19 - contradictory behavior 4 74 contractual
penalty 11 1 et seq. - in the employment
contract 4 69 - accessoriness 11 2
Freedom of contract 4 1 ff., 17 3 f. – meaning 11 1

– Freedom of conclusion 4 1, 6 et seq. – term 11 2
– Final bids 4 8 ff. – Operating fines 11 5
https://doi.org/10.17104/9783406758829-489
516 index
– bonus 11 7 – rejection 32 13
– disparagement, judicial 11 16 – Allocation ratio 32 7
– contractual penalty 11 2 Confidence interest/damage 29
– liquidated damages 11 8 9 f.
– repentance 11 have to represent
6 – independent promise of punishment 11 – claims for damages 28 8 – poor
3 performance 24 12 – impossibility 22 15,
– forfeiture by omission 11 53 – delay in performance 23 28 f., 49
representatives, liability for statutory 20 23,
11 – Club penalties 11 4 26 forms of distribution, special
– Relationship to performance/ (consumer protection) 19 2, 3, 7 causation
compensation 11 12 et seq. 30 1 ff.
– Relationship to withdrawal 18 7 –
Forfeiture 11 9 – Conditions 11 9 et
seq.
Transfer of contract 35 1, 6 – theory of adequacy 30 8 ff., 15 –
contractual relationships 22 64 – theory of equivalence 30 2 f., 4, 7 –
factual 4 70 ff. theory of conditions 30 2 – in the case
Contract negotiations 2 14, 3 10, of omission 30 3 – conditio sine qua
55 non 30 2, 7 – double causality 30 2 –
– Termination of 25 14 causality that fills liability 28 9, 30 4,
contract in favor of third parties 32 1 et seq. 6 – causality giving rise to liability 30 4 f.
– Delimitation 32 4 ff., 33 17 – – hypothetical causality 27 7, 30
Species 32 1 ff.
– offsetting 32 14 – rules
of interpretation 32 5 f. –
qualifying 32 2 – cover ratio 32 17 et seq.
7 ff. – genuine 32 2 – causality 30 2 –

reserve causes 30 17 ff.
– Objections and objections 32 – Attribution see there
14 reimbursement of use in the event of
– assumption of performance 32 withdrawal 18 32
6 – empowering 32 3 Forfeiture 7 17 – of
– Form 32 9 a contractual penalty 11 9 – of
– Performance disruptions 32 15ff. the right of withdrawal 19 24b
– Legal relationships between the parties Interest obligation – claim for
32 7 et seq. reimbursement of expenses 10 4 – in the
– resignation 32 17 creditor’s default 26 16 – claim for value
– Damages 32 16 compensation in the debtor’s default 23
– donation mortis causa 32 9 – spurious 75 Delay in performance 23 1 et seq.
32 3
– Currency ratio 32 7, 12 – Distinction from impossibility 22 6, 23
– Relationship between promise and third 4 – Reimbursement of expenses 23
party 32 13 56 – Default by the creditor, simultaneous
– Freedom of contract, principle of 26
32 8 8, 16
https://doi.org/10.17104/9783406758829-489
index 517
– Increased liability in default 23 73 et seq. Power of attorney, notarial deed

4 22
– filing of an action 23 14, 76 – Stock obligation 8 1
refusal to perform, serious and final 23 17, intent 20 7 ff., 21 –
42, 61 f. conditional 20 9 f.
– Reminder 23 10 et seq. – Awareness of illegality
– Grace period, unsuccessful provision 23 20 11
38 et seq. – direct 20 8 –
- Breach of duty in the form of delay in guilt theory 20 12 f.
performance 23 3, 27 - Invoicing, – Intent theory 20 11 ff.
deadline after 23 19 et seq. – Theory of imagination 20 9 –
Theory of will 20 9 provision
– Lis pendens, special features at 23 76 ff. costs, reimbursement of 31 33 ff.
– Resignation 23 57 et seq. Board of Directors, liability for 20 27

– Damages instead of the (whole) Benefit Sharing 22 42, 29 7, 31
21 et seq.
Service 23 34 ff., see there
- Damages lump sum 23 75 - Provisional agreements 4 75 et seq.
Obligation 23 2, 36 - Partial Pre-contractual obligations 2 14, 3 10 f., 5 1

delivery in the purchase/work contract ff., 7 12 - meaning 5 2 - participants 5 8 ff.
law 23 48, 65 - Damage caused by - with third parties 5 9 ff.
delay, compensation for 23 2 et seq., see
there - Responsibility 23 28 f., 49 -
Interest on the claim for value compensation – Third-party protection
in default 23 75 33 1 et seq. – Statutory regulation
5 1 – Competition 25 18
– Interest on arrears 23 32 f. – Guardian liability 5 11 –
– Contingent liability 30 18 Violation of the duty to protect 25 11ff. –
damage caused by delay 23 30 f., see and good faith 7 12
damage caused by delay delay 23 – Prerequisites for the creation 5 4 ff.
9 ff.; sa Delay in performance – Termination
23 29a – Elimination of limitations of preferential rights 35 18
liability 23 73 – Liability for accidents 23 74 –
Agreed occurrence 23 27a – Interest on the Currency Act 9 3 Electoral
claim for compensation 23 75 Termination Debt 8 8 ff.
of default 23 29a Damage caused by default – Exercising the right to vote 8 9 et seq.
23 30 f., see damage caused by delay – term 8 8 –
Interest on arrears 23 32 f . impossibility 8 13 elective
legacy 8 8 commodity 3 7
Loss of business basis

7 13, 9 4, 27 1 et seq.
Right of removal 10 6 ff.
– Flat-rate interest on arrears 23 33a – exercise 10 7 – and
Enforcement see enforcement, private self-help 10 7 – prerequisites
enforcement 16 3 10 6
https://doi.org/10.17104/9783406758829-489
518 index
Compensation Cancellation policy 7 16, 19 30 right of

for value – in the case of cancellation 19 45 et seq.
withdrawal 18 29 f. – in the case of Revocation period 19 28 et seq.
revocation of consumer contracts 19 40 Withdrawal information, sample 19 20,
ff. – in the case of revocation/return 19 39, 40, 26, 30 Contradictory behavior 4 74,
37-40a
Impairment replacement 19 40 7 16
Value debts 9 2 Replacement costs 31 3
Value protection clause 9 3 Determination of will, exclusion of free
Bet 2 27 20 4
Competitive games, rule violations 28 Economic impossibility 27
5 17
Competitive relationship in sport – Weal and woe 33 9 f.
limitation of liability 20 22a (right of residence 12 15 f.
withdrawal) 19 18 et seq. Apartment, revocation upon contract ex
– Distinction from withdrawal 18 4 – finish in the 19 9th
Exclusion 19 23, 24a f.
– Exclusion of further claims 19 44 – Claim for payment, offsetting with claim
Contracts concluded outside of for discharge of debt 16
business premises 19 18 et seq. 5
Payment deadlines, agreed 4 49, 23 12
– Exercise 19 25 et seq. et seq.
– Term and meaning 19 19 f. Insolvency 22 8 Assignor 34 2
– Instruction 7 16, 19 16, 30 ff. Time lapse in the case of
- Penetration of the revocation 19 45 et continuing obligations 17 13 Determination
seq. - electronic commerce of time – absolute fixed transaction 22
19 54 6 – when offsetting 16 11 Assignment 34
– Statement 19 25 ff. 2 Assignee 34 2 Interest debt 9 10 et seq.
– Distance contracts 19 18 et seq.
– Deadline 19 28 et seq.
– doorstep selling 19 9 –
purchase on trial 19 32 –
misuse 19 24a – legal – Term 9 10 –
consequences 19 34ff. – Origin 9 11 –
pending effectiveness 19 21, Compound interest 9
35 14 – Interest rate 9 12 et seq.
– affiliated businesses 19 45 et seq. Compound interest 9 14
– Forfeiture 19 24a – Flat-rate interest in the event of default 23 33a
Requirements 19 22 et seq. Contingent liability in the event of default by the
– compensation 19 40 debtor 30 18
– Impairment replacement 19 40 – Access –
Revocation enforcement 19 45 et seq. the declaration of revocation 19 26, 33,
- Cancellation period 19 28 36
ff. - related contracts 19 – the invoice or statement of payment 23
51 25 f.
– Delivery costs 19 37 Step-by-step performance 13 11
https://doi.org/10.17104/9783406758829-489
index 519
– upon withdrawal 18 33 – Reciprocity of claims 13

attribution 30 7 et seq. 3
– Adequacy theory 30 8 ff., 15 – – commercial 13 4, 6, 10 –
Physician’s obligation to provide information 30 connection of claims 13 5 – good faith
16 13 7 – requirements 13 3 – effects 13
– Double causality 30 2 10 f.
– Compensation for lost profit 30
19
– Misconduct of the injured person Rejection of contract in favor of third
Third 30 23 parties 32 13 Related contracts 19
– consequential damage 51
30 22 – challenging cases 30 23 –
Delivery costs, replacement at
hypothetical causality 30 17 ff.
Revocation 19 37
– life risk, general 30 14,
23 Excessive reminder 23 12
– lawful alternative behavior 30 16 allocation ratio 32 7
Underdelivery 24 17, 31
– connection with unlawfulness 30 16 penalty payment 2 24
– reserve causes 30 17 et seq. Compulsive 2 24
Foreclosure 2 19, 21, 26
– damage systems 30 20 – achievement of purpose
protective purpose of the standard
– demarcation 27 16
30 12 – protective purpose of legal – term 17 9 –
regulations 30 14 f.
legal treatment 17 11
– Protective purpose of contractual loss of purpose
obligations 30 13
– demarcation 27 16
– Contingent liability of the debtor in
– term 17 10 –
default 30 18 Right of retention 13
1 et seq. – and set-off 16 5 – Exclusion legal treatment 17 11
13 7 et seq. Community of purpose in the case of
joint and several liability 37 9
– Term and meaning 13 2 – Disorder 27 16

Maturity of the counterclaim 13 Misuse of purpose clause 27 20
4 Two-tier sunset clause 4 55
https://doi.org/10.17104/9783406758829-489
https://doi.org/10.17104/9783406758829-489

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outlines of the law

With cases and layout schemes

Brox/Walker · General law of obligations

General law of obligations

dr Hans Brox † Former

since the 28th edition continued by

dr Wolf Dietrich Walker

45th, updated edition 2021

Suggested citation: Brox/Walker SchuldR AT § ... Rn. ...

Print ISBN 978 3 406 75881 2

© 2021 Verlag CHBeck oHG

Typesetting: Thomas Schäfer, www.schaefer-

Printed on acid-free, aging-resistant paper (made from

Foreword to the 45th edition

The concept of this floor plan is to serve as a textbook

Giessen, January 2021 Wolf Dietrich Walker

List of abbreviations ................................................. ....................... XXIII

1st chapter. Location and importance of the law of obligations

§ 1. Location and importance of the law of obligations ..................................... 1

2nd chapter. Concept and delimitation of the obligation

§ 2. Concept and delimitation of the obligation ........................ 7

3rd chapter. creation of debts

§ 3. Ways in which obligations arise ........................ § 4. Establishment of 21

obligations ........................ ............................................ § 5. Creation of pre- 28

contractual obligations ...................... 68

4th chapter. content of the obligations

§ 6. Determination of the content of the debt ........................................ ............ 76

expenses, right of removal and obligation to provide information ........ 103

5th chapter. cessation of obligations

§ 14. Fulfillment ........................................ ................................................ 139

viii Table of Contents

6th chapter. Consumer protection in consumer contracts and

§ 19. Consumer protection for consumer contracts and special

7th chapter. liability of the debtor

§ 20. Responsibility of the debtor ............................................ ...... 220

8th chapter. Disturbances in the obligation § 21.

Overview of the disturbances in the obligation ........................ 239 § 22. Impossibility

performance ........................................ ...................... 274 § 24. Poor

9th chapter. liability for damages

§ 28. Overview of the requirements for compensation

10th chapter. Participation of third parties in the obligation

§ 32. Contract in favor of third parties ............................................ .................... 412

11th chapter. majority of creditors and debtors

§ 36. Partial debtors and partial creditors ................................................ 454 Section

Index of Paragraphs ................................................ ...................................... 479

List of abbreviations ................................................. ....................... XXIII

1st chapter. Location and importance of the law of obligations

§ 1. Location and importance of the law of obligations ..................................... 1

I. Term and legal regulation ........................................ 1

2nd chapter. Concept and delimitation of the obligation

§ 2. Concept and delimitation of the obligation ........................ 7

I. Term ................................................ ....................................... 7

II. Obligations of the debtor and right of claim of the creditor

1. Obligations of the debtor ..................................... ........ 9

3rd chapter. creation of debts

§ 3. Types of emergence of obligations ........................................ 21

I. Origination through legal transaction ........................................ 21

3. Unjust enrichment ........................................ 25

§ 4. Justification of debt contracts ............................................ ....... 28

I. Debt contract and freedom of contract ........................................ 28

Creation of pre-contractual obligations .................. .... 68

I. Legal regulation ................................................ ................. 69

4th chapter. content of the obligations