sourcetext.txt

Full citation: Civil Code in the version promulgated on 2 January 2002 (Federal Law Gazette [Bundesgesetzblatt] I page 42, 2909; 2003 I page 738), last amended by Article 4 para. 5 of the Act of 1 October 2013 (Federal Law Gazette I page 3719)
This statute serves to transpose into national law the following directives:
1.Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ L 39 of 14 February 1976, p. 40),
2.Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ L 61 of 5 March 1977, p. 26),
3.Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ L 372 of 31 December 1985, p. 31),
4.Council Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ L 42 of 12 February 1987, p. 48, last amended by Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ L 101 of 1 April 1998, p. 17),
5.Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158 of 23 June 1990, p. 59),
6.Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95 of 21 April 1993, p. 29),
7.Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (OJ L 280 of 29 October 1994, p. 82),
8.Directive 97/5/EC of the European Parliament and of the Council of 27 January 1997 on cross-border credit transfers (OJ L 43 of 14 February 1997, p. 25),
9.Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144 of 4 June 1997, p. 19),
10.Articles 3 to 5 of Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166 of 11 June 1998, p. 45),
11.Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171 of 7 July 1999, p. 12),
12.Articles 10, 11 and 18 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce” OJ L 178 of 17 July 2000, p. 1),
13.Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ L 200 of 8 August 2000, p. 35).
Book 1
General Part
Division 1
Persons
Title 1
Natural persons, consumers, entrepreneurs
Section 1
Beginning of legal capacity
The legal capacity of a human being begins on the completion of birth.
Section 2
Beginning of majority
Majority begins at the age of eighteen.
Sections 3 – 6
(repealed)
Section 7
Residence; establishment and termination
(1) A person who settles permanently in a place establishes his residence in that place.
(2) There may be a residence in more than one place at the same time.
(3) Residence is terminated if the person abandons the place of residence with the intention of giving it up.
Section 8
Residence of persons who lack full capacity to contract
(1) A person who is not capable of contracting or who has limited capacity to contract can neither establish nor terminate residence without the consent of his legal representative.
(2) A minor who is or has been married may independently establish and terminate residence.
Section 9
Residence of a soldier
(1) A soldier has his residence in his garrison.
The residence of a soldier who has no garrison within the country is deemed to be his last garrison within the country.
(2) These provisions do not apply to soldiers who are merely doing compulsory military service or who cannot independently establish residence.
Section 10
(repealed)
Section 11
Residence of a child
A minor child shares the residence of its parents; it does not share the residence of a parent who lacks the right to care for the person of the child.
If neither parent has the right to care for the person of the child, the child shares the residence of the person who has this right.
The child retains the residence until it validly abandons it.
Section 12
Right to a name
If the right of a person to use a name is disputed by another person, or if the interest of the person entitled to the name is injured by the unauthorised use of the same name by another person, the person entitled may require the other to remove the infringement.
If further infringements are to be feared, the person entitled may seek a prohibitory injunction.
Section 13
Consumer*)
A consumer means every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession.
*) Official note: These provisions serve to implement the directives set out above under numbers 3, 4, 6, 7, 9 and 11.
Section 14
Entrepreneur*)
(1) An entrepreneur means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
(2) A partnership with legal personality is a partnership that has the capacity to acquire rights and to incur liabilities.
*) Official note: These provisions serve to implement the directives set out above under numbers 3, 4, 6, 7, 9 and 11.
Sections 15 - 20
(repealed)
Title 2
Legal persons
Subtitle 1
Associations
Chapter 1
General provisions
Section 21
Non-commercial association
An association whose object is not commercial business operations acquires legal personality by entry in the register of associations of the competent local court [Amtsgericht].
Section 22
Commercial association
An association whose object is commercial business operations acquires legal personality, for lack of special provisions under federal law, by state grant.
The grant is in the power of the Land in whose territory the association has its seat.
Section 23
(repealed)
Section 24
Seat
The seat of an association, unless otherwise provided, is the place where the management is conducted.
Section 25
Constitution
The constitution of an association with legal personality is, to the extent that it is not based on the following provisions, determined by the articles of association.
Section 26
Board and representation
(1) An association must have a board.
The board represents the association in court and out of court; it has the status of a legal representative.
The extent of the power of agency may be restricted by the articles of association with effect against third parties.
(2) If the board consists of several persons, the association is represented by the majority of the board members.
If a declaration of intent is to be submitted to an association, it is sufficient to submit it to one member of the board.
Section 27
Appointment of and management by the board
(1) The appointment of the board is by resolution of the general meeting.
(2) The appointment is revocable at any time, notwithstanding the claim to payment in conformity with contract.
The revocability may be restricted by the articles of association to the case where there is a compelling reason for the revocation; such a reason includes without limitation a gross breach of duty or inability to effect proper management.
(3) The management by the board is governed by the provisions on mandate in sections 664 to 670 with the necessary modifications.
Section 28
Passing of resolutions by the board
In case of a board consisting of more than one person, resolutions are passed under the provisions of sections 32 and 34, which govern the resolutions of the members of the association.
Section 29
Emergency appointment by local court [Amtsgericht]
To the extent that the board is lacking the necessary members, they are to be appointed, in urgent cases, for the period until the defect is corrected, on the application of a person concerned, by the local court [Amtsgericht] that keeps the register of associations for the district in which the association has its seat.
Section 30
Special representatives
It may be provided by the articles of association that, in addition to the board, special representatives are to be appointed for particular transactions.
In case of doubt, the power of agency of such a representative extends to all legal transactions that the sphere of business allocated to him normally entails.
Section 31
Liability of an association for organs
The association is liable for the damage to a third party that the board, a member of the board or another constitutionally appointed representative causes through an act committed by it or him in carrying out the business with which it or he is entrusted, where the act gives rise to a liability in damages.
Section 31a
Liability of members of executive bodies and special representatives
(1) If members of executive bodies or special representatives act free of charge, or if they receive remuneration for their activity which does not exceed 720 euros per year, they are liable towards the association for damage caused in performing their duties only in case of intent or gross negligence.
Sentence 1 also applies to liability towards the members of the association.
If there is a dispute as to whether a member of an executive body or a special representative has caused damage with intent or gross negligence, the burden of proof is incumbent on the association or on the member of the association.
(2) If members of executive bodies or special representatives are obliged under subsection (1) sentence 1 to provide to another party compensation for damage which they caused in performing their duties, they may demand from the association to be released from the obligation.
Sentence 1 does not apply if the damage was caused with intent or gross negligence.
Section 31b
Liability of members of the association
(1) If members of the association act for the association free of charge, or if they receive remuneration for their activity which does not exceed 720 euros per year, they are liable to provide to the association compensation for damage caused in performing the duties of the association, in accordance with the articles of association, that have been assigned to them, only in case of intent or gross negligence.
Section 31a (1) sentence 3 applies with the necessary modifications.
(2) If members of the association are obliged under subsection (1) sentence 1 to provide to another party compensation for damage which they caused in performing the duties of the association, in accordance with the articles of association, that have been assigned to them, they may require the association to release them from the obligation.
Sentence 1 does not apply if the members of the association have caused the damage with intent or gross negligence.
Section 32
General meeting; passing of resolutions
(1) The affairs of the association, to the extent that they are not to be attended to by the board or another organ of the association, are dealt with by resolution in a meeting of the members.
In order for the resolution to be valid, it is necessary for the subject to be stated when the meeting is convened.
The resolution is decided by the majority of the votes cast.
(2) Even without a meeting of the members, a resolution is valid if all members declare their approval of the resolution in writing.
Section 33
Amendment of articles of association
(1) A resolution containing an amendment of the articles of association must have a majority of three quarters of the votes cast.
In order to alter the objects of the association, the approval of all members is necessary; the approval of the members not present must be declared in writing.
(2) If the legal personality of the association results from a grant, the consent of the competent authority is necessary for every amendment of the articles of association.
Section 34
Exclusion from voting
A member has no right to vote if the resolution concerns entering into a legal transaction with him or commencing or disposing of litigation between him and the association.
Section 35
Special rights
Special rights of a member may not be adversely affected by a resolution of the general meeting without his approval.
Section 36
Convening of the general meeting
(1) The general meeting is to be convened in the cases laid down in the articles of association and when the interests of the association require it.
Section 37
Convening a meeting at the request of a minority
(1) The general meeting is to be convened if the proportion of the membership laid down in the articles of association or, in the absence of a provision, one-tenth of the members call in writing for a meeting to be convened, stating the purpose and the reasons.
(2) If the request is not granted, the local court [Amtsgericht] may authorise the members who made the request to convene the meeting; it may make orders on the conduct of the chairmanship at the meeting.
The court with jurisdiction is the local court [Amtsgericht] that keeps the register of associations for the district in which the association has its seat.
The authorisation must be referred to in the notice convening the meeting.
Section 38
Membership
Membership is not transferable and not inheritable.
The exercise of membership rights cannot be entrusted to another person.
Section 39
Leaving the association
(1) The members have the right to leave the association.
(2) The articles of association may specify that leaving is admissible only at the end of a business year or only after a notice period; the maximum notice period is two years.
Section 40
Flexible provisions
The provisions of section 26 (2) sentence 1, section 27 (1) and (3), sections 28 and 31a (1) sentence 2, as well as sections 32, 33 and 38, do not apply where otherwise provided by the articles of association.
It is not possible to derogate from section 34 through the articles of association, even for the passing of resolutions by the board.
Section 41
Dissolution of the association
An association may be dissolved by resolution of the general meeting.
The resolution must have a majority of three-quarters of the votes cast, unless otherwise provided in the articles of association.
Section 42
Insolvency
(1) An association is dissolved by the commencement of insolvency proceedings and on the order becoming legally final by means of which the commencement of the insolvency proceedings has been rejected for insufficiency of assets.
If the proceedings are discontinued on the application of the debtor or terminated after the confirmation of an insolvency plan that provides for the association to continue in existence, the general meeting may pass a resolution that the association is to continue in existence.
The articles of association may provide that, if insolvency proceedings are commenced, the association is to continue as an association without legal personality; in this case too, if the requirements of sentence two above are satisfied, a resolution may be passed to continue the association as an association with legal personality.
(2) If an association is insolvent or is overindebted, the board must petition for the commencement of insolvency proceedings.
If there is delay in petitioning, the members of the board who are at fault are responsible to the creditors for the damage resulting from this; they are liable as joint and several debtors.
Section 43
Deprivation of legal personality
An association whose legal personality is the result of a grant can be deprived of its legal personality if it pursues objects different from those in the articles of association.
Section 44
Jurisdiction and proceedings
Jurisdiction and the procedure for the deprivation of legal personality under section 43 are decided under the law of the Land in which the association has its seat.
*) Under Article 129 of the Basic Law [Grundgesetz], the Federal Minister of the Interior [Bundesminister des Innern] is now competent.
Section 45
Devolution of the assets of the association
(1) On the dissolution of the association or its deprivation of legal personality, the assets devolve on the persons specified in the articles of association.
(2) The articles of association may provide that the persons entitled to receive the assets are specified by a resolution of the general meeting or by another organ of the association.
If the objects of the association are not commercial business operations, the general meeting may, even without such a provision, allocate the assets to a public foundation or institution.
(3) If no persons entitled are specified, then if according to its articles the association exclusively served the interests of its members, the assets pass in equal shares to the members at the date of the dissolution or the deprivation of legal personality, and failing this to the treasury of the Land in whose territory the association had its seat.
Section 46
Devolution on the treasury
If the assets of the association devolve on the treasury, the provisions on an inheritance that devolves on the treasury as the heir on intestacy apply with the necessary modifications.
The treasury shall if possible use the assets in a manner corresponding to the objects of the association.
Section 47
Liquidation
If the assets of the association do not devolve on the treasury, there must be a liquidation, unless insolvency proceedings have commenced with regard to the assets of the association.
Section 48
Liquidators
(1) The liquidation is effected by the board.
Other persons may also be appointed as liquidators; the appointment is governed by the provisions for the appointment of the board.
(2) The liquidators have the legal status of the board, unless the purpose of the liquidation leads to a different conclusion.
(3) If there are several liquidators, they are only empowered to represent jointly, and can only enact orders unanimously, unless provided otherwise.
Section 49
Duties of the liquidators
(1) The liquidators must complete the current business, collect the receivables, convert the rest of the assets into cash, satisfy the creditors and pay out the surplus to those entitled to receive it.
In order to complete transactions that are in progress, the liquidators may also enter into new transactions.
The collection of receivables and the conversion of the rest of the assets into cash may be omitted to the extent that these measures are not necessary to satisfy the creditors or to distribute the surplus among those entitled to receive it.
(2) The association is deemed to continue in existence until the end of the liquidation if the purpose of the liquidation requires this.
Section 50
Public notice of the association in liquidation
(1) The dissolution of the association or its deprivation of legal personality must be announced by the liquidators in a public notice.
In the notice, the creditors must be requested to register their claims.
The public notice is made through the newspaper specified in the articles of association for this purpose.
Public notice is deemed to have been made at the end of the second day after the publication or first publication.
(2) Known creditors must be requested by special invitation to register their claims.
Section 50a
Newspaper for notices
If an association has not specified a newspaper in the articles of association, or if the newspaper specified for notices has ceased publication, notices of the association must be published in the newspaper that is specified for public notices of the local court [Amtsgericht] in whose district the association has its seat.
Section 51
One-year waiting period
The property may not be paid out to the persons entitled to receive it until a year has passed after the announcement by public notice of the dissolution of the association or the deprivation of legal personality.
Section 52
Security for creditors
(1) If a known creditor does not register his claim, the amount owed, if the right to deposit exists, must be deposited for the creditor.
(2) If the discharge of an obligation is not possible at the time, or if an obligation is disputed, the property may be distributed to the persons entitled to receive it only if security is provided to the creditor.
Section 53
Liability in damages of the liquidators
Liquidators who commit breaches of their duties under section 42 (2) and sections 50, 51 and 52 or who, before the satisfaction of the creditors, distribute assets to the persons entitled to receive are, if they are at fault, responsible to the creditors for the damage resulting from this; they are liable as joint and several debtors.
Section 54
Associations without legal personality
Associations without legal personality are governed by the provisions on partnership.
When a transaction is entered into with a third party in the name of such an association, the person acting is personally liable; if more than one person acts, they are liable as joint and several debtors.
Chapter 2
Registered associations
Section 55
Jurisdiction over entry in the register
The entry of an association of the kind specified in section 21 above in the register of associations must be made at the local court [Amtsgericht] for the district in which the association has its seat.
Section 55a
Electronic register of associations
(1) The Land governments may provide by statutory order that and to what extent the register of associations is maintained in electronic form as a computerised data file.
It must be guaranteed that
1. the principles of proper data processing are observed, in particular that precautions against a loss of data are taken, the necessary copies of the databases are kept current at least on a daily basis and the original databases and copies of them are kept in safe custody.
2. the entries to be made are immediately entered into a memory and it remains permanently possible to reproduce their contents unchanged in readable form.
3. the measures required by the schedule to section 126 (1) sentence 2 no. 3 of the Land Register Code [Grundbuchordnung] are taken.
The Land governments may by statutory order transfer the authorisation under sentence 1 to the Land justice administration authorities.
(2) The electronic register of associations takes the place of one page of the previous register as soon as the entries on this page have been entered in the memory intended for the entries in the register of associations and made available as the register of associations.
A note of closure must be added to the corresponding pages of the previous register of associations.
(3) An entry comes into effect as soon as it is entered in the memory intended for the register entries and its contents can be permanently reproduced unchanged and in readable form.
There must be a verification, by a confirmation message or in another appropriate way, that these requirements are satisfied.
Each entry should show the date on which it came into effect.
Section 56
Minimum number of members of the association
The entry in the register should be made only if the number of members is at least seven.
Section 57
Minimum requirements of the articles of association
(1) The articles of association must contain the objects, the name and the seat of the association and indicate that the association is to be registered.
(2) The name should differ appreciably from the names of the registered associations in existence in the same place or in the same municipality.
Section 58
Recommended contents of the articles of association
The articles of association should contain provisions:
1. on becoming a member of the association and leaving it,
2. on whether the members are to make contributions, and if so, in what amount,
3. on the composition of the board,
4. on the conditions under which the general meeting is to be convened, on the form of the convening and on the notarial recording of the resolutions.
Section 59
Application for registration
(1) The board must apply for the association to be registered.
(2) Copies of the articles of association and of the documents on the appointment of the board must be attached to the application.
(3) The articles of association should be signed by at least seven members and should state the date of their execution.
Section 60
Rejection of the application
If the requirements of sections 56 to 59 above have not been met, the application must be rejected by the local court [Amtsgericht], stating the reasons.
Sections 61 - 63
(repealed)
Section 64
Contents of the entry in the register of associations
On entry in the register, the name and seat of the association, the date of the execution of the articles, the members of the board and their powers of representation are to be stated.
Section 65
Addition to name
When the association is entered in the register, the name of the association is given the additional element “eingetragener Verein” [“registered association”].
Section 66
Public notice of the entry and safekeeping of documents
(1) The local court [Amtsgericht] must publish the entry of the association in the register of associations by means of publication in the electronic information and communication system designated by the Land justice administration authority.
(2) The documents submitted with the application are kept by the local court [Amtsgericht].
Section 67
Changes to the board
(1) Every change to the board must be notified by the board for registration.
A copy of the document about the change is to be attached to the notification.
(2) Board members appointed by the court are entered in the register by the court at its own motion.
Section 68
Protection of public confidence by the register of associations
If a transaction is entered into between the previous members of the board and a third party, the change of the board can be used as a defence against the third party only if at the time when the legal transaction is entered into the change has been recorded in the register of associations or is known to the third party.
If the change has been entered, the third party need not allow it to apply against him if he does not know of it and his lack of knowledge does not result from negligence.
Section 69
Evidence of composition of the board
Evidence that the board consists of the persons entered in the register is furnished to public authorities in the form of a local court [Amtsgericht] certificate confirming the entry.
Section 70
Protection of public confidence in case of entries on power of agency; passing resolutions
The provisions of section 68 above also apply to provisions that restrict the scope of the power of agency of the board or that lay down different arrangements for the power of agency of the board than the provision in section 26 (2) sentence 1 above.
Section 71
Amendments of the articles of association
(1) Amendments of the articles of association are effective only when entered in the register of associations.
The board must make notification of the amendment for entry in the register.
A copy of the order containing the amendment and of the wording of the articles of association is to be enclosed with the registration.
In the wording of the articles of association, the amended provisions must agree with the order on the amendment of the articles of association, unchanged provisions must agree with the most recently submitted full wording of the articles of association and, if the articles of association have been amended without the full wording of the articles of association being submitted, must also agree with the previously-entered amendments.
(2) The provisions of sections 60, 64 and section 66 (2) apply with the necessary modifications.
Section 72
Certificate on number of members
At the request of the local court [Amtsgericht] at any time, the board shall file a written confirmation on the number of members of the association.
Section 73
Decrease in numbers of members
If the number of members of the association falls below three, the local court [Amtsgericht] shall, on an application by the board and, if the application is not made within three months, of its own motion, after hearing the board, deprive the association of legal personality.
Section 74
Dissolution
(1) The dissolution of the association and the deprivation of legal personality must be entered in the register of associations.
(2) If the association is dissolved by resolution of the general meeting or by the expiry of the time determined for the duration of the association, the board must notify the dissolution to be registered.
In the former case, a copy of the resolution for dissolution must be attached to the notification.
(3) (repealed)
Section 75
Entries in the case of insolvency
The commencement of insolvency proceedings and the order finally rejecting the commencement of the insolvency proceedings for insufficiency of assets, as well as the dissolution of the association pursuant to section 42 (2) sentence 1, are to be registered by the court of its own motion.
The following are also to be entered of its own motion
1. the reversal of the order commencing the insolvency proceedings,
2. the appointment of a provisional insolvency administrator, if in addition the debtor is generally enjoined from transferring assets or it is ordered that disposals by the debtor are effective only with the approval of the provisional administrator in insolvency proceedings, and the termination of such a protective measure,
3. an order of self-management by the debtor and the reversal of this order, and an order that specific legal transactions of the debtor require approval,
4. the discontinuance and termination of the proceedings and
5. the monitoring of compliance with an insolvency plan and the termination of the monitoring.
(2) If the association is continued by order of the general meeting pursuant to section 42 (1) sentence 2, the board must register the continuation for an entry.
A copy of the order is to be enclosed with the registration.
Section 76
Entry in case of liquidation
(1) In case of the liquidation of the association, the liquidators and their power of agency must be entered in the register of associations.
The same applies to the termination of the association subsequent to liquidation.
(2) The notification of the liquidators for registration must be made by the board.
The notification for registration must state the extent of the power of agency of the liquidators.
Changes to the liquidators or their power of agency, as well as the termination of the association, are to be registered by the liquidators.
The notification for registration of the liquidators appointed by resolution of the general meeting must have attached to it a copy of the appointing order, and the notification for registration of the power of agency which was determined by way of derogation from section 48 (3), i on the passing of resolutions by the liquidators must have attached to it a copy of the document containing this provision.
(3) Liquidators appointed by the court are entered in the register by the court of its own motion.
Section 77
Parties obliged to notify and form of notification
The notifications for entry in the register of associations are to be submitted by members of the board and by the liquidators, who are entitled to represent the association in this regard by way of notarially certified statement.
The submission may be submitted to the court in the original or in a publicly-certified copy.
Section 78
Assessment of coercive fines
(1) The local court [Amtsgericht] may enjoin the members of the board to comply with the provisions of section 67 (1), section 71 (1), section 72, section 74 (2), section 75 (2) and section 76 by imposing coercive fines.
(2) In the same way, the liquidators may be enjoined to comply with the provisions of section 76.
Section 79
Inspection of the register of associations
(1) Everyone is permitted to inspect the register of associations and the documents filed with the local court [Amtsgericht] by the association.
A copy of the entries may be required; on request, the copy must be certified.
If the register of associations is kept by computer, the copy is replaced by a print-out and the certified copy by an official print-out.
(2) The introduction of a computerised procedure enabling the data to be transmitted from electronic registers of associations by retrieval is admissible if it is guaranteed that
1. the retrieval of data does not exceed the inspection permitted under subsection (1) above and
2. the admissibility of the retrievals can be monitored on the basis of a log.
The Länder may specify a nationwide electronic information and communication system for the proceedings.
(3) The user must be informed that he can use the data transmitted only for information purposes.
The competent agency must verify (e.g. by spot checks) whether there is evidence that the inspection permitted under sentence 1 above has been exceeded or transmitted data are being misused.
(4) The competent agency may exclude a user from taking part in the computerised retrieval procedure if he endangers the functional reliability of the retrieval equipment, exceeds the inspection permitted under subsection (3) sentence 1 above or abuses transmitted data; the same applies in the case of imminent exceeding of the permissible inspection or imminent abuse.
(5) The competent agency is the Land justice administration authority.
The agency with local jurisdiction is the Land justice administration authority within whose portfolio the competent local court [Amtsgericht] falls.
This provision on jurisdiction may be varied by statutory order of the Land government.
The Land government may transfer this authorisation to the Land justice administration authority by statutory order.
The Länder may also agree to the jurisdiction being transferred to the competent agency of another Land.
Subtitle 2
Foundations
Section 80
Formation of a foundation having legal personality
(1) The creation of a foundation with legal personality requires an endowment transaction and recognition of the foundation by the competent public authority of the Land in which the foundation is to have its seat.
(2) A foundation is to be recognised as having legal personality if the endowment transaction satisfies the requirements of section 81 (1) below, if the long-term and sustained achievement of the object of the foundation appears guaranteed and if the object of the foundation does not endanger the common good.
In the case of a foundation which is established for a specific period the assets of which are to be depleted in pursuing its purpose (principal-depleting foundation), the ongoing performance of the object of the foundation is to be deemed secured if the foundation is to exist for a period defined in the endowment transaction which is at least ten years.
(3) Provisions of the Land legislation on church foundations are unaffected.
The same applies with the necessary modifications to foundations which Land legislation treats as equivalent to church foundations.
Section 81
Endowment transaction
(1) A lifetime endowment transaction must be in writing.
It must contain the binding declaration by the founder that he will dedicate assets, which may also be intended for depletion, to achieve an object specified by himself.
The endowment transaction must give the foundation a charter with provisions on
1. the name of the foundation,
2. the seat of the foundation,
3. the objects of the foundation,
4. the assets of the foundation,
5. the composition of the foundation board.
If the endowment transaction does not satisfy the requirements of sentence 3 above and if the founder is dead, section 83 sentences 2 to 4 apply with the necessary modifications.
(2) Until the foundation is recognised as having legal personality, the founder has a right to revoke the endowment transaction.
If an application has been made for recognition by the competent public authority, the revocation may be declared only to that public authority.
The heir of the founder is not entitled to revoke the endowment transaction if the founder made the application to the competent public authority, or, if the endowment transaction was notarially recorded, the founder, at or after the notarial recording, instructed the notary to make the application.
Section 82
Duty of founder to make transfers
If the foundation is recognised as having legal personality, the founder has a duty to transfer to the foundation the assets promised in the endowment transaction.
Rights that can be transferred by contract of transfer pass to the foundation on recognition, unless the endowment transaction indicates that the founder intended otherwise.
Section 83
Testamentary foundation
If the endowment transaction is a testamentary disposition, the probate court must inform the competent public authority of this for the purpose of recognition, unless application is made by the heir or the executor.
If the endowment transaction does not satisfy the requirements of section 81 (1) sentence 3, the foundation shall be given a charter or additions shall be made to an incomplete charter by the competent public authority before recognition; when this is done, the will of the founder is to be taken into account.
The seat of a foundation, unless otherwise provided, is the place where the management is carried out.
In case of doubt, the last residence of the founder within the country is deemed the seat.
Section 84
Recognition after the death of the founder
If the foundation is recognised as having legal personality only after the death of the founder, then for the purpose of the endowment payments made by the founder it is deemed to have come into existence before his death.
Section 85
Constitution of foundation
The constitution of a foundation, to the extent that it is not based on federal or Land legislation, is determined by the endowment transaction.
Section 86
Application of law on associations
The provisions of sections 23 and 27 (3) and of sections 28 to 31a and section 42 apply with the necessary modifications to foundations; but the provisions of section 26 (2) sentence 1, of section 27 (3) and of section 28 apply only to the extent that the constitution, in particular the administration of the foundation by a public authority, does not lead to a different conclusion.
The provisions of section 26 (2) sentence 2 sentence 2 and of section 29 do not apply to foundations whose administration is conducted by a public authority.
Section 87
Change of objects; termination
(1) If the objects of the foundation have become impossible to fulfil, or if they endanger the common good, the competent public authority may give the foundation another intended purpose or terminate it.
(2) When the objects are altered, the intention of the founder should be taken into account, and in particular, it should be ensured that the income of the foundation assets is maintained for the group of persons that it was meant to benefit, as intended by the founder.
The public authority may amend the constitution of the foundation to the extent that the alteration of the objects requires this.
(3) Before the objects are altered and the constitution is changed, the board of the foundation should be heard.
Section 88
Devolution of property
When the foundation ceases to exist, the property devolves on the persons specified in the constitution.
If no persons entitled are specified, the property devolves on the treasury of the Land in which the foundation had its seat, or on another person entitled to receive under the law of this Land.
The provisions of sections 46 to 53 apply with the necessary modifications.
Subtitle 3
Legal persons under public law
Section 89
Liability for organs; insolvency
(1) The provision of section 31 applies with the necessary modifications to the treasury and to corporations, foundations and institutions under public law.
(2) The same applies, to the extent that insolvency proceedings are admissible with regard to corporations, foundations and institutions under public law, to the provision of section 42 (2).
Division 2
Things and animals
Section 90
Concept of the thing
Only corporeal objects are things as defined by law.
Section 90a
Animals
Animals are not things.
They are protected by special statutes.
They are governed by the provisions that apply to things, with the necessary modifications, except insofar as otherwise provided.
Section 91
Fungible things
Fungible things as defined by law are movable things that in business dealings are customarily specified by number, measure or weight.
Section 92
Consumable things
(1) Consumable things as defined by law are movable things whose intended use consists in consumption or in disposal.
(2) Movable things are also regarded as consumable if they are part of a warehouse store or another aggregate of things whose intended use is the disposal of the individual things.
Section 93
Essential parts of a thing
Parts of a thing that cannot be separated without one or the other being destroyed or undergoing a change of nature (essential parts) cannot be the subject of separate rights.
Section 94
Essential parts of a plot of land or a building
(1) The essential parts of a plot of land include the things firmly attached to the land, in particular buildings, and the produce of the plot of land, as long as it is connected with the land.
Seed becomes an essential part of the plot of land when it is sown, and a plant when it is planted.
(2) The essential parts of a building include the things inserted in order to construct the building.
Section 95
Merely temporary purpose
(1) The parts of a plot of land do not include things that are connected with the land only for a temporary purpose.
The same applies to a building or other structure that is connected with a plot of land belonging to another by a person exercising a right over that land.
(2) Things that are inserted into a building for a temporary purpose are not parts of the building.
Section 96
Rights as parts of a plot of land
Rights that are connected with the ownership of a plot of land are regarded as parts of the plot of land.
Section 97
Accessories
(1) Accessories are movable things that, without being parts of the main thing, are intended to serve the economic purpose of the main thing and are in a spatial relationship to it that corresponds to this intention.
A thing is not an accessory if it is not regarded as an accessory in business dealings.
(2) The temporary use of a thing for the economic purpose of another thing does not give it the quality of an accessory.
The temporary separation of an accessory from the main thing does not deprive it of the quality of an accessory.
Section 98
Commercial and agricultural inventory
The following are intended to serve the economic purpose of the main thing:
1. in the case of a building that is permanently equipped for commercial operations, in particular a mill, a smithy, a brewery or a factory, the machinery and other equipment intended for the business,
2. in the case of a farm, the equipment and livestock intended for the commercial operations, the agricultural produce, to the extent that it is necessary to continue the farming until the time when it is expected that the same or similar produce will be obtained, and manure produced on the farm.
Section 99
Fruits
(1) Fruits of a thing are the products of the thing and the other yield obtained from the thing in accordance with its intended use.
(2) Fruits of a right are the proceeds that the right produces in accordance with its intended use, in particular, in the case of a right to extract component parts of the soil, the parts extracted.
(3) Fruits are also the proceeds supplied by a thing or a right by virtue of a legal relationship.
Section 100
Emoluments
Emoluments are the fruits of a thing or of a right and the benefits that the use of the thing or the right affords.
Section 101
Division of fruits
If a person is entitled to receive the fruits of a thing or of a right until a particular time or from a particular time on, he is entitled to the following, unless otherwise provided:
1. the products and parts stated in section 99 (1), even if he is to receive them as the fruits of a right, to the extent that they are separated from the thing during the period of entitlement,
2. other fruits to the extent that they are due during the period of entitlement; however, if the fruits consist in remuneration for permission of use or of enjoyment of fruits and benefits, in interest, in profit shares or other periodically paid income, the person entitled has a right to a share corresponding to the duration of his entitlement.
Section 102
Reimbursement of costs of production
A person who has a duty to hand over fruits may claim reimbursement of the costs of producing the fruits to the extent that they reflect proper business practices and do not exceed the value of the fruits.
Section 103
Allocation of charges
A person who has a duty to bear the charges on a thing or a right until a specified time or from a specified time on must, unless otherwise provided, bear the periodically recurring charges in the proportion of the period of time of his duty, and bear other charges to the extent that they are payable during the period of time in which he has the duty.
Division 3
Legal transactions
Title 1
Capacity to contract
Section 104
Incapacity to contract
A person is incapable of contracting if
1. he is not yet seven years old,
2. he is in a state of pathological mental disturbance, which prevents the free exercise of will, unless the state by its nature is a temporary one.
Section 105
Voidness of declaration of intent
(1) The declaration of intent of a person incapable of contracting is void.
(2) Also void is a declaration of intent that is made in a state of unconsciousness or temporary mental disturbance.
Section 105a
Everyday transactions
If a person of full age incapable of contracting enters into an everyday transaction that can be effected with funds of low value, the contract he enters into is regarded as effective with regard to performance and, if agreed, consideration, as soon as performance has been effected and consideration rendered.
Sentence 1 above does not apply in the case of considerable danger to the person or the property of the person incapable of contracting.
Section 106
Limited capacity for minors to contract
A minor who has reached the age of seven has limited capacity to contract under sections 107 to 113.
Section 107
Consent of legal representative
For a declaration of intent as a result of which he does not receive only a legal benefit, a minor requires the consent of his legal representative.
Section 108
Entry into a contract without consent
(1) If the minor enters into a contract without the necessary consent of the legal representative, the effectiveness of the contract is subject to the ratification of the legal representative.
(2) If the other party requests the representative to declare his ratification, the declaration can only be made to the other party; a declaration or refusal of ratification made to the minor before the request of the other party is ineffective.
The ratification may only be declared before the expiry of two weeks after receipt of the demand; if ratification is not declared, it is considered to have been refused.
(3) If the minor has become fully capable of contracting, the ratification of the minor takes the place of the ratification of the representative.
Section 109
Right of revocation of the other party
(1) Until the contract is ratified, the other party is entitled to revoke it.
Declaration of revocation may also be made to the minor.
(2) If the other party realised that he was dealing with a minor, he may revoke the contract only if the minor untruthfully stated that the legal representative had given consent; he may not revoke in this case either if, when the contract was entered into, he had notice of the lack of consent.
Section 110
Payment by minor with own means
A contract entered into by the minor without the approval of the legal representative is deemed effective from the beginning if the minor effects performance under the contract with means that were given to him for this purpose or for free disposal by the legal representative or by a third party with the ratification of the representative.
Section 111
Unilateral legal transactions
A unilateral legal transaction that a minor undertakes without the necessary consent of the legal representative is ineffective.
If the minor undertakes such a legal transaction with regard to another person with this consent, the legal transaction is ineffective if the minor does not present the consent in writing and the other person rejects the legal transaction for this reason without undue delay.
Rejection is not possible if the representative had given the other person notice of the consent.
Section 112
Independent operation of a trade or business
(1) If the legal representative, with the ratification of the family court, authorises the minor to operate a trade or business independently, the minor has unlimited capacity to contract for such transactions as the business operations entail.
Legal transactions are excluded for which the representative needs the ratification of the family court.
(2) The authorisation may be revoked by the legal representative only with the ratification of the family court.
Section 113
Service or employment relationship
(1) If the legal representative authorises the minor to enter service or employment, the minor has unlimited capacity to enter into transactions that relate to entering or leaving service or employment of the permitted nature or performing the duties arising from such a relationship.
Contracts are excluded for which the legal representative needs the ratification of the family court.
(2) The authorisation may be revoked or restricted by the legal representative.
(3) If the legal representative is a guardian, the authorisation, if he refuses it, may, on the application of the minor, be replaced by the family court.
The family court must give substitute authorisation if it is in the interest of the ward.
(4) The authorisation given for an individual case is in the case of doubt deemed to be general authorisation to enter into relationships of the same kind.
Sections 114, 115
(repealed)
Title 2
Declaration of intent
Section 116
Mental reservation
A declaration of intent is not void by virtue of the fact that the person declaring has made a mental reservation that he does not want the declaration made.
The declaration is void if it is to be made to another person who knows of the reservation.
Section 117
Sham transaction
(1) If a declaration of intent that is to be made to another person is, with his consent, only made for the sake of appearance, it is void.
(2) If a sham transaction hides another legal transaction, the provisions applicable to the hidden transaction apply.
Section 118
Lack of seriousness
A declaration of intent not seriously intended which is made in the expectation that its lack of serious intention will not be misunderstood is void.
Section 119
Voidability for mistake
(1) A person who, when making a declaration of intent, was mistaken about its contents or had no intention whatsoever of making a declaration with this content, may avoid the declaration if it is to be assumed that he would not have made the declaration with knowledge of the factual position and with a sensible understanding of the case.
(2) A mistake about such characteristics of a person or a thing as are customarily regarded as essential is also regarded as a mistake about the content of the declaration.
Section 120
Voidability for incorrect transmission
A declaration of intent that has been incorrectly transmitted by the person or facilities used for its transmission may be avoided subject to the same condition as a declaration of intent made by mistake may be avoided under section 119.
Section 121
Period for avoidance
(1) Avoidance must be effected, in the cases set out in sections 119 and 120, without culpable delay (without undue delay) after the person entitled to avoid obtains knowledge of the ground for avoidance.
Avoidance made to an absent person is regarded as effected in good time if the declaration of avoidance is forwarded without undue delay.
(2) Avoidance is excluded if ten years have passed since the declaration of intent was made.
Section 122
Liability in damages of the person declaring avoidance
(1) If a declaration of intent is void under section 118, or avoided under sections 119 and 120, the person declaring must, if the declaration was to be made to another person, pay damages to this person, or failing this to any third party, for the damage that the other or the third party suffers as a result of his relying on the validity of the declaration; but not in excess of the total amount of the interest which the other or the third party has in the validity of the declaration.
(2) A duty to pay damages does not arise if the injured person knew the reason for the voidness or the voidability or did not know it as a result of his negligence (ought to have known it).
Section 123
Voidability on the grounds of deceit or duress
(1) A person who has been induced to make a declaration of intent by deceit or unlawfully by duress may avoid his declaration.
(2) If a third party committed this deceit, a declaration that had to be made to another may be avoided only if the latter knew of the deceit or ought to have known it.
If a person other than the person to whom the declaration was to be made acquired a right as a direct result of the declaration, the declaration made to him may be avoided if he knew or ought to have known of the deceit.
Section 124
Period for avoidance
(1) The avoidance of a declaration of intent voidable under section 123 may be effected only within one year.
(2) In the case of deceit, the period commences at the time when the person entitled to avoid discovers the deceit, and in case of duress, from the time when the duress stops.
The provisions in sections 206, 210 and 211 applicable to limitation apply with the necessary modifications to the running of the period.
(3) Avoidance is barred, if ten years have passed since the declaration of intent was made.
Section 125
Voidness resulting from a defect of form
A legal transaction that lacks the form prescribed by statute is void.
In case of doubt, lack of the form specified by legal transaction also results in voidness.
Section 126
Written form
(1) If written form is prescribed by statute, the document must be signed by the issuer with his name in his own hand, or by his notarially certified initials.
(2) In the case of a contract, the signature of the parties must be made on the same document.
If more than one counterpart of the contract is drawn up, it suffices if each party signs the document intended for the other party.
(3) Written form may be replaced by electronic form, unless the statute leads to a different conclusion.
(4) Notarial recording replaces the written form.
Section 126a
Electronic form
(1) If electronic form is to replace the written form prescribed by statute, the issuer of the declaration must add his name to it and provide the electronic document with a qualified electronic signature in accordance with the Electronic Signature Act [Signaturgesetz].
(2) In the case of a contract, the parties must each provide a counterpart with an electronic signature as described in subsection (1).
Section 126b
Text form
If text form is prescribed by statute, a readable declaration, in which the person making the declaration is named, must be made on a durable medium.
A durable medium is any medium that
1. enables the recipient to retain or store a declaration included on the medium that is addressed to him personally such that it is accessible to him for a period of time adequate to its purpose, and
2. that allows the unchanged reproduction of such declaration.
Section 127
Agreed form
(1) The provisions under sections 126, 126a or 126b also apply, in case of doubt, to the form specified by legal transaction.
(2) For compliance with the written form required by legal transaction, unless a different intention is to be assumed, it suffices if the message is transmitted by way of telecommunications and, in the case of a contract, by the exchange of letters.
If such a form is chosen, notarial recording in accordance with section 126 may be demanded subsequently.
(3) For compliance with the electronic form required by legal transaction, unless a different intention is to be assumed, an electronic signature other than provided for in section 126a also suffices and, in the case of a contract, the exchange of a declaration of an offer and of acceptance which are each provided with an electronic signature.
If such a form is chosen, an electronic signature in accordance with section 126a may be demanded subsequently, or if this is not possible for one of the parties, notarial recording in compliance with section 126.
Section 127a
Court settlement
In the event of a court settlement, the recording of declarations in a court record drawn up in accordance with the provisions under the Code of Civil Procedure [Zivilprozessordnung] replaces notarial recording.
Section 128
Notarial recording
If the notarial recording of a contract is prescribed by statute, it suffices if first the offer and then the acceptance of the offer is recorded by a notary.
Section 129
Official certification
(1) If the official certification of a declaration is prescribed by law, the declaration must be put in writing and the signature of the person declaring be certified by a notary.
If the declaration is signed by the issuer making his mark, the certification of the initials provided for in section 126 (1) is necessary and sufficient.
(2) The notarial recording of the declaration replaces the official certification.
Section 130
Effectiveness of a declaration of intent to absent parties
(1) A declaration of intent that is to be made to another becomes effective, if made in his absence, at the point of time when this declaration reaches him.
It does not become effective if a revocation reaches the other previously or at the same time.
(2) The effectiveness of a declaration of intent is not affected if the person declaring dies or loses capacity to contract after making a declaration.
(3) These provisions apply even if the declaration of intent is to be made to a public authority.
Section 131
Effectiveness in relation to persons without full capacity to contract
(1) If a declaration of intent is made to a person incapable of contracting, it does not become effective until it has reached his legal representative.
(2) The same applies if the declaration of intent is made to a person with limited capacity to contract.
If, however, the declaration merely provides a legal advantage to the person with limited capacity to contract, or if the legal representative has given his consent, the declaration becomes effective at the time when it reaches the person with limited capacity.
Section 132
Substitution of service for receipt
(1) A declaration of intent is also deemed to have been received if it is served through a bailiff as intermediary.
The service is effected in accordance with the provisions of the Code of Civil Procedure [Zivilprozessordnung].
(2) If the person declaring is unaware, through no negligence on his part, of the identity of the person to whom the declaration is to be made, or if the whereabouts of this person are unknown, service may be effected in accordance with the provisions of the Code of Civil Procedure [Zivilprozessordnung] relating to service by publication.
In the former case, the local court [Amtsgericht] competent for the approval is the one in whose district the person declaring has his residence, or in the absence of a residence within the country, his abode; in the latter case, the local court [Amtsgericht] competent for the approval is the one in the district of which the person to whom service is required to be effected had his last residence, or, in the absence of a residence within the country, his last abode.
Section 133
Interpretation of a declaration of intent
When a declaration of intent is interpreted, it is necessary to ascertain the true intention rather than adhering to the literal meaning of the declaration.
Section 134
Statutory prohibition
A legal transaction that violates a statutory prohibition is void, unless the statute leads to a different conclusion.
Section 135
Statutory prohibition of disposal
(1) If the disposition of a thing violates a statutory prohibition against disposal intended solely for the protection of particular persons, the disposition is ineffective only in relation to these persons.
A disposition by legal transaction is equivalent to a disposition which is effected by means of execution or attachment.
(2) The provisions in favour of those who derive rights from an unauthorised person apply with the necessary modifications.
Section 136
Official prohibition of disposal
A prohibition of disposal which is issued by a court or by any other public authority within the limits of its competence is equivalent to a statutory prohibition of disposal of the kind described in section 135.
Section 137
Prohibition of dispositions in a legal transaction
The power to dispose of an alienable right may not be excluded or restricted by a legal transaction.
This effectiveness of an obligation not to dispose of such a right is not affected by this provision.
Section 138
Legal transaction contrary to public policy; usury
(1) A legal transaction which is contrary to public policy is void.
(2) In particular, a legal transaction is void by which a person, by exploiting the predicament, inexperience, lack of sound judgement or considerable weakness of will of another, causes himself or a third party, in exchange for an act of performance, to be promised or granted pecuniary advantages which are clearly disproportionate to the performance.
Section 139
Partial invalidity
If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part.
Section 140
Re-interpretation
If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity.
Section 141
Confirmation of a void legal transaction
(1) If a void legal transaction is confirmed by the person who undertook it, the confirmation is to be seen as a renewed undertaking.
(2) If a void contract is confirmed by the parties, then in case of doubt they are obliged to grant to each other what they would have granted if the contract had been valid from the beginning.
Section 142
Effect of avoidance
(1) If a voidable legal transaction is avoided, it is to be regarded as having been void from the outset.
(2) A person who knew or ought to have known of the possibility of avoidance is treated, in case of avoidance, as if he had known or ought to have known of the invalidity of the legal transaction.
Section 143
Declaration of avoidance
(1) Avoidance is effected by declaration to the opponent.
(2) The opponent is, in the case of a contract, the other party to the contract and, in the case of section 123 (2) sentence 2, the person who has acquired a right directly under the contract.
(3) In the case of a unilateral legal transaction which was to be undertaken in relation to another person, the other person is the opponent.
The same applies to a legal transaction that is required to be undertaken in relation to another person or to a public authority, even if the legal transaction has already been undertaken in relation to the authority.
(4) In the case of any other kind of unilateral legal transaction, the person who has received a legal advantage directly on the basis of the legal transaction is the opponent.
The avoidance may, however, if the declaration of intent was to be made to a public authority, be made by declaration to the authority; the authority should inform the person who was directly affected by the legal transaction of the avoidance.
Section 144
Confirmation of a voidable legal transaction
(1) Avoidance is excluded, if the voidable legal transaction is confirmed by the person entitled to avoid.
(2) The confirmation does not require the form prescribed for the legal transaction.
Title 3
Contract
Section 145
Binding effect of an offer
Any person who offers to another to enter into a contract is bound by the offer, unless he has excluded being bound by it.
Section 146
Expiry of an offer
An offer expires if a refusal is made to the offeror, or if no acceptance is made to this person in good time in accordance with sections 147 to 149.
Section 147
Period for acceptance
(1) An offer made to a person who is present may only be accepted immediately.
This also applies to an offer made by one person to another using a telephone or another technical facility.
(2) An offer made to a person who is absent may be accepted only until the time when the offeror may expect to receive the answer under ordinary circumstances.
Section 148
Fixing a period for acceptance
If the offeror has determined a period of time for the acceptance of an offer, the acceptance may only take place within this period.
Section 149
Late receipt of a declaration of acceptance
If a declaration of acceptance received late by the offeror was sent in such a way that it would have reached him in time if it had been forwarded in the usual way, and if the offeror ought to have recognised this, he must notify the acceptor of the delay after receipt of the declaration without undue delay, unless this has already been done.
If he delays the sending of the notification, the acceptance is deemed not to be late.
Section 150
Late and altered acceptance
(1) The late acceptance of an offer is considered to be a new offer.
(2) An acceptance with expansions, restrictions or other alterations is deemed to be a rejection combined with a new offer.
Section 151
Acceptance without declaration to the offeror
A contract comes into existence through the acceptance of the offer without the offeror needing to be notified of acceptance, if such a declaration is not to be expected according to customary practice, or if the offeror has waived it.
The point of time when the offer expires is determined in accordance with the intention of the offeror, which is to be inferred from the offer or the circumstances.
Section 152
Acceptance by notarial recording
If a contract is notarially recorded without both parties being present at the same time, the contract comes into existence, unless otherwise provided, on the recording of acceptance effected in accordance with section 128.
The provision of section 151 sentence 2 applies.
Section 153
Death or incapacity to contract of the offeror
The coming into existence of the contract is not prevented by the offeror dying or losing capacity to contract before acceptance, unless a different intention of the offeror is to be presumed.
Section 154
Overt lack of agreement; lack of notarial recording
(1) As long as the parties have not yet agreed on all points of a contract on which an agreement was required to be reached according to the declaration even of only one party, the contract is, in case of doubt, not entered into.
An agreement on individual points is not legally binding even if they have been recorded.
(2) If notarial recording of the contract contemplated has been arranged, the contract is, in case of doubt, not entered into until the recording has taken place.
Section 155
Hidden lack of agreement
If the parties to a contract which they consider to have been entered into have, in fact, not agreed on a point on which an agreement was required to be reached, whatever is agreed is applicable if it is to be assumed that the contract would have been entered into even without a provision concerning this point.
Section 156
Entry into contracts at auctions
At an auction, a contract is not entered into until the fall of the hammer.
A bid lapses if a higher bid is made, or if the auction is closed without the fall of the hammer.
Section 157
Interpretation of contracts
Contracts are to be interpreted as required by good faith, taking customary practice into consideration.
Title 4
Conditions and specification of time
Section 158
Conditions precedent and subsequent
(1) If a legal transaction is entered into subject to a condition precedent, the legal transaction that is subject to the condition comes into effect when the condition is satisfied.
(2) If a legal transaction is entered into subject to a condition subsequent, the effect of the legal transaction ends when the condition is satisfied; at this moment the previous legal situation is restored.
Section 159
Retroactive effect
If, under the terms of a legal transaction, the consequences linked to the satisfaction of the condition are to become effective from an earlier time, then when the condition is satisfied the parties are under a duty to render each other the performance that they would have rendered if the consequences had occurred at the earlier time.
Section 160
Liability in the period of suspense
(1) Any person who has a right subject to a condition precedent may, in the case of the satisfaction of the condition, demand damages from the other party if the latter, during the period of suspense, is at fault for defeating or adversely affecting the right dependent on the condition.
(2) In the case of a legal transaction entered into subject to a condition subsequent, the person to whose advantage the former legal situation is restored has the same claim on the same conditions.
Section 161
Ineffectiveness of dispositions in the period of suspense
(1) If a person has disposed of a thing, and the disposition is subject to a condition precedent, any further disposition which he makes as regards the thing in the period of suspense is ineffective on the satisfaction of the condition to the extent that it would defeat or adversely affect the effect subject to the condition.
Such a disposition is equivalent to a disposition which is effected during the period of suspense by execution or attachment or by the administrator in insolvency proceedings.
(2) In the case of a condition subsequent, the same applies to the dispositions of a person whose right expires on the fulfilment of the condition.
(3) The provisions in favour of those who derive rights from an unauthorised person apply with the necessary modifications.
Section 162
Prevention of or bringing about the satisfaction of the condition
(1) If the satisfaction of a condition is prevented in bad faith by the party to whose disadvantage it would be, the condition is deemed to have been satisfied.
(2) If the satisfaction of a condition is brought about in bad faith by the party to whose advantage it would be, the condition is deemed not to have been satisfied.
Section 163
Specification of time
If, when a legal transaction is undertaken, a time has been specified for the beginning or the end of its effect, then in the former case the provisions in sections 158, 160 and 161 applicable to conditions precedent and in the latter case the conditions in sections 158, 160 and 161 applicable to conditions subsequent apply with the necessary modifications.
Title 5
Agency and authority
Section 164
Effect of a declaration made by the agent
(1) A declaration of intent which a person makes within the scope of his own power of agency in the name of a principal takes effect directly in favour of and against the principal.
It is irrelevant whether the declaration is made explicitly in the name of the principal, or whether it may be gathered from the circumstances that it is to be made in his name.
(2) If the intent to act on behalf of another is not evident, the lack of intent on the part of the agent to act on his own behalf is not taken into consideration.
(3) The provisions of subsection (1) apply with the necessary modifications if a declaration of intent to be made to another is made to his agent.
Section 165
Agent with limited capacity to contract
The effectiveness of a declaration of intent made by or to an agent is not adversely affected by the agent having limited capacity to contract.
Section 166
Absence of intent; imputed knowledge
(1) Insofar as the legal consequences of a declaration of intent are influenced by an absence of intent or by knowledge or by constructive notice of certain circumstances, it is not the person of the principal, but that of the agent, that is taken into account.
(2) If, in the case of a power of agency granted by a legal transaction (authority), the agent has acted in compliance with certain instructions given by the principal, then the latter may not invoke the lack of knowledge of the agent with regard to circumstances of which the principal himself knew.
The same rule applies to circumstances which the principal ought to have known, insofar as constructive notice is equivalent to knowledge.
Section 167
Conferment of authority
(1) Authority is conferred by declaration to the person to be granted authority, or to the third party in relation to whom the authority is to have effect.
(2) The declaration is not required to be in the form laid down for the legal transaction to which the authority relates.
Section 168
Expiry of authority
The expiry of the authority depends on the legal relationship on which its conferment is based.
The authority is also revocable if the legal relationship is continued, unless this relationship leads to a different conclusion.
The provision under section 167 (1) applies with the necessary modifications to the declaration of revocation.
Section 169
Authority of the authorised representative and the managing partner
To the extent that the expired authority of an authorised representative or a managing partner is deemed to continue in accordance with sections 674 and 729, it is not effective in favour of a third party who, when a legal transaction is undertaken, knows or ought to know of the expiry.
Section 170
Period of effectiveness of the authority
If authority is granted by declaration to a third party, it remains in force in relation to this third party until he is notified by the principal of the expiry thereof.
Section 171
Period of effectiveness in the case of announcement
(1) If a person has announced by separate notice to a third party or by public notice that he has granted authority to another, the latter, on the basis of the announcement, is authorised to represent the person to that third party in the former case, and to any third party in the latter case.
(2) The authority remains effective until the notice is revoked in the same manner in which it was made.
Section 172
Letter of authorisation
(1) If the principal has delivered a letter of authorisation to the agent and the agent presents it to a third party, this is equivalent to a separate notification of authorisation by the principal.
(2) The power of agency remains effective until the letter of authorisation is returned to the principal or declared to be invalid.
Section 173
Period of effectiveness in the case of knowledge and negligent lack of knowledge
The provisions of section 170, section 171 (2) and section 172 (2) do not apply if the third party knows or ought to know of the termination of the authority when the legal transaction is entered into.
Section 174
Unilateral legal transaction by an authorised representative
A unilateral legal transaction that an authorised representative undertakes in relation to another is ineffective if the authorised representative does not present a letter of authorisation and the other rejects the legal transaction without undue delay for this reason.
Rejection is excluded if the principal notified the other of the authorisation.
Section 175
Return of the letter of authorisation
After the expiry of the authority, the authorised representative must return the letter of authorisation to the principal; he has no right of retention.
Section 176
Declaration of invalidity of the letter of authorisation
(1) The principal may, by public notice, declare the letter of authorisation; the declaration of invalidity must be published in compliance with the provisions of the Code of Civil Procedure [Zivilprozessordnung] that govern the service of a summons by publication.
The declaration of invalidity becomes effective at the end of one month after its last appearance in the official newspapers.
(2) The local court [Amtsgericht] in whose district the principal is subject to general jurisdiction and the local court [Amtsgericht] which would have jurisdiction over the action for the return of the letter of authorisation are equally competent to authorise the publication, irrespective of the value of the matter in dispute.
(3) The declaration of invalidity is ineffective if the principal may not revoke the authority.
Section 177
Entry into contract by an unauthorised agent
(1) If a person enters into a contract in the name of another without power of agency, then the effectiveness of the contract to the benefit or detriment of the principal requires the ratification of the principal.
(2) If the other party requires the principal to make a declaration as to whether or not he ratifies the contract, the declaration may only be made to that other party; a ratification or a refusal of ratification declared to the agent before the demand is without effect.
The ratification may only be declared before the expiry of two weeks after receipt of the demand; if it is not declared, it is considered to have been refused.
Section 178
Right of revocation of the other party
Until the ratification of the contract, the other party is entitled to revoke it, unless he knew of the lack of power of agency when he entered into the contract.
The revocation may also be declared to the agent.
Section 179
Liability of an unauthorised agent
(1) A person who has entered into a contract as an agent is, if he does not furnish proof of his power of agency, obliged to the other party at the other party’s choice either to perform the contract or to pay damages to him, if the principal refuses to ratify the contract.
(2) If the agent was not aware of his lack of power of agency, he is obliged to make compensation only for the damage which the other party suffers as a result of relying on the power of agency; but not in excess of the total amount of the interest which the other or the third party has in the effectiveness of the contract.
(3) The agent is not liable, if the other party knew or ought to have known of the lack of power of agency.
The agent is also not liable if he had limited capacity to contract, unless he acted with the consent of his legal representative.
Section 180
Unilateral legal transactions
Agency without authority is not permitted for a unilateral legal transaction.
However, if the person in relation to whom such a legal transaction was to be undertaken did not, when the legal transaction was undertaken, question the power of agency the agent claimed to have, or if he was in agreement that the agent might act without authority, the provisions on contracts apply with the necessary modifications.
The same applies if a unilateral legal transaction is undertaken in relation to an unauthorised agent with his consent.
Section 181
Contracting with oneself
An agent may not, unless otherwise permitted, enter into a legal transaction in the name of the principal with himself in his own name or as an agent of a third party, unless the legal transaction consists solely in the performance of an obligation.
Title 6
Consent and ratification
Section 182
Approval
(1) If the effectiveness of a contract, or of a unilateral legal transaction to be undertaken in relation to another, depends on the approval of a third party, the grant and refusal of approval may be declared either to one party or to the other.
(2) The approval is not required to have the form provided for the legal transaction.
(3) If a unilateral legal transaction whose effectiveness depends on the approval of a third party is undertaken with the consent of the third party, then the provisions of section 111 sentences 2 and 3 apply with the necessary modifications.
Section 183
Revocability of consent
Prior approval (consent) may be revoked until the legal transaction is undertaken, unless the legal relationship on which this consent is based leads to a different conclusion.
Revocation may either be declared to one party or to the other.
Section 184
Retroactive effect of ratification
(1) Subsequent approval (ratification) operates retroactively from the point of time when the legal transaction was undertaken, unless otherwise provided.
(2) The retroactive effect does not cancel the effectiveness of dispositions made by the ratifying person before the ratification of the subject matter of the legal transaction, or made by execution or attachment or by the administrator in insolvency proceedings.
Section 185
Disposition by an unauthorised person
(1) A disposition of a thing made by a person without the authority to do so is effective if made with the consent of the person entitled.
(2) The disposition becomes effective if the person entitled ratifies it, or if the person disposing acquires the thing or if the person entitled has succeeded to the estate of the disposer and has unlimited liability for the obligations of the estate.
In the last two cases, if more than one conflicting disposition has been made in respect of the thing, then only the first disposition is effective.
Division 4
Periods of time and fixed dates
Section 186
Scope of applicability
The interpretation provisions of sections 187 to 193 apply to the fixing of periods of time and dates contained in statutes, court orders and legal transactions.
Section 187
Beginning of a period of time
(1) If a period commences on the occurrence of an event or at a point of time falling in the course of a day, then the day on which the event or point of time occurs is not included in the calculation of the period.
(2) If the beginning of a day is the determining point of time for the commencement of a period, then this day is included in the calculation of the period.
The same applies to the date of birth when the age of a person is calculated.
Section 188
End of a period of time
(1) A period of time specified by days ends on the expiry of the last day of the period.
(2) A period of time specified by weeks, by months or by a duration of time comprising more than one month - year, half-year, quarter - ends, in the case of section 187 (1), on the expiry of the day of the last week or of the last month which, in its designation or its number, corresponds to the day on which the event or the point of time occurs, or in the case of section 187 (2), on the expiry of the day of the last week or of the last month that precedes the day which corresponds in designation or number to the first day of the period of time.
(3) If, in the case of a period of time determined by months, the day on which it is due to expire does not occur in the last month, the period ends on the expiry of the last day of this month.
Section 189
Calculation of individual periods of time
(1) A half-year is understood to mean a period of six months, a quarter is understood to mean a period of three months, and half a month is understood to mean a period of fifteen days.
(2) If a period of time is specified as one or more than one whole month and a half-month, then the fifteen days shall be counted last of all.
Section 190
Extension of period
If a period of time is extended, the new period is calculated from the expiry of the previous period.
Section 191
Calculation of periods of time
If a period of time is determined by months or by years with the meaning that they are not required to run consecutively, a month is counted as thirty days and a year as 365 days.
Section 192
Beginning, middle and end of a month
The beginning of the month is understood to be the first day, the middle of the month the fifteenth day, and the end of month the last day.
Section 193
Sundays and holidays; Saturdays
If a declaration of intent is to be made or an act of performance to be done on a particular day or within a period, and if the particular day or the last day of the period falls on a Sunday, a general holiday officially recognised at the place of the declaration or performance, or on a Saturday, the next working day takes the place of this day.
Division 5
Limitation
Title 1
Subject-matter and duration of limitation
Section 194
Subject-matter of limitation
(1) The right to demand that another person does or refrains from an act (claim) is subject to limitation.
(2) Claims based on a family-law relationship are not subject to limitation to the extent that they are directed towards creating a situation appropriate for the relationship for the future or towards consent to a genetic test to clarify biological descent.
Section 195
Standard limitation period
The standard limitation period is three years.
Section 196
Limitation period for rights to a plot of land
Claims to the transfer of ownership of land and to the creation, transfer or cancellation of a right to a plot of land or to a change of the subject-matter of such a right and entitlements to consideration are subject to a ten-year limitation period.
Section 197
Thirty-year limitation period
(1) Unless otherwise provided, the following are statute-barred after thirty years:
1. damage claims based on intentional injury to life, limb, health, liberty or sexual self-determination,
2. claims for return based on ownership, other real rights, sections 2018, 2130 and 2362, as well as claims serving to assert the claims for return
3. claims that have been declared final and absolute,
4. claims under enforceable settlements or enforceable documents,
5. claims that have become enforceable upon being recognised in insolvency proceedings, and
6. claims to reimbursement of the costs of execution.
(2) To the extent that claims under subsection (1), nos.
3 to 5 are concerned with periodically recurring acts of performance that will fall due in the future, the standard limitation period takes the place of the period of thirty years.
Section 198
Limitation in the case of a successor in title
If a thing in respect of which a real claim exists comes into the possession of a third party by succession in title, the part of the limitation period that passed while possession was held by his predecessor in title is deemed to benefit the successor in title.
Section 199
Commencement of the standard limitation period and maximum limitation periods
(1) Unless another commencement of limitation of is determined, the standard limitation period commences at the end of the year in which:
1. the claim arose and
2. the obligee obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence.
(2) Claims for damages based on injury to life, body, health or liberty, notwithstanding the manner in which they arose and notwithstanding knowledge or a grossly negligent lack of knowledge, are statute-barred thirty years from the date on which the act, breach of duty or other event that caused the damage occurred.
(3) Other claims for damages become statute-barred
1. notwithstanding knowledge or a grossly negligent lack of knowledge, ten years after they arise and
2. regardless of how they arose and of knowledge or a grossly negligent lack of knowledge, thirty years from the date on which the act, breach of duty or other event that caused the damage occurred.
The period that ends first is applicable.
(3a) Claims based on the devolution of an inheritance or whose claiming is contingent on knowledge of a disposition mortis causa become statute-barred in 30 years from when the claim comes into being regardless of knowledge or of grossly negligent ignorance.
(4) Notwithstanding knowledge or a grossly negligent lack of knowledge, claims other than those under subsections (2) to (3a) become statute-barred ten years after the date upon which they arise.
(5) If the claim is for forbearance, the date of the breach of such an obligation takes the place of the date on which the claim arose.
Section 200
Commencement of other limitation periods
Unless another date for the commencement of limitation is specified, the limitation period of claims not subject to the standard limitation period commences when the claim arises.
Section 199 (5) applies with the necessary modifications.
Section 201
Commencement of the limitation period for recognised claims
The limitation period for claims of the kind referred to in section 197 (1), nos.
3 to 6, commences on the date when the decision becomes final and absolute, the enforceable instrument is executed or the claim is recognised in insolvency proceedings, but not before the claim arises.
Section 199 (5) applies with the necessary modifications.
Section 202
Inadmissibility of agreements on limitation
(1) In the case of liability for intention, the limitation period may not be relaxed in advance by legal transaction.
(2) The limitation period may not be extended by legal transaction beyond a period of thirty years from the beginning of the statutory limitation period.
Title 2
Suspension, suspension of expiry and recommencement of the limitation period
Section 203
Suspension of limitation in the case of negotiations
If negotiations between the obligor and the obligee are in progress in respect of the claim or the circumstances giving rise to the claim, the limitation period is suspended until one party or the other refuses to continue the negotiations.
The claim is statute-barred at the earliest three months after the end of the suspension.
Section 204
Suspension of limitation as a result of prosecution of rights
(1) The limitation period is suspended by:
1. the bringing of an action for performance or for a declaration of the existence of a claim, for the grant of an execution clause or for the issue of an order for execution,
2. the service of an application in the simplified procedure for the maintenance of minors,
3. the service of a demand for payment in summary proceedings for recovery of debt or of the European order for payment in the European order for payment procedure in accordance with Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ EU L 399 p. 1),
4. arranging for notice to be given of an application for conciliation filed with a conciliation body established or recognised by the Land justice administration authority or, if the parties seek conciliation in mutual agreement, with any other conciliation body which settles disputes; if notice is arranged to be given shortly after the filing of the application, the limitation period is suspended immediately once the application is filed,
5. the assertion of a set-off of a claim in a legal action,
6. the service of a third-party notice,
6a. the service of the registration for a test case for claims designated therein, where they are based on the same circumstances as the determinations applied for in the test case, and if the action for performance or for a declaration of the existence of the claims designated in the registration is lodged within three months of the final termination of the test case,
7. the service of an application for evidence to be taken in independent proceedings,
8. the beginning of agreed expert opinion proceedings,
9. the service of an application for an attachment order, an interim injunction or an interim order, or, if the application is not served, the filing of the application if the order for attachment, the interim injunction or the interim order is served on the obligor within one month of its being pronounced or of its service on the obligee,
10. the filing of a claim in insolvency proceedings or in proceedings for the distribution of assets under maritime law,
11. the beginning of arbitration proceedings,
12. the filing of an application with a public authority, if the admissibility of the action depends on a has been disposed of; this applies with the necessary modifications to applications required to be preliminary decision by this authority and the action is brought within three months after the application made to a court or a conciliation body referred to in no. 4 above, whose admissibility is subject to a preliminary decision by an authority,
13. the filing of an application with the higher court, if the higher court must decide upon the court with jurisdiction over the claim and the action is brought within three months after the application has been disposed of, or the application for which a decision on jurisdiction is necessary is filed, and
14. arranging for notice to be given of the first application for the grant of legal aid or procedural costs assistance; if notice is arranged shortly after the filing of the application, the suspension of the limitation period takes effect immediately when the application is filed.
(2) Suspension under subsection (1) above ends six months after the final and absolute decision in the proceedings commenced, or after they end in another way.
If the proceedings come to a standstill because the parties do not prosecute them, the date of the last act in the proceedings by the parties, the court or other body responsible for the proceedings takes the place of the date when the proceedings end.
Suspension commences again if one of the parties continues the proceedings.
(3) Sections 206, 210 and 211 apply with the necessary modifications to subsection (1), nos.
6a, 9, 12 and 13 above.
Section 205
Suspension of limitation in the case of a right to refuse performance
Limitation is suspended for as long as the obligor, under an agreement with the obligee, is temporarily entitled to refuse performance.
Section 206
Suspension of limitation in case of force majeure
Limitation is suspended for as long as, within the last six months of the limitation period, the obligee is prevented by force majeure from prosecuting his rights.
Section 207
Suspension of limitation for family and other reasons
(1) The limitation of claims between spouses is suspended for as long as the marriage continues.
The same applies to claims between
1. civil partners for as long as a civil partnership exists,
2. the child, and
a) his parents or
b) the spouse or civil partner of one parent,
until the child reaches the age of 21,
3. a guardian and his ward for the duration of the guardianship,
4. a person placed under the care of a custodian and his custodian for the duration of a care relationship, and
5. a person subject to curatorship and his curator for the duration of the curatorship.
The limitation of claims of a child against a legal adviser in litigation proceedings is suspended during the period when the latter is acting as a legal adviser.
(2) Section 208 remains unaffected.
Section 208
Suspension of limitation in the case of claims for infringement of the right to sexual self-determination
The limitation period of claims for infringement of the right to sexual self-determination is suspended until the obligee reaches the age of twenty-one.
If, when the limitation period commences, the obligee in respect of claims for infringement of the right to sexual self-determination is living with the obligor in a common household, limitation is suspended until this common household ends.
Section 209
Effect of suspension
A period in which limitation is suspended is not included in the calculation of the limitation period.
Section 210
Suspension of expiry of the limitation period in the case of persons without full capacity to contract
(1) If a person incapable of contracting or with limited capacity to contract has no legal representative, a limitation period to his benefit or detriment does not end until the expiry of six months after the time when the person acquires unlimited capacity to contract or the lack of representation is remedied.
If the limitation period is shorter than six months, the period specified for limitation takes the place of the period of six months.
(2) Subsection (1) does not apply to the extent that a person with limited capacity to contract is capable of suing and being sued.
Section 211
Suspension of expiry in matters relating to estates
A claim that is part of or directed against an estate does not become statute-barred until at least six months have passed from the time when the inheritance is accepted by the heir or when insolvency proceedings in respect of the estate are commenced or when the claim can be asserted by or against an agent.
If the limitation period is shorter than six months, the period specified for limitation takes the place of the period of six months.
Section 212
Recommencement of the limitation period
(1) The limitation period recommences if
1. the obligor acknowledges the claim towards the obligee by part payment, the payment of interest, the provision of security or in another way, or
2. a judicial or official act of execution is undertaken or applied for.
(2) The recommencement of the limitation period as a result of an act of execution is considered not to have occurred if the act of execution is cancelled on the application of the obligee or as the result of a failure to comply with the statutory requirements.
(3) The recommencement of the limitation period as a result of an application for an act of execution is considered not to have occurred if the application is not granted or is revoked before the act or the act of execution obtained is cancelled under subsection (2) above.
Section 213
Suspension, suspension of expiry and recommencement of limitation in the case of other claims
The suspension, suspension of expiry and recommencement of the limitation period also apply to claims which are available, for the same reason, either in addition to the claim or instead of the claim.
Title 3
Legal consequences of limitation
Section 214
Effect of limitation
(1) After limitation occurs, the obligor is entitled to refuse performance.
(2) Performance rendered in satisfaction of a claim that is now statute-barred may not be claimed back even if performance was rendered without knowledge of the limitation.
The same applies to an acknowledgement made in accordance with a contract and to a security provided by the obligor.
Section 215
Set-off and right of retention after a claim is statute-barred
Limitation of actions does not exclude set-off and the assertion of a right of retention if the claim was not yet statute-barred at the time when the set-off could first have been made or performance first refused.
Section 216
Effect of limitation in the case of secured claims
(1) The limitation of a claim for which a mortgage, ship mortgage or security right exists does not prevent the obligee from seeking satisfaction of his claim from the object encumbered.
(2) If a right has been procured for the purpose of securing a claim, the retransfer of the right may not be demanded on the basis of the limitation of the claim.
If title has been retained, the right to revoke the contract may be exercised even if the secured claim is statute-barred.
(3) Subsections (1) and (2) above do not apply to the limitation of claims for interest and other recurring obligations.
Section 217
Limitation of collateral performance
A claim for collateral performance dependent on the main claim becomes statute-barred at the same time as the main claim, even if the specific limitation period applying to the claim for collateral performance has not ended.
Section 218
Ineffectiveness of revocation
(1) Revocation for non-performance or for the failure to perform in conformity with the contract is ineffective if the claim for performance or the claim for cure is now statute-barred and the obligor invokes this.
This applies even if, in accordance with section 275 (1) to (3), section 439 (3) or section 635 (3), the obligor is not required to perform and the claim for performance or cure would be statute-barred.
Section 216 (2), sentence 2, remains unaffected.
(2) Section 214 (2) applies with the necessary modifications.
Sections 219 - 225
(repealed)
Division 6
Exercise of rights, self-defence, self-help
Section 226
Prohibition of chicanery
The exercise of a right is not permitted if its only possible purpose consists in causing damage to another.
Section 227
Self-defence against persons
(1) An act required for self-defence is not unlawful.
(2) Self-defence is the defence required to ward off a present unlawful assault on oneself or another.
Section 228
Necessity
A person who damages or destroys a thing belonging to another in order to ward off from himself or from another a danger threatened by the thing does not act unlawfully if the damage or destruction is necessary to ward off the danger and the damage is not out of proportion to the danger.
If the person acting in this manner caused the danger, he is obliged to pay damages.
Section 229
Self-help
A person who, for the purpose of self-help, removes, destroys or damages a thing, or a person who, for the purpose of self-help, arrests an obliged person who is suspected of flight, or overcomes the resistance to an act of an obliged person who has a duty to tolerate that act, does not act unlawfully if help cannot be obtained from the authorities in good time and there is a danger, without immediate intervention, that the realisation of the claim will be prevented or be considerably more difficult.
Section 230
Limits of self-help
(1) Self-help may not extend further than is necessary to ward off the danger.
(2) In the case where things are removed, then, unless execution of judgment is being effected, a writ of attachment is to be sought.
(3) In the case of the arrest of the person obliged, unless he is set free again, an application for his preventive custody is to be filed with the local court [Amtsgericht] in whose district the arrest took place; the person obliged is to be presented to the court without undue delay.
(4) If the application for arrest is delayed or rejected, the things seized must be returned and the person arrested released without undue delay.
Section 231
Self-help by mistake
If a person does any of the acts described in section 229 in the mistaken assumption that the requirements necessary to exclude unlawfulness are satisfied, he is obliged to pay damages to the other party, even if the mistake does not result from negligence.
Division 7
Provision of security
Section 232
Types
(1) A person who is required to provide security may do so: by the deposit of money or securities, by the pledge of claims that are registered in the Federal Debt Register [Bundesschuldbuch] or the Land Debt Register [Landesschuldbuch] of a Land, by the pledge of movable things, by the creation of ship mortgages on ships or ships under construction which are recorded in a German ship register or a ship construction register, by the creation of mortgages on land within the country, by the pledge of claims for which there is a mortgage on land within the country, or by the pledge of land charges or annuity land charges on land within the country.
(2) If security cannot be provided in this manner, it is admissible to furnish a reasonable surety.
Section 233
Effect of deposit
When the deposit is made, the person entitled acquires a security right over the money deposited or the securities deposited and, if the money or the securities pass into the ownership of the treasury or the institution designated as the depositary office, a security right over the claim for reimbursement.
Section 234
Suitable securities
(1) Securities are only suitable for the provision of security if they are made out to the bearer, have a market value and are of a kind in which money held in trust for a ward may be invested.
Instruments made out to order and endorsed in blank are equivalent to bearer instruments.
(2) The interest coupons, annuity coupons, dividend coupons and renewal coupons are to be deposited with the securities.
(3) Securities may be provided as security only up to the amount of three quarters of their market value.
Section 235
Right to exchange
A person who has provided security by depositing money or securities is entitled to exchange the money deposited for suitable securities and the securities deposited for other suitable securities or for money.
Section 236
Registered claims
A registered claim against the Federal Government or a Land may be provided as security only up to the amount of three quarters of the market value of the securities the delivery of which the creditor may demand in return for cancellation of his claim.
Section 237
Movable things
A movable thing may be provided as security only up to the amount of two thirds of its estimated value.
Things may be rejected as security if their spoilage is to be feared or if their safekeeping involves special difficulties.
Section 238
Mortgages, land charges and annuity land charges
(1) A mortgage claim, a land charge or an annuity land charge is suitable as security only if it complies with the requirements for the investment of money held in trust for a ward in mortgage claims, land charges or annuity land charges at the place where security is provided.
(2) A claim secured by a debt-securing mortgage is not suitable as security.
Section 239
Surety
(1) A surety is qualified if he possesses property appropriate for the amount of security to be provided and is subject to general jurisdiction within the country.
(2) The declaration of suretyship must contain a waiver of the defence of unexhausted remedies.
Section 240
Duty to supplement security
If the security provided becomes insufficient without this being the fault of the person entitled, it is to be supplemented or another security is to be provided.
Book 2
Law of Obligations
Division 1
Subject matter of obligations
Title 1
Duty of performance
Section 241
Duties arising from an obligation
(1) By virtue of an obligation an obligee is entitled to claim performance from the obligor.
The performance may also consist in forbearance.
(2) An obligation may also, depending on its contents, oblige each party to take account of the rights, legal interests and other interests of the other party.
Section 241a
Unsolicited performance*)
(1) The supply of movable things that are not being sold by way of an execution of judgment or otherwise by authority of law (goods), or the provision of other services to the consumer by a trader, does not create a claim against the consumer if the consumer has not ordered these goods or other services.
(2) Statutory claims are not excluded if the performance was not intended for the recipient or was made in the mistaken belief that there had been an order, and the recipient was aware of this or could have been aware of this if he had taken reasonable care.
(3) There may be no derogation from the stipulations of this provision to the disadvantage of the consumer.
The stipulations apply even if they are circumvented by other constructions.
*) Official note: This provision serves to implement Article 9 of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144, p. 19).
Section 242
Performance in good faith
An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration.
Section 243
Obligation in kind
(1) A person who owes a thing defined only by class must supply a thing of average kind and quality.
(2) If the obligor has done what is necessary on his part to supply such a thing, the obligation is restricted to that thing.
Section 244
Foreign currency obligation
(1) If a money debt stated in a currency other than the euro is payable within the country, then payment may be made in euros unless payment in the other currency has been expressly agreed.
(2) Conversion occurs at the rate of exchange in effect in the place of payment at the time of payment.
Section 245
Obligation payable in a specific denomination of money
If a money debt is payable in a specific denomination of coin which is no longer in circulation at the time of payment, payment is to be made in the same way as if the denomination of coin were not specified.
Section 246
Statutory interest rate
If interest is payable on a debt by law or under a legal transaction, the rate of interest is four per cent per year, unless otherwise provided.
Section 247*)
Basic rate of interest
(1) The basic rate of interest is 3.62%.**) It changes on 1 January and 1 July each year by the percentage points by which the reference rate has risen or fallen since the last change in the basic rate of interest.
The reference rate is the rate of interest for the most recent main refinancing operation of the European Central Bank before the first calendar day of the relevant six-month period.
(2) The Deutsche Bundesbank announces the effective basic rate of interest in the Federal Gazette without undue delay after the dates referred to in subsection (1) sentence 2 above.
*) Official note: This provision serves to implement Article 3 of Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ L 200, p. 35).
**) Since the following dates the basic rate of interest has been 1.1.2002 2.57% (public notice of 28.12.2001, Fed.
Gazette 2002 no. 3 p. 98); 1.7.2002 2.47% (public notice of 25.6.2002, Fed.
Gazette no. 118 p. 14537); 1.1.2003 1.97% (public notice of 30.12.2002, Fed.
Gazette 2003 no. 2 p. 76); 1.7.2003 1.22% (public notice of 24.6.2003, Fed.
Gazette no. 117 p. 13744); 1.1.2004 1.14% (public notice of 30.12.2003, Fed.
Gazette 2004 no. 2 p. 69); 1.7.2004 1.13% (public notice of 3.7.2004, Fed.
Gazette no. 122 p. 14246); 1.1.2005 1.21% (public notice of 30.12.2004, Fed.
Gazette 2005 no. 1 p. 6); 1.7.2005 1.17% (public notice of 28.6.2005, Fed.
Gazette no. 122 p. 10042); 1.1.2006 1.37% (public notice of 29.12.2005, Fed.
Gazette 2006 no. 1 p. 2); 1.7.2006 1.95% (public notice of 27.6.2006, Fed.
Gazette no. 119 p. 4754); 1.1.2007 2.70% (public notice of 28.12.2006, Fed.
Gazette no. 245 p. 7463).
Section 248
Compound interest
(1) An agreement reached in advance that interest due should in turn bear interest is void.
(2) Savings banks, credit institutions and owners of banking businesses may agree in advance that interest not collected on deposits should be held to be fresh interest-bearing deposits.
Credit institutions entitled to issue interest-bearing bonds for the amount of the loans granted by them may, for such loans, have commitments made to them in advance to pay interest on interest in arrears.
Section 249
Nature and extent of damages
(1) A person who is liable in damages must restore the position that would exist if the circumstance obliging him to pay damages had not occurred.
(2) Where damages are payable for injury to a person or damage to a thing, the obligee may demand the required monetary amount in lieu of restoration.
When a thing is damaged, the monetary amount required under sentence 1 only includes value-added tax if and to the extent that it is actually incurred.
Section 250
Damages in money after the specification of a period of time
The obligee may specify a reasonable period of time for the person liable in damages to undertake restoration and declare that he will reject restoration after the period of time ends.
After the end of the period of time the obligee may demand damages in money, if restoration does not occur in good time; the claim to restoration is excluded.
Section 251
Damages in money without the specification of a period of time
(1) To the extent that restoration is not possible or is not sufficient to compensate the obligee, the person liable in damages must compensate the obligee in money.
(2) The person liable in damages may compensate the obligee in money if restoration is only possible with disproportionate expenses.
Expenses incurred as a result of the curative treatment of an injured animal are not disproportionate merely because they significantly exceed the value of the animal.
Section 252
Lost profits
The damage to be compensated for also comprises the lost profits.
Those profits are considered lost that in the normal course of events or in the special circumstances, particularly due to the measures and precautions taken, could probably be expected.
Section 253
Intangible damage
(1) Money may be demanded in compensation for any damage that is not pecuniary loss only in the cases stipulated by law.
(2) If damages are to be paid for an injury to body, health, freedom or sexual self-determination, reasonable compensation in money may also be demanded for any damage that is not pecuniary loss.
Section 254
Contributory negligence
(1) Where fault on the part of the injured person contributes to the occurrence of the damage, liability in damages as well as the extent of compensation to be paid depend on the circumstances, in particular to what extent the damage is caused mainly by one or the other party.
(2) This also applies if the fault of the injured person is limited to failing to draw the attention of the obligor to the danger of unusually extensive damage, where the obligor neither was nor ought to have been aware of the danger, or to failing to avert or reduce the damage.
The provision of section 278 applies with the necessary modifications.
Section 255
Assignment of claims to compensation
A person who must pay damages for the loss of a thing or a right is only obliged to compensate in return for the assignment of the claims which the person entitled to damages holds against third parties on the basis of ownership of the thing or on the basis of the right.
Section 256
Payment of interest on expenses
A person who is obliged to reimburse expenses must pay interest from the date of the expense onwards on the amount expended or, if other objects than money have been expended, on the amount payable as compensation for their value.
Where expenses have been incurred on an object that must be returned to the person liable in damages, interest need not be paid for the period of time for which the person entitled to damages is unremunerated for the emoluments or fruits of the object.
Section 257
Claim for release
A person who is entitled to demand reimbursement of expenses he incurs for a specific purpose may, if he assumes an obligation for this purpose, demand release from the obligation.
If the obligation is not yet due, the person liable in damages may provide security to him instead of releasing him from the obligation.
Section 258
Right of removal
Anyone entitled to remove an installation from a thing that he must return to another person must in the event of removal restore the thing to its previous condition at his own expense.
If the other person obtains possession of the thing, he is obliged to permit the installation to be removed; he may refuse permission until he is provided with security for the damage connected with the removal.
Section 259
Extent of duty to render account
(1) A person who is obliged to render account for management related to earnings or expenses must provide the person entitled with an account containing an orderly compilation of earnings or expenses and, where receipts are customarily given, must submit receipts.
(2) Where there is reason to assume that the information on earnings contained in the account has not been provided with the requisite care the person obliged must, upon demand, declare for the record in lieu of an oath that he has indicated the earnings as completely as he is able to.
(3) In matters of minor importance there is no duty to make a declaration in lieu of an oath.
Section 260
Duties when returning or providing information on an aggregate of objects
(1) A person who is obliged to return an aggregate of objects or to provide information on the inventory of such an aggregate must submit to the person entitled a list of the inventory.
(2) Where there is reason to assume that the list has not been prepared with the requisite care, the person obliged must upon demand declare for the record in lieu of an oath that to the best of his knowledge he has indicated the inventory as completely as he is able to.
(3) The provision of section 259 (3) applies.
Section 261
Modifying a declaration in lieu of an oath; costs
(1) The court may resolve to modify the declaration in lieu of an oath according to the circumstances.
(2) The costs of making the declaration in lieu of an oath must be borne by the person demanding the making of the declaration.
Section 262
Alternative obligation; right of choice
Where more than one act of performance is owed in such a manner that only the one or the other is to be effected, then in case of doubt, the obligor has the right of choice.
Section 263
Exercise of the right of choice; effect
(1) The right of choice is exercised by declaration to the other party.
(2) The performance chosen is deemed to have been the only performance owed from the beginning.
Section 264
Default by the person entitled to the right of choice
(1) If the obligor entitled to the right of choice does not exercise that right prior to the beginning of execution, the obligee, at his choice, may direct execution to one performance or the other; however, as long as the obligee has not received the performance chosen, completely or in part, the obligor may release himself from his obligation through one of the other acts of performance.
(2) If the obligee entitled to the right of choice is in default, the obligor may demand that he exercises that right, specifying a reasonable period of time.
At the end of the period of time the right of choice passes to the obligor, if the obligee does not undertake the choice in good time.
Section 265
Impossibility in case of alternative obligations
If one of the acts of performance is impossible from the beginning or if it later becomes impossible, the obligation is restricted to the other acts of performance.
There is no restriction if performance becomes impossible due to a circumstance for which the party who is not entitled to the right of choice is responsible.
Section 266
Part performance
The obligor is not entitled to render part performance.
Section 267
Performance by third parties
(1) If the obligor need not perform in person, then a third party may also render performance.
The consent of the obligor is not required.
(2) The obligee may reject the performance if the obligor objects.
Section 268
Right of redemption of a third party
(1) If the obligee effects execution which is levied on an object belonging to the obligor, anyone who risks losing a right in the object due to execution is entitled to satisfy the obligee.
The possessor of a thing is entitled to the same right if he risks losing possession due to execution.
(2) The satisfaction may also take place by deposit or by set-off.
(3) To the extent that the third party satisfies the obligee the claim passes to him.
The passing of ownership may not be asserted to the disadvantage of the creditor.
Section 269
Place of performance
(1) Where no place of performance has been specified or is evident from the circumstances, in particular from the nature of the obligation, performance must be made in the place where the obligor had his residence at the time when the obligation arose.
(2) If the obligation arose in the commercial undertaking of the obligor, the place of the commercial undertaking takes the place of the residence if the obligor maintained his commercial undertaking at another place.
(3) From the circumstance that the obligor has assumed the costs of shipping it may not be concluded that the place to which shipment is to be made is to be the place of performance.
Section 270
Place of payment
(1) In case of doubt the obligor must transfer money at his own risk and his own expense to the obligee at the residence of the latter.
(2) If the obligation came about in the commercial undertaking of the obligee, then, if the obligee has his business establishment in another place, the place of the commercial undertaking takes the place of the residence.
(3) If, as the result of a change in the obligee’s residence or business establishment occurring after the obligation arises, the costs or risk of transmission increase, the obligee must in the former case bear the extra costs and in the latter case the risk.
(4) The provisions on the place of performance are unaffected.
Section 271
Time of performance
(1) Where no time for performance has been specified or is evident from the circumstances, the obligee may demand performance immediately, and the obligor may effect it immediately.
(2) Where a time has been specified, then in case of doubt it must be assumed that the obligee may not demand performance, but the obligor may effect it prior to that time.
Section 272
Interim interest
If the obligor pays an interest-free debt prior to its falling due, he is not entitled to any deduction for interim interest.
Section 273
Right of retention
(1) If the obligor has a claim that is due against the obligee under the same legal relationship as that on which the obligation is based, he may, unless the obligation leads to a different conclusion, refuse the performance owed by him, until the performance owed to him is rendered (right of retention).
(2) A person who is obliged to return an object has the same right, if he is entitled to a claim that is due on account of outlays for the object or on account of damage caused to him by the object, unless he obtained the object by means of an intentionally committed tort.
(3) The obligee may avert the exercise of the right of retention by providing security.
The providing of security by guarantors is excluded.
Section 274
Effects of the right of retention
(1) In comparison to a legal action by the obligee, assertion of the right of retention only has the effect that the obligor is to be ordered to render performance in return for receiving the performance owed to him (concurrent performance).
(2) On the basis of such an order the obligee may pursue his claim by way of execution, without effecting the performance he owes, if the obligor is in default of acceptance.
Section 275
Exclusion of the duty of performance*)
(1) A claim for performance is excluded to the extent that performance is impossible for the obligor or for any other person.
(2) The obligor may refuse performance to the extent that performance requires expense and effort which, taking into account the subject matter of the obligation and the requirements of good faith, is grossly disproportionate to the interest in performance of the obligee.
When it is determined what efforts may reasonably be required of the obligor, it must also be taken into account whether he is responsible for the obstacle to performance.
(3) In addition, the obligor may refuse performance if he is to render the performance in person and, when the obstacle to the performance of the obligor is weighed against the interest of the obligee in performance, performance cannot be reasonably required of the obligor.
(4) The rights of the obligee are governed by sections 280, 283 to 285, 311a and 326.
*) Official note: This provision also serves in part to implement Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, p. 12).
Section 276
Responsibility of the obligor
(1) The obligor is responsible for intention and negligence, if a higher or lower degree of liability is neither laid down nor to be inferred from the other subject matter of the obligation, including but not limited to the giving of a guarantee or the assumption of a procurement risk.
The provisions of sections 827 and 828 apply with the necessary modifications.
(2) A person acts negligently if he fails to exercise reasonable care.
(3) The obligor may not be released in advance from liability for intention.
Section 277
Standard of care in ones own affairs
A person who owes only the care that he customarily exercises in his own affairs is not released from liability for gross negligence.
Section 278
Responsibility of the obligor for third parties
The obligor is responsible for fault on the part of his legal representative, and of persons whom he uses to perform his obligation, to the same extent as for fault on his own part.
The provision of section 276 (3) does not apply.
Section 279
(repealed)
Section 280
Damages for breach of duty
(1) If the obligor breaches a duty arising from the obligation, the obligee may demand damages for the damage caused thereby.
This does not apply if the obligor is not responsible for the breach of duty.
(2) Damages for delay in performance may be demanded by the obligee only subject to the additional requirement of section 286.
(3) Damages in lieu of performance may be demanded by the obligee only subject to the additional requirements of sections 281, 282 or 283.
Section 281
Damages in lieu of performance for nonperformance or failure to render performance as owed
(1) To the extent that the obligor does not render performance when it is due or does not render performance as owed, the obligee may, subject to the requirements of section 280 (1), demand damages in lieu of performance, if he has without result set a reasonable period for the obligor for performance or cure.
If the obligor has performed only in part, the obligee may demand damages in lieu of complete performance only if he has no interest in the part performance.
If the obligor has not rendered performance as owed, the obligee may not demand damages in lieu of performance if the breach of duty is immaterial.
(2) Setting a period for performance may be dispensed with if the obligor seriously and definitively refuses performance or if there are special circumstances which, after the interests of both parties are weighed, justify the immediate assertion of a claim for damages.
(3) If the nature of the breach of duty is such that setting a period of time is out of the question, a warning notice is given instead.
(4) The claim for performance is excluded as soon as the obligee has demanded damages in lieu of performance.
(5) If the obligee demands damages in lieu of complete performance, the obligor is entitled to claim the return of his performance under sections 346 to 348.
Section 282
Damages in lieu of performance for breach of a duty under section 241 (2)
If the obligor breaches a duty under section 241 (2), the obligee may, if the requirements of section 280 (1) are satisfied, demand damages in lieu of performance, if he can no longer reasonably be expected to accept performance by the obligor.
Section 283
Damages in lieu of performance where the duty of performance is excluded
If, under section 275 (1) to (3), the obligor is not obliged to perform, the obligee may, if the requirements of section 280 (1) are satisfied, demand damages in lieu of performance.
Section 281 (1) sentences 2 and 3 and (5) apply with the necessary modifications.
Section 284
Reimbursement of futile expenses
In place of damages in lieu of performance, the obligee may demand reimbursement of the expenses which he has made and in all fairness was entitled to make in reliance on receiving performance, unless the purpose of the expenses would not have been achieved, even if the obligor had not breached his duty.
Section 285
Return of reimbursement
(1) If the obligor, as a result of the circumstance by reason of which, under section 275 (1) to (3), he has no duty of performance, obtains reimbursement or a claim to reimbursement for the object owed, the obligee may demand return of what has been received in reimbursement or an assignment of the claim to reimbursement.
(2) If the obligee may demand damages in lieu of performance, then, if he exercises the right stipulated in subsection (1) above, the damages are reduced by the value of the reimbursement or the claim to reimbursement he has obtained.
Section 286
Default of the obligor*)
(1) If the obligor, following a warning notice from the obligee that is made after performance is due, fails to perform, he is in default as a result of the warning notice.
Bringing an action for performance and serving a demand for payment in summary debt proceedings for recovery of debt have the same effect as a warning notice.
(2) There is no need for a warning notice if
1. a period of time according to the calendar has been specified,
2. performance must be preceded by an event and a reasonable period of time for performance has been specified in such a way that it can be calculated, starting from the event, according to the calendar,
3. the obligor seriously and definitively refuses performance,
4. for special reasons, weighing the interests of both parties, the immediate commencement of default is justified.
(3) The obligor of a claim for payment is in default at the latest if he does not perform within thirty days after the due date and receipt of an invoice or equivalent statement of payment; this applies to an obligor who is a consumer only if these consequences are specifically referred to in the invoice or statement of payment.
If the time at which the invoice or payment statement is received by the obligor is uncertain, an obligor who is not a consumer is in default at the latest thirty days after the due date and receipt of the consideration.
(4) The obligor is not in default for as long as performance is not made as the result of a circumstance for which he is not responsible.
*) Official note: This provision also serves in part to implement Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ L 200, p. 35).
Section 287
Liability during default
While he is in default, the obligor is responsible for all negligence.
He is liable for performance in the case of chance as well, unless the damage would have occurred even if performance had been made in good time.
Section 288
Default interest*)
(1) Any money debt must bear interest during the time of default.
The default rate of interest per year is five percentage points above the basic rate of interest.
(2) In the case of legal transactions to which a consumer is not a party the rate of interest for claims for payment is eight percentage points above the basic rate of interest.
(3) The obligee may demand higher interest on a different legal basis.
(4) The assertion of further damage is not excluded.
*) Official note: This provision also serves in part to implement Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ L 200, p. 35).
Section 289
Prohibition of compound interest
Default interest is not to be paid on interest.
The right of the obligee to compensation for damage caused by the default remains unaffected.
Section 290
Interest on compensation for value
If the obligor is obliged to compensate for the value of an object that has been destroyed during a period of default or cannot be returned for a reason occurring during a period of default, the obligee may demand interest on the amount to be paid as compensation from the point of time onwards on which the determination of the value is based.
The same applies if the obligor is obliged to compensate for the reduction in value of an object that deteriorates during the period of default.
Section 291
Interest during legal proceedings
The obligor must pay interest on a money debt from the date when litigation is pending onwards, even if he is not in default; if the debt only falls due later, interest must be paid from its due date onwards.
The provisions of section 288 (1) sentence 2, (2) and (3) and section 289 sentence 1 apply with the necessary modifications.
Section 292
Liability in the case of a duty to return
(1) If the obligor must return a specific object, then, from the date when litigation is pending, the claim to damages of the obligee for deterioration, destruction or for impossibility of return for another reason is determined under the provisions that apply to the relationship between an owner and a possessor from the date when litigation on a claim to ownership is pending, except where the obligation or the default of the obligor leads to a different conclusion in favour of the obligee.
(2) The same applies to the claim of the obligee to the return or payment of emoluments and to the claim of the obligor to compensation for outlays.
Title 2
Default by the obligee
Section 293
Default in acceptance
The obligee is in default if he does not accept the performance offered to him.
Section 294
Actual offer
The obligee must actually be offered performance exactly as it is to be rendered.
Section 295
Verbal offer
A verbal offer by the obligor suffices if the obligee has declared to him that he will not accept the performance, or if effecting the performance requires an act by the obligee, in particular if the obligee must collect the thing owed.
Equivalent to an offer of performance is a demand to the obligee to undertake the action required.
Section 296
Dispensability of the offer
If a period of time has been specified according to the calendar for the act that the obligee is to undertake, the offer is only necessary if the obligee undertakes the act in good time.
The same applies if the act must be preceded by an event and a reasonable period of time is specified for the act in such a way that it can be calculated from the event onwards according to the calendar.
Section 297
Inability of the obligor
The obligee is not in default if the obligor at the time of the offer or, in the case of section 296, at the time determined for the action of the obligee, is not in a position to effect performance.
Section 298
Concurrent performance
If the obligor is only obliged to perform in return for an act of performance by the obligee, the obligee is in default if, although he is willing to accept the performance offered, he does not offer the consideration demanded.
Section 299
Temporary prevention of acceptance
If the time of performance is not specified or if the obligor is entitled to provide performance before the specified time, the obligee is not in default merely because he is temporarily prevented from accepting the performance offered, unless the obligor notifies him of the performance a reasonable time in advance.
Section 300
Effects of default by the obligee
(1) The obligor is, during the period of the default of the obligee, only responsible for intent and gross negligence.
(2) If a thing designated only by class is owed, the risk passes to the obligee at the time when he is in default by not accepting the thing offered.
Section 301
Cessation of interest
During the period of default by the obligee, the obligor need not pay interest on an interest-bearing money debt.
Section 302
Emoluments
If the obligor must return or reimburse the emoluments of an object, his obligation is limited, for the period of default by the obligee, to the emoluments he takes.
Section 303
Right to abandon possession
If the obligor is obliged to surrender a plot of land or a registered ship or ship under construction, he may abandon possession after the obligee is in default.
The obligee must be threatened with abandonment beforehand, unless the threat is impracticable.
Section 304
Compensation for extra expenses
If the obligee is in default, the obligor may demand reimbursement of extra expenses he was obliged to incur for the futile offer as well as for safekeeping and preservation of the object owed.
Division 2
Drafting contractual obligations by means of standard business terms*)
*) Official note: This provision also serves to implement Directive 93/13/EEC of the Council of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, p. 29).
Section 305
Incorporation of standard business terms into the contract
(1) Standard business terms are all contract terms pre-formulated for more than two contracts which one party to the contract (the user) presents to the other party upon the entering into of the contract.
It is irrelevant whether the provisions take the form of a physically separate part of a contract or are made part of the contractual document itself, what their volume is, what typeface or font is used for them and what form the contract takes.
Contract terms do not become standard business terms to the extent that they have been negotiated in detail between the parties.
(2) Standard business terms only become a part of a contract if the user, when entering into the contract,
1. refers the other party to the contract to them explicitly or, where explicit reference, due to the way in which the contract is entered into, is possible only with disproportionate difficulty, by posting a clearly visible notice at the place where the contract is entered into, and
2. gives the other party to the contract, in an acceptable manner, which also takes into reasonable account any physical handicap of the other party to the contract that is discernible to the user, the opportunity to take notice of their contents,
and if the other party to the contract agrees to their applying.
(3) The parties to the contract may, while complying with the requirements set out in subsection (2) above, agree in advance that specific standard business terms are to govern a specific type of legal transaction.
Section 305a
Incorporation in special cases
Even without compliance with the requirements cited in section 305 (2) nos.
1 and 2, if the other party to the contract agrees to their applying the following are incorporated,
1. the tariffs and regulations of the railways issued with the approval of the competent transport authority or on the basis of international conventions, and the terms of transport approved under the Passenger Transport Act [Personenbeförderungsgesetz], of trams, trolley buses and motor vehicles in regular public transport services,
2. the standard business terms published in the gazette of the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway [Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen] and kept available on the business premises of the user,
a) into transport contracts entered into off business premises by the posting of items in postboxes,
b) into contracts on telecommunications, information services and other services that are provided direct by the use of distance communication and at one time and without interruption during the supply of a telecommunications service, if it is disproportionately difficult to make the standard business terms available to the other party before the contract is entered into.
Section 305b
Priority of individually agreed terms
Individually agreed terms take priority over standard business terms.
Section 305c
Surprising and ambiguous clauses
(1) Provisions in standard business terms which in the circumstances, in particular with regard to the outward appearance of the contract, are so unusual that the other party to the contract with the user need not expect to encounter them, do not form part of the contract.
(2) Any doubts in the interpretation of standard business terms are resolved against the user.
Section 306
Legal consequences of non-incorporation and ineffectiveness
(1) If standard business terms in whole or in part have not become part of the contract or are ineffective, the remainder of the contract remains in effect.
(2) To the extent that the terms have not become part of the contract or are ineffective, the contents of the contract are determined by the statutory provisions.
(3) The contract is ineffective if upholding it, even taking into account the alteration provided in subsection (2) above, would be an unreasonable hardship for one party.
Section 306a
Prohibition of circumvention
The rules in this division apply even if they are circumvented by other constructions.
Section 307
Test of reasonableness of contents
(1) Provisions in standard business terms are ineffective if, contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user.
An unreasonable disadvantage may also arise from the provision not being clear and comprehensible.
(2) An unreasonable disadvantage is, in case of doubt, to be assumed to exist if a provision
1. is not compatible with essential principles of the statutory provision from which it deviates, or
2. limits essential rights or duties inherent in the nature of the contract to such an extent that attainment of the purpose of the contract is jeopardised.
(3) Subsections (1) and (2) above, and sections 308 and 309 apply only to provisions in standard business terms on the basis of which arrangements derogating from legal provisions, or arrangements supplementing those legal provisions, are agreed.
Other provisions may be ineffective under subsection (1) sentence 2 above, in conjunction with subsection (1) sentence 1 above.
Section 308
Prohibited clauses with the possibility of evaluation
In standard business terms the following are in particular ineffective
1.
(Period of time for acceptance and performance) a provision by which the user reserves to himself the right to unreasonably long or insufficiently specific periods of time for acceptance or rejection of an offer or for rendering performance; this does not include the reservation of the right not to perform until after the end of the period of time for withdrawal under section 355 subsections (1) and (2);
2.
(Additional period of time) a provision by which the user, contrary to legal provisions, reserves to himself the right to an unreasonably long or insufficiently specific additional period of time for the performance he is to render;
3.
(Reservation of the right to revoke) the agreement of a right of the user to free himself from his obligation to perform without any objectively justified reason indicated in the contract; this does not apply to continuing obligations;
4.
(Reservation of the right to modify) the agreement of a right of the user to modify the performance promised or deviate from it, unless the agreement of the modification or deviation can reasonably be expected of the other party to the contract when the interests of the user are taken into account;
5.
(Fictitious declarations) a provision by which a declaration by the other party to the contract with the user, made when undertaking or omitting a specific act, is deemed to have been made or not made by the user unless
a) the other party to the contract is granted a reasonable period of time to make an express declaration, and
b) the user agrees to especially draw the attention of the other party to the contract to the intended significance of his behaviour at the beginning of the period of time;
6.
(Fictitious receipt) a provision providing that a declaration by the user that is of special importance is deemed to have been received by the other party to the contract;
7.
(Reversal of contracts) a provision by which the user, to provide for the event that a party to the contract revokes the contract or gives notice of termination of the contract, may demand
a) unreasonably high remuneration for enjoyment or use of a thing or a right or for performance rendered, or
b) unreasonably high reimbursement of expenses;
8.
(Unavailability of performance) the agreement, admissible under no. 3, of the reservation by the user of a right to free himself from the duty to perform the contract in the absence of availability of performance, if the user does not agree to
a) inform the other party to the contract without undue delay, of the unavailability, and
b) reimburse the other party to the contract for consideration, without undue delay.
Section 309
Prohibited clauses without the possibility of evaluation
Even to the extent that a deviation from the statutory provisions is permissible, the following are ineffective in standard business terms:
1.
(Price increases at short notice) a provision providing for an increase in payment for goods or services that are to be delivered or rendered within four months of the entering into of the contract; this does not apply to goods or services delivered or rendered in connection with continuing obligations;
2.
(Right to refuse performance) a provision by which
a) the right to refuse performance to which the other party to the contract with the user is entitled under section 320, is excluded or restricted, or
b) a right of retention to which the other party to the contract with the user is entitled to the extent that it is based on the same contractual relationship, is excluded or restricted, in particular made dependent upon acknowledgement of defects by the user;
3.
(Prohibition of set-off) a provision by which the other party to the contract with the user is deprived of the right to set off a claim that is uncontested or has been finally and non-appealably established;
4.
(Warning notice, setting of a period of time) a provision by which the user is exempted from the statutory requirement of giving the other party to the contract a warning notice or setting a period of time for the latter to perform or cure;
5.
(Lump-sum claims for damages) the agreement of a lump-sum claim by the user for damages or for compensation of a decrease in value if
a) the lump sum, in the cases covered, exceeds the damage expected under normal circumstances or the customarily occurring decrease in value, or
b) the other party to the contract is not expressly permitted to show that damage or decrease in value has either not occurred or is substantially less than the lump sum;
6.
(Contractual penalty) a provision by which the user is promised the payment of a contractual penalty in the event of non-acceptance or late acceptance of the performance, payment default or in the event that the other party to the contract frees himself from the contract;
7.
(Exclusion of liability for injury to life, body or health and in case of gross fault)
a) (Injury to life, body or health) any exclusion or limitation of liability for damage from injury to life, body or health due to negligent breach of duty by the user or intentional or negligent breach of duty by a legal representative or a person used to perform an obligation of the user;
b) (Gross fault) any exclusion or limitation of liability for other damage arising from a grossly negligent breach of duty by the user or from an intentional or grossly negligent breach of duty by a legal representative of the user or a person used to perform an obligation of the user;
letters (a) and (b) do not apply to limitations of liability in terms of transport and tariff rules, authorised in accordance with the Passenger Transport Act [Personenbeförderungsgesetz], of trams, trolley buses and motor vehicles in regular public transport services, to the extent that they do not deviate to the disadvantage of the passenger from the Order on Standard Transport Terms for Tram and Trolley Bus Transport and Regular Public Transport Services with Motor Vehicles [Verordnung über die Allgemeinen Beförderungsbedingungen für den Straßenbahn- und Obusverkehr sowie den Linienverkehr mit Kraftfahrzeugen] of 27 February 1970; letter (b) does not apply to limitations on liability for state-approved lotteries and gaming contracts;
8.
(Other exclusions of liability for breaches of duty)
a) (Exclusion of the right to free oneself from the contract) a provision which, where there is a breach of duty for which the user is responsible and which does not consist in a defect of the thing sold or the work, excludes or restricts the right of the other party to free himself from the contract; this does not apply to the terms of transport and tariff rules referred to in no. 7 under the conditions set out there;
b) (Defects) a provision by which in contracts relating to the supply of newly produced things and relating to the performance of work
aa) (Exclusion and referral to third parties) the claims against the user due to defects in their entirety or in regard to individual parts are excluded, limited to the granting of claims against third parties or made dependent upon prior court action taken against third parties;
bb) (Limitation to cure) the claims against the user are limited in whole or in regard to individual parts to a right to cure, to the extent that the right is not expressly reserved for the other party to the contract to reduce the purchase price, if the cure should fail or, except where building work is the object of liability for defects, at its option to revoke the contract;
cc) (Expenses for cure) the duty of the user to bear the expenses necessary for the purpose of cure, in particular to bear transport, workmen’s travel, work and materials costs, is excluded or limited;
dd) (Withholding cure) the user makes cure dependent upon prior payment of the entire fee or a portion of the fee that is disproportionate taking the defect into account;
ee) (Cut-off period for notice of defects) the user sets a cut-off period for the other party to the contract to give notice of non-obvious defects which is shorter than the permissible period of time under double letter (ff) below;
ff) (Making limitation easier) the limitation of claims against the user due to defects in the cases cited in section 438 (1) no. 2 and section 634a (1) no. 2 is made easier, or in other cases a limitation period of less than one year reckoned from the beginning of the statutory limitation period is attained;
9.
(Duration of continuing obligations) in a contractual relationship the subject matter of which is the regular supply of goods or the regular rendering of services or work performance by the user,
a) a duration of the contract binding the other party to the contract for more than two years,
b) a tacit extension of the contractual relationship by more than one year in each case that is binding on the other party to the contract, or
c) a notice period longer than three months prior to the expiry of the duration of the contract as originally agreed or tacitly extended at the expense of the other party to the contract;
this does not apply to contracts relating to the supply of things sold as belonging together, to insurance contracts or to contracts between the holders of copyright rights and claims and copyright collecting societies within the meaning of the Act on the Administration of Copyright and Neighbouring Rights [Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten];
10.
(Change of other party to contract) a provision according to which in the case of purchase, loan or service agreements or agreements to produce a result a third party enters into, or may enter into, the rights and duties under the contract in place of the user, unless, in that provision,
a) the third party is identified by name, or
b) the other party to the contract is granted the right to free himself from the contract;
11.
(Liability of an agent with power to enter into a contract) a provision by which the user imposes on an agent who enters into a contract for the other party to the contract
a) a liability or duty of responsibility for the principal on the part of the agent himself, without any explicit and separate declaration to this effect, or
b) in the case of agency without authority, liability going beyond section 179;
12.
(Burden of proof) a provision by which the user modifies the burden of proof to the disadvantage of the other party to the contract, in particular by
a) imposing on the latter the burden of proof for circumstances lying in the sphere of responsibility of the user, or
b) having the other party to the contract confirm certain facts;
letter (b) does not apply to acknowledgements of receipt that are signed separately or provided with a separate qualified electronic signature;
13.
(Form of notices and declarations) a provision by which notices or declarations that are to be made to the user or a third party are tied to a more stringent form than written form or tied to special receipt requirements.
Section 310
Scope of application
(1) Section 305 (2) and (3) and sections 308 and 309 do not apply to standard business terms which are used in contracts with an entrepreneur, a legal person under public law or a special fund under public law.
Section 307 (1) and (2) nevertheless apply to these cases in sentence 1 to the extent that this leads to the ineffectiveness of the contract provisions set out in sections 308 and 309; reasonable account must be taken of the practices and customs that apply in business dealings.
In cases coming under sentence 1, section 307 (1) and (2) do not apply to contracts in which the entire Award Rules for Building Works, Part B [Vergabe- und Vertragsordnung für Bauleistungen Teil B - VOB/B] in the version applicable at the time of conclusion of the contract are included without deviation as to their content, relating to an examination of the content of individual provisions.
(2) Sections 308 and 309 do not apply to contracts of electricity, gas, district heating or water suppliers for the supply of electricity, gas, district heating or water from the supply grid to special customers to the extent that the conditions of supply do not derogate, to the disadvantage of the customer, from orders on general conditions for the supply of standard-rate customers with electricity, gas, district heating and water.
Sentence 1 applies with the necessary modifications to contracts for the disposal of sewage.
(3) In the case of contracts between an entrepreneur and a consumer (consumer contracts) the rules in this division apply with the following provisos:
1.
Standard business terms are deemed to have been presented by the entrepreneur, unless they were introduced into the contract by the consumer;
2.
Section 305c (2) and sections 306 and 307 to 309 of this Code and Article 46b of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] apply to preformulated contract terms even if the latter are intended only for non-recurrent use on one occasion, and to the extent that the consumer, by reason of the preformulation, had no influence on their contents;
3. in judging an unreasonable disadvantage under section 307 (1) and (2), the other circumstances attending the entering into of the contract must also be taken into account.
(4) This division does not apply to contracts in the field of the law of succession, family law and company law or to collective agreements and private-sector works agreements or public-sector establishment agreements.
When it is applied to employment contracts, reasonable account must be taken of the special features that apply in labour law; section 305 (2) and (3) must not be applied.
Collective agreements and private-sector works agreements or public-sector establishment agreements are equivalent to legal provisions within the meaning of section 307 (3).
Division 3
Contractual obligations
Title 1
Creation, subject matter and termination
Subtitle 1
Creation
Section 311
Obligations created by legal transaction and obligations similar to legal transactions
(1) In order to create an obligation by legal transaction and to alter the contents of an obligation, a contract between the parties is necessary, unless otherwise provided by statute.
(2) An obligation with duties under section 241 (2) also comes into existence by
1. the commencement of contract negotiations
2. the initiation of a contract where one party, with regard to a potential contractual relationship, gives the other party the possibility of affecting his rights, legal interests and other interests, or entrusts these to him, or
3. similar business contacts.
(3) An obligation with duties under section 241 (2) may also come into existence in relation to persons who are not themselves intended to be parties to the contract.
Such an obligation comes into existence in particular if the third party, by laying claim to being given a particularly high degree of trust, substantially influences the pre-contract negotiations or the entering into of the contract.
Section 311a
Obstacle to performance when contract is entered into
(1) A contract is not prevented from being effective by the fact that under section 275 (1) to (3) the obligor does not need to perform and the obstacle to performance already exists when the contract is entered into.
(2) The obligee may, at his option, demand damages in lieu of performance or reimbursement of his expenses in the extent specified in section 284.
This does not apply if the obligor was not aware of the obstacle to performance when entering into the contract and is also not responsible for his lack of awareness.
Section 281 (1) sentences 2 and 3 and (5) apply with the necessary modifications.
Section 311b
Contracts on plots of land, assets and an estate
(1) A contract by which one party agrees to transfer or acquire ownership of a plot of land must be recorded by a notary.
A contract not entered into in this form becomes valid with all its contents if a declaration of conveyance and registration in the Land Register are effected.
(2) A contract by which one party agrees to transfer his future property or a fraction of his future property or to charge it with a usufruct is void.
(3) A contract by which one party agrees to transfer his present property or a fraction of his present property or to charge it with a usufruct must be recorded by a notary.
(4) A contract relating to the estate of a third party who is still living is void.
The same applies to a contract relating to a compulsory portion or a legacy from the estate of a third party who is still living.
(5) Subsection (4) above does not apply to a contract entered into between future heirs on intestacy relating to the hereditary share on intestacy or the compulsory portion of one of them.
Such a contract must be recorded by a notary.
Section 311c
Application to accessories
If a person agrees to dispose of or charge a thing, that duty, in case of doubt, also applies to accessories of the thing.
Subtitle 2
Principles applying to consumer contracts; particular types of sale*)
*) Official note: This subtitle serves to implement 1.
Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ L 372 of 31 December 1985, p. 31), 2.
Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144, p. 19), 3. and Articles 10, 11 and 18 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce” OJ L 178, p. 1).
Chapter 1
Scope of application and principles applying to consumer contracts
Section 312
Scope of application
(1) The provisions of chapters 1 and 2 of this subtitle apply only to consumer contracts within the meaning of section 310 (3) that have as their subject matter the nongratuitous performance by the trader.
(2) Of the provisions set out in chapters 1 and 2 of this subtitle, solely section 312a subsections (1), (3), (4), and (6) applies to the following contracts:
1. contracts that have been notarially recorded
a) and that relate to financial services, where such contracts are off-premises contracts,
b) and that do not constitute a contract relating to financial services; this applies to contracts, regarding which the law does not require the contract or contract declaration to be notarially recorded, solely in those cases in which the notary instructs the parties that the information requirements pursuant to section 312d (1) and the right of withdrawal pursuant to section 312g (1) have ceased to apply;
2. contracts relating to the creation, acquisition or transfer of ownership of plots of land or other rights to same,
3. contracts relating to the construction of new buildings or to the substantial conversion of existing buildings,
4. contracts relating to travel services pursuant to section 651a, if these are
a) distance contracts,
b) off-premises contracts, if the oral negotiations on the basis of which the contract is concluded were conducted in response to a previous order placed by the consumer, or
5. contracts relating to the carriage of passengers,
6. timeshare contracts, contracts relating to long-term holiday products, brokerage contracts, and exchange system contracts pursuant to sections 481 to 481b,
7. treatment contracts pursuant to section 630a,
8. contracts relating to the supply of food products, beverages or other household objects of everyday use which are supplied to the residence, place of abode or place of employment of a consumer by a trader in the course of frequent and regular rounds,
9. contracts that are concluded with the use of automatic vending machines and automated business premises,
10. contracts for the use of public payphones that are concluded with telecommunications operators through such public payphones,
11. contracts concluded for the use of one single connection by telephone, Internet or fax established by a consumer,
12. off-premises contracts, in which the performance is immediately rendered and paid for at the conclusion of the negotiations and the remuneration to be paid by the consumer does not exceed 40 euros, and
13. contracts relating to the sale of movable things by way of an execution of judgment or otherwise by authority of law.
(3) Solely the following of the provisions set out in chapters 1 and 2 of this subtitle apply to contracts relating to social services, such as childcare and support of families and persons permanently or temporarily in need, including long-term care:
1. the definitions of off-premises contracts and of distance contracts pursuant to sections 312b and 312c,
2. section 312a (1) regarding the disclosure obligation in the case of telephone calls,
3. section 312a (3) regarding the effectiveness of an agreement directed towards obtaining extra payment in addition to the remuneration agreed upon for the principal performance,
4. section 312a (4) regarding the effectiveness of an agreement for fees for the use of means of payment,
5. section 312a (6),
6. section 312d (1) in conjunction with Article 246a section 1 subsections (2) and (3) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] regarding the obligation to inform on the right of withdrawal, and
7. section 312g regarding the right of withdrawal.
(4) Of the provisions made in chapters 1 and 2 of this subtitle, solely the stipulations set out in subsection (3) numbers 1 through 7 apply to contracts relating to the rental of accommodation for residential purposes.
The stipulations set out in subsection (3) numbers 1, 6, and 7 do not apply, however, to the creation of a lease relationship for accommodation serving residential purposes if the lessee has previously inspected the dwelling.
(5) In the case of contractual relationships relating to banking services and services of a credit, insurance, personal pension, investment or payment nature (financial services), that consist of an initial agreement with transactions following upon it or a series of separate transactions following upon it of the same type that have a temporal connection, the provisions made in chapters 1 and 2 of this subtitle apply only to the first agreement.
Section 312a subsections (1), (3), (4), and (6) additionally applies to each transaction.
Where the transactions set out in sentence 1 follow one another without such an agreement, the provisions on the duties of a trader to provide information apply only to the first transaction.
However, if no transaction of the same type occurs for longer than one year, the next transaction is deemed to be the first transaction of a new series within the meaning of sentence 3.
(6) Of the provisions made in chapters 1 and 2 of this subtitle, solely section 312a subsections (3), (4), and (6) applies to contracts relating to insurance policies as well as to contracts relating to the brokerage of such policies.
Section 312a
General obligations and principles applying to consumer contracts; limits to the agreement of remuneration
(1) Where the trader or a person acting in his name or on his behalf makes a telephone call to the consumer with a view to concluding a contract with same, he shall, at the beginning of the conversation, disclose his identity and, where applicable, the identity of the person on whose behalf he is making the call, as well as the commercial purpose of the call.
(2) The trader is obliged to inform the consumer in accordance with the stipulations of Article 246 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
The trader may demand that the consumer cover freight, delivery, or postal charges and other costs only inasmuch as he has informed the consumer of these costs in accordance with the requirements established in Article 246 (1) number 3 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
Sentences 1 and 2 apply neither to off-premises contracts nor to distance contracts nor to contracts relating to financial services.
(3) A trader may conclude an agreement with a consumer that is directed towards obtaining extra payment from the consumer in addition to the remuneration agreed upon for the principal performance only if this is done expressly.
Where the trader and the consumer conclude a contract in electronic commerce, such an agreement will form part of the contract only if the trader does not bring about the agreement by means of a default option.
(4) An agreement obligating a consumer to pay a fee for the use of a certain means of payment by way of fulfilling his contractual obligations is ineffective if
1. no customary and reasonable payment method is available to the consumer that is free of charge, or
2. the fee agreed exceeds the cost borne by the trader for the use of such means of payment.
(5) An agreement obligating a consumer to pay a fee for those cases in which the consumer contacts the trader via a telephone line that the trader operates for the purpose of answering questions or providing explanations regarding a contract concluded by the parties is ineffective if the fee agreed upon exceeds the fee charged for the use merely of the telecommunication service as such.
Where an agreement is ineffective pursuant to sentence 1, the consumer is not bound to pay a fee for the call to the telecommunication services provider, either.
The telecommunication services provider has the right to demand the fee for the use merely of the telecommunication services from the trader who has concluded the ineffective agreement with the consumer.
(6) Where an agreement pursuant to subsections (3) to (5) has not come to form part of the contract or where it is ineffective, the contract remains effective in all other respects.
Chapter 2
Off-premises contracts and distance contracts
Section 312b
Off-premises contracts
(1) Off-premises contracts are contracts
1. that are concluded with the simultaneous physical presence of the consumer and of the trader, in a place which is not the business premises of the trader,
2. for which an offer was made by the consumer in the same circumstances as referred to in number 1,
3. that are concluded on the business premises of the trader or through any means of distance communication, but where, immediately prior to such conclusion, the consumer had been personally and individually addressed, in a place which is not the business premises of the trader, in the simultaneous physical presence of the consumer and the trader, or
4. that are concluded during an excursion organised by the trader or with the trader’s assistance, with the aim of promoting goods or services to the consumer and entering into the corresponding contracts with him.
Any persons acting in the trader’s name or on his behalf are in a position equivalent to that of the trader.
(2) Business premises within the meaning of subsection (1) are any immovable retail premises where the trader carries out his activity on a permanent basis and any movable retail premises where the trader carries out his activity on a usual basis.
Any retail premises in which the person acting in the trader’s name or on his behalf carries out his activity on a permanent or usual basis are equivalent to the premises of the trader.
Section 312c
Distance contracts
(1) Distance contracts are contracts for which the trader, or a person acting in the trader’s name or on his behalf, and the consumer exclusively avail themselves of means of distance communication in negotiating and concluding the contract, except where the conclusion of the contract does not take place in the context of a sales or service-provision scheme organised for distance sales.
(2) Means of distance communication within the meaning of this Code are all means of communication which can be used to initiate or to conclude a contract, without requiring the simultaneous physical presence of the parties to the contract, such as letters, catalogues, telephone calls, faxes, emails, text messages sent via the mobile telephone service (SMS) as well as messages broadcast and sent via teleservices.
Section 312d
Information requirements
(1) In the case of off-premises contracts and of distance contracts, the trader is obliged to inform the consumer according to the stipulations of Article 246a of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
Unless the parties to the contract have expressly agreed otherwise, the information the trader provides by way of fulfilling this obligation shall become part of the contract’s subject matter.
(2) In the case of off-premises contracts and of distance contracts for financial services, the trader is obliged, in derogation from subsection (1), to inform the consumer in accordance with the stipulations of Article 246b of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
Section 312e
Violation of information obligations as to costs
The trader may demand that the consumer cover any freight, delivery, or postal charges and other costs insofar as he has informed the consumer of these costs in accordance with the requirements set out in section 312d (1) in conjunction with Article 246a section 1 (1) sentence 1 number 4 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
Section 312f
Copies and confirmations
(1) In the case of off-premises contracts, the trader is obliged to forthwith provide the consumer with the following documents on paper:
1. a copy of a contract document signed by the parties concluding the contract such that their identity is recognisable, or
2. a confirmation of the contract reflecting the contract’s content.
If the consumer agrees, some other durable medium may be used for the copy or the confirmation of the contract.
The confirmation pursuant to sentence 1 must include the information specified in Article 246a of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] unless the trader has provided the consumer with such information on a durable medium, by way of fulfilling his information requirements pursuant to section 312d (1), already prior to concluding the contract.
(2) In the case of distance contracts, the trader is obliged to provide the consumer with a confirmation of the contract, on a durable medium, in which the content of the contract is set out, and to do so within a reasonable period of time after having concluded the contract, at the latest, however, at the time of the delivery of the goods or before the performance of the service.
The confirmation pursuant sentence 1 must include the information specified in Article 246a of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] unless the trader has provided the consumer with such information on a durable medium prior to concluding the contract by way of fulfilling his information requirements pursuant to section 312d (1).
(3) In the case of contracts for the supply of digital content that is not contained in a tangible medium and that is produced and made available in digital form (digital content), the copy or the confirmation of the contract pursuant to subsections (1) and (2) is to likewise record, where appropriate, that prior to the performance of the contract, the consumer
1. has expressly consented to the trader commencing with the performance of the contract prior to expiry of the withdrawal period, and
2. has acknowledged that, by his consent, he will lose the right to withdraw from the contract upon the performance of the contract having commenced.
(4) This provision does not apply to contracts relating to financial services.
Section 312g
Right of withdrawal
(1) In the case of off-premises contracts and of distance contracts, the consumer has a right of withdrawal pursuant to section 355.
(2) Unless otherwise agreed by the parties, the right of withdrawal shall not exist for the following contracts:
1. contracts for the supply of goods that are not pre-fabricated and the production of which is governed by an individual choice of or decision by the consumer, or that are clearly tailored to personal needs of the consumer,
2. contracts for the supply of goods which are highly perishable, or which may quickly pass their expiration date,
3. contracts for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if such goods were unsealed after delivery,
4. contracts for the supply of goods which, according to their nature, are inseparably mixed, after delivery, with other items,
5. contracts for the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place at the earliest after thirty days following the conclusion of the sales contract, and the current value of which is dependent on fluctuations in the market which cannot be controlled by the trader,
6. contracts for the supply of sealed audio or sealed video recordings or sealed computer software, if they were unsealed after delivery,
7. contracts for the delivery of newspapers, periodicals or magazines with the exception of subscription contracts for the supply of such publications,
8. contracts for the supply of goods or the provision of services including the provision of financial services, whose price is dependent on fluctuations on the financial market which cannot be controlled by the trader and which may occur within the withdrawal period, including in particular services in connection with stock, with shares in open-ended investment assets within the meaning of section 1 (4) of the Capital Investment Code [Kapitalanlagegesetzbuch], and with other tradeable securities, foreign currency, derivatives or money market instruments,
9. subject to the stipulations of sentence 2, contracts for the provision of services in the fields of accommodation other than for residential purposes, transport of goods, car rental services, deliveries of food and beverages, or services related to leisure activities, if the contract provides for a specific date or period of performance,
10. contracts that are concluded in the context of a method of sale where goods or services are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person, through a transparent, competitive bidding procedure run by an auctioneer and where the successful bidder is obliged to purchase the goods or services (publicly accessible auction),
11. contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance; this shall not apply as regards additional services provided on the occasion of such visit that the consumer has not specifically requested, or as regards any goods delivered on the occasion of such visit that are not absolutely required as replacement parts in carrying out the maintenance or in making the repairs,
12. contracts for the provision of betting and lottery services unless the consumer has made his contract declaration by telephone or the contract is an off-premises contract, and
13. contracts that are notarially recorded; this shall apply to distance contracts relating to financial services only in those cases in which the notary confirms that the rights of the consumer set out in section 312d (2) are safeguarded.
The exception made in sentence 1 number 9 does not apply to contracts relating to travel services pursuant to section 651a if they are off-premises contracts, unless the oral negotiations on the basis of which the contract is concluded were conducted in response to a previous order placed by the consumer.
(3) In addition, the right of withdrawal does not exist for contracts regarding which the consumer, under sections 495 and 506 to 512, is already entitled to a right of withdrawal under section 355, nor does it exist in the case of off-premises contracts regarding which the consumer is already entitled to a right of withdrawal pursuant to section 305 subsections (1) to (6) of the Capital Investment Code [Kapitalanlagegesetzbuch].
Section 312h
Termination and power of attorney to terminate
If a continuing obligation is established between a trader and a consumer pursuant to this subtitle intended to substitute a continuing obligation existing between the consumer and another trader, and on the occasion of the establishment of the continuing obligation the consumer
1. declares the termination of the existing continuing obligation and commissions the trader or a third party commissioned by the latter to transmit the termination to the previous contractual partner of the consumer, or
2. empowers the trader or a third party commissioned by the latter to declare the termination towards the consumer’s previous contractual partner,
the consumer’s termination or the power of attorney shall require to be in text form.
Chapter 3
Contracts concluded in electronic commerce
Section 312i
General obligations in electronic commerce
(1) If a trader uses teleservices in order to conclude a contract for the supply of goods or the rendering of services (e-commerce contract), he must
1. provide the customer with reasonable, effective, and accessible technical means with the aid of which the customer may identify and correct input errors prior to making his order,
2. communicate to the customer clearly and comprehensibly the information specified in Article 246c of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] in good time prior to sending his order,
3. confirm receipt of the order without undue delay by electronic means for the customer, and
4. provide the customer with the opportunity to retrieve the contract terms including the standard business terms when the contract is concluded and save them in a form that allows for their reproduction.
The order and the acknowledgement of receipt within the meaning of sentence 1 number 3 are deemed to have been received if the parties for whom they are intended are able to retrieve them in normal circumstances.
(2) Subsection (1) sentence 1 number 1 to 3 must not be applied if the contract is entered into exclusively by way of personal communication.
Subsection (1) sentence 1 number 1 to 3 and sentence 2 must not be applied if otherwise agreed in a contract between parties who are not consumers.
(3) More extensive information obligations resulting from other stipulations of the law remain unaffected.
Section 312j
Special obligations vis-à-vis consumers in electronic commerce
(1) On the websites used for electronic commerce with consumers, the trader is to indicate clearly and unequivocally at the latest at the beginning of the ordering process, in addition to the information provided pursuant to section 312i (1), whether any delivery restrictions apply and which means of payment are accepted.
(2) In the case of a consumer contract concluded in electronic commerce that has as its subject-matter a for-a-fee service provided by the trader, the trader must provide to the consumer the information in accordance with Article 246a section 1 (1) sentence 1 number 1, 4, 5, 11, and 12 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche], and must do so in an unambiguous, comprehensible manner as well as prominently, directly before the consumer submits his order.
(3) In case of a contract in accordance with subsection (2), the trader is to arrange the ordering situation such that the consumer explicitly confirms with his order that he undertakes to effect a payment.
If the order is placed using a button, the obligation of the trader under sentence 1 is only deemed to have been met if this button is marked in an easy-to-read manner with nothing else but the words “Order and Pay” (zahlungspflichtig bestellen), or with equally unambiguous wording.
(4) A contract in accordance with subsection (2) is only created if the trader meets his obligation under subsection (3).
(5) Subsections (2) to (4) do not apply if the contract is concluded exclusively by personal communication.
The obligations set out in subsections (1) and (2) apply neither to websites concerning financial services nor to contracts relating to financial services.
Chapter 4
Deviating agreements and burden of proof
Section 312k
Deviating agreements and burden of proof
(1) No agreements deviating from the provisions of this subtitle may be made, unless otherwise provided, that are to the disadvantage of the consumer or the customer.
Unless otherwise provided, the provisions of this subtitle apply even if they are circumvented by other constructions.
(2) The burden of providing proof to the consumer that the information obligations provided for under the present subtitle have been complied with is incumbent on the trader.
Subtitle 3
Adaptation and ending of contracts
Section 313
Interference with the basis of the transaction
(1) If circumstances which became the basis of a contract have significantly changed since the contract was entered into and if the parties would not have entered into the contract or would have entered into it with different contents if they had foreseen this change, adaptation of the contract may be demanded to the extent that, taking account of all the circumstances of the specific case, in particular the contractual or statutory distribution of risk, one of the parties cannot reasonably be expected to uphold the contract without alteration.
(2) It is equivalent to a change of circumstances if material conceptions that have become the basis of the contract are found to be incorrect.
(3) If adaptation of the contract is not possible or one party cannot reasonably be expected to accept it, the disadvantaged party may revoke the contract.
In the case of continuing obligations, the right to terminate takes the place of the right to revoke.
Section 314
Termination, for a compelling reason, of contracts for the performance of a continuing obligation
(1) Each party may terminate a contract for the performance of a continuing obligation for a compelling reason without a notice period.
There is a compelling reason if the terminating party, taking into account all the circumstances of the specific case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period.
(2) If the compelling reason consists in the breach of a duty under the contract, the contract may be terminated only after the expiry without result of a period specified for relief or after a warning notice without result.
Section 323 (2) number 1 und 2 applies, with the necessary modifications, as regards the dispensability of specifying a period for such relief and as regards the dispensability of a warning notice.
Specifying a period for relief and issuing a warning notice can also be dispensed with if special circumstances are given which, when the interests of both parties are weighed, justify immediate termination.
(3) The person entitled may give notice only within a reasonable period after obtaining knowledge of the reason for termination.
(4) The right to demand damages is not excluded by the termination.
Subtitle 4
Unilateral rights to specify performance
Section 315
Specification of performance by one party
(1) Where performance is to be specified by one of the parties to the contract, then in case of doubt it is to be assumed that the specification is to be made at the reasonably exercised discretion of the party making it.
(2) The specification is made by declaration to the other party.
(3) Where the specification is to be made at the reasonably exercised discretion of a party, the specification made is binding on the other party only if it is equitable.
If it is not equitable, the specification is made by judicial decision; the same applies if the specification is delayed.
Section 316
Specification of consideration
If the extent of the consideration promised for an act of performance is not specified, then in case of doubt the party that is owed the consideration is entitled to make the specification.
Section 317
Specification of performance by a third party
(1) Where specification of performance is left to a third party, then in case of doubt it is to be assumed that the specification is to be made at the reasonably exercised discretion of the third party.
(2) If the specification is made by more than one third party, then in case of doubt, the agreement of all parties is necessary; where an amount is to be specified and several amounts are specified, then in case of doubt, the average amount applies.
Section 318
Avoidance of specification
(1) The specification of performance made by a third party is effected by declaration to one of the parties to the contract.
(2) Only the parties to the contract are entitled to avoid the specification made for mistake, duress or deceit; the opponent is the other party.
Avoidance must occur without undue delay after the opponent has obtained knowledge of the grounds for avoidance.
Avoidance is excluded if thirty years have passed since the specification was made.
Section 319
Ineffectiveness of the specification; substitution
(1) If the third party is to specify performance at its reasonably exercised discretion, the specification made is not binding on the parties to the contract if it is evidently inequitable.
The specification is made in this case by judicial decision; the same applies if the third party cannot or does not want to make the specification or if it delays it.
(2) If the third party is to make the specification at its free discretion, the contract is ineffective if the third party cannot or does not want to make the specification or if it delays it.
Title 2
Reciprocal contracts
Section 320
Defence of unperformed contract
(1) A person who is a party to a reciprocal contract may refuse his part of the performance until the other party renders consideration, unless he is obliged to perform in advance.
If performance is to be made to more than one person, an individual person may be refused the part performance due to him until the complete consideration has been rendered.
The provision of section 273 (3) does not apply.
(2) If one party has performed in part, consideration may not be refused to the extent that refusal, in the circumstances, in particular because the part in arrears is relatively trivial, would be bad faith.
Section 321
Defence of uncertainty
(1) A person who is obliged to perform in advance under a reciprocal contract may refuse to render his performance if, after the contract is entered into, it becomes apparent that his entitlement to consideration is jeopardised by the inability to perform of the other party.
The right to refuse performance is not applicable if consideration is rendered or security is given for it.
(2) The person required to perform in advance may specify a reasonable period in which the other party must, at his choice, render consideration or provide security reciprocally and simultaneously against performance.
If the period ends without result, the person required to perform in advance may revoke the contract.
Section 323 applies with the necessary modifications.
Section 322
Order to perform reciprocally and simultaneously
(1) If a party brings an action for performance due to him on the basis of a reciprocal contract, the assertion by the other party of his right to refuse performance until consideration is rendered merely has the effect that the latter party is to be ordered to perform reciprocally and simultaneously.
(2) If the party bringing the action must perform in advance, then, if the other party is in default of acceptance, he may bring an action for performance after receiving consideration.
(3) The provision in section 274 (2) applies to the execution of judgment.
Section 323
Revocation for nonperformance or for performance not in conformity with the contract*)
(1) If, in the case of a reciprocal contract, the obligor does not render an act of performance which is due, or does not render it in conformity with the contract, then the obligee may revoke the contract, if he has specified, without result, an additional period for performance or cure.
(2) The specification of a period of time can be dispensed with if
1. the obligor seriously and definitively refuses performance,
2. the obligor does not render performance by a date specified in the contract or within a period specified in the contract, in spite of the fact that, according to a notice given by the obligee to the obligor prior to conclusion of the contract or based on other circumstances attending at the time of its conclusion, the performance as per the date specified or within the period specified is of essential importance to the obligee, or
3. in the case of work not having been carried out in accordance with the contract, special circumstances exist which, when the interests of both parties are weighed, justify immediate revocation.
(3) If the nature of the breach of duty is such that setting a period of time is out of the question, a warning notice is given instead.
(4) The obligee may revoke the contract before performance is due if it is obvious that the requirements for revocation will be met.
(5) If the obligor has performed in part, the obligee may revoke the whole contract only if he has no interest in part performance.
If the obligor has not performed in conformity with the contract, the obligee may not revoke the contract if the breach of duty is trivial.
(6) Revocation is excluded if the obligee is solely or very predominantly responsible for the circumstance that would entitle him to revoke the contract or if the circumstance for which the obligor is not responsible occurs at a time when the obligee is in default of acceptance.
*) Official note: This provision also serves in part to implement Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, p. 12).
Section 324
Revocation for breach of a duty under section 241 (2)
If the obligor, in the case of a reciprocal contract, breaches a duty under section 241 (2), the obligee may revoke the contract if he can no longer reasonably be expected to uphold the contract.
Section 325
Damages and revocation
The right to demand damages in the case of a reciprocal contract is not excluded by revocation.
Section 326
Release from consideration and revocation where the duty of performance is excluded*)
(1) If, under section 275 (1) to (3), the obligor is not obliged to perform, there is no entitlement to consideration; in the case of part performance, section 441 (3) applies with the necessary modifications.
Sentence 1 does not apply if the obligor, in the case of failure to perform in conformity with the contract, does not, under section 275 (1) to (3), have to effect cure.
(2) If the obligee is solely or very predominantly responsible for the circumstance due to which the obligor does not, under section 275 (1) to (3), have to effect cure, or if this circumstance for which the obligor is not responsible occurs at a time when the obligee is in default of acceptance, the obligor retains the entitlement to consideration.
However, he must allow to be credited against him what he saves due to release from performance or acquires or wilfully fails to acquire from other use of his labour.
(3) If the obligee demands, under section 285, return of reimbursement obtained for the object owed or assignment of the claim to reimbursement, he remains obliged to render consideration.
However, the latter is reduced under section 441 (3) to the extent that the value of the reimbursement or of the claim to reimbursement falls short of the value of the performance owed.
(4) To the extent that the consideration that is not owed under this provision is effected, what is performed may be claimed back under sections 346 to 348.
(5) If, under section 275 (1) to (3), the obligor does not have to perform, the obligee may revoke; section 323 applies with the necessary modifications to the revocation, subject to the proviso that it is not necessary to specify a period of time.
*) Official note: This provision also serves in part to implement Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, p. 12).
Section 327
(repealed)
Title 3
Promise of performance to a third party
Section 328
Contract for the benefit of third parties
(1) Performance to a third party may be agreed by contract with the effect that the third party acquires the right to demand the performance directly.
(2) In the absence of a specific provision it is to be inferred from the circumstances, in particular from the purpose of the contract, whether the third party is to acquire the right, whether the right of the third party is to come into existence immediately or only under certain conditions, and whether the power is to be reserved for the parties to the contract to terminate or alter the right of the third party without his approval.
Section 329
Interpretation rule where there is an assumption of the duty to perform
Where one party to a contract agrees to satisfy an obligee of the other party without assuming the obligation, then in case of doubt it may not be assumed that the obligee is to acquire the right to demand satisfaction from him directly.
Section 330
Interpretation rule in the case of life annuity contracts
Where in a life annuity contract the payment of the life annuity to a third party is agreed, in case of doubt it must be assumed that the third party is to acquire the right to demand performance directly.
The same applies if, in the case of a gratuitous disposition, a duty of performance is imposed on the person provided for, or, in the case of assumption of property or a landed estate, performance for a third party is promised by the assuming party for the purpose of providing satisfaction.
Section 331
Performance after death
(1) If the performance for the third party is to occur after the death of the person to whom it is promised, the third party acquires the right to the performance, in case of doubt, upon the death of the promisee.
(2) If the promisee dies prior to the birth of the third party, the promise to perform to the third party may only be cancelled or modified if the power to do so was reserved.
Section 332
Modification by disposition mortis causa in case of reservation
If the promisee reserves the power to place another in the place of the third party designated in the contract, then in case of doubt this may also be accomplished in a disposition mortis causa.
Section 333
Rejection of the right by the third party
If the third party rejects the right under the contract towards the promisor, the right is deemed to not have been acquired.
Section 334
Objections of the obligor in relation to the third party
The promisor is entitled to raise objections under the contract in relation to the third party too.
Section 335
Right of the promisee to make demands
The promisee may, where a different intention of the parties to the contract may not be assumed, demand performance for the third party even if the latter is entitled to the right to performance.
Title 4
Earnest, contractual penalty
Section 336
Interpretation of earnest
(1) Where something is given as an earnest when a contract is entered into, this is deemed to be a sign that the contract has been entered into.
(2) The earnest is not deemed, in case of doubt, to be forfeit money.
Section 337
Crediting or return of the earnest
(1) The earnest is, in case of doubt, to be credited against the performance owed by the giver of the earnest, or, where this cannot occur, is to be returned when the contract is performed.
(2) If the contract is cancelled, the earnest must be returned.
Section 338
Earnest in case of impossibility of performance for which giver of earnest is responsible
If the performance owed by the giver of the earnest becomes impossible due to a circumstance for which he is responsible, or if the giver of the earnest is responsible for the cancellation of the contract entered into, the recipient of the earnest may retain it.
If the recipient demands damages for non-performance, the earnest must, in case of doubt, be credited against it, or if this cannot occur, must be returned when damages are paid.
Section 339
Payability of contractual penalty
Where the obligor promises the obligee, in the event that he fails to perform his obligation or fails to do so properly, payment of an amount of money as a penalty, the penalty is payable if he is in default.
If the performance owed consists in forbearance, the penalty is payable on breach.
Section 340
Promise to pay a penalty for nonperformance
(1) If the obligor has promised the penalty in the event that he fails to perform his obligation, the obligee may demand the penalty that is payable in lieu of fulfilment.
If the obligee declares to the obligor that he is demanding the penalty, the claim to performance is excluded.
(2) If the obligee is entitled to a claim to damages for nonperformance, he may demand the penalty payable as the minimum amount of the damage.
Assertion of additional damage is not excluded.
Section 341
Promise of a penalty for improper performance
(1) If the obligor has promised the penalty in the event that he fails to perform his obligation properly, including without limitation performance at the specified time, the obligee may demand the payable penalty in addition to performance.
(2) If the obligee has a claim to damages for the improper performance, the provisions of section 340 (2) apply.
(3) If the obligee accepts performance, he may demand the penalty only if he reserved the right to do so on acceptance.
Section 342
Alternatives to monetary penalty
If, as penalty, performance other than the payment of a sum of money is promised, the provisions of sections 339 to 341 apply; the claim to damages is excluded if the obligee demands the penalty.
Section 343
Reduction of the penalty
(1) If a payable penalty is disproportionately high, it may on the application of the obligor be reduced to a reasonable amount by judicial decision.
In judging the appropriateness, every legitimate interest of the obligee, not merely his financial interest, must be taken into account.
Once the penalty is paid, reduction is excluded.
(2) The same also applies, except in the cases of sections 339 and 342, if someone promises a penalty in the event that he undertakes or omits an action.
Section 344
Ineffective promise of a penalty
If the law declares that the promise of an act of performance is ineffective, then the agreement of a penalty made for the event of failure to fulfil the promise is likewise ineffective, even if the parties knew of the ineffectiveness of the promise.
Section 345
Burden of proof
If the obligor contests the payability of the penalty because he has performed his obligation, he must prove performance, unless the performance owed consisted in forbearance.
Title 5
Revocation; right of withdrawal in consumer contracts
Subtitle 1
Revocation*)
*) Official note: This provision also serves in part to implement Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, p. 12).
Section 346
Effects of revocation
(1) If one party to a contract has contractually reserved the right to revoke or if he has a statutory right of revocation, then, in the case of revocation, performance received and emoluments taken are to be returned.
(2) In lieu of restitution or return, the obligor must provide compensation for value, to the extent that
1. restitution or return is excluded by the nature of what has been obtained,
2. he has used up, disposed of, encumbered, processed or redesigned the object received,
3. the object received has deteriorated or has been destroyed; but deterioration that is caused by the object being used in accordance with its intended use is not taken into account.
If consideration is specified in the contract, then this is to be used as a basis when the compensation for value is calculated; if compensation for value for the benefit of use of a loan is to be paid, it can be shown that the value of the benefit of use was lower.
(3) The duty to compensate for value does not apply
1. if the defect justifying revocation only became apparent during processing or transformation of the object,
2. to the extent that the obligee is responsible for the deterioration or destruction or that the damage would also have occurred if the object had remained with the obligee,
3. if in case of statutory revocation the deterioration or destruction occurred with the person entitled, although the latter showed the care that he customarily exercises in his own affairs.
Any remaining enrichment must be returned.
(4) The obligee may demand damages, in accordance with sections 280 to 283, for breach of a duty under subsection (1) above.
Section 347
Emoluments and outlays after revocation
(1) If the obligor fails to take emoluments contrary to the rules of proper management although he could have done so, then he is obliged to compensate the obligee for the value.
In the case of a statutory right of revocation, the person entitled must in regard to emoluments be responsible only for the care that he customarily exercises in his own affairs.
(2) If the obligor returns the object or gives compensation for the value or if his duty to compensate for value under section 346 (3) no. 1 or 2 is excluded, he must be reimbursed for his necessary outlays.
Other expenses are to be reimbursed to the extent that the obligee is enriched by them.
Section 348
Reciprocal and simultaneous performance
The obligations of the parties arising from revocation are to be performed reciprocally and simultaneously.
The provisions of sections 320 and 322 apply with the necessary modifications.
Section 349
Declaration of revocation
Revocation is effected by declaration to the other party.
Section 350
Extinction of the right of revocation after a period of time has been specified
If a period of time has not been agreed for the exercise of the contractual right of revocation, then the other party may specify a reasonable period of time within which the person entitled to revoke must exercise that right.
The right of revocation is extinguished if revocation is not declared before the end of that period.
Section 351
Indivisibility of the right of revocation
If, in a contract, there is more than one person on one side or the other, the right of revocation may be exercised only by all and against all of them.
If the right of revocation is extinguished for one of the persons entitled, it is also extinguished for the others.
Section 352
Set-off after nonperformance
Revocation for failure to perform an obligation is ineffective if the obligor was able to release himself from the obligation by means of set-off and he declares set-off without undue delay after the revocation.
Section 353
Revocation in return for forfeit money
If the right of revocation in return for payment of forfeit money has been reserved, the revocation is ineffective if the forfeit money is not paid before the declaration or when the declaration is made and the other party, for this reason, rejects the declaration without undue delay.
However, the declaration is effective if the forfeit money is paid without undue delay after the rejection.
Section 354
Forfeiture of rights
If a contract has been entered into subject to the reservation that the obligor will lose his rights under the contract if he does not perform his obligation, the obligee is entitled to revoke the contract if this circumstance occurs.
Subtitle 2
Right of withdrawal in consumer contracts*)
*) Official note: This subtitle serves to implement 1.
Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ L 372 of 31 December 1985, p. 31), 2.
Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (OJ L 280, p. 82), 3.
Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144 of 4 June 1997, p. 19).
Section 355
Right of withdrawal in consumer contracts
(1) If a consumer is given, by statute, a right of withdrawal according to this provision, then the consumer and the trader are no longer bound by their declarations of intention to conclude the contract if the consumer withdraws from his declaration of intention within the period specified.
The withdrawal is effected by a declaration being made to the trader.
The declaration must unambiguously reflect the consumer’s decision to withdraw from the contract.
The withdrawal does not have to provide any grounds.
Dispatch of the withdrawal in good time is sufficient to comply with the time limit.
(2) The withdrawal period is fourteen days.
Unless otherwise provided, it begins upon the contract having been concluded.
(3) In the case of the contract being withdrawn from, the performance received is to be returned without undue delay.
Where the law has specified a maximum period within which restitution is to be made, this shall commence running for the trader upon receipt of the declaration of withdrawal and, for the consumer, upon dispatch of the declaration of withdrawal.
A consumer will be complying with this period by dispatching the goods in good time.
In the event of withdrawal, the trader bears the risk of the return shipment of the goods.
Section 356
Right of withdrawal in off-premises contracts and distance contracts
(1) The trader may provide the consumer with the opportunity to complete and transmit the model withdrawal form pursuant to schedule 2 to Article 246a section 1 (2) sentence 1 number 1 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche], or some other unambiguous declaration of withdrawal, on the trader’s website.
Where the consumer avails himself of this opportunity, the trader must confirm receipt of the withdrawal to the consumer without undue delay on a durable medium.
(2) The withdrawal period commences
1. in the case of a sale of consumer goods
a) that is not governed by letters b to d as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the goods,
b) in the context of which the consumer has ordered several goods as part of a single order and the goods are delivered separately, as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the last of the goods,
c) in the context of which the goods are delivered in several partial shipments or items, as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the last partial shipment or the last item,
d) that is directed towards the regular delivery of goods over a specified period of time, as soon as the consumer or a third party named by the consumer, such third party not being a carrier, has received the first goods,
2. in the case of a contract that has as its subject matter the supply of water, gas, electricity, district heating or digital content which is not contained in a tangible medium, without the supply having been offered for sale in a limited volume or set quantity, upon conclusion of the contract.
(3) The withdrawal period does not commence prior to the trader having informed the consumer in accordance with the requirements of Article 246a section 1 (2) sentence 1 number 1 or of Article 246b section 2 (1) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
The right of withdrawal expires at the latest twelve months and fourteen days following the point in time set out in subsection (2) or section 355 (2) sentence 2.
Sentence 2 does not apply to contracts relating to financial services.
(4) In the case of a contract for the provision of services, the right of withdrawal expires also in those cases in which the trader has completely provided the service and began with the performance of the service only after the consumer had given his express consent thereto and concurrently acknowledged that he would lose the right to withdraw from the contract once the trader has fully performed the contract.
In the case of a contract relating to the provision of financial services, the right of withdrawal expires, in derogation from sentence 1, if the contract was performed in full by both parties at the express wish of the consumer before the consumer exercises his right of withdrawal.
(5) In the case of a contract for the supply of digital content that is not contained in a tangible medium, the right of withdrawal expires also if the trader began with the performance of the contract after the consumer
1. had expressly consented to the trader beginning with the performance of the contract prior to expiry of the withdrawal period, and
2. had acknowledged that by his consent, he would lose the right to withdraw from the contract upon the performance of the contract having commenced.
Section 356a
Right of withdrawal in case of timeshare, long-term holiday product, brokerage contracts, and exchange system contracts
(1) The withdrawal period commences at the time of conclusion of the contract or of the conclusion of a preliminary contract.
If the consumer does not receive the contractual document or the copy of the contract until after conclusion of the contract, the withdrawal period commences at the time of receipt.
(2) If the consumer has not been provided with the pre-contractual information referred to in section 482 (1) or with the form designated in Article 242 section 1 (2) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] prior to conclusion of the contract, not completely or not in the language prescribed in section 483 (1), the withdrawal period, notwithstanding subsection (1), does not commence until complete receipt of the pre-contractual information and of the form in the prescribed language.
The right of withdrawal expires at the latest three months and fourteen days after the time designated in subsection (1).
(3) If the consumer has not been provided with the instruction regarding withdrawal designated in section 482a before the contract has been entered into, either not completely or not in the language prescribed in section 483 (1), the withdrawal period, notwithstanding subsection (1), does not commence until the complete the instructions on withdrawal has been received in the prescribed language.
The right of withdrawal expires where appropriate notwithstanding subsection (2) sentence 2, at the latest twelve months and fourteen days after the time named in subsection (1).
(4) If the consumer has concluded a timeshare contract and an exchange system contract, and if these contracts have been offered to him at the same time, the withdrawal period for both contracts commences at the time applicable under subsection (1) to the time-share contract.
Subsections (2) and (3) apply with the necessary modifications.
Section 356b
Right of withdrawal in consumer credit agreements
(1) The withdrawal period does not commence before the lender has provided the borrower with a contract document intended for the latter, with the written application of the borrower or with a copy of the contract document or of his application.
(2) Where the contract document provided to the borrower pursuant to subsection (1) does not include the obligatory information required by section 492 (2), the withdrawal period commences only with the subsequent provision of this information pursuant to section 492 (6).
In such event, the withdrawal period shall amount to one month.
(3) In the event provided for by section 494 (7), the withdrawal period commences only once the borrower has received the copy of the contract designated therein.
Section 356c
Right of withdrawal in contracts for delivery by instalments
(1) In the case of a contract for delivery by instalments that is neither a distance contract nor an off-premises contract, the withdrawal period does not commence prior to the trader having informed the consumer pursuant to Article 246 (3) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] as to the latter’s right of withdrawal.
(2) Section 356 (1) applies with the necessary modifications.
The right of withdrawal expires at the latest twelve months and fourteen days following the point in time set out in section 355 (2) sentence 2.
Section 357
Legal consequences of withdrawal from off-premises contracts and distance contracts, to the exception of contracts relating to financial services
(1) The performance received is to be restituted at the latest after fourteen days.
(2) The trader must also restitute any payments the consumer may have made for the delivery.
This does not apply inasmuch as the consumer has incurred additional costs because he opted for a type of delivery other than the least expensive type of standard delivery offered by the trader.
(3) In making the repayment, the trader must use the same means of payment that the consumer used in making the payment.
Sentence 1 does not apply if the parties expressly have agreed otherwise and the consumer does not incur any costs as a result.
(4) In the case of a sale of consumer goods, the trader may refuse to make repayment until he has received the returned goods or the consumer has provided proof that he has dispatched the goods.
This does not apply if the trader has offered to collect the goods.
(5) The consumer is not obliged to arrange for the return shipment of the goods received if the trader has offered to collect the goods.
(6) The consumer bears the direct costs of return shipment of the goods if the trader has informed the consumer pursuant to Article 246a section 1 (2) sentence 1 number 2 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] of this obligation.
Sentence 1 does not apply if the trader has stated that he is prepared to bear these costs.
In the case of off-premises contracts, in the context of which the goods were delivered to the consumer’s dwelling at the time the contract was concluded, the trader is obliged to collect the goods at his own costs if, by their nature, these goods cannot be returned by post.
(7) The consumer shall be liable for any diminished value of the goods if
1. the diminished value results from the handling of the goods in any other manner than that necessary to establish the nature, characteristics, and functioning of the goods, and
2. the trader has informed the consumer pursuant Article 246a section 1 (2) sentence 1 number 1 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche] of his right of withdrawal.
(8) Where the consumer withdraws from a contract for the provision of services or the supply of water, gas, or electricity, without their supply having been offered for sale in a limited volume or set quantity, or for the supply of distance heating, the consumer shall owe the trader compensation for the value of the performance provided until the time of the withdrawal in those cases in which the consumer has expressly demanded that the trader begin with the performance prior to expiry of the withdrawal period.
The claim pursuant to sentence 1 exists only in those cases in which the trader has properly informed the consumer pursuant to Article 246a section 1 (2) sentence 1 number 1 and 3 of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche].
For off-premises contracts, the claim pursuant to sentence 1 exists only in those cases in which the consumer has transmitted his request pursuant to sentence 1 on a durable medium.
In calculating the compensation for value, the total price agreed upon is to be used as a basis.
If the total price agreed upon is excessive, the compensation for value shall be calculated on the basis of the market value of the performance provided.
(9) Where the consumer withdraws from a contract for the supply of digital content that is not contained in a tangible medium, he shall not compensate for value.
Section 357a
Legal consequences of the withdrawal of contracts relating to financial services
(1) The performance received is to be restituted at the latest after thirty days.
(2) Where off-premises contracts or distance contracts relating to financial services are withdrawn from, the consumer is obliged to pay compensation for the value of the services provided by the trader until the time of the withdrawal if
1. this legal consequence has been indicated to the consumer prior to his making a declaration as to the conclusion of a contract and
2. the consumer has expressly agreed to the trader beginning to perform the service prior to the withdrawal period having ended.
Where contracts relating to nongratuitous financing assistance are withdrawn from that are covered by the exception set out in section 506 (4), section 357 subsections (5) to (8) likewise applies with the necessary modifications.
Where the contract relating to nongratuitous financing assistance has as its subject matter the supply of digital content which is not contained in a tangible medium, the consumer is to compensate for the value of the digital content supplied until the time of the withdrawal if
1. this legal consequence has been indicated to the consumer prior to his making a declaration as to the conclusion of a contract , and
2. the consumer has expressly consented to the trader beginning with the supply of the digital content prior to the withdrawal period having ended.
Where consideration is specified in the contract, this is to serve as the basis for calculating the compensation for value.
If the total price agreed upon is excessive, the compensation for value shall be calculated on the basis of the market value of the performance provided.
(3) Where consumer credit agreements are withdrawn from, the borrower is to pay the agreed interest for the period lapsing between the disbursement and the repayment of the loan.
If the loan is secured by a security right in land, evidence may be submitted as to the value of the benefit of use having been lower than the interest agreed upon.
In this case, solely the lower amount is owed.
In cases in which contracts relating to nongratuitous financing assistance are withdrawn from that are not covered by the exception set out in section 506 (4), subsection (2) likewise applies, with the necessary modifications, subject to the proviso that the information concerning the right of withdrawal is replaced by the obligatory information under Article 247 section 12 (1) in conjunction with section 6 (2) of the Introductory Act to the Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche], each of which provisions concerns the right of withdrawal.
Over and above this, the borrower must refund to the lender solely the expenditure which the lender has provided to public agencies and cannot demand back.
table of contents