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types of contracts and contract design
limits of a contract: stupidity, audacity, enforcement
If stupidity ends with the audacity of a contract, then the stupid unit only protected if the fool knows that a contractual arrangement is invalid (for Example because it is immoral) and on the other hand blocked. As long as he followed him to protect any right in the world.
A contract also does not protect against violations. The contract can only help in for-in, to prove a breach of the contractor. He also makes it easier, claims arising from violations to enforce in court. However, breaches of contract, even if they are clearly provable and enforceable, but still unpleasant. It takes time, money and stress his claims to court to enforce. The best contract to write the one is, therefore, the contract, that you to the signature must never get out of the drawer. Therefore, a good contract, especially a question of integrity of the contractor and the fair contractual arrangements.
contracts, private autonomy
two (or more ) Statements are grouped into a contract. The people involved here have the freedom to decide whether they want to finish-all contracts (freedom degree) and what content to have it (freedom). This freedom is called the private autonomy.
limits of private autonomy
The private autonomy, among other things restricted where on one side an economic or intellectual superiority is a say on the other side vulnerable to be protected. So there are some mandatory rules, which submit to the stronger must be incorporated, such as consumer loans, renting a flat or by AGB-protection rules that prohibit, for example, be certain clauses in the terms and conditions the parties take advantage of. These interventions in the private autonomy by the welfare state idea (Article 20 I of the Constitution) are justified.
Even contracts that are immoral be null and void (§ 138 BGB). Immorality is when you violate the general sense of decency.
The rules governing consumer loan contracts (§ § 491 ff BGB) allow the termination of consumer credit, the borrower will be unfairly-negative.
The right to cancel a doorstep (§ § 312 et seq) allows the doorstep to withdraw within two weeks.
contract formation
A contract is formed when two opaque statements will be given.
The declaration of intent that another conclusion of a contract and its contents suggests, is called request , the consent form is called assumptions me .
A contract is thus by application (also called range) and adoption take place.
contract negotiation: Culpa in contrahendo
Even with contract negotiations, the two parties enter into similar contractual relationships, there are So for both behavioral and certain duties of care. A culpable violation of these obligations means that the requirement is liable wounding the opponent negotiator for the damage caused by this breach of duty. This is called "debt in contract negotiations (culpa in contrahendo"). Even by the admission of contract negotiations, constitutes an obligation (§ 311 BGB).
request (offer)
The request is received requiring declaration of intent offered by another of the completion of a contract is. The application must be determined so that it by simply saying "yes" can be accepted.
newspaper ads, mail order catalog or the display of goods in shop windows are no leave applications, but only a request an application. She turns to a vague audience.
The offeror is bound by his proposal, unless he has expressly ruled that binding in its application (§ 145 BGB).
adoption
The assumption is the counter-declaration on the application. Application and acceptance should meet, then a contract has been realized.
The assumption is a recipient in need of declaration of intent. It will not take effect until it reaches the offeror. ERKA to express again that it has accepted the request, but is unnecessary if such a declaration is not expected following the common usage, or the offeror itself waived this declaration.
silence is basically not as acceptance, especially for individuals. For merchants, there are specially regulated exceptional cases where silence is the exception, as adopted (§ 663 BGB, § 362 HGB and commercial letters of confirmation).
acceptance period
An application for final principle limited by its application always his sitionsfreiheit MRP, because it is tied to his request. Therefore, the law granted the defendant only short periods in order to accept a motion (§ 147 BGB).
An application under present can only be accepted immediately. This also applies to on the phone or during a video conference application stated.
If the defendant absent , the following applies: if the offeror, the acceptance of his application was limited, so acceptance only within that deadline.
has determined the offeror any time, his application can only be taken until the time-point taken, he must expect under normal circumstances. This means that an application under the statutory scheme only within the period may be accepted, you look in general than usual.
types of contracts overview, selection
We consider the following detail some types of contracts such as the purchase contract, the service contract and the work contract.
contract
The contract is governed by § § 433 et seq. The BGB strictly separates between the fault treaty "(business commitment) and the property law contract (available business). When buying a case arises So not only a contract but it rise to three contracts: a contract of sale, and two self-tumsübertragungs contracts, the one about the thing sold, the second for the money to be paid. Each of these three contracts leads a life of its own.
The transfer of ownership is so constructed in the Civil Code as a separate, completely independent, abstract Treaty (principle of abstraction).
service contract (§ § 611-630 BGB)
The service contract is governed by § § 611-630 BGB. It includes both Ver contracts with self-employed (eg doctors, lawyers), as well as employment contracts. Contracts with training institutes are service contracts. Service contracts are time-determined, ie a certain agreed time is due, in which the service is provided. They are not performance-determined (cf. the work contract).
The provisions of the Civil Code for the employment contracts are only the general basis how embody jobs are. Since this is a rule for contracts between a strong and a weaker party, in principle, applicable contractual freedom is severely limited, for example, by the Employment Protection Act, the Maternity Protection Act, the youth employment law, the continuation of salary payment law, etc. Moreover, by collective agreements determined the contents of individual contracts of employment significantly.
Some of these laws more difficult for employers in principle the possibility to terminate the employee. In case of termination must therefore be taken as a rule, special laws for help. The without notice termination and the period of notice, however, are again in the Civil Code (§ 622, § 626) regulated.
work contract (§ § 631 ff BGB)
The work contract is governed by § § 631 et seq. This owes requiring the production of a work, that is, a specific Success, for extra costs. To distinguish from the service contract we can say that the service contract is time , the work contract success determined. Examples of a contract for work are pulling a tooth, the draft plan or to repair a TV.
structure of the BGB
The Civil Code consists of five parts, with one also speaks of "five books." The first book is the "General Part". This "General Part" applies to all other books of the Civil Code. Fundamental questions ("Who is legally responsible?", Etc.) are specified there in principle to all other parts. The second book is the law of obligations. The third book is the right thing, the fourth book is the family law and inheritance law is the fifth book.
contract law, the definition and general clause
The focus of the law of obligations is the obligation. This term under § 241 BGB is a legal relationship, a creditor the right to demand that the debtor is a performance. Through § 242 BGB the debtor is obliged to provide the performance the way good faith with regard to the traffic -call it custom.
piece of guilt and blame genus
We first distinguish the terms "class guilt" and "piece of guilt." A genus debt is when the debt is only subject to the genus, such as tomatoes or a production vehicle. Most of the obligations of economic life are genus debt. A piece guilt is when the object is determined individually, such as an Ori-ginalkunstwerk but also a used car.
of performance and service time
of great practical importance are also the terms of performance " and "performance period". The performance is the place where the blame must be fulfilled. Of supply can be defined in a contract-free. Otherwise, generally in accordance with § 269 BGB of the residence of the debtor as of performance. The law is so fundamentally from a Holschuld the creditor. Money debt-ever are according to the law Schick debt (§ 270 (1) BGB). Again, in the contract but something else is agreed.
The performance period is the time in the due performance can be effected. It is governed by § § 271 et seq.
off of claims
of practical importance can also be whether the debtor has the right to offset claims. This is regulated in § § 387 et seq. Hereafter be offset are claims that are owed as between same people creditors and debtors and similar valid and overdue are.
types of obligations
principle, we can legal and contractual obligations vonei delimit-NAND. Legal obligations arise mainly from tort (§ § 823 et seq).
Contractual obligations are set out in § § 311 et seq and shall be considered in depth below. First, we consider, however, the relationship between fundamental freedom of contract and terms and conditions ".
freedom of contract and terms and conditions (AGB)
applies to contracts of the principle of party autonomy, ie the people involved have degree of freedom, and freedom. The idea of the Civil Code is, therefore, that the persons in their contracts each individually negotiate . brings
The modern business world it but with that contract mass concluded . Where every day a large number of contracts are concluded, it would be monotonous and tedious to standardize constantly contract issues such as liability, jurisdiction, place, etc. redefined. So it is really useful to determine mte contract types. This has led to that have formulated the abschlie-sequent company called "Terms and Conditions", concluded on the basis of individual contracts.
Many manufacturers and suppliers, however, took advantage of the "General terms & conditions" to the consumer to take advantage. Contractual freedom was abused.
Terms regulations, main idea
Since 1976, it was for these reasons, the AGB-Act as a protective regulations for the consumer. In 2002, the AGB-Act integrated into the BGB (§ § 305 et seq). The legislation protects two fundamental principles. Once the conditions were difficult, by the terms and conditions become part of the contract. Secondly many dangerous provisions by the Terms of rules be declared invalid.
AGB-rules, scope
essential protection rules apply, however, according to § 310 BGB not for entrepreneurs and also not for legal Persons of public law. In addition to this human limitation application of the terms of regulations is also limited in scope. The T & C rules apply only to obligations and property law Ver-lag, not in family law and inheritance law and not for company law and collective agreements.
inclusion of terms in the contract (§ 305 (2) BGB)
Conditions are under § 305 (2) BGB only part of the contract, if the users of the terms first, pointed specifically to its terms. This note can also be done by exception, from the appendix. Second, the users of the other party, he-possible, to take the contents of the note terms. Third, the other party so that his consent to the terms and conditions apply.
surprise clause (§ 305 c BGB)
According to § 305 c BGB such provisions of the Terms without objection, in part, that are so unusual that the parties under the circumstances has not had to reckon with them.
general clause (§ 307 BGB)
§ 307 BGB contains the general clause in terms of protection rules and the basic concepts for invalid clauses. According to this clause, all provisions in the General Conditions are invalid if they place the contractual partner against the requirements of good faith and unreasonable disadvantage. The further down rules and clarify that general clause. Especially § § 308 and 309 BGB are important because these two paragraphs extensive list clauses in the Terms ineffective.
primacy of the individual rules (§ 305 b BGB)
If the agreement is governed a particular individual situation, then this individual scheme and is a more general scheme in terms of suspended (§ 305 b BGB).
contract law and the CISG, UNCITRAL
At the United Nations there is a sub-organization that deals with Questions of international trade law deals. It is the UNCITRAL, the United Nations Committee on International Trade Law (founded 1966). Its goal is the unification of international trade law.
property law, the concept of matter
According to § 90 BGB "things" tangible property. We have already seen that in a contract does not arise a contract, but three. Once the abstract obligation, governed in the second book of the Civil Code, and the transfer of title to the property, that is, the money and the goods purchased. We are in the third book of the Civil Code, the property law.
terms "property" and "possession"
property (§ 903 BGB) is the rule of law and property is the actual rule (§ 854 BGB). The lawyer carefully separated here, as opposed to everyday language. The tenant an apartment is the owner , the landlord the owner .
retention / recovery rights of the owner
important in practice is the right of the owner to retain any property (§ 1000 BGB) and to satisfy § 1003 by following an appropriate period of this matter. This can for B. be important if someone brings a car into repair and the repair bill paid.
transfer of ownership of movable property
After § 929 BGB carry goods by agreement and transfer over.
retention
Reservation of title is governed by § 449 BGB, often linked to the full payment of the goods. Note: Although the buyer is owner , the seller remains owner is paid until the goods.
Acquisition in good faith
If a borrowed item is purchased, the owner once the acquisition of good-faith was (see § 932 BGB!). The BGB here has the simplicity of the business traffic given priority over the formal law. Were it not for this paragraph, would have to be constantly challenged in business ownership documents.
situation is different in stolen (see § 935 BGB!) Objects from. You can basically no of stolen property (lost, or otherwise has been lost) acquire objects. However, paragraph (2) of § 935 BGB is observed. Then you may well acquire property, money, bearer shares, and auctioned items. This paragraph (2) protects the simplicity and Si-security of transactions. Otherwise one would have to be in cash and bearer shares can be constantly present proof of ownership.
acquisition of ownership of land
The transfer of ownership of land is defined in § 925 BGB. Basic tees are transmitted through agreement , in this case, "conveyance" means, and by description of the land register . The conveyance must be made before a notary.
collateral assignment and mortgage
case The grocer H needs a cash loan of 5,000 euros. The bank will not give him the credit without security. H offers her a part of his warehouse (which he has not acquired under retention of title) and its loading device for backup at. (Source: Westermann)
pledge as security is not suitable here! § 1205 Civil Code requires the transfer of the deposit (deposit = pledge "). This is not possible.
The alternative is the security transfer under § 930 BGB. The Bank will egg-owners is , H remains direct owner .
relationship property law / contract law
case law 3 Book ; Schuldrecht 2. Buch
legal relationship with things Legal Relations between people
Verfügungsgeschäfte : obligation transactions
about the things or ; debtor undertakes
the right mind ; ; to a power
is available.
rules necessarily rules largely dispensable ; (= individuell regelbar)
Inspirations-Zitat
"A well-structured problem is already half solved."
Albert Einstein
Regards, learning is easy!
Dr. Marius Ebert, the fun-Doc
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