German Contract Law Research Articles

Umowa ze skutkiem ochronnym na rzecz osoby trzeciej - konstrukcja i dopuszczalność

Can a third party acquire rights by contract, even though there is no relevant contractual provision? The article analyzes a German contract law institution: the contract protective of third parties which establishes a debtor's special obligation to protect certain third parties whose legal situation may be affected by the performance of the contract between the debtor and the creditor. In the event of a breach of contract due to the debtor's fault that causes damage to a third party, the debtor is obliged to compensate the third party for the damage caused under the regime of contract liability and not under tort liability. The possibility of applying this construction under Polish law, although controversial, is not excluded. Areas of application may however include the outsourcing of services and banking law.

Dynamic Logic of Legal Competences

We propose a new formalization of legal competences, and in particular for the Hohfeldian categories of power and immunity, through a deontic reinterpretation of dynamic epistemic logic. We argue that this logic explicitly captures the norm-changing character of legal competences while providing a sophisticated reduction of the latter to static normative positions. The logic is completely axiomatizable, and we apply it to a concrete case in German contract law to illustrate that it can capture the distinction between legal ability and legal permissibility.

Justice in Contract, no Justice in the Background

Abstract In the first part of his book, Peter Benson elaborates for the common law that fairness in exchange is not only a fundamental principle of contract law, but that it is, moreover, conceptually rooted in the idea of private autonomy. For the common law presumes that a party to a contract intends, in principle, to exchange performance at its value and on fair terms. The following comment shows that this presumption also animates German contract law, including the rules on the review of standard terms. In the second part, Benson develops the image of a harmonious complementarity of private law, which is characterised by transactional justice, and public law, which instantiates distributive justice. The following comment disputes the claimed harmony by demonstrating the fundamental asymmetry in the institutionalisation of both forms of justice in civil society.

Pravnoteorijske karakteristike i pravnodogmatski razvoj nemačkog prava opštih uslova poslovanja

The aim of this paper is to explore the specifics of the Germ an approach in resolving legal issues that are raised regarding general terms and conditions. Applying legal-dogmatic, comparative and legal-historical methods, the paper examines the characteristics and basic directions of development of Germ an legal theory and legislation regarding general terms and conditions. The basics of understanding legal doctrine on the character and legal nature of general terms and conditions are laid out chronologically according to the time of creation and period of dominant influence. The paper highlights the extent to which the legal-theoretic and legal-dogmatic development of German law regarding general terms affected other German-speaking countries, primarily Austria and Switzerland. Legal theoretic development in German law ranged from the strong dominance of normative theory to its strong critics that led to the empowerment of contractual theory. Norm ative legal development is characterized by the principle 'from a special law to the general part of the civil code'. The review of the relevant BGB paragraphs shows that when amending paragraphs of the BGB, the legal concept, which was shaped through German theory and legislation in a coherent whole and in a special law on regulating the general terms and conditions law, was preserved. The provisions of that law were essentially taken into the German Civil Code in 2002 as part of the reform of German contract law. This law not only affected the development of other national legal systems, but also had some impact on the development of consumer law at the European Union level. Namely, some of its provisions were used as the basis for one of the most important directives concerning unfair contractual provisions. The paper also points to the current mechanisms for controlling general terms and conditions through the control of the validity of inclusion (incorporation), the black and grey list of contractual provisions and the general clause.

\u201cUtmost\u201d good faith in German contract law

\u201cUtmost\u201d good faith in German contract law

Regulation of Crowdfunding in Germany

This paper is the national report for Germany prepared for the to the 20th General Congress of the International Academy of Comparative Law 2018 and gives an overview of the regulation of crowdfunding in Germany and the typical design of crowdfunding campaigns under this legal framework. After a brief survey of market data, it delineates the classification of crowdfunding transactions in German contract law and their treatment under the applicable conflict of laws regime. It then turns to the relevant rules in prudential banking regulation and capital market law. It highlights disclosure requirements that flow from both contractual obligations of the initiators of campaigns vis-a-vis contributors and securities regulation (prospectus regime). After sketching the most important duties of the parties involved in crowdfunding, the report also looks at the key features of the respective transactions’ tax treatment.

CONTRASTIVE SEMANTIC ANALYSIS OF CONTRACT LAW TERMS IN STUDIES OF FOREIGN LANGUAGE FOR SPECIFIC PURPOSES

The article is intended to present possibilities of using contrastive terminology analysis in teaching a foreign language, particularly concentrating on legal terminology and contract law. This paper has several aims. Firstly, it intends to overview foreign language teaching possibilities paying special attention to the method of contrastive semantic analysis and possible ways to involve corpus linguistics into the teaching/learning process. Secondly, it seeks to define specifics of legal terminology and contextual differences in Lithuanian, English and German contract law. Thirdly, the focus is also on semantic equivalence between lexical items of different languages. Fourthly, it presents a possible semantic analysis of very basic but at the same time quite complicated contract law terms in the EU languages. Three European languages (Lithuanian, English and German) that are widely used in commerce, logistics, administration and diplomacy are chosen for the analysis. The combination of the contrastive method and analysis of legal context of the chosen languages may reveal the different aspects of the terms. Theoretical frameworks and practical analysis presented in the article could be of great interest for LSP learners, terminologists, translators, teachers and dictionary compilers. DOI: http://dx.doi.org/10.7220/2335-2027.7.3

Unforeseen Circumstances, Hardship, Impossibility and Force Majeure under German Contract Law

Abstract: The sanctity of contracts is a fundamental principle of private law. However, it can be overcome in cases of impossibility, force majeure, hardship or unforeseen circumstances. This article analyses the way German Contract Law deals with such situations. It focuses on the two main provisions of section 275(2) and section 313 German Civil Code, pointing out and comparing their respective requirements and legal consequences. Emphasis is also placed on the historic origins of the German doctrine of the 'foundation of transaction' (Lehre von der Geschäftsgrundlage). Résumé: Pacta sunt servanda est un principe fondamental du droit privé (cf. Art. 1134 du Code civil français). Néanmoins, il peut être surmonté dans le cas de circonstances exceptionnelles dites de force majeure, d'impossibilité ou dans la situation d'une perturbation du « fondement du contrat ». L'article examine les deux stipulations principales, les paragraphes 275 (2) et 313 du Code Civil Allemand, en mettant en relief d'une façon comparative leurs conditions respectives ainsi que leurs suites légitimes. En plus, il accentue les origines historiques de la doctrine du « fondement du contrat » (Lehre von der Geschäftsgrundlage). Zusammenfassung: Pacta sunt servanda ist ein fundamentaler Grundsatz des Vertragsrechts. Allerdings erfährt er Durchbrechungen in den Fällen der Unmöglichkeit, der höheren Gewalt und der Störung der Geschäftsgrundlage. Der Beitrag untersucht die beiden Hauptvorschriften § 275 (2) und § 313 BGB, wobei ihre jeweiligen Tatbestandsvoraussetzungen sowie die dazugehörigen Rechtsfolgen herausgearbeitet und gegenübergestellt werden. Beleuchtet werden auch die historischen Grundlagen der Lehre von der Geschäftsgrundlage.

German Contract Law – Nearly a Decade After the Fundamental Reform in the Schuldrechtsmodernisierung

German Contract Law is still under the impression of the large contract law reform of 1 st January 2002, the Schuldrechtsmodernisierung, and the case law, in large part by the German Civil Law Supreme Court, the Bundesgerichtshof, continues to elaborate on the system. This article is an up-date to the one published in this review in 2007, p. 450, and discusses further clarification with respect to questions such as the one under which circumstances a first level remedy such as repair or replacement would seem to be ‘disproportionate’, which steps exactly have to be ‘free of charge’ in cases where goods purchased have been transported to another place or fixed to or integrated into other property, whether and in how far the investment services regime under the MiFID gives as well contractual rights to clients, for instance with respect to kick-back payments or other duties owed. The contribution further discusses such questions (outside the realm of directives) as the one whether the mechanism of a second chance should apply as well in cases where the defective good already causes damages in the business of the purchaser before the time limit set for second delivery has lapsed or whether the concept of pre-contractual fault (culpa in contrahendo) can apply besides the legal warranty regime installed by the directive. Thus, the German case law deserves attention as an answer to many questions raised by the acquis communautaire and beyond.

The European Economic Constitution, Freedom of Contract and the DCFR

Abstract In the literature on European Contract Law and German contract law, a number of authors claim that the free movement of goods (Article 28 EC), services (Article 49 EC), capital (Article 56 EC) and persons (Article 39 EC) guarantee party autonomy and freedom of contract. In this paper, the opposite will be argued. It is submitted that ‘freedom of contract is taken for granted’ within the European Union. However, it is also generally accepted that there are restraints to freedom of contract to protect societal interests, as for instance protection of weaker parties, the environment and the capital market. Thus, the real question concerns the balance between on the one hand, freedom of contract and, on the other, restrictions to freedom of contract. The issue whether freedom of contract is a constitutionally protected right within the European Union is relevant, since if freedom of contract is taken as point of departure ‘… collective interests [are put] to the background’. In order to show that the free movements do not guarantee freedom of contract, first, the origin of the claim that the free movements guarantee party autonomy will be explored and will be placed against a historical background. Then, it will be discussed to what extent the Treaty provisions reflect the idea that the free movements guarantee freedom of contract and whether it can be inferred from the ECJ case law.

The European Economic Constitution, Freedom of Contract and the DCFR

In the literature on European Contract Law and German contract law, a number of authors claim that the free movement of goods (Article 28 EC), services (Article 49 EC), capital (Article 56 EC) and persons (Article 39 EC) guarantee party autonomy and freedom of contract. In this paper, the opposite will be argued. It is submitted that 'freedom of contract is taken for granted' within the European Union. However, it is also generally accepted that there are restraints to freedom of contract in order to protect societal interests, as for instance protection of weaker parties, the environment and the capital market. Thus, the real question concerns the balance between on the one hand, freedom of contract and, on the other, restrictions to freedom of contract. The issue whether freedom of contract is a constitutionally protected right within the European Union is relevant, since if freedom of contract is taken as point of departure '.. collective interests [are put] to the background'. In order to show that the free movements do not guarantee freedom of contract, first, the origin of the claim that the free movements guarantee party autonomy will be explored and will be placed against a historical background. Then, it will be discussed to what extent the Treaty provisions reflect the idea that the free movements guarantee freedom of contract and whether it can be inferred from the ECJ case law.

Damages for Non-Performance and the Fault Principle

One of the controversial issues in contract law is whether damages for non-performance should be based on fault liability or strict liability. The article illustrates the functions of the fault principle in contract liability using the example of German contract law. While fault liability constitutes the rule, there is considerable room for exceptions, and in sum, the approach of German contract law can be characterised as a combinational system which balances the fault principle with countervailing principles. Not surprisingly, other legal systems that use strict liability as a rule allow for exceptions or limitations to liability too. The comparative survey provides the basis for an evaluation. While neither starting point, fault or strict liability, can claim to be clearly superior to the other, it is submitted that the fault requirement is a tool that conveniently allows for the necessary fine-tuning as the issues in question can be addressed directly and openly. Where a legislator considers a change from one system to the other, he carefully needs to assess the systematic implications and the compatibility of the alternative approach with established business practice.

The Structure of Good Faith: A Comparative Study of Good Faith Arguments

During the twentieth century, the principle of good faith in contractual performance has been developed into one of the most important maxims of American as well as German contract law. This development, however, seems to have increased rather than decreased academic disagreement about the function, meaning, and limits of good faith. The discussion seems to be locked into a group of inescapable dilemmas which frequently reappear as typical, but unsatisfactory parts of academic discourse and judicial opinions; namely, the controversies between arm's length bargaining and contractual altruism, between judicial arbitrariness and equitable flexibility, and between judicial law making and judicial restraint. The goal of this essay is to gain deeper insight into this observation. It attempts to show that both branches of the debate, the American as well as the German, rely on a relatively small set of stereotyped arguments which typically appear in ordered pairs of diametrical oppositions such as those mentioned above. The main thesis of this essay is that understanding this structure implies a new assessment of the cogency of typical argument patterns deployed in theoretical and doctrinal statements on good faith. Many arguments contained in such statements appear as convincing or even compelling only because they are presented in contextualized form, i.e., tailored to the problem at hand and omitting their typical counter-arguments. The model developed in this essay, however, leads to an understanding of legal arguments as less demanded by a particular problem within the doctrine of good faith, as well as more open to attack by their legal counterparts, than they usually appear to be in the practice of legal discourse. This essay, therefore, also has implications for the rationality of that discourse.

ONLINE AUCTIONS — GERMANY: ONLINE AUCTIONS UNDER GERMAN REGULATORY AND COMPETITION LAWS

The controversial position of online auctions under German contract law has already been subject to detailed examination in CLSR. 1 1 Niemann, CLSR 2001, 114. This diverse form of cyber transaction has, however, also given rise to ongoing academic debate 2 2 Bullinger, WRP 2000, 253; Ernst, CR 2000, 304; Heckmann, NJW 2000, 1370; Hollerbach, DB 2000, 2001; Huppertz, MMR 2000, 65; Mankowski, EWiR 1999, 699 and EWiR 2001, 547; Rüßmann/Reich, K&R 2000, 116; Schafft, CR 2001, 393; Stögmüller, K&R 1999, 391; Vehslage, MMR 1999, 680; Wilmer, NJW-CoR 2000, 94 and 172. on its permissibility under German regulatory and competition laws following two court decisions in 1999 3 3 LG (Regional Court) Hamburg, DB 1999, 1951. and 2000. 4 4 LG (Regional Court) Wiesbaden, NJW-CoR 2000, 171.

European Sales Law — Reform and Adoption of International Models in German Sales Law

The sales directive will lead to the most important law reform in German contract law since the entering into force of the German Civil Code in 1900. This is true, first, for sales law and the law of limitation. Here, the most important problems were due to the fact that defects in quality and defects in the right confered were treated differently, that there was a multitude of grossly diverging limitation periods (from six months to thirty years) and that phenomena like the delivery of slightly different goods (aliud) or of a slightly diverging quantity (minus) were again treated differently. With respect to these differentiations, the directive will lead to an important simplification of German sales law. One major topic not treated by the directive will change as well: So far, in most cases sellers (and only sellers) could not be sued for damages in case of pure negligence but only of fraud. This is anachronistic and will change. One striking feature of new German sales law is that it applies to all sales with only very few specific rules for consumer sales. This is however due to the fact that also the (consumer) sales directive and the Vienna Convention on international (commercial) sales are very similar in most points. Apart from sales law, it is still likely that the reform of German contract law will extend, second, to two more fields: The general law of breach of contract will probably be reformed, the preparatory work by the so-called Schuldrechtskommission extended over two decades. And probably the different acts on consumer law will be integrated into the Civil Code. This relates mainly to door step selling, distance selling, consumer credits and also unfair contract terms, although the latter are not a problem only of consumer contracts under German law. German academia was taken in surprise by the pace of reform both on Community level and by the German legislature. It started to collaborate in the legislative process only lately and large parts of it still rather see the disadvantages of new models than the chances of law reform. This casts some doubts over the parts of the reform which are not imposed by the directive.

Contracting in the Internet: German Contract Law and Internet Auctions

Suggested Citation: Peer Zumbansen, Contracting in the Internet: German Contract Law and Internet Auctions, 2 German Law Journal (2001), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=65 “One Click, one buy, delivery within 48 hours”. Similar offers for goods of all kinds are common to the internet today. And yet, there is a great number of intricate problems involved with doing business in the internet. The uncertainties of doing business online have prompted an abundance on legislation, both on the European as well as the national level. Still, when turning to the courts for a clear doctrine of, say, the conclusion of contracts in the internet, there remains a considerable void. Cases addressing the question whether the fundamental contract rules apply to internet transactions have generally answered in the affirmative. But when the particularities of contractual governance in the internet are involved, the jurisprudence grows thin. In this respect two recent decisions by lower Courts in Germany that deal with the question of internet-auctions, merit closer attention. The Landgericht Münster's (Regional Court of the city Münster) ruling from the beginning of last year provoked considerable irritation and thereby illuminated how much the field remained in need of intensive judicial attention. In the same time period, the Amtsgericht Sinsheim (Local Court of the city Sinsheim) had simply affirmed conclusion of contract through an onlineauction in a similar case. The decision of the Münster Court was recently overruled by the Oberlandesgericht Hamm (OLG [Higher Regional Court in the city Hamm]). The appeal of the OLG Hamm decision to the Bundesgerichtshof (BGH [Federal Court of Justice]) is still pending. Because of their importance to the rapidly growing internet market place and the largely unresolved questions regarding contract law in that realm, the Landgericht Münster and OLG Hamm decisions merit attention, especially in anticipation of the BGH's ruling on the issues they raise.