No surprises

This article deals with the prohibition of surprising clauses in private law contracts; on the prohibition of surprise decisions enshrined in procedural law , see there.

The ban on surprise (also ban on being surprised ) is an outflow of the principle of trust, which z. B. also found in the principle of good faith .

definition

Since only the unexpected can surprise, subjective expectations, e.g. B. be disappointed by a contracting party. Expectations are always based on information .

The prerequisite for speaking of a surprise is that

1. the surprised party by the other party or third parties on their behalf (objective element)
   • Information is withheld, or
   • wrong information is given, or
   • are flooded with information, so that they are no longer able to distinguish important from unimportant and cannot process and evaluate the information in time, and
2. that the party trusts and may trust the information (subjective element).

In the area of ​​legal transactions, surprise one party also means that they perceive this as being taken by surprise or being duped and that legal disadvantages arise. This can e.g. B. also arise from inexperience. The surprise of one party by another can therefore under certain circumstances be regarded as inadmissible (see e.g. § 3 dAGBG (repealed) or now § 305c dBGB ) and lead to the retroactive termination of the contract or at least such "surprise clauses" are not part of the contract (see e.g. § 306 BGB). In principle and especially between contracting parties, compliance with “good faith” (see, for example, Section 242 BGB, Art 2 Para. 1 chZGB or Art 2 FL- SR or Art 2 FL- PGR ) and / or the prohibition apply of immoral acts (see e.g. § 879 ÖABGB or § 879 FL-ABGB , explicit anchoring of the prohibition of surprising clauses in § 1031 Paragraph 5 Clause 3 of the dZPO ).

The ban on surprise is the basis for the ban on surprise decisions in legal proceedings. Closely related to the ban on surprises is the transparency requirement (see e.g. § 307 dBGB).

literature

• Christian Spruß: The inclusion of general terms and conditions in German law with special consideration of European law and the UN sales law . 1st edition. Lang Verlag, Frankfurt am Main 2010, ISBN 978-3-631-59497-1 ( books.google.at ).
• Antonius Opilio : Working Commentary on Liechtenstein Property Law . 1st edition. tape 1 . Edition Europa Verlag, Dornbirn 2009, ISBN 978-3-901924-23-1 ( books.google.at ).
  • Antonius Opilio: Art 265 to Art 571 . tape 2 . Edition Europa Verlag, Dornbirn 2010, ISBN 978-3-901924-25-5 (legal status: January 2010).
  • Antonius Opilio: Closing title SR & Indices . tape 3 . Edition Europa Verlag, Dornbirn 2010, ISBN 978-3-901924-28-6 (as of January 2010).
  • Web link edition.eu.com .

Individual evidence

1. ↑ See also Antonius Opilio : Working Commentary on Liechtenstein Property Law. Volume I, Edition Europa, 2009, Art 2 SR – Rz 2.
2. ↑ Martin Schwab: AGB law: Tips and tactics. Hüthig Jehle Rehm, Heidelberg / Munich / Landsberg / Berlin 2007, p. 86, books.google.com
3. ↑ See also Christian Spruß in The inclusion of general terms and conditions in German law with special consideration of European law and the UN sales law. P. 289 ff.

Please note the information on legal issues!