Obligation to contract

The obligation to contract (even obligation to contract ) describing legal obligation of a party , one with another party relationship to be justified. It is usually a contract .

General

Etymologically, contract derives from ( Latin contractus , " contract "). Contractual constraints limit the freedom of contract .

Since the legal institution of the obligation to contract stands in clear contradiction to the principle of private autonomy , it is only permitted in very limited exceptional cases. For example, there may be an obligation to contract in the case of a preliminary contract that has already been concluded , whereby this is justified compulsorily. Other cases are vital services that are important for commercial transactions that not every interested party would receive voluntarily from providers. One example is the electricity supply contract . In these cases there may be compulsory connection and use for public service providers. In addition, there is also a factual obligation to contract, which arises due to the legally mandatory inclusion of private service providers in what is actually purely sovereign processes (this includes the disclosure of balance sheets to the exclusively private operator of the Federal Gazette ). There are considerable constitutional concerns about the latter, which is why the inclusion of the terms and conditions may be ineffective.

history

Compulsions to contract are already known from the early Middle Ages , when it came to the transport of pilgrims to the Holy Land . The rotting regulations of the Middle Ages obliged the carters, who were united in rotters, to transport, even if in some cases only against prepayment of the freight . In English law in the Middle Ages there was the doctrine of services for certain professions that they were obliged to offer their services publicly ( English common calling ). This was especially true carrier ( english carrier ) such as railways or for forging , Schneider or innkeepers ( English inn keeper ). The obligation to contract is expressly stated in the hand-held festival from the year 1400 of Duke Albrecht of Austria for the tailors' guild in Vienna.

An Oldenburgian Fuhrordnung from 1706 also provided for mandatory contracting for drivers. The Prussian law on railway undertakings of November 1838 obliged the railway to carry freight, which was incorporated into the ADHGB in May 1861 (Art. 422 ADHGB). From 1894, the obligation to carry also extended to passenger transport. At the end of the 19th century there was already a considerable number of legal norms that mandated the obligation to contract.

The USA declared oil pipelines to be public transport ( English common carriers ) by the Hepburn Act of 1906 and made them compulsory. In France , pipelines are made compulsory by Decree No. 59–645 of May 16, 1959. In 1962, the English Transport Act eliminated the obligation to carry goods and people. In his habilitation thesis in 1920, Hans Carl Nipperdey defined the obligation to contract as “the obligation imposed on a legal entity without being bound by his will in the interests of a beneficiary to conclude a contract with him or her that is to be determined by an impartial party”. In December 1939, taxis and regular transport companies were obliged to carry. Since July 1964 there has been a general obligation to carry air traffic on scheduled services.

Cases of legal obligation to contract

The obligation to contract is required by law in some areas of law:

• Finance :
  • Credit institutions according to need since June 2016 § 31 payment accounts Act (CCT) at the request of the applicant (without fixed residence ) a payment account lead, which for the execution of payment transactions is used. In addition, savings banks in some federal states are obliged to offer a so-called Jedermann account or to accept savings deposits from every customer . This is regulated in the savings bank laws (SpkG) of the federal states (e.g. § 5 SpkG NRW).
  • The basic tariff for private health insurances is mandatory to contract ( Section 193 (5) sentence 5 VVG ). According to this, every person residing in Germany is obliged to take out and maintain health insurance with an insurance company approved in Germany for themselves and for the persons they legally represent . Private health insurances must include children of insured persons at birth without exclusions and surcharges in a tariff that corresponds to that of the insured parent ( child follow-up insurance in accordance with Section 198 (1) VVG).
  • Statutory health insurance funds ( GKV ) must accept everyone who wants to join in order to avoid the rejection of sick persons from joining ( § 5 SGB ​​V ). The Kindernachversicherung obtained here from § 10 SGB V .
  • In motor vehicle liability insurance , the insurer cannot reject applications (e.g. from foreigners) for insurance cover without grounds, but may demand higher insurance premiums for higher risk groups ( Section 5 PflVG ).
• As a rule, companies that conclude contracts in the context of services of general interest are obliged to contract:
  • Postal service providers such as Deutsche Post AG have to provide each customer with appropriate services on the basis of the General Terms and Conditions in accordance with Section 3 of the Postal Service Ordinance (PDLV) as part of their universal service obligation .
  • According to Section 84 TKG, telecommunications companies must guarantee access for universal services (publicly accessible telephone services ). In addition, pursuant to Section 16 TKG, every operator of a public telecommunications network is obliged to submit an interconnection offer to other operators of public telecommunications networks on request in order to ensure user communication , the provision of telecommunications services and their interoperability throughout the European Union.
  • There is an obligation to transport public railways ( § 10 AEG ) and other transport companies such as buses , trams and taxis in public transport ( § 22 PBefG ). The transport obligation for taxi companies only applies in the compulsory driving area (§ § 47 Paragraph 2, § 51 Paragraph 2 PBefG), they can refuse the transport according to § 13 BOKraft if there are facts that justify the assumption that the person to be transported is a danger for the safety and order of the company or for the passengers.
  • According to Section 17 (1) EnWG , electricity providers or gas suppliers have to connect end consumers, upstream or downstream electricity and gas supply networks and lines, charging points for electric vehicles, generation and storage systems and systems for storing electrical energy to their network under technical and economic conditions.
  • In the case of water supply , the obligation to contract is not expressly regulated by law. Also jurisprudence and literature have no uniform opinion on this legal question to, but much of the literature assumes a general obligation to contract on the basis of § 826 BGB on. If a water supplier has regional market power , some of the literature affirms that a contract is compulsory in accordance with Section 20 (1) GWB . The cited monograph comes to the conclusion that the water suppliers are obliged to conclude water supply contracts with the tenants in their supply area within the framework of Section 5 (1) AVBWasserV, both due to the general obligation to contract under civil law and due to the principle of equality ( Article 3 (1) GG) justify. In addition, according to Section 10 (2) AVBWasserV , the water supplier is not entitled to refuse the supply via a central water house connection.
  • The after the Renewable Energy Sources Act (EEG) injected current must by the network operators will be passed ( §§ 56 ff. EEG), has to be so taken with the statutory rates of payment of electricity, even if the market price on the EEX far below lies (sometimes it is even negative).
• Pharmacies must issue medical prescriptions in a time appropriate to the prescription - i.e. H. usually immediately - deliver ( Section 17, Paragraph 4 of the Pharmacy Business Regulations ). In the event of errors, poor legibility or other concerns that are evident to the dispenser, the disposition must not be made until the ambiguity has been resolved, usually by consulting the prescribing doctor, dentist or veterinarian. If there is a recognizable suspicion of abuse , the delivery must also be refused ( Section 17, Paragraph 8 of the Pharmacy Operating Regulations).
• Corporations have to § 325 et seq. HGB the obligation , its financial statements with respect to the operator of the Federal Gazette disclosed. This results in the obligation to conclude a contract with Bundesanzeiger Verlag GmbH , which is a private company without state participation, in which the general terms and conditions and in particular the publisher's price list are included.
• Air traffic : in addition to the unreasonable nature of scheduled traffic, there is a general obligation to carry according to Section 21 (2) LuftVG .
• A company with a dominant position in the market may be obliged to conclude contracts according to the antitrust law ( law against restraints of competition ) (e.g. GEMA - a private association with a quasi-monopoly by virtue of a state award - is obliged to offer music users corresponding license agreements ).
• Publicly appointed and sworn experts are obliged to accept the commissioning of the courts (e.g. Section 407 (1) ZPO , Section 75 StPO ).
• In their assigned area, press wholesalers are obliged not only to supply every point of sale, but also to offer every publication available on the market and include it in their program. The retail trade thus has a right to delivery from the press wholesaler.
• According to § 87 UrhG, broadcasting companies have the exclusive right to retransmit their radio broadcasts and make them publicly available and are mutually obliged with cable companies to conclude a contract for cable retransmission on reasonable terms.

In principle, the obligation to contract with state-owned companies that represent a monopoly can also consist of an overall analogy to the statutory provisions (e.g. according to Section 36 of the Energy Industry Act or Section 5 (2) of the PflVG and others).

Legal consequences

If the provider refuses to enter into a contract in the event of an obligation to contract, this can constitute immoral damage which, according to § 826 BGB , obliges to pay damages . For this, however, a monopoly-like position of power must exist, so that the vital good or interest cannot be procured or safeguarded in any other way (without special expenses). Furthermore, there must be no arbitrariness in violation of Art. 3 GG . As a legal consequence , the acceptance of the contract offer is fictitious after the restitution in kind .

International

In Switzerland , too, the freedom to enter into a contract is restricted by contractual or legal obligations to conclude a contract. A contract obligation presupposes a judgment of the Federal Supreme Court (BG) of May 2002 that an entrepreneur offers his goods or services in general and publicly; the purely private exchange of goods is exempted from the obligation to contract. Second, the obligation to contract can only relate to goods and services that are part of normal needs. This includes goods and services that are available to practically everyone today and that are used in everyday life. Thirdly, an obligation to contract can only be assumed if the interested party lacks reasonable alternatives to satisfy his normal needs due to the strong position of the provider. Such a power constellation can be assumed if either only a single provider can be reached adequately, or if all providers in question are equally negative towards the interested party. Fourth, an obligation to contract can only be assumed if the entrepreneur is unable to provide any objectively justified reasons for refusing to conclude a contract. In the judgment, the BG advocated the Post's obligation to contract outside the competition services. There are legal obligations to conclude a contract for passenger transport (Art. 12 Federal Law on Passenger Transport , PBG; SR 745.1), such as the SBB's obligation to conclude a transport contract with passengers. Art. 11 Telecommunications Act (LTC; SR 784.10) contains the obligation of the dominant provider to interconnect. There are contractual obligations to conclude a contract with the preliminary contract (Art. 22 Paragraph 1 OR ) and the framework agreement.

In Austria , the Supreme Court (OGH) ruled in September 1971 that there is an obligation to contract wherever the factual superiority of a participant with merely formal parity gives him the possibility of "outside determination" over others, especially in a monopoly position . The holder of a monopoly position must have a good (objective) reason for refusing to conclude a contract if it is reasonable for him to conclude a contract. Accordingly, companies that have to supply the public with essential goods and services also have monopoly positions, especially transport and utility companies such as railways, trams, road administrations, post offices, electricity companies, waterworks, buses, etc. The public depends on them serve. For these monopoly companies there is therefore an obligation to contract. The obligation to contract becomes invalid if it is objectively justified.

The common law (the obligation to contract english obligation to contract ) known to the Middle Ages. Above all, it affects transport companies ( English common carriers ) who have to fulfill a general transport obligation ( English common carriage ).

literature

• Jan Busche: Private autonomy and compulsion to contract (= Jus privatum . Volume 40). Mohr Siebeck, Tübingen 1999, ISBN 3-16-147216-0 (also: Berlin, Freie Univ., Habil.-Schr., 1998).

Individual evidence

1. ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, introduction before Section 145, marginal no. 8th
2. ↑ Franz Bydlinski , On the basic dogmatic questions of the compulsory contract , in: AcP 180, 1980, p. 3
3. ↑ Jürgen Basedow, Der Transportvertrag , 1987, p. 193
4. ^ Brian Simpson, A History of the Common Law of Contract , 1975, pp. 229 ff.
5. ^ Hermann Alexander von Berlepsch, Chronicle of Trades , Volume II, 1850, p. 226
6. ↑ John Biermann, legal coercion to contract , in: JherJb Volume 32, 1893, pp 267 et seq.
7. ↑ Industrieverlag of Hernhaussen KG (ed.): Petroleum and coal , Volume 13, 1960, p 522
8. ↑ Jürgen Basedow, The Transport Contract: Studies on the Adjustment of Private Law on Regulated Markets , 1987, p. 214 ff.
9. ↑ Hans Carl Nipperdey, Mandatory contract and dictated contract , 1920, p. 7
10. ↑ Peter Salje, Energy Industry Act, 1st edition 2006, § 17 Rn 10 ff.
11. ^ Danner, Wolfgang, 1939- Theobald, Christian: Energy law: Energy industry law with ordinances, EU directives, legal materials, association agreements; Laws and ordinances on energy saving and environmental protection as well as other legal regulations relevant to the energy industry; Comment. tape 1 . Beck, April 2018, OCLC 835059050 , § 17 EnWG Rn 81 .
12. ↑ Stephan Brinkmeier, Mandatory contracting in water management , 2002, p. 268
13. ↑ Stephan Brinkmeier, Mandatory contracting in water management , 2002, p. 305
14. ^ BGH, judgment of April 6, 2005, Az .: VIII ZR 260/04
15. ↑ FAZ of December 10, 2009, consumers pay for oversupply of green electricity
16. ^ BG, judgment of May 7, 2002, Az .: 4C. 297/2001, BGE 80 II 26 E. 4c p. 45
17. ↑ BGE 129 III 35 p. 47
18. ^ OGH, judgment of September 16, 1971, Az .: 1 Ob 227/71
19. ^ Franz Gschnitzer, Law of Obligations, General Part , 1966, p. 7
20. ^ OGH, judgment of April 12, 2011, Az .: 4 Ob 222 / 10s
21. ↑ Ernst Joachim Mestmäcker / Helmut Gröner / Jürgen Basedow, The Gas Industry in the Internal Market , 1990, p. 171

Please note the information on legal issues!