General right to disrupt performance

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The general right to disrupt performance in Germany forms the beginning of the law of obligations and contains general principles that always apply when the execution of a contract is defective or has failed.

It includes sections 241 to 432 in the second book of the BGB . The decisive factor is that the respective defect occurred before the contract was fulfilled: if a mutual exchange of services (e.g. money for goods when buying) has taken place, these general rules are superseded by the special provisions in the special law of obligations . This is particularly the case if warranty claims are made retrospectively . However, since the modernization of the law of obligations on January 1, 2002, the norms in the special law of obligations refer to the provisions of the general law on impairment of services, so that these are still indirectly applied.

The main areas of application of the general right to disrupt performance are:

  • Compensation in the event of a breach of duty by one of the contracting parties. An obligation under the contract is violated when a debtor
    • performs the owed service too late ( default )
    • can no longer provide ( impossibility )
    • culpably damages the health / property of the other contracting party
  • Compensation in the event of pre-contractual damage to a contracting party (one party damages another during contract negotiations)
  • Non-acceptance of an offered service ( default of acceptance ).