Hint theory

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The hinting theory (also: hinting formula ) is an approach developed by case law to determine the content of a declaration of intent that requires a form through interpretation according to § 133 i. V. m. § 157 BGB , if this content is not clearly evident in the document.

Written declarations are not always clear, unambiguous and unambiguous. In order to be able to derive binding content from the document of a formal legal transaction in a legal dispute, in case of doubt it is necessary to look at further elements of the will that cannot initially be deduced from the document.

There are requirements attached to this: The declaration is initially only examined for circumstances that can be determined by interpretation. Circumstances outside of the document are only taken into account if they are proven. Only then is there a check to determine whether the declaration of intent that has been displayed meets the formal requirements of the legal transaction in question. In this process step, the hint formula becomes relevant. It requires that circumstances that lie outside the document but are decisive for the (additional) determination of the legal will must be at least indicated within the document. It is based on the suggestion of a disputed part of the declaration, which in the document itself has only obtained an "imperfect expression" in terms of content.

The generally recognized principle of falsa demonstratio non nocet , the unintentional misnomer even in declarations of intent that requires formal requirements , does not conflict with this . For the purpose of the formal requirements, there are therefore no minimum requirements for the content of the document, as the Federal Court of Justice had demanded in the case law it has now abandoned for guarantees within the meaning of Section 766 of the German Civil Code. The jurisprudence has meanwhile reached agreement that in the case of declarations of intent that require a form, only the will that has been made known while observing the formal requirements is to be taken into account. This means that the declaration made "misrepresented" due to the generally different usage of language is to be interpreted. For this purpose, the incorrect designations are ignored and contradictions are mentally eliminated, provided that contractual agreements that have not been inadvertently omitted or agreements that are invalid are the subject of the interpretation.

literature

  • Achim Bönninghaus: BGB General Part II: Representation; Reasons for invalidity for legal transactions , Juriq success training | Civil law, 3rd, revised edition, CF Müller, Heidelberg a. a. 2014, ISBN 978-3-8114-7151-1 ; Part 3: General barriers to effectiveness in legal transactions. Violation of a legal form requirement, § 125 sentence 1 , pp 78-108.
  • Helmut Heinrichs (edit.) In Beck'sche Kurz -Comments Palandt : Bürgerliches Gesetzbuch . , 75th edition, Munich 2016, ISBN 978-3-406-71400-9 , § 133 no. 19th
  • Inge Scherer: hinting formula and falsa demonstratio in legal transactions requiring formal form in the case law of the Reichsgericht and the Federal Supreme Court , Duncker & Humblot, Berlin 1987; also dissertation at the University of Giessen, 1987, ISBN 3-428-06271-X

Remarks

  1. ↑ RG 154, 44; BGH 63, 362; 86, 46.
  2. ↑ a b priority of interpretation: BGH 80, 250; 86 47
  3. ↑ BGH 87, 154.
  4. ↑ BGH 87, 153.
  5. ↑ BGH 86, 47 f .; Werner Flume in NJW 83, 2007.
  6. ↑ BGH NJW 76, 189; BGH NJW 89, 1486.
  7. ↑ Dieter Medicus : General part of the BGB. A textbook. Müller, Heidelberg 1982, ISBN 3-8114-5082-4 . 10th, revised edition: 2010, ISBN 978-3-8114-9652-1 ., Rnr. 330
  8. ↑ BGH 74, 117; 80, 245.