The legal term contestation denotes the subsequent unilateral elimination of legal consequences by a person concerned. For reasons of legal certainty, it is not allowed arbitrarily and only under certain conditions, in particular when deadlines are met . Whether the legal consequences are only eliminated for the future (" ex nunc ") or also for the past (" ex tunc ") depends on the respective regulation.
- In German law, the contestability of declarations of intent requiring receipt is based on BGB .
- Deviating from the general regulations is u. a. regulated:
- the contestation of the last will ( BGB);
- the contestation of the acceptance or the rejection of the inheritance ( BGB);
- the contestation of the actions of a debtor whose solvency is at risk (creditor contestation );
- the challenge of paternity ( BGB);
- contesting resolutions ;
- the challenge of prejudicial actions prior to the opening of insolvency proceedings (InsO).
- In addition, there is the challenge of court decisions, in particular through legal remedies.
Contestation of private law declarations of intent
First and foremost, contestation is understood to mean the design transaction of the same name , regulated in the German Civil Code , through which an incorrect declaration of intent is retroactively eliminated, whereby the legal transaction based on this incorrect declaration of will is to be regarded as void from the start according to (1) BGB ( ex-tunc effect). The challenge is counted among the so-called legally destructive objections , although this is controversial, and in some cases , due to the ex-tunc effect of the challenge, a legal objection is assumed. This contestation is based on a structuring right (the right of contestation); it has to be explained , i.e. exercised.
General civil law and business law
Exercising a right of avoidance
A right of contestation is effectively exercised if the person entitled to contest has a reason for contestation (design right) and submits a declaration of contestation ( design declaration ) within the contestation period .
Ground for avoidance
According to the general part of the Civil Code, there is a ground for avoidance in the following cases:
- Error of explanation : Objectively explained and subjectively wanted fall apart. (I wanted to explain something else legally , I choose a wrong explanation sign: prescribe, mistyping.) - Abs. 1 Var. 2 BGB.
- Mismatch of content : what is objectively explained and what is subjectively wanted do not fall apart, but the person who explains it attaches a different meaning to what is explained than is generally customary. (I did n't want to explain something like that, e.g. signing a sales contract on the assumption that it was a rental contract ) - Paragraph 1 Var. 1 BGB.
- Transmission error ( you I wanted to explain anything or you wanted me something not explain ) - BGB.
- Error about essential properties of the object to be declared (the object of the error is a person , thing , claim or right), otherwise an asset position ( I wanted to explain that, but not about such a thing , only applies to value-creating factors) - para 2 BGB.
- Fraudulent deception and unlawful threats ( BGB).
The person who is erroneous, deceived or threatened is entitled to challenge, not his business partner.
The so-called motivational error is generally not recognized by civil law . It is basically irrelevant. Such concerns the reasons that triggered an explanation ( I explained this, because ...) or consequences that are intended by the statement ( I explained this, so ...). For example, a share purchase cannot be challenged because the buyer mistakenly believes that share prices can only rise. The only legally regulated exception to the irrelevance of the motive error can be seen as an error about essential properties. In a teaching found in the literature, however, the property error is regarded as an exceptional, considerable error of motive. According to this view, the error according to (2) of the German Civil Code (BGB) must relate to a property of the thing that is essential to traffic and must be subjectively and objectively significant. There is a theoretical dispute within jurisprudence and literature about the delimitation of the considerable error of characteristics from the insignificant error of motive .
Furthermore, the so-called "hidden calculation error " is irrelevant, since the calculation only serves to prepare a declaration of intent. According to the unanimous opinion of the literature and in contrast to the case law of the Reichsgericht , the same applies to the open calculation error, since the declaring party should not pass the calculation risk on to the recipient. The other only applies if the calculation error is evident. Irrelevant motive errors also extend to the case group of so-called legal consequential errors developed by case law , which are only not negligible if the legal transaction does not merely refer to additional or indirect legal effects (side effects) that are added to the intended and occurred.
The person entitled to challenge must comply with the applicable time limit for avoidance ( immediately , one year, ten years). After the period has expired, the legal transaction becomes finally effective.
According to point in time at which the person entitled to challenge discovers the deception; in the case of an illegal threat, at the point in time at which the predicament ceases.BGB, the contestation of a declaration of intent that can be challenged according to BGB (fraudulent deception or threat) can only be made within one year. In the case of fraudulent deception, the period begins at the
However, contestation is entirely excluded if ten years have passed since the declaration of intent was made.
The contestation period is not a statute of limitations, but an exclusion period : According to (1) BGB, only claims are subject to the limitation period. However, the challenge is a structuring right and not a claim . Furthermore, the objection of the statute of limitations leads to a legal inhibition in the form of a permanent right to refuse performance, and thus not to the expiry of the claim, but the challenge to the expiry of the claim. This distinction is particularly important because the preclusive period of BGB has to be taken into account ex officio, but the statute of limitations must be asserted in a pending legal dispute.
The person entitled to challenge has the choice of whether he wants to allow the legal transaction to apply despite the contestability or whether he ends its effectiveness by contesting it. The contestation must be made by declaration to the contestant ( termination ) the recipient and otherwise (e.g. in the case of an advertisement ) everyone who has gained a legal advantage as a result of the legal transaction. A specific form is not required for the declaration of avoidance. The contestant does not have to use the word "contestation", it is sufficient that his declaration shows that he does not want the legal transaction to apply. As a design right, the declaration of avoidance is anti- conditional .BGB). In the case of a contract, this is the other contracting party, in the case of a declaration of intent that requires receipt (e.g.
The legal transaction is fundamentally destroyed retrospectively ( Latin ex tunc ) through the effective challenge . It is therefore to be regarded as null and void from the start ( (1) BGB). Exceptions to this retroactive effect exist in the case of contesting the entering into the marriage ( BGB), in the case of company and employment contracts . There, the challenge only takes effect from the receipt of the declaration, i.e. only for the future (Latin ex nunc ). This is justified by the fact that the reversal would lead to reversal problems in the execution of employment contracts and articles of association. In this respect, these contracts are not considered void for the past. However, the challenge should still have an effect on the point in time at which the employment relationship was suspended, since from this point in time there are no more problems with reversal.
The effect of the challenge through good faith according to BGB can also be excluded. This is the case, for example, if the contestant of a contestation based on an error allows the contract to apply against him as actually meant or understood by the contestant. The contestant must allow himself to be held fast to what is actually intended, since otherwise he would come to an unforeseen right to repentance through contradicting behavior ( venire contra factum proprium ) in violation of faithfulness.
The contestant is obliged to pay damages , unless the contractual partner knew or should have known the reason for the contestability of the transaction ( BGB) or in the case of fraudulent deception or threat. Here, the contesting but is not liable for the damage that the other party by the non-performance of the contested legal transaction occurs ( non-performance damages , positive interest ), but only for the damage that is caused by confidence in the efficacy ( fidelity , negative interest ).
If necessary, claims under the law of enrichment arise from BGB. Due to the void legal basis (contract), services have been provided wrongly, the reversal of which guarantees the right to enrichment.
The inheritance allows the avoidance of a will also due to a motive error ( para. 2 BGB) and changed the circle of contesting claimants, in the sense that not the explanatory testator is contesting the right itself, but only those to whom zustattenkommen the abolition of testamentary disposition would ( BGB). These are consequently third parties such as B. the legal heirs.
The Federal Court of Justice has ruled that the contestation of a rental contract for business premises due to fraudulent deception is permissible in addition to the termination after the rental premises have been provided and the rental contract has ended.
In principle, declarations of intent aimed at concluding an employment contract can also be contested. However, the right of avoidance is modified a little here. The challenge does not have to take place immediately, as in BGB, but can take place analogously to Paragraph 2 BGB up to two weeks after knowledge of the reason. Also, contrary to BGB, the challenge does not work ex tunc , but ex nunc . This alone is practically almost impossible kondiktionsrechtlichen rescission, in which not only labor and wages, but also social security are taken into account, tax payments, public subsidies, etc., would have owed the employment relationship. Similar restrictions on the legal consequences also apply to contested articles of association. The challenge can, however, be postponed to the time of the termination of the employment relationship, e.g. B. on the time before the vacation. This has the advantage that the employer does not have to pay vacation pay.
Stock exchange trading
In order to create legal certainty and market integrity in accordance with the EU Market Abuse Directive and to avoid lengthy legal proceedings, all stock exchanges have very tight deadlines for canceling incorrect transactions (so-called mistrades ). As a rule, a so-called mistrade application must be submitted within 30 minutes of the transaction.
So that the mistrade rules are not circumvented and the courts do not have to deal with the question of whether a deal is valid or not, most stock exchanges explicitly exclude the possibility of civil law contestation of the deal.
Only in this way is it possible under civil law that even obvious mistrades are not canceled retrospectively by contesting errors and that the banks would therefore have to bear the losses.
Jens Ekkenga writes in the Munich Commentary on the German Commercial Code : "The cautious approach to contesting errors in securities transactions is justified on the one hand with the fact that contesting typical mass traffic transactions could have a widespread effect that is detrimental to traffic safety".
See also: mistrade
Creditor protection or bankruptcy law
If a debtor has "put aside" assets to the detriment of his creditors when he is threatened with insolvency - for example given them to his wife - the underlying acts are contestable under certain conditions.
A distinction is to be made between the "private" avoidance of creditors in favor of a single creditor according to the Avoidance Act and the insolvency avoidance by the insolvency administrator according to the insolvency code in favor of all creditors. When bankruptcy is opened, only one insolvency challenge is possible.
According to the Avoidance Act or the rules on avoiding insolvency , the right of avoidance is a claim . It has the effect that a disposal of assets that is damaging to the creditors is irrelevant; the new owner must tolerate foreclosure on his assets that can be challenged; he is liable for the debt of the debtor . This challenge is neither a right to structure nor does it have to be exercised, but can be enforced immediately (if necessary in court). If insolvency proceedings are pending, InsO apply to the challenge ; In this case, the insolvency administrator or (in the case of self- administration) the administrator asserts claims for avoidance of insolvency for all creditors. If there are no pending insolvency proceedings, the provisions of the Avoidance Act apply to the avoidance.
The determination of avoidance claims is often essential for insolvency administrators in order to increase the available assets in insolvency proceedings. For this reason, administrators often spend a lot of work or use special analysis programs. Only if the advantage that an individual creditor has gained is returned in the context of an insolvency contestation can a greater satisfaction of the entire creditor be achieved. If the grounds for avoidance apply, the obligee himself can claim the amounts paid to the administrator (in the insolvency estate) as part of the challenge. However, this requirement is then met on an equal footing with other requirements. For the individual opponent, this may appear in detail as an injustice; the legislature, however, considers the advantage that the creditor has obtained in advance and levels it through the possibility of contestation. Business transactions can be contested up to 10 years before filing for bankruptcy.
Appeal in public law
Contestation of public law declarations of intent
In order to create legal certainty , the declarations made to the court in the course of legal proceedings regarding the progress of proceedings ( procedural acts ) cannot be challenged. For example, an acknowledgment is binding on the defendant . An exception to this principle can only be made if the other side did not trust the effectiveness of the litigation.
The conclusion of a settlement in judicial proceedings is also a procedural act, but also has a substantive legal effect. Because of this dual nature, it can be challenged according to principles similar to other legal transactions .
The provisions of the BGB on contestation apply accordingly to declarations of intent under public law through which an administration contract is concluded.
Appeal of official or judicial decisions
Which legal remedy is permissible depends on the respective type of decision. For example, an objection (in tax law objection ) and an action for annulment may be admissible against an administrative act . Against a decision to go mostly with a complaint off against a judgment of appeal or revision . Some judicial measures are also final.
- See Munich Commentary on the BGB, Volume 1, 6th edition, Munich 2012 / Armbrüster , Rn. 106 mwN
- On the dispute: See Munich Commentary on the BGB, Volume 1, 6th edition, Munich 2012 / Armbrüster , Rn. 103 ff.
- Dieter Medicus , Jens Petersen : Civil law. A presentation on exam preparation , arranged according to the basis of entitlements , 25th edition, Verlag Franz Vahlen 2015, p. 57 ff. (58).
- BGH , decision of July 5, 2006, Az. IV ZB 39/05, full text = BGHZ 168, 210.
- So already RGH, judgment of May 17, 1907, Az. Rep. II. 45/07, RGZ 66, 153 f.
- Christian Armbrüster: Munich Commentary on the Civil Code . 7th edition. Section 119, marginal no. 141.
- Disputing a commercial lease ( Memento from March 9, 2016 in the Internet Archive )
- Frankfurter Wertpapierbörse: Conditions for transactions on the Frankfurt Stock Exchange. (No longer available online.) January 3, 2018, archived from the original on February 25, 2018 ; accessed on February 24, 2018 .
- Eurex Deutschland: Conditions for trading on Eurex Deutschland and Eurex Zürich. (No longer available online.) January 3, 2018, archived from the original on January 22, 2018 ; accessed on February 24, 2018 .
- Tradegate Exchange: Conditions for business on the Tradegate Exchange. October 20, 2017, accessed February 24, 2018 .
- See Eickmann et al. a., Commentary on the Insolvency Code, 2nd edition 2001, Rn. 86 to InsO.