Assumption (law)
In civil law, acceptance is understood as a declaration of intent that needs to be received and is aimed at concluding a contract .
General
The entire contract law assumes that a contract (such as the everyday purchase contract ) is concluded through at least two identical declarations of intent . These declarations of intent are called offer (legally referred to as "application") and acceptance. The BGB does not say this explicitly, but takes it for granted in §§ 145 ff. BGB, most clearly in § 151 sentence 1 BGB. The application and acceptance are the two declarations of intent of the contractual partners ( counterparties ) that correspond in terms of content and have the same legal consequences .
Legal issues
One contractual partner submits an offer to the other ( § 145 BGB), which the other accepts ( § 151 BGB). If both declarations of intent that require receipt agree, the contract is concluded. The acceptance must express the contractual agreement by creating a mirror image of the offer. The willingness to accept must be declared, i.e. it must be perceptible to the outside world by the offerer. Deviations between the offer and acceptance ( Section 150 (2) BGB) are deemed to be a rejection of the offer and a new application (Section 150 (2) BGB). An offer must be accepted by those present (verbally or by telephone) immediately ( Section 147 (1) BGB); those who are absent can only be accepted up to the point in time at which the applicant can expect the response to be received under regular circumstances (Section 147 (2) BGB). In doing so, not only the time required for the return (letter) of the answer, but also a certain amount of time for the acceptor to consider. The under declared absent acceptance of an offer must be the seller to go ( § 130 para. 1 BGB). The belated acceptance of a limited offer ( Section 148 BGB) is considered a new offer (Section 150 (2) BGB).
These cases of express acceptance are supplemented by the implied acceptance by conclusive behavior . Already § 151 BGB expects that the adoption does not need to be the offeror declares to explicitly if such a statement following the accepted practice is to be expected or the offeror waives it. If someone delivers goods to order without having previously declared their acceptance and without a case of § 151 BGB, the sending of the goods to the applicant would be interpreted as an implied declaration of intent, which becomes effective through their receipt - the arrival of the goods would. Conclusive behavior is also given when ordering a hotel room by e-mail if the hotel enters the customer in the reservation book .
In commercial law , even silence is considered an acceptance. For example, if a merchant whose business involves doing business for others receives a request for the handling of such business from someone with whom he has a business relationship , he is obliged to respond immediately; his silence counts as acceptance of the application ( Section 362 (1) HGB ).
Dispute
The challenge of the declaration of acceptance takes place according to the general rules. If the offer and acceptance only appear to refer to the same item, there is a so-called dissent , which either has to be resolved by a supplementary contract interpretation or leads to the ineffectiveness of the contractual relationship.
delay of acceptance
A default of acceptance (also: creditor default ) exists in accordance with § 293 ff. BGB if the creditor does not accept the performance of the debtor , which would have been possible and was offered in accordance with the contract, in good time at the time of performance.
Acceptance of inheritance
If the heir has accepted the inheritance , he can no longer refuse it ; if the deadline prescribed for the disclaimer has passed, the inheritance is deemed to have been accepted upon expiry of the deadline ( Section 1943 BGB). The acceptance of the inheritance can also be explained by conclusive behavior. An implied assumption in this sense is given if an externally recognizable act of the heir indicates that he wants to keep the inheritance permanently.
Acceptance of a bill of exchange
In the bill of exchange law , the drawee is obliged to pay the bill on expiry in accordance with Art. 28 Para. 1 WG . This acceptance is also called acceptance (or bill of exchange acceptance ) and is done by signing ( cross-writing ) the bill of exchange.
International
In Austria , Section 864 (1) of the Austrian Civil Code ( ABGB ) provides a comparable regulation to Section 151 of the German Civil Code (BGB) if an express declaration of acceptance based on the nature of the business or custom is not to be expected. The acceptance is called in § 869 ABGB "Consent to a contract", it must be freely, seriously, determined and clearly explained. In Switzerland , the acceptance is called "Acceptance" and the offer is called "Offer". It is a declaration of the will of the contract, the content of which is determined to the extent that the acceptor can bring about the contract by simple consent; the offer must therefore at least formulate the objectively essential points of the contract as well as the commitment. In contrast, should the bid not necessary already designate the person of the contractor, but, if this should be indifferent to the offeror, even ad incertas personas take place (eg in a guarantee from the person of the creditor can guarantee indefinite). If a contract was concluded with absenteeism, its effects begin at the point in time when the declaration of acceptance for dispatch was submitted (Art. 10 Para. 1 OR ).
Individual evidence
- ↑ Dieter Leipold, BGB I: Introduction and general part , 2008, p. 186
- ↑ BGHZ 111, 97 , 101
- ↑ Dieter Leipold, BGB I: Introduction and general part , 2008, p. 187
- ^ Hermann Burgsmüller, The meaning of § 151 BGB , 1934, p. 33
- ↑ Dieter Leipold in: Munich Commentary on the BGB , Volume 10, 2008, § 1943, Rn. 4th
- ↑ BGE 45 II 172/3
