Competition
The concept of claim competition referred in civil law in general the situation that several civil claims by a creditor side by side can be considered. The variety of possible claims stems from the fact that Bernhard Windscheid developed the concept of material claim from the Roman system of legal action . The consequence of this was that one and the same interest could now pursue several material claims. A distinction was therefore made between procedural and material claims, the former denoting the specific request of a plaintiff, the latter all legal bases on which the request can be based. A procedural claim can therefore be based on various material claims. There is no uniform legal regulation for the question of the relationship between these multiple claims, so that in many cases the jurisprudence lays down principles.
Demarcation
The choice guilt , even Alternatively bond or alternative obligation is regulated in §§ 262-265 BGB. The content of the obligation is several different services at the discretion of the obligee (active alternative obligation) or the debtor (passive alternative obligation). If at least one of the parties has a particular interest in the final decision on the specific subject of the service, then there is an election guilt. If, on the other hand, the parties are not concerned with the selection and thus also not with the individual nature of the pieces, but only with the genre, there is a genus guilt .
The delimitation is significant because the debtor has to perform medium-quality items in the case of generic debt ( Section 243 (1) BGB), but in the case of elective debt he can freely choose the subject of performance in good faith ( Section 263 (1) BGB). Exercising the right to choose leads to retroactive specification ( Section 263, Paragraph 2 of the Civil Code), in the case of generic debt , only to an effect ex nunc ( Section 243, Paragraph 2 of the German Civil Code).
With the substitution power ( facultas alternativa ), the debtor only owes one performance; the obligee can only demand this. Unlike the election guilt, the obligation is determined from the beginning. However, the debtor has the right to free himself from his liability through a performance other than the one owed per se (see, for example, Section 528 (1) sentence 2 BGB) or the obligee has the right to demand another performance instead of the owed performance (see Section 249 (2) BGB).
Constellations
Depending on the interpretation of the term entitlement, there are different competitive situations in terms of material law and process.
Substantive law
In the case of the competition of the basis of claims or of the claim norms, also referred to as the majority of the basis of claims, there is a unity of the facts giving rise to the claim and a correspondence of the content of the claim. The obligee has a right to a certain performance ( claim ) against a debtor , but this follows for several legal reasons, for example a claim for damages from contract and offense, from fault or strict liability . An owner can demand the surrender on the basis of his property ( property protection ), from unjust enrichment (right to enrichment ) or from a crime .
Furthermore, within the same legal area (contract, offense, etc.) there can be several different claims or design rights . In the event of the sale of defective goods, the buyer can be entitled to subsequent performance or the right to cancel the contract or to reduce the purchase price and / or a claim for damages against the seller according to § 437 BGB. Compensation in nature or compensation for the loss of value can be provided for damage caused by tort ( § 249 BGB).
Ultimately, one can speak of claims competition if a creditor has claims against several debtors from a uniform event, but these claims are also not independent of one another, but are mutually related, for example with the simultaneous liability of a damaging party and his insurer ( joint liability ).
Procedural law
According to § 260 ZPO , several procedural claims of the plaintiff against the same defendant can be combined in one lawsuit under certain conditions ( objective accumulation of lawsuits ).
solutions
The basic solution is that the creditor either cumulates the multiple claims, i.e. can assert them side by side (cumulative competition) or he is entitled to the multiple claims, but they are mutually exclusive (elective competition with the obligee's right to choose , cf. the abundance of claims when withdrawing from the contract according to § 346 BGB) or he can only assert a certain claim, while the others are excluded (consumption or legal competition).
In the case of cumulative competition, however, the owed services are not due to the obligee in the result side by side, but instead a benefit sharing takes place. For example, obtaining the deputy commodum reduces the compensation for non-performance ( Section 285 (2) BGB). An accumulation can only be considered if the multiple claims are not congruent but are directed towards different legal protection goals. In addition to compensation for bodily harm according to Section 823 (1) BGB, compensation for pain and suffering can also be claimed for non-material damage not covered by this ( Section 253 BGB).
If contractual and tortious claims coexist (alternative competition), the creditor in Germany can opt for the more advantageous claim. The same applies to claims for enrichment and tort. In procedural terms, an assertion in the form of a main and an auxiliary request is permissible. Since each claim basically follows its own rules with regard to the statute of limitations, the obligee can, if necessary, enforce the non-statute-barred other claim if one claim becomes statute-barred.
The statute of limitations is harmonized by § 213 BGB for claims made for the same reason. How far this harmonizing effect extends, in particular whether the claims must be based on the same economic interest, is extremely controversial in jurisprudence. Part of the specialist literature refers to the draft law of the Commission on the Law of Obligations , according to which the measures that inhibit the statute of limitations or trigger the restart of the statute of limitations apply in all cases to all claims in which the law of a creditor from the outset has several, to the same Provides a choice of interest-oriented but content-wise different claims (elective competition) or at least enables him to move from one claim to another in pursuit of the same economic interest (alternative competition). The opposing view points to the fact that this idea was turned away in the further course of the legislative process and that it is only important that the law gives the creditor various claims for the same reason. The Federal Court of Justice did not yet have to decide this question directly, but had already indicated that it would only require the identity of the economic interest for claims in alternative competition.
A limitation of liability established by law or by party agreement, for example in the right of donation according to Section 521 of the German Civil Code (BGB) applies accordingly to competing tort claims and supersedes the general standard of liability from Section 276 of the German Civil Code.
According to the European Consumer Goods Directive (1999/44), the buyer can initially only claim subsequent performance in the form of subsequent improvement or subsequent delivery. Only if it is eliminated or unsuccessful does the guideline allow a transition to contract termination or reduction.
See also
literature
- Bernhard Windscheid : The Actio of Roman civil law from the point of view of today's law. 1856
- Detlef Liebs : The lawsuit competition in Roman law. 1972
- Rolf Dietz : Competing claims in breach of contract and offense. 1934
- Andreas Klein: Competition and Interpretation - The content of contract law norms in terms of tort law, 1997. ISBN 3-428-09023-3
- Peter Schlechtriem : Contract regulations and non-contractual liability: A comparative study of the competition between claims from contract and offense. 1972
- Ulrich Büdenbender : The buyer's claim for supplementary performance - election guilt or elective competition? At the same time a contribution to the dogmatics of both legal institutions. AcP 2005, pp. 386-429
- Abbas Samhat: The demarcation of election guilt from elective competition according to the BGB. Mohr Siebeck, 2012. ISBN 978-3-16-152032-7
Individual evidence
- ↑ Pietzcker, GRUR 1974, p. 613; Schwab, JuS 1965, p. 81
- ↑ Ulrich Magnus : Competitive Claims Hand Dictionary of European Private Law (HWB EuP) 2009, accessed on June 30, 2018
- ↑ Paul Langheineken: Claim and defense according to the German Civil Code . Leipzig: Engelmann, 1903, p. 193. Digitized
- ↑ Christian Rabl : Bearing the risk when buying. Manz, Vienna 2002, p. 345 f.
- ↑ cf. Apostolos Georgiades : The competition of claims in civil law and civil procedural law. 1968
- ^ Karl Larenz : General Part of German Civil Law , 7th edition, 1989, § 14 IV 4 (p. 266 f.)
- ↑ Hermann Eichler: The competition of contractual and tortious liability in German law. AcP 1963, pp. 401-420
- ^ Günther Jahr : Competition of the basis of claims and the connection of fulfillment in: procedural law at the end of the 20th century . Festschrift for Gerhard Lüke on his 70th birthday, 1997, pp. 297–322
- ↑ on this Stephan Lorenz : Influence of the performance request on a right of withdrawal: No legal effect, no elimination of the right of withdrawal, no renewed requirement to set a deadline; Brokerage costs and reimbursement of expenses according to § 284 BGB zu BGH, judgment of January 20, 2006 - V ZR 124/05
- ↑ BT-Drs. 14/6040 (PDF) Draft of a law to modernize the law of obligations, p. 121 f.
- ↑ MüKo / Grothe, § 213 Rn. 3; NK-BGB / Mansel / Budzikiewicz, § 213 Rn. 7th
- ↑ Staudinger / Peters / Jacoby, § 213 Rn. 5
- ↑ BGH, judgment of 27 September 2017 - VIII ZR 99/16 para. 33.
- ↑ Tobias Merger, Anna Kraft: Praxisrelevante liability restrictions VersR 2016, pp. 435, 436–438
