The Arglisteinrede according to § 853 BGB is in German tort law a case of estoppel . It belongs to the right-inflammatory objections and that includes limitation of the right to compensation of an injured party in the case of tort from. The starting point is that the injuring party obtains a claim through an illegal act committed by him or his representative against the injured party - e.g. B. a payment claim from a sales contract .
The unlawful act is then primarily deception of the injured party by the injuring party as immoral, deliberate damage i. S. d. § 826 BGB into consideration. The injured person has then according to § 826 a claim for damages against the damaging party because of the immoral intentional damage. And it is precisely such a claim for damages that is meant when a “claim to cancellation of the claim” is spoken of in § 853 BGB. So claim for damages = right to cancel the claim. It should be noted that the injured party can also refuse to perform if his claim for damages under Section 826 of the German Civil Code (the regular limitation period according to Section 194 and Section 195 of the German Civil Code is three years). However, he must, in turn, obtain from the contractual relationship - e.g. B. surrender the purchased item so as not to act maliciously yourself.
The deceitful speech according to today's understanding has developed from the exceptio doli created by the late Republican lawyer C. Aquilius Gallus , this in a factual context with the actio de dolo (lawsuit for malicious damage) .
- Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 174-176.
- Palandt , Bürgerliches Gesetzbuch , § 853; § 826 BGB, No. 18, 22; § 138 No. 16; § 242 No. 83; Publishing house CH Beck, Munich 1996.
- ↑ Maximilian Fuchs, Deliktsrecht: A representation of the law arranged according to the basis of claims
- ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 174-176.