Willful deception

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Malicious deception ( Latin: dolus malus ) is an indefinite legal term in German civil and administrative law . In civil law, it provides it to § 123 BGB a ground for avoidance is, in the right management it closes after § 48 , paragraph 2 sentence 3 no. 1 VwVfG the of protection of the deceptive with respect to the withdrawal of a favorable administrative it out. Fraudulent deception is usually present when deception about facts is intentional , i.e. the person who deceives knows and wants that his behavior will lead to an error on the part of the person deceived.

Civil Law

In German civil law, fraudulent deception regulated in Section 123 of the German Civil Code is a ground for contestation ( Sections 119 ff. BGB). As with the threat, the protected legal interest - in contrast to the contestation according to §§ 119, 120 BGB - is the freedom of will or the free self-determination. If the deception committed is illegal and causal for the submission of a declaration of intent and this is included in the intent of the acting party, the entire legal transaction can be destroyed retrospectively.

Act of deception

The necessary act of deception means - as in criminal law - behavior that aims to evoke, reinforce or entertain an incorrect idea in another. It can be exercised through positive action, but also through omission.

Doing positive things

Positive action is given in the case of express or implied untruthful assertions if they relate to facts or value-creating, objectively verifiable circumstances. An implied act of deception is, for example, turning back the mileage of a car for sale. Even precise statements about the basis of the price calculation, such as the claim that the significantly inflated price is a decent one, can be subsumed under the act of deception if it is it is not a matter of recognizable, merely subjective value judgments or exaggerated promotions. Since it is sufficient to mislead the contractual partner with the intent, the seller's claim that the twelve-year-old engine is more than three years old is sufficient.


The principle of private autonomy applies , on the basis of which it is necessary to conduct legal transactions in personal responsibility. Thus, each party can benefit from their superior knowledge without any obligation to disclose. According to the case law, this principle is breached if the clarification is required in good faith and in accordance with the opinion of the general public and the contracting party can therefore expect the situation to be clarified. Accordingly, the circumstances giving rise to the obligation must be weighed up in each individual case. For example, in the case of contractual relationships in which the contracting parties place greater trust in each other, as well as ongoing business relationships or if there is a discernible information asymmetry between the inexperienced buyer and the knowledgeable seller, a more comprehensive duty of disclosure can be assumed. However, the above only applies if the circumstances are not recognizable for the contractual partner and a risk to the contractual partner or the purpose of the contract can be expected without clarification. In any case, however, the buyer's queries must be answered truthfully.


The deception must also lead to a causal error, which in turn must be causal for the declaration of intent. With regard to the error, it is already sufficient that the misconception is maintained by the deception. In contrast to Section 119 of the German Civil Code (BGB), any deficiency in the decision-making process is sufficient due to the protective purpose of the standard. On the other hand, there is no causality if the deceived person had seen through the deception when the contract was concluded or if it was fully evident. With regard to the declaration of intent, it is decisive that it would not have been made in the same way at the moment. The co-causation of the deception is sufficient for the declaration to be submitted.


In contrast to fraud under Section 263 of the German Criminal Code, Section 123 of the German Civil Code does not require financial damage to the deceived person. Consequently, there is no need to intend to damage the contract partner's assets or to gain a financial advantage. Also, no morally reprehensible attitude is required, so that malice is to be affirmed even if only the best for the contractual partner is wanted. The fraudulent intent can therefore be equated with intent for lack of independent meaning. However, special attention should be paid to “explanations in the dark”. This, and thus also the necessary conditional intent, is already present in blindly assured circumstances if it is concealed that one is unable to make an appropriate assessment due to a lack of knowledge. Knowledge of the inaccuracy is not required. A car may therefore only be described as accident-free according to the information provided by the previous owner if the seller has not examined it himself.


It is true that the wording of Section 123 (1) BGB only provides for illegality in the context of threats. However, this is only due to the fact that the legislature wrongly assumed that fraudulent deception is always unlawful. A teleological reduction must therefore be carried out and the illegality must be checked. This has an impact above all in labor law, since the job applicant has the right to lie if the employer does not have a legitimate, fair and worthy of protection interest in the truthful answer to a question and thus the illegality of the deception is lacking. This is the case if a question unjustifiably violates the prohibition of discrimination of § 1 AGG, because then the behavior is justified because of an attack on the general personality right according to § 227 BGB.

Person of the deceiver

Third party according to Section 123 Paragraph 2 Clause 1 BGB

If the deception is not committed by the recipient of the declaration but by a third party , the declaration that needs to be received can only be contested in accordance with Section 123 (2) sentence 1 BGB if the recipient of the declaration knew or should have known about the deception. The latter is assessed according to Section 122 (2) BGB, according to which any form of negligent ignorance is sufficient.

In the absence of a definition that can be subsumed , the question of who qualifies as a third party within the meaning of the standard is problematic.

The Reichsgericht initially only judged deputies and persons similar to them not as third parties. However, the protection of the deceived makes it necessary to define the concept of the third party more restrictively. According to this, today in literature and practice the deceiving person is not to be assessed as a third party if their behavior is attributable to the respondent in addition to the rules of representation according to § 278 BGB. This also includes cases in which the person only appears to the outside world as a confidante for the recipient of the declaration or is closer to the recipient than to the person who has been deceived. This covers not only the husband who deceives the life insurance in favor of his wife, but also the broker or intermediary, provided that only tasks of "one" of the later parties are assumed with knowledge and will. A third party is therefore not whoever is involved in the conclusion of the contract with the will of the recipient of the declaration and is therefore assigned to his area.

With the assumption of debt according to § 414 BGB, the deceiving old debtor who is not involved in the business is to be qualified as a third party. If, on the other hand , there is an assumption of debt within the meaning of § 415 BGB, the contract between the previous and new debtor is concluded, whereby the deceptive old debtor is not to be assessed as a third party in the sense of the standard due to his participation in the contract. Nevertheless, due to the comparable interests, in this case too it should depend on whether the creditor knew or should have known about the deception by the old debtor.

Even in the context of the guarantee, the debtor cannot be seen as a person of trust of the obligee in relation to the surety, since he represents his own interests and not those of the obligee and is therefore not a vicarious agent. He is therefore also to be regarded as a third party within the meaning of the standard.

Avoidance according to § 123 Abs. 2 Satz 2 BGB

It should also be noted that according to Section 123 (2) sentence 2 BGB, even if the recipient of the declaration is in good faith, contestation should be possible if someone else has acquired a right from the declaration and he knew or should have known about the deception. The challenge is then to be explained to him and only works against him. It is primarily about contracts in favor of third parties according to §§ 328 ff. BGB, in which a fourth person is favored by deceiving an uninvolved third party.

Declaration of avoidance, § 143 BGB

The declaration of contestation within the meaning of § 143 BGB is a declaration of intent that must be received. It must be clear from it that the contestant has the will not to let the business go on precisely because of the lack of will. As a rule, the declaration can be made informally. If a form has nevertheless been agreed, it does not have to be adhered to by the deceived person. In addition, the law does not provide for an obligation to state reasons. However, it is required that the reason for avoidance must be recognizable from the circumstances. The contestant is determined in accordance with Section 143 Paragraphs 2 to 4 BGB. Special features arise in accordance with Section 143, Paragraph 3, Clause 1 of the German Civil Code when granting a power of attorney in accordance with Section 167 of the German Civil Code. If no legal transaction has yet been concluded, the person of the contestant is indisputably determined by who has received the declaration to be contested. It is therefore decisive whether an internal or external power of attorney has been issued. If, on the other hand, the legal transaction has already been concluded, it is sometimes argued that the challenge of the power of attorney can only be made against the business partner.

Avoidance period, Section 124 (1) and (2) sentence 1 first alternative

To contest the declaration of intent that needs to be received within one year of discovering the deception, whereby positive knowledge is important, not mere suspicion of deception. Furthermore, according to Section 121, Paragraph 1, Clause 2 of the German Civil Code, the focus is not on immediate dispatch, but on receipt of the declaration in accordance with Section 130 of the German Civil Code. In some cases, the long period of contestation is considered to be unjust if, according to Section 123 (2) of the German Civil Code, it is contested against a third party and not against the deceiver himself, so that after a reasonable period set by the contestant has expired, the deceived person should no longer be able to derive any rights. However, it is not clear why the opponent, if he knew or ought to have known the deception, should be worthy of protection.

Exclusion of challenge

In accordance with Section 124 (3) of the German Civil Code (BGB), contestation is excluded after a period of ten years after the declaration of intent has been submitted. In addition, as in the context of Sections 119 and 120 of the German Civil Code (BGB), even in the case of fraudulent deception pursuant to Section 144 (1) BGB, the person entitled to avoidance can waive his rights by confirming the legal transaction which can be challenged if he is aware of the reason for the avoidance (case of venire contra factum proprium ). Admittedly, compliance with the form of the underlying legal transaction is not required, but strict requirements are placed on an implied confirmation within the framework of Section 123 (1) first alternative BGB. Exclusion under the reservation of good faith can also be assumed, as in §§ 119, 120 BGB, provided that the service provided to the deceived person no longer appears to be impaired at the time of the declaration of avoidance. A prior exclusion of the contestation is not possible, unless, in the case of Section 123 (2) BGB, the deception by third parties should only have been known, due to a violation of the right to free self-determination.

Legal consequences

The legal consequences are determined as in the case of contestation according to §§ 119, 120 BGB according to § 142 BGB. The contestant worthy of protection thus has the choice of whether to destroy the declaration of intent and with it the entire contract by contesting it ex tunc or whether to allow the legal transaction to apply against itself. In the case of continuing obligations that have been enforced, such as in labor and company law, there are problems with the reversal according to the rules of enrichment law, so that there is regularly an ex nunc nullity that deviates from the wording of Section 142 (1) BGB . The problem is whether, in the event of fraudulent deception, the deceiver should not stick to the consequences ordered by the legislature because the deceiver is not worthy of protection.

  • In the employment relationship, there is the problem of an objective evaluation of the work performance and the retroactive elimination of protective regulations in the event of reversals. However, the risks can be imposed on the employee who deceives, so that there is no objective reason that can justify the deviation from the legal consequence. The case law makes it clear on the basis of the enforcement that aspects of employee protection do not come into play. At least in the case of particularly serious defects, no exception is made to the legal consequences.
  • In corporate law , on the other hand, a dispute with effect for the future after enforcement is assumed, despite fraud, for reasons of traffic safety, as well as due to special reversal difficulties in the external relationship.
  • In the case of rental contracts , however, due to a lack of comparable difficulties in the context of unwinding under enrichment law, the legal consequences stipulated by law remain.

In the context of fraudulent deception, it should also be emphasized that mostly the contractual obligation and the real deal suffer from the same lack of will and thus both are contestable. Of course, this defect identity cannot be seen as a breach of the principle of separation and abstraction, because the strict separation of these transactions that must then be carried out is not affected by the breakthrough of the defect. It is also noteworthy that the liability for damages provided for in Section 122 of the German Civil Code (BGB) is not applicable to fraudulent objections due to the systematic position of the law.


After the assertion of § 119 BGB, an appeal to § 123 BGB remains possible. The warranty rights, which - unlike in relation to § 119 BGB - are not leges speciales , can optionally be asserted. However, if the appeal is first effective, there is no valid contract required for §§ 437 ff. BGB, so that these are excluded. An assertion of the named rights, however, is neither an implied waiver nor a confirmation within the meaning of Section 144 (1) BGB. A claim from culpa in contrahendo (cic) should be preserved in addition to the challenge. However, this is critical if the claim is aimed at the cancellation of the contract, since negligence is sufficient to justify a claim at cic and the period under Section 124 BGB would be undermined by the then applicable three-year limitation period. The restriction imposed by the case law, according to which the contract can only be canceled if financial loss can be affirmed, does not resolve the contradictions, especially since financial loss is usually already present when an unwanted contract is concluded. Avoidance of contradictions in valuation can be brought about by the fact that in the case of negligent action the claim from cic to cancellation of the contract is only permitted within the limits of § 121 BGB analogously and in the case of intent within the limits of § 124 BGB. Furthermore, it is argued that in addition to the contestation according to § 123 BGB, the principles of the cic only remain applicable if the claim is not aimed at the cancellation of the contract.

Administrative law

In administrative law, fraudulent deception is particularly important in the context of the withdrawal of an illegal administrative act. According to Section 48 (2) VwVfG , an administrative act (favoring the citizen) that grants a one-off or ongoing cash benefit or a divisible benefit in kind (...) cannot be withdrawn if the person concerned trusted the existence of the administrative act and this trust is worthy of protection. The need for protection is to be rejected, among other things, if the person concerned has obtained the adoption of the administrative act through fraudulent misrepresentation , Section 48 Paragraph 2 Sentence 3 No. 1 Var. 1 VwVfG. As a legal consequence, it is now at the discretion of the authority to withdraw the administrative act.


  • Schubert: Dishonest behavior of third parties when concluding contracts , in: Archiv für die civilistische Praxis (AcP) , Vol. 168, 1968, ISSN  0003-8997 , pp. 470 ff.
  • Hannes Rösler : Malice in contract law - on the intersection of deliberate and negligent misinformation , in: Archive for civilist practice (AcP) , Vol. 207, 2007, ISSN  0003-8997 , pp. 564-613.
  • Sebastian A. Martens: Who is "Third"? - To delimit §§ 123 I and II 1 BGB , in: Juristische Schulung (JuS) 10/2005, p. 887 ff.
  • Kerstin Strick: The challenge of employment contracts by employers , in: Neue Zeitschrift für Arbeitsrecht (NZA) 2000, pp. 695–700.
  • Stephan Lorenz : Damage to trust of the apartment buyer if the social ties are not disclosed and false financial information is given - what does culpa in contrahendo protect? , in: New Journal for Tenancy and Housing Law (NZM) 1998, p. 359 ff.
  • Dirk Olzen / Rolf Wank: Case solution "Hidden Pregnancy" , in: Civil Law Written Examination , 7th Edition, 2012, Rn. 226 ff.

Individual evidence

  1. BGH, decision v. September 21, 2011 - IV ZR 38/09 - HEROS II , BeckRS 2011, 25937, beck-online
  2. Flume: General part of the BGB , 2nd volume, 3rd edition 1979, § 29/1.
  3. Brox / Walker: General part of the BGB , 36th edition 2012, § 19 Rn. 450
  4. BGH, judgment v. September 19, 2006 - XI ZR 204/04 , BGHZ 169, 109 (115).
  5. Hefermehl, in: Soergel BGB , Volume 2, §§ 104-240, 1999, § 123 Rn. 3.
  6. Armbrüster in: Munich Commentary on the BGB , Volume 1, §§ 1–240, 6th edition 2012, § 123 Rn. 28.
  7. RG, judgment v. July 7, 1925 - II 494/24 ( Memento of March 8, 2014 in the Internet Archive ), RGZ 111, 233 (234).
  8. BGH, judgment v. October 20, 2000 - V ZR 285/99 .
  9. BGH, judgment v. July 13, 1983 - VIII ZR 142/82 ( Memento of March 8, 2014 in the Internet Archive ), NJW 1983, 2493 (2494).
  10. Hefermehl in: Soergel BGB , Volume 2 §§ 104-240, 1999, § 123 Rn. 8th.
  11. BGH, judgment v. February 20, 1967 - III ZR 134/65 , BGHZ 47, 207 (210).
  12. Armbrüster in: Münchener Comment BGB , Volume 1 §§ 1–240, 6th edition 2012, § 123 Rn. 33.
  13. BAG, judgment v. May 15, 1997 - 2 AZR 43/96 ( Memento of March 8, 2014 in the Internet Archive ), NZA 1998, 33 (34).
  14. Brox / Walker: General part of the BGB , 36th edition 2012, § 19 Rn. 454
  15. BAG, judgment v. February 20, 1986 - 2 AZR 244/85 ( Memento of March 8, 2014 in the Internet Archive ), BAGE 51, 167 (172).
  16. RG, judgment v. October 27, 1909 - V 591/08 ( Memento of March 8, 2014 in the Internet Archive ), RGZ 72, 133 (135).
  17. Brox / Walker: General part of the BGB , 36th edition 2012, § 19 Rn. 458
  18. Armbrüster in: Münchener Comment BGB , Volume 1 §§ 1–240, 6th edition 2012, § 123 Rn. 64
  19. BGH, judgment v. November 14, 2000 - XI ZR 336/99 , NJW 2001, 358 (358 f.).
  20. Hefermehl in: Soergel BGB , Volume 2 §§ 104-240, 1999, § 123 Rn. 38; Singer / von Finckenstein in: Staudinger BGB , Book 1, §§ 90–123; 130-133, 2012, § 123 Rn. 63.
  21. Another view of the BGH, judgment v. December 8, 1959 - VIII ZR 134/58 ( Memento of March 8, 2014 in the Internet Archive ), BGHZ 31, 321 (324 ff.); RGZ 119, 418 ( Memento from March 8, 2014 in the Internet Archive ) (421).
  22. BGH, judgment v. April 9, 1992 - IX ZR 145/91 , NJW-RR 1992, 1005 (1006)
  23. ^ Medicus / Petersen: Bürgerliches Recht , 23rd edition 2011, § 6 Rn. 149.
  24. Another view still BGH, judgment v. June 20, 1962 - V ZR 209/60 ( Memento from March 8, 2014 in the Internet Archive ), NJW 1962, 1907 (1907 f.).
  25. Roth in: Staudinger BGB , Book 1 §§ 134-163, 2003, § 143 Rn. 35; aA: Larenz / Wolf: General Part of Civil Law , 9th edition 2004, § 44 Rn. 32; Ellenberger in: Palandt BGB , 72nd edition 2013, § 143 Rn. 6th
  26. Flume: General part of the BGB , 2nd volume, 3rd edition 1979, § 27/3.
  27. ^ Singer / von Finckenstein in: Staudinger BGB , book 1, §§ 90–123; 130-133, 2012, § 124, Rn. 1.
  28. BAG, judgment v. December 5, 1957 - 1 AZR 594/56 , BAGE 5, 159 (161); BGH, judgment v. October 24, 1951 - II ZR 18/51 ( Memento from March 8, 2014 in the Internet Archive ), BGHZ 3, 285. (287 f.)
  29. Ellenberger in: Palandt BGB , 72nd edition 2013, § 119 Rn. 5.
  30. BAG, judgment v. December 3, 1998 - 2 AZR 754/97 , NZA 1999, 584 (586).
  31. BAG, judgment v. November 3, 2004 - 5 AZR 592/03 , NZA 2005, 1409 (1410).
  32. BGH, judgment v. May 12, 1954 - II ZR 167/53 ( Memento from March 8, 2014 in the Internet Archive ), BGHZ 13, 320 (323 f.); BGH, judgment v. June 29, 1970 - II ZR 158/69 ( Memento from March 8, 2014 in the Internet Archive ), BGHZ 55, 5 (8).
  33. BGH, judgment v. August 6, 2008 - XII ZR 67/06, BGHZ 178, 16 (27).
  34. Bork: General part of the BGB , 3rd edition 2011, § 13 Rn. 482.
  35. BGH, judgment v. September 18, 2001 - X ZR 107/00 , BGH NJW-RR 2002, 308 (310); BGH, judgment v. September 18, 2001 - X ZR 107/00 , NJW 1998, 302 (304).
  36. Schubert, AcP 168 (1968), 470 (504 ff.).
  37. Armbrüster in: Münchener Comment BGB , Volume 1 §§ 1–240, 6th edition 2012, § 123 Rn. 91; Singer / von Finckenstein in: Staudinger BGB , Book 1, §§ 90–123; 130-133, 2012, § 123 Rn. 101; Fleischer AcP 200 (2000), 91 (119).
  38. Within the limits of § 124 BGB analogous: OLG Hamm, September 28, 1993 - 7 U 110/92 , NJW-RR 1995, 205 (206)
  39. Brox / Walker: General part of the BGB , 36th edition 2012, § 19 Rn. 463.

Web links

Wiktionary: malicious deception  - explanations of meanings, word origins, synonyms, translations