The general usage of language understands the order mostly as a purchase contract initiated by an order , a contract for work , a commission business or the clients of brokers , architects or commission agents . In the case of an order in the legal sense, on the other hand, there is a free courtesy contract as in the case of a gift and loan , which is an incompletely bilateral contract because the main performance obligations lie with the contractor. In particular, companies that register accepted orders as incoming orders act as contractors , an important business and economic indicator . Orders in this sense are customer orders based on a contract offer , the processing or production of which has not yet started. In this context, a business is to be understood as any activity of a factual or legal nature in the interests of a third party. The business resulting from an order must be free of charge, i.e. without consideration by the client.
The ancient Greeks already knew the order . When Diomedes heard that the city of Argos had a team of four , he gave his friend Alkibiades I the order to buy these horses for him. But Alkibiades I ignored his client, kept the horses to himself and won with this team in 416 BC in Olympia . Isokrates took over the resulting legal action .
The mandatum (from Latin manus dare , "to shake hands") was a regulation in Roman law for various business transactions between fellow citizens, relatives or friends. For a long time it was free of charge as a courtesy, but today it can be paid or unpaid. With the Romans, free help and support for friends was a natural duty. Although the legal sources available today no longer know about an agreement by handshake , the transaction was free of form , which is why it falls under the consensual contracts ( Latin consensus ). Two types of mandate were known, on the one hand the traditional one, which was valid in the community and the one which was to be used for certain professions ( Latin artes liberales ), such as teachers, lawyers and doctors. In Rome, the parties were called client / client ( Latin mandator ) and agent ( Latin legatus ). The content of the orders in the course of their development had activities of a purely factual but also legal nature.
The Bavarian Codex Maximilianeus Bavaricus Civilis of January 1756 knew the mandate in the sense of a power of attorney , as did the General Prussian Land Law of June 1794. In June 1811 the Austrian ABGB introduced the current law on mandates, in January 1883 the Swiss Code of Obligations followed. It was not until January 1900 that the German Civil Code took into account the order law still in force today.
For the order in the legal sense, the order law of § BGB applies . The parties involved are the client and the contractor, the latter is called “agent” in the law. According to the legal definition of § 662 BGB, the agent undertakes, by accepting an order ( order confirmation ), to procure a business assigned to him by the customer free of charge. Both legal transactions and actual acts can be considered as business in this sense . The representative of the customer must follow the instructions and may the execution of an order as a rule, not a third party transfer, he has but at a yet made transmission also the fault of the third party to represent ( para. 1 BGB). Deviations from the originally placed order must be reported to the client ( BGB), and there is also a general, order-related duty to provide information and accountability ( BGB). However, since the contractor is obliged to carry out the order and he may be liable to pay compensation to the client, the order must be distinguished from the mere courtesy relationship. The fact that the service is free of charge does not mean that the agent himself has to cover all costs of the order. Namely the client makes an advance payment obligation for all anticipated expenses of the contractor ( BGB) and an obligation to reimbursement of expenses ( ) for incurred expenses. The order can be revoked by the client at any time and terminated by the agent at any time ( (1) BGB). In the event of a termination at the wrong time, the agent may be liable for damages. In addition, the contractual relationship ends in case of doubt with the death of the agent ( BGB), the death of the client, on the other hand, is irrelevant ( BGB), the assignment is deemed to continue with his heirs.ff.
In the case of the power of attorney by family members and comparable confidants (within the meaning of Section 6 (2) RDG), an underlying contractual relationship is generally assumed.
As soon as the client promises remuneration , it is a management contract (§ , Paragraph 1 or BGB). The actually free order law can be applied analogously to paid orders (for the agency contract by reference in § 675 paragraph 1 BGB). In the banking sector , this includes many banking transactions , such as payment orders , securities orders or letters of credit .
In contract law, the contractor is called " entrepreneur ". Similar to the Sales Law - where according to BGB, the seller to transfer the burden of proof shall ensure the absence of defects of the purchased item - takes in contracts for work the contractor until the acceptance ( BGB), the burden of proving the absence of defects . According to (1) of the German Civil Code (BGB), the contractor's claim for remuneration only becomes due when the work has been accepted by the client. Acceptance is the acceptance of the service provided by the contractor through transfer of ownership and the declaration that the client recognizes the service as being in accordance with the contract. The similarly classified building acceptance is regulated in the state building regulations.
To gestio is when someone concerned a deal for another, without being over the right of doing so because of a contract or any other reason ( BGB).
Assignment in other areas of law
Architecture and construction
In building law , the term “order” is often used contrary to the legal term. For example, Paragraph 8 VOB / B and even a regulation such as the HOAI speak of "order", "client" and "contractor" ( Paragraph 1 HOAI), although here the transfer of services against payment, usually in the context of a work contract.
In public administration , the term order (synonymous: instruction ) describes every instruction or communication from a higher-level authority to a subordinate authority. However, this only applies if it is not the highest authority and thus a ministry (in this case, if the situation is the same, it would be a decree ). This is to be distinguished from the delegation of public tasks in the context of order management . In principle, the head of the authority is solely authorized to sign for everyone in his local and factual responsibility . The entire substructure, i.e. subordinate departments , sign externally - insofar as authorized to do so - on behalf of [the head of the authority] ("iA"). Only the representative of the head of the authority signs on behalf of [the head of the authority] ("iV"). Formal both are by Instructions regulated internally within the authorities.
The soldier law recognizes as part of the inner leadership the Mission oriented leadership , a method of military leadership. In contrast to the specifically formulated military order , the military superior only gives the soldiers the target, usually also the amount of time and the required forces. On the basis of these framework conditions, the guided pursues and achieves the goal independently and can make his own specific decisions within the framework of the assignment. This means that the executor is largely free to carry out the order. This ensures great flexibility in the execution of orders and contributes significantly to relieving higher management levels.
Order and courtesy relationship differ from one another in terms of their commitment . The order is a contract, and because it is free of charge, it is a courtesy contract, whereas the courtesy relationship is a non-binding, non-profit agreement based on a non-legal basis such as kinship , friendship , collegiality or neighborhood . There is no legal will to be bound by a favoring relationship. If, under the circumstances, performance can only be expected against payment in the case of a courtesy relationship , a service contract is always present in accordance with (1) BGB . The order is thus the free counterpart to the service contract.
If signatures on official letters , administrative files or other documents of the public administration are provided with the addition "on behalf of the public administration ", then there is a contractual relationship between the officials and the head of the authorities in the form of a power of attorney . However, this is not a contract law in the sense of the BGB, but a form of management with an order , where the order specifies the goal and leaves the agent certain freedom in the choice of execution. In the private sector , commercial law requires that the power of attorney in accordance with German Commercial Code (HGB) be expressed with a specific addition when subscribing to business letters . The addition “i. A. “means the signature by persons not permanently authorized to represent (type of power of attorney ).
The contract law is in Switzerland similarly regulated in Germany (Art. 394 ff. OR ), but also for consideration and contracts comprehensively. According to Art. 394 Para. 1 OR, by accepting an order, the agent undertakes to take care of the business or services assigned to him in accordance with the contract. In Austria , too, §§ 1002 ff. ABGB provide for similar regulations (“commissioned business”), the order here is called the power of attorney . According to § 1004 ABGB in conjunction with § 1014 ABGB, the client is obliged to pay the agreed or statutory fee to agents. According to § 1020 ABGB the client can revoke the order "at will". The death of the client or agent usually ends the order (§ 1022 ABGB).
- Alexander Neumann: The civil recourse within the framework of Roman contract law: Studies on the formula in factum concepta , Free University of Berlin, dissertation 2010, Nomos, Baden-Baden 2011, ISBN 978-3-8329-6601-0 .
- Franz Schnauder: The right of agency for the sale of capital investments and loan agreement products , Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-152621-3 .
- Staudinger Commentary on the Civil Code with Introductory Act and subsidiary laws . Book 2, Law of Obligations, §§ 662-675b: (order and agency) , author: Julius von Staudinger ; Michael Martinek ; Sebastian Omlor ; Editor / Editor: Volker Rieble , Sellier-de Gruyter, , ISBN 978-3-8059-1231-0 .
- Carl Creifelds , Legal Dictionary , 2000, p. 110
- Otto Palandt / Hartwig Sprau, BGB Commentary , 73rd edition, 2014, introduction before Section 662, marginal no. 2
- Jürgen Plate, The entire exam-relevant civil law , 2005, p. 215
- BGHZ 16, 265 , 266
- Ludovic Beauchet, Histoire du droit privé de la république athénienne , 1897, S. 265 f.
- Plutarch Alkibiades 12
- Horst Buhmann, The Victory in Olympia and in the other Panhellenic Games , 1975, p. 43
- Eduard Platner, The Trial and the Lamentations with the Attics , 1825, p. 378
- Plutarch Alkibiades 12
- Paul in Digest 17, 1, 1, 4: Latin mandatum nisi gratuitum nullum est
- Max Kaser : Handbook of Roman Private Law. Handbook of Classical Studies . Department 10: Ancient Legal History. First section, volume 3.3.1: Ancient Roman, pre-classical and classical law. 1955, 2nd edition 1971 Munich, p. 577. ( online ).
- Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 296.
- Dieter Nörr / Shigeo Nishimura (ed.), Mandatum and Related: Contributions to Roman and Modern Law , 1993, p. 7
- Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 279
- Hans Hermann Seiler , in: Franz Jürgen Säcker / Roland Rixecker / Hartmut Oetker / Bettina Limperg , Munich Commentary on the Civil Code: BGB , § 662, Rn. 16
- Dirk Looschelders : Law of Obligations - Special Part . 8th edition. Vahlen, Munich 2013, ISBN 978-3-8006-5144-3 , Rn. 802, 809 .
- Dirk Looschelders : Law of Obligations - Special Part . 8th edition. Vahlen, Munich 2013, ISBN 978-3-8006-5144-3 , Rn. 817 .
- Dirk Looschelders : Law of Obligations - Special Part . 8th edition. Vahlen, Munich 2013, ISBN 978-3-8006-5144-3 , Rn. 818 .
- Cf. e.g. OLG Schleswig, judgment of March 18, 2014, 3 U 50/13, FamRZ 2014, 1397; Higher Regional Court Brandenburg, judgment of 2.4.2019 - 3 U 39/18
- Kurt Schellhammer, Law of Obligations according to the Basis of Claims: including BGB General Part , 2014, p. 355
- BGH, judgment of October 23, 2008 - VII ZR 64/07
- Hans-Joachim Tiete, Legal Lexicon for Crafts Enterprises , 1983, p. 9
- Wolf Graf Baudissin , Soldat for Peace , 1969, p. 59 f.
- Wolfgang Hromadka / Frank Maschmann, Labor Law: Individual Labor Law , Volume 1, 2018, p. 8
- BAG, judgments of August 30, 1973 and September 28, 1977, AP No. 28, 29 on Section 612 BGB
- Wolfgang Hromadka / Frank Maschmann, Labor Law: Individual Labor Law , Volume 1, 2018, p. 7
- Reinhold Sellien / Helmut Sellien, Gablers Wirtschafts-Lexikon , 1988, Sp. 2463