Some legal transactions do not take effect immediately according to the will of the parties involved, but only when a future event clearly described here, the occurrence of which is uncertain, actually occurs. Uncertainty here is the lack of knowledge about the future development of an environmental condition . If the event occurs, the contract takes effect automatically; if it does not occur, the contract is deemed not to have been concluded. This means that the effectiveness of contracts can be made dependent on future developments, i.e. the legal situation can be adapted to the not yet foreseeable future. The possibility of introducing such conditions into contracts is the result of the general freedom of contract .
Contractual conditions such as general terms and conditions , general contract conditions , delivery or payment conditions are not conditions in the legal sense, but components of a contract that regulate a specific situation or the rights and obligations of the contractual partners. Conditions are also not conditions, but often price-relevant provisions that form the content of the contract (such as credit conditions ).
Even early Roman law knew the condition ( Latin conditio ) in the form of the suspensive condition. With the exception of certain anti-conditional legal acts ( Latin actus legitimi ) it was available for all kinds of business.
The document book of Arnstadt evidently mentioned the legal condition in Germany for the first time in 1302. With the meaning of "restriction" it appeared for the first time in 1505 in Kassel . The General Prussian Land Law (APL) of June 1794 already contained today's essential features of the condition: "As far as someone can dispose of a thing, he can also add conditions to his declaration of intent" (APL I 4, § 99). Johann August von Hellfeld defined more precisely in 1798: One condition is the “provision below that is attached to a declaration of intent, whereby the resulting right is made dependent on an event which should or should not occur”. Bernhard Windscheid wrote the first monograph on the condition in 1851, the content of which was adopted by the BGB, which came into force in January 1900. Otto Heinrich Wendt published a textbook in 1872 in which he did not consider conditions to be permissible everywhere.
In civil law, a condition is a provision inserted into a transaction through the will of the parties , which makes the legal effects of the transaction dependent on an uncertain future event. In German civil law, the condition is regulated in BGB .
The dissolving (or also resolutive ) condition determines a condition at the occurrence of which a legal relationship should end , for example: “The license agreement ends as soon as the last of the licensed patents expires.” The dissolving condition is regulated in Section 158 (2) BGB.
With a subsequent condition, a contract can be concluded for a period of time, for example, if the end time is linked to a future, but uncertain event; For example, the employment contract with an expensive professional footballer could be terminated in the event that the club were relegated to the second division (if the club fears that it will no longer be able to raise the salary).
A suspensive (or suspensive ) condition is a condition which, upon occurrence, should make a legal relationship effective . In German law, the condition precedent is regulated in Section 158 (1) BGB. The legal transaction is pending ineffective until the condition occurs . Are the capacity , power of disposal or the acquisition by virtue of estoppel, controversial, always depends on the time of making of the transaction. A legal incapacity, restriction of disposal or lack of good faith occurring after the legal transaction has been carried out, but before the condition occurs, is therefore irrelevant.
A well-known example is the retention of title , which is often included in general terms and conditions. The transfer of ownership of the purchased item is subject to the payment of the purchase price . Only when the buyer has paid the purchase price does he become the owner of the purchased item. Until then, the seller remains the owner. This condition precedent creates an expectant right of the buyer to the purchased item.
A distinction is to be made between the legally agreed conditions and the unreal conditions that are not covered by §ff. BGB. These include:
- The pseudo condition (or present condition; Latin condicio in praesens vel praeteritum collata or relata ) is based on a past or present condition that is not yet known to the parties involved in a legal transaction; it is not a requirement. For example, the phrase “if the civil marriage took place yesterday” is a sham condition because this event is related to the past and is therefore no longer objectively uncertain.
- The legal condition ( Latin condicio iuris ) is the prerequisite for effectiveness that is peculiar to a business from the start. It merely repeats legal requirements in the form of a condition ("if the supervisory court approves the partnership agreement with the minor ") and is harmless. It is not a real condition either. This also includes conditions in which the occurrence depends on a legal question (e.g. ordinary termination in the event of the ineffectiveness of an extraordinary termination , approval by a third party ( (2) BGB) or by an authority ).
- Internal procedural conditions , the occurrence of which is decided by the judging court in the course of the proceedings (e.g. contingent contestation, contingent offsetting) and
- Willing conditions (so-called potestative conditions ), the occurrence or non-occurrence of which depends solely on the will of the recipient of the declaration or is in his power ( Latin potestas ).
- A change notice (cf. KSchG ) by the employer is issued in the event that the employee does not agree to a change in the contract. Whether the legal consequence of the notice of termination occurs depends solely on the will of the employee.
- Potestive conditions are generally permissible, but can be immoral in individual cases ( (1) BGB) if they interfere with the core area of a person's freedom of choice , in particular with highly personal decisions. This is z. B. accepted if a promise of donation is made on the condition that the other person change confession or divorce his wife. A willing condition can only be accepted in exceptional cases (e.g. also when a purchase or repurchase right is granted ).
If the future event occurs at a certain point in time (such as a certain date) or an uncertain point in time (such as the death of a person), the time has been determined .
Principle of hostility to conditions
The term hostility to conditions is understood to mean the legal prohibition to conclude certain legal transactions under one condition. The occurrence of the success intended with the legal transaction must therefore not be dependent on factors that lie outside the legal transaction and that are future and uncertain.
In principle, legal transactions are conditional. The following examples are exceptions; these are usually also anti-temporary :
- By virtue of express legal regulation, e.g. B.
- Offsetting , S. 2 BGB
Conveyance , Abs. 2 BGB
- Appointment and transfer of an inheritance right , Paragraph 4, Paragraph 1 Hereditary Building Ordinance
- Establishment and cancellation of residential property, Paragraph 2 Sentence 2 WEG
- Marriage , BGB
- Acknowledgment of paternity , Abs. 3 BGB
- custody , (1) BGB
- Acceptance and rejection of inheritance or legacy, , Paragraph 2 Sentence 2 BGB
- Decision on the acceptance of the office as executor of the will, Abs. 2 S. 2 BGB
- Granting of a power of attorney, Abs. 2 HGB
- Conditions for an endorsement of a bill of exchange , para. 1 sentence 2 Bill of Exchange Act
- Due to the nature of the matter in the case of structuring transactions , since the recipient of the declaration cannot be expected to be uncertain (the pending state that exists in the case of unilateral structuring rights - and is legally uncertain for the recipient - should be ended by exercising the structuring right and not replaced by another pending state) B.
An exception is made for the design rights if the recipient of the declaration alone can bring about the occurrence of the conditions, because then there is no uncertainty. This is u. a. the case with the potential condition or the change notice (a change notice is not possible, however, with residential rental agreements, BGB). Internal procedural and legal conditions are also excluded from the hostility to conditions.
In particular, employment contracts can only be limited in time in accordance with the law on part-time work and fixed-term employment contracts . For apartment rental agreements, the provisions of (2) and German Civil Code limit the possibilities for conditions and time limits .
In administrative law, the condition is an integrative ancillary provision to an administrative act ( (2) No. 2 VwVfG ). The civil law term of condition is adopted here. The administrative act only takes effect when the condition occurs ( suspensive effect ) or loses its effectiveness when the condition occurs ( dissolving effect ). The effect begins or ends with the future event; the law speaks paraphrasingly of “the entry or elimination of a benefit or a charge”. A typical example is the precautionary call (administrative act) for the future case of defense - not yet available at the time of the call and therefore uncertain . In the judgment which placed the Federal Administrative Court (Federal Administrative Court) clear that the draft notice , although already at the time of its delivery (became effective external effectiveness ; 1, sentence the Administrative Procedure Act.); the internal effectiveness (i.e. the legal effects pronounced by him) for ordered military exercises ( (6 ) WPflG ) and for unlimited military service in the event of a defense ( (1) No. 7 WPflG) should, however, only come into effect if necessary. This is because Section 36 (2) No. 2 VwVfG allows the occurrence of a burden to be made dependent on the uncertain occurrence of a future event by means of ancillary provisions at the discretion of the law.
The event can also consist in the behavior of the addressee of the administrative act ( potential condition ). In contrast to the condition ( (2) No. 4 VwVfG), the occurrence of a condition cannot be enforced by means of administrative enforcement law.
- A business license may only be used if a specific qualification has been proven (potential condition), such as the license from KWG .
- A company's license to manufacture war weapons expires if no sufficiently qualified person is employed in accordance with the requirements of the law (condition subsequent).
The suspensive effect concerns areas of law in which legal remedies are still permissible against court rulings or administrative acts . Their legal force is postponed until the legal process has been exhausted , which is equivalent to a condition precedent from a material and legal point of view. This suspensive effect means that the decision does not become legally effective before the appeal has been finally decided. This applies above all to the Execution Law , Criminal Procedure Law , Administrative Procedure Law and the Administrative Procedure to.
The Austrian law equivalent to the German law. According to Austrian Civil Code , the condition is “an uncertain event on which a right is made dependent.” The condition “is suspensive if the intended right only becomes effective after its fulfillment, and dissolving if the intended right is lost when it occurs . “Incomprehensible, indefinite as well as illegal or immoral conditions are ineffective according to ABGB.
In Switzerland , too , we know the suspensive condition ( OR ), under which the contract only becomes effective when the still uncertain event occurs, as well as the dissolving condition ( OR), the fulfillment of which causes the condition that occurred immediately upon conclusion of the contract Effect of the contract is subsequently canceled. If a condition is added with the intention of promoting an illegal or immoral act or omission, the conditional claim is void ( OR). A distinction is also made between positive and negative conditions according to the type of event. The positive (also affirmative) condition is realized (and the conditional legal consequence is triggered) when a certain event occurs, while the negative condition is realized when there are no events. In addition, a distinction is made between potential (arbitrary) and casual (accidental) conditions, depending on whether the occurrence of the condition can be influenced by one of the parties or not. If it comes down to a mere declaration of will, one speaks of a so-called condition of willing.
The French Civil Code (CC) knows in Art. 1304 CC the suspensive condition ( French condition suspensive ) if the obligation becomes unconditional upon its occurrence, and the dissolving condition ( French condition résolutoire ) if its occurrence causes the obligation to expire .
- Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 158 Rn. 3
- enumerated in the Digest of Papinian , L. 77 de Regulis Juris 50, 17, 77; among other mancipatio , acceptilatio , marriage , inheritance departure , appointment of a guardian , option of a slave : Latin qui non recipiunt serves vel condicionem
- Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 138
- Eberhard von Künßberg / Richard Schröder, German Legal Dictionary , Volume I, 1914–1932, Col. 1358
- Adolf Stölzel , History Book of the City of Cassel 1505-1506 , 1913, p. 38
- Samuel Gottfried Liekefett, Practical Commentary on the Pandects according to the textbook of Mr. Johann August von Hellfeld , Volume 6, 1798, p. 46
- Bernhard Windscheid, The effect of the fulfilled condition , 1851, p. 1 ff.
- Otto Heinrich Wendt, The Doctrine of Conditional Legal Transactions , 1872, p. 164 ff
- Helmut Rüßmann: " Conditions and Limitations " , accessed on December 29, 2011.
- Hans-Uwe Erichsen / Dirk Ehlers (eds.), General Administrative Law , 2006, p. 645 ff.
- BVerwGE 57, 69 , 70