Clausula rebus sic stantibus

from Wikipedia, the free encyclopedia

The clausula rebus sic stantibus (dt. About: determination of the constant circumstances) is a general principle originally derived from Roman law .

The clausula in Roman law and in private law of the Federal Republic of Germany

The contracting parties do not expect any change in the external circumstances that are decisive for the execution of the contract, in particular no fundamental change in the relationship between performance and consideration. This trust in the stability of the business basis in long-term contractual relationships becomes important .

However, the clausula rebus sic stantibus allows contracts to be changed if the decisive circumstances on which the business is based change. The case law assumes this in particular in the cases of compensation pensions and maintenance contracts (here even with reversal of the burden of proof ). Although this contradicts the general legal principle pacta sunt servanda , according to which contracts have to be fulfilled in principle, it is now also permitted in German civil law by the legal institution of disruption of the business basis introduced by the Reichsgericht and Bundesgerichtshof and codified in the law of obligations reform of 2002 in § 313 BGB if, in view of the overall circumstances, it would have been in breach of good faith to continue to attach the contract to the contractual partner for whom the business basis had ceased to exist.

Nevertheless, the clausula rebus sic stantibus in the German Civil Code - unlike since common law - is not a general legal principle today. In a different way, the same Reichsgericht had decided in 1920 in the “steam price case”, according to which every contract was inherent in its nature with a clausula . With the same decision, the RG introduced the category of “discontinuance of the business basis” in German case law. Even the older common law was based on this fact, so that there was no need for a special agreement to cancel the contract if serious changes occurred after the contract was concluded.

The attempt to codify the rule for the first time by the ALR (§§ 377 ff. I 5) was quickly abandoned.

The clausula in public law of the Federal Republic of Germany

In public law, the clausula rebus sic stantibus applies, for example, to state contracts between the federal government and the federal states or between federal states among themselves based on the federal principle. For general administrative law, it is expressed in Section 38 (3), Section 60 VwVfG ( contracts under public law ) and for social law in Section 59 of the Social Code Book X with the adjustment and termination rights standardized there.

The clausula in Swiss law

According to Swiss jurisprudence, the judicial amendment of the contract only has to remove a massive unreasonableness that has arisen, but not to create a full balance.

The clausula in international treaty law

In international treaty law , this formula , which was originally recognized as customary law , was codified in Art. 62 of the Vienna Convention on the Law of Treaties (WÜV) of 1969. A prerequisite for an amendment to the contract is that the contracting parties did not foresee the change that occurred, that it affects circumstances that are essential for the conclusion of the contract and that the scope of the obligations arising from the contract will be significantly redesigned due to the change.

Furthermore, the scope of application is further restricted by Art. 62 Para. 2 WÜV. This states that it is not possible to apply the standard to contracts that set a limit. In addition, the standard is not applicable in cases in which the changes were brought about by the claiming contracting party in violation of international law.

Since its codification, there have been two proceedings before the International Court of Justice in which states invoked the clausula rebus sic stantibus. However, the Court rejected applicability on both occasions.

Even before the codification in the WÜV, Austria revoked the concordat concluded with the Curia in 1855 in response to the results of the First Vatican Council of 1870 (including the proclamation of the Pope's infallibility ), citing the clausula rebus sic stantibus .

Individual evidence

  1. ↑ BGHZ 105, 245.
  2. ↑ BGH NJW 95, 1345.
  3. ↑ BGH VersR 66, 38.
  4. ↑ RGZ 99, 258 (259), judgment of the II. Civil Senate of April 11, 1902, Rep. II 407/01; prevailing opinion .
  5. ↑ RGZ 100, 129 ff., Judgment of September 21, 1920 "Steam price case".
  6. ↑ Klaus Luig : The continuity of general legal principles: The example of the clausula rebus sic stantibus , in: Reinhard Zimmermann ed., Rolf Knütel / Jens Peter Meincke: Rechtsgeschichte und Privatrechtsgeschichte , pp. 171–186 (174).
  7. ^ Otto Palandt : Bürgerliches Gesetzbuch . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , § 242 Rnr. 110.
  8. ↑ BGE 59 II 372.

literature

  • Wilfried Fiedler : On the scope of the clausula rebus sic stantibus in administrative law . In: Verwaltungsarchiv 67 (1976), pp. 125 to 155.
  • Georg Gieg: Clausula rebus sic stantibus and business basis. A contribution to the history of dogma . Aachen 1994, ISBN 3-8265-5005-6 .
  • Ralf Köbler: The "clausula rebus sic stantibus" as a general legal principle , JCB Mohr Siebeck, Tübingen, 1991, ISBN 3-16-145683-1 .