Culpa post contractum finitum

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As culpa post contractum finitum (from Latin culpa = debt, here: fault; post = to; contractum finitum = terminated or processed contract) is a legal figure in general law of obligations that grants a claim to compensation for post-contractual breaches of duty within the framework of an obligation . This constellation is sometimes also referred to as culpa post pactum perfectum or culpa post pactum finitum .

It was originally not expressly standardized by law, but was developed over time by jurisprudence and jurisprudence. Since the modernization of the law of obligations in 2002, however, it can be based on the general offense of breach of duty ( Section 280 (1) BGB ). The starting point is the breach of an ancillary contractual obligation; the breach of a main obligation cannot be considered due to the termination of the contract.

meaning

The culpa post contractum finitum covers breaches of duty or service disruptions that are only re-established after the termination of a contract. In contrast to this, disruptions that occur when the contract is initiated, i.e. before the contract is concluded, are recorded by the so-called culpa in contrahendo . Breaches of duty during the execution of the contract are called positive breaches of contract . Since these subsequent obligations can be assigned to a contractual obligation, their violation is predominantly treated as a bad performance, i.e. equated with a positive breach of claims. According to another opinion, these are criminal offenses, but for practical reasons, in particular the inadequacy of tort law, they are subject to contract law. In the case of (post-) contractual liability, for example, the tort law exculpation option of § 831 BGB does not apply .

Ancillary duties in general

In the context of an obligation relationship, in addition to the actual main (service) obligations (e.g. in the case of a sales contract, the obligation to transfer ownership of the purchased item on the one hand and the obligation to pay the purchase price on the other), there may be a variety of secondary obligations, some of which are also referred to as accompanying obligations. These obligations were previously derived from the principle of good faith and have been expressly standardized in Section 241 (2) BGB since the modernization of the law of obligations that came into force on January 1, 2002 .

The type and scope of the secondary obligations depend on the respective contractual obligation. These are mainly duties of protection or care that are not independently enforceable, but the violation of which can give rise to a claim for damages. The standard example is the seller's duty to properly pack the purchased item before shipping.

In the present context, however, the so-called protective obligations are of particular interest, i.e. the obligation not to damage other legal interests of the contractual partner. The doctrine of these protective obligations goes back to Heinrich Stoll , who first differentiated between performance obligations and protective obligations in 1936. According to his definition, the violation of protective obligations “does not affect the success of the service, but only damages the opponent in his other legal interests.” In this context, one speaks of the protection of the existing status quo instead of the status ad quem that is still to be achieved .

Subsequent Loyalty Duties

Some of these secondary obligations continue to exist even after the contract has ended and are aimed at undertaking or refraining from certain actions after the actual main obligation has been fulfilled.

According to the "theory of the uniform legal protection relationship" founded by Claus-Wilhelm Canaris , all non-legally agreed protection obligations are based on a uniform legal protection relationship that was previously based on the principle of good faith, today on § 241 (2) BGB The start of contract negotiations and can continue beyond the fulfillment stage. According to this view, there is no need to distinguish between pre-contractual, contractual and post-contractual protective obligations, since the protective obligations always retain their legal character and would not "turn" into contractual ones. According to this, there is only one uniform duty of protection, which is by nature a tortious one, which should only end "when the last legal relationship between the parties involved has expired."

In contrast to this "unitary theory", the prevailing view in the literature with the Federal Court of Justice in the context of the "envelope theory" assumes that the legal nature of the protection obligations changes with the conclusion of the contract.

No subsequent contractual obligations in this sense are the so-called continuation of the contract, agreements between the parties for the period after the end of the contract, such as confidentiality obligations, non-competition obligations , or the employer's obligation to give evidence as regulated in Section 630 BGB. It is characteristic of these obligations that they have been expressly agreed.

In contrast to this, the actual subsequent obligations arise from the law or from interpretation. These are mainly obligations to refrain from, notify or provide information. The Reichsgericht had already recognized "that after-effects can also arise in the case of a sales transaction performed by both parties, in particular the obligation of one party to refrain from anything that could endanger or thwart the purpose of the contract." It therefore decided, for example, that a landlord is obliged to put up with the notice of a doctor or lawyer who has moved for a reasonable time after the end of the rental period. Accordingly, in the case of an assignment of claims, the seller of a claim (assignor) is liable to the buyer (assignee) for damages if he still collects the claim despite the sale and the buyer has to accept this against him in accordance with § 407 BGB.

The Federal Court of Justice has expressly subscribed to this case law and has consistently assumed that "after the actual contract execution, within the framework of what is reasonable from the point of view of good faith, certain 'post-contractual' obligations to act or refrain from acting may exist so that the contractual partner is not disproportionate , damage associated with the previous performance of the contract. This includes in particular the prohibition on withdrawing or significantly reducing the benefits granted by the contract to the obligee, and the obligation to refrain from anything that could endanger or thwart the purpose of the contract. "

From this point of view, a seller of technical products should also be obliged to ensure the supply of spare parts for his customers for a “reasonable period of time”, with adequacy resulting from the normal service life of the product.

Another expression of the post-contractual fiduciary duty is not to overburden the respective contract partner with obviously unfounded claims. If this obligation is violated, the opponent can be entitled to a claim for damages with regard to the legal costs incurred in defending the claim out of court. This applies, for example, to the reclamation of payments made in response to requests for a rent increase after termination of the rental agreement if the tenant had expressly consented to the increase. As part of a donation agreement , the return of the donation with the (untrue) reasoning that it was a loan can constitute a post-contractual breach of duty.

In both case constellations, fault is to be affirmed if the asserted claim obviously does not exist by law and the alleged creditor has not recognized this, at least negligently, whereby he is the fault of his lawyer according to § 278 BGB must be attributed.

In the case of a contract with suspensive conditions ( Section 158 (1) BGB), these obligations should, in the opinion of the BGH, continue to exist even if the condition does not occur, because it is recognized that even conditional contractual relationships during the pending condition prior to the occurrence of the condition, mutual fiduciary obligations, the violation of which a claim for damages can justify positive breach of contract. If, however, the conclusion of a contract subject to the condition precedent creates bonds before the condition occurs, which obliges both parties to behave in accordance with the contract during the suspension and to ensure that the interests of the other party are taken into account, even if only consistently from the end of the limbo to apply those principles that would otherwise have been established for the period after the execution or after the failure of a contract and which could also lead to an obligation to pay compensation.

Legal consequences

If the debtor culpably breaches such a subsequent obligation and the obligee suffers damage as a result, the debtor is also obliged to compensate the obligee for this damage, as in the case of the violation of an ancillary obligation in the context of the implementation of the contract. There is a claim for damages based on Section 280 (1) BGB. In addition, however, a withdrawal from the contract in accordance with Section 323 of the German Civil Code (BGB) is also possible if the originally owed performance has been thwarted. In the event of violations of non-compete obligations, contractual compensation claims should also be forfeited.

Others

literature

Individual evidence

  1. ↑ Harm Peter Westermann , Peter Bydlinski , Ralph Weber : BGB-Schuldrecht, general part (= focal points. A systematic presentation of the most important areas of law using cases. Vol. 6). 6th, revised edition. CF Müller, Heidelberg 2007, ISBN 978-3-8114-8014-8 , Rn. 2/27.
  2. ^ Wolfgang Fikentscher , Andreas Heinemann : law of obligations. 10th, completely revised edition. de Gruyter, Berlin 2006, ISBN 3-89949-148-3 , Rn. 1546 f.
  3. ^ Heinrich Stoll : The doctrine of the performance disturbances. Memorandum of the Committee on Personal, Association and Obligations Law. Mohr, Tübingen 1936, p. 27.
  4. ^ Ernst Kramer in: Franz Jürgen Säcker , Roland Rixecker (Ed.): Munich Commentary on the Civil Code. Volume 2: Wolfgang Krüger (Red.): Law of Obligations, General Part §§ 241–432. 5th edition. Beck, Munich 2007, ISBN 978-3-406-54842-0 , Rn 80.
  5. ^ Ernst Kramer in: Franz Jürgen Säcker, Roland Rixecker (Ed.): Munich Commentary on the Civil Code. Volume 2: Wolfgang Krüger (Red.): Law of Obligations, General Part §§ 241–432. 5th edition. Beck, Munich 2007, ISBN 978-3-406-54842-0 , Rn 83.
  6. ↑ Claus-Wilhelm Canaris : Claims due to “positive breach of contract” and “protective effect for third parties” in void contracts. In: JuristenZeitung . Vol. 20, 1965, pp. 475-481, here p. 479.
  7. ↑ Marina Frost : “Pre-contractual” and “contractual” protection obligations (= writings on civil law. Vol. 63). Duncker & Humblot, Berlin 1981, ISBN 3-428-04820-2 , p. 221 (also: Kiel, Universität, Dissertation, 1980).
  8. ^ BGH, judgment of January 21, 1975, VIII ZR 101/73, NJW 1975, 642.
  9. ↑ Marc-Philippe Weller : The contractual loyalty. Contract binding - principle of performance in kind - loyalty to performance (= Jus privatum. Contributions to private law. Vol. 142). Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-149683-7 , p. 210 f. (At the same time: Cologne, University, habilitation paper, 2007/2008).
  10. ↑ Christian Grüneberg in: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch (= Beck'sche KurzComments. Vol. 7). 70th, revised edition. Beck, Munich 2011, ISBN 978-3-406-61000-4 , § 241, Rn 7.
  11. ↑ Marina Tamm in: Klaus Tonner, Armin Willingmann , Klaus Tonner (eds.): Contract law. Comment. Luchterhand, Cologne 2011, ISBN 978-3-472-07569-1 , § 241, marginal number 25.
  12. ^ Wolfgang Ernst in: Franz Jürgen Säcker, Roland Rixecker (Ed.): Munich Commentary on the Civil Code. Volume 2: Wolfgang Krüger (Red.): Law of Obligations, General Part §§ 241–432. 5th edition. Beck, Munich 2007, ISBN 978-3-406-54842-0 , § 280, Rn. 109 f.
  13. ↑ RGZ 161, 330, 338.
  14. ↑ RGZ 111, 298, 303.
  15. ↑ BGH, judgment of May 28, 1952, II ZR 253/51, NJW 1952, 867-867.
  16. ↑ BGH, judgment of October 24, 1989, XI ZR 8/89, NJW-RR 1990, 141–142.
  17. ↑ Ludwig-Philipp Kühne: The post-contractual spare parts delivery. In: Operations consultant. Vol. 41, No. 23, ISSN  0340-7918 , 1986, pp. 1527-1530.
  18. ^ LG Stendal, judgment of October 12, 2006, 22 S 86/06, MDR 2007, 389–390.
  19. ↑ BGH, judgment of December 12, 2006, VI ZR 224/05, NJW 2007, 1458-1460.
  20. ↑ BGH, judgment of March 14, 1984, VIII ZR 284/82, NJW 1984, 2034-2036.
  21. ↑ BGH, judgment of September 29, 1989, V ZR 198/87, NJW 1990, 507-508.
  22. ↑ Christian Grüneberg in: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch (= Beck'sche KurzComments. Vol. 7). 70th, revised edition. Beck, Munich 2011, ISBN 978-3-406-61000-4 , § 241, Rn 7.
  23. ↑ Marina Tamm in: Klaus Tonner, Armin Willingmann, Klaus Tonner (eds.): Contract law. Comment. Luchterhand, Cologne 2011, ISBN 978-3-472-07569-1 , § 280, Rn. 7th
  24. ^ Wolfgang Ernst in: Franz Jürgen Säcker, Roland Rixecker (Ed.): Munich Commentary on the Civil Code. Volume 2: Wolfgang Krüger (Red.): Law of Obligations, General Part §§ 241–432. 5th edition. Beck, Munich 2007, ISBN 978-3-406-54842-0 , Rn. 121.
  25. ^ BGH, judgment of February 11, 1960, II ZR 51/58, NJW 1960, 718–720.