Continuing obligation

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The continuing obligation is in the law an obligation that on recurring, over a longer period repetitive services and consideration is directed and only once in a contract must be agreed.

General

The term “permanent obligation” is used today in Section 313 (3) sentence 2 of the German Civil Code . For a long time it was only a term in specialist literature , for example with Paul Oertmann in 1910 or with Otto von Gierke in 1914 . The case law of the Reichsgericht (RG) was evidently based on a “permanent contract” in December 1926 or from a “permanent contract” in December 1934. The Federal Court of Justice (BGH) adopted the concept of a permanent obligation for the first time in June 1951, as far as can be seen Expression that an obligation is laid out for a long period of time in which the mutual benefits recur.

content

The long-term obligation is not based on a one-off performance or consideration, as is the case with a purchase or work contract , but rather on continuous action , omission or behavior . Is typical of continuing obligations to be agreed once in a contract of a more or less regularly repeating performance and consideration for content has without being required a further agreement. So one example, contract closed once and then has the regularly repeated and continuous work performance of the employee and as a permanent return, the pay of the employer to the object. According to Section 611a (1) of the German Civil Code ( BGB) , the employee in the service of another person is obliged to perform externally determined work that is bound by instructions , and according to Section 614, Clause 2 of the German Civil Code , the employer must pay the remuneration at the end of the individual time periods. In the literature and jurisprudence, however, the exact delimitation of the continuing obligation has not yet succeeded. To this extent, it is doubted whether a legal institution should (and can) have normative relevance if its individual delimitation has remained vague.

species

According to the agreed period, a distinction is made between fixed-term and open-ended long-term obligations. A fixed-term continuing obligation exists if the contract contains a certain term with a date or is to end when a certain event occurs . In the case of open-ended long-term obligations, no specific term is set; they end with termination.

Furthermore, continuing obligations can be differentiated according to their content (subject matter of the contract):

Examples

The telephone contract establishes a variety of permanently by the telecommunications company to be provided services and their payment by the user . A continuing obligation can be assumed for all banking transactions , because the relationship between the house bank and its bank customer is a long-term business relationship , within the framework of which recurring orders are initiated and corresponding banking services are provided. All insurance contracts are also continuing obligations because a certain risk is to be insured for an unlimited period of time. In November 1953, the Federal Court of Justice (BGH) classified the insurance benefit as “continuous benefit” and the policyholder's obligation to pay premiums as “recurring benefits”.

In company law , the articles of association and the declaration of cease and desist are considered to be a continuing obligation. The installment delivery contract and recurring obligations do not belong to the continuing obligations.

Legal issues

Found on continuing obligations the general rules on obligations application, but are design rights as rescission or cancellation - otherwise on the date of the contract react - replaced the continuing obligation of the termination. However, the termination only ends the continuing obligation for the future.

If both contractual partners perform their main performance obligations , they thereby fulfill their mutual claims and obligations on the basis of the long-term debt contract . These fulfilled main performance obligations come back to life according to the contractual agreements, without the need for a mutual request by the contractual partners. The long-term obligation leads to increased duties of loyalty ( contractual loyalty ) and to mutual consideration . Unlimited long-term obligations can be terminated for the future by ordinary termination , limited ones end by the passage of time. The extraordinary termination serves to terminate a fixed-term long-term obligation before the deadline.

In the case of economic entities that are required to be accounted for, continuing obligations that still exist on the balance sheet date are only to be shown as a pending transaction if there is a claim or liability from non-performance or a provision is to be made. Otherwise, the principle of non-accounting applies.

According to Section 314, Paragraph 1, Sentence 1 of the German Civil Code (BGB), each contractual partner can terminate the contractual relationship for good cause without observing a period of notice . An important reason exists in accordance with Section 314, Paragraph 1, Clause 2 of the German Civil Code if the continuation of the obligation is unreasonable for a part. This is to be assessed taking into account the individual case and after weighing up the interests of both parties. The right of termination for an important reason cannot be effectively excluded on the basis of an individual contractual provision. The termination only ends the long-term obligation for the future; services provided up to the termination are mutually invoiced.

International

In Switzerland and Austria , there is a similar scheme. In Austria, a distinction is made between target obligations (such as the sales contract ) and continuing obligations (such as the beer purchase agreement ). The termination of a continuing obligation is a declaration of intent aimed at the termination of the contract and requiring receipt, which has a direct legal effect. Switzerland recognizes lease contracts (Art. 253 ff. OR ), lease agreements (Art. 275 ff. OR), commercial lending (Art. 305 ff. OR), loan agreements (Art. 312 ff. OR), employment contracts (Art. 312 ff. OR), and employment contracts as long-term obligations. 319 ff. OR), agency contract (Art. 418a ff. OR), deposit agreement (Art. 472 ff. OR), annuity contract (Art. 516 ff. OR) or simple partnership (Art. 520 ff. OR).

The permanent obligation is a legal term in the German-speaking legal area, which is unknown in other countries as a generic term for certain obligations.

literature

  • Eckhard Flohr: Continuing obligations after the law of obligations reform: contract adjustment and contract drafting , ZAP-Verlag for legal and legal practice, 2003, ISBN 3-89655-135-3 .
  • Volker Kitz : The long-term debt in the purchase: Interests and protection of interests under the influence of European private law development , University of Cologne, dissertation 2004 under the title: Kitz, Volker: The purchase contract as a permanent obligation , Nomos, Baden-Baden 2005, ISBN 3-8329-0873- 0 .
  • Angie Schneider: Contract adjustment in the bipolar permanent obligation , habilitation thesis, University of Cologne 2014, Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154067-7 .
  • Walter Doralt: Long-term contracts , 2018, Mohr Siebeck, 2018, ISBN 978-3-16-155618-0 .

Individual evidence

  1. ^ Paul Oertmann : Law of Obligations , 1910, p. 200.
  2. ↑ Otto von Gierke : Lasting Obligations , in: Emil Strohal / Victor Ehrenberg (Hrsg.), Jhering's year books for the dogmatics of civil law, Volume 64, 1914, p. 355 ff.
  3. ^ RG , judgment of December 8, 1926 = RGZ 115, 88
  4. ^ RG, judgment of December 11, 1934 = RGZ 146, 116 f.
  5. ^ BGH , judgment of June 15, 1951, Az .: V ZR 86/50 (Potash Salt Contract) .
  6. ↑ Carl Creifelds : Creifelds Rechtswörtbuch , 2000, p. 297.
  7. ↑ Angie Schneider, contract adjustment in the bipolar long-term obligation , 2016, p. 8.
  8. ^ Walter Doralt: Long-term contracts . Mohr Siebeck, Tübingen, ISBN 3-16-155618-6 , p. 1, 60, 88 (oclc 1042159148 [accessed July 22, 2020]).
  9. ^ Alpmann Brockhaus : Fachlexikon Recht , 2005, p. 331.
  10. ↑ Louis Pahlow , License and License Agreement in the Law of Intellectual Property , 2005, p. 318
  11. ↑ Xuxu He, Control of General Terms and Conditions (AGB) and AGB clause design in banking , 2011, p. 65
  12. ↑ Jürgen Prölss , in: Jürgen Prölss / Anton Martin, Commentary on the Insurance Contract Act ... , 25th edition, 1992, § 1 VVG, note 2
  13. ^ BGH, judgment of November 11, 1953, Az .: II ZR 181/52
  14. ↑ Brigitte Knobbe-Keuk, Accounting and Corporate Tax Law , 1993, p. 253
  15. ↑ Sabine Löw, Realization of profits and accounting for provisions at insurance companies according to HGB and IFRS , 2003, p. 76
  16. ^ OGH, judgment of October 21, 2010, Az .: GZ 2 Ob 117 / 10k