Toleration (law)

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In civil and criminal law, the tolerance means any failure to object or resistance , which leads to the complete acceptance of other people's actions .


In jurisprudence there is a dispute about how tolerance and omission are related to one another. The prevailing opinion is based on different conceptual contents . While the omission is usually exhausted in inaction, the toleration (the toleration) is a special inaction, which is characterized by absolute passivity towards such foreign actions, against which resistance is obvious. When tolerating someone has to "put up with everything". Toleration and omission differ is whether the obligation of the debtor in connection with an authorization of the creditor is to act or not. Toleration is a non-hindrance to the performance of a third-party act, which can also consist in accepting an interference in one's own legal sphere . Tolerance is an "omission of contradiction or counteraction" and is characterized by the acceptance of foreign activity . The Palandt sees in the toleration a special form of the omission, which consists in the complete renunciation of defensive and counter-rights otherwise due.

Duty to tolerate

According to the tolerance theory, all rights of use require the use by the authorized user to be tolerated. The tolerance theory is based on the indivisibility of property , so that the rights of use are always in conflict with the owner's right of disposal. In order to defuse this conflict, the owner's obligation to tolerate arose.

A civil law obligation to tolerate is that a legal subject may be legally obliged to accept certain third-party activities. Obligations to tolerate play a role above all where someone contractually leaves the use of a thing or a right to others, but continues to bear the financial risk themselves. According to § 555a BGB, the tenant has to tolerate all measures that are necessary for the maintenance or repair of the rented property, which according to § 555d BGB also applies to modernization measures . A similar regulation can be found in § 588 BGB for the tenant . In the case of a superstructure beyond the property boundary , the neighbor must tolerate the superstructure in accordance with Section 912 (1) BGB, unless he has raised an objection before or immediately after crossing the border. The Notwegerecht sees in § 917 before BGB that the neighbors to resolve the lack of connection to a public way the use of their land have to tolerate to produce the required compound.

In the case of all continuing obligations such as rent , loan , lease or leasing , the owner expressly allows the owner (tenant, borrower, leaseholder or lessee) to use the object and must therefore tolerate use by the owner in accordance with the contract. Any other use is a misappropriation which, for example, the landlord does not have to tolerate and, if necessary, may not tolerate it according to legal regulations (prohibition of misappropriation). This also applies to easements ( usufruct , limited personal easement and easement ), which are connected with a right of use , so that the owner burdened with them is toleration or omission (§ § 1018 , § 1030 , § 1044 and § 1090 BGB), especially with rights of way . Pursuant to Section 93 of the Water Resources Act, the competent authority can oblige the owners and beneficiaries of land and surface waters to tolerate the passage of water and wastewater as well as the construction and maintenance of the associated facilities. Similar regulations exist for other line rights .

Toleration in criminal law

The criminal law draws a clear distinction between action, toleration or omission. Thus the fact of coercion according to § 240 Abs. 1 StGB includes the threat of a sensitive evil in order to force someone to act, tolerate or omit. The same applies to extortion ( Section 253 StGB). The genesis of § 255 StGB indicates that the word “Duldung” in §§ 240, 253 StGB should describe the effect of will-breaking violence ( Latin vis absoluta ). Although § 255 StGB does not contain the word “tolerance”, it is about the forced tolerance of the removal of things in the context of predatory blackmail .

Individual evidence

  1. Jörg Fritzsche, injunction and injunction , 2000, p. 14
  2. Jörg Fritzsche, injunction and injunction , 2000, p. 13
  3. Albrecht Randelzhofer / George F. Ray / Dieter Wilke, Duldung as a form of flexible administrative action , 1981, p. 34
  4. Christian Grüneberg, in: Otto Palandt , BGB Commentary , 73rd edition, 2014, § 241 Rn. 4th
  5. Henrik Pferdehirt / Mark Pferdehirt, The leasing accounting according to IFRS , 2007, p. 38
  6. Jörg Fritzsche, injunction and injunction , 2000, p. 13
  7. RGSt 4, 429, 431