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In jurisprudence, agreement ( Latin consensus ) denotes the agreement of the content of at least two related declarations of intent . Even colloquially , this is understood to mean at least two consistent explanations or statements .


In everyday life, a legally relevant, legally relevant agreement is required on a wide variety of occasions. This assumes that at least two legal entities meet and exchange legal declarations of intent that must be related to each other. These declarations of intent must ultimately also agree in terms of content, i.e. be congruent and form a consensus . If contracting parties pursue opposite contractual objectives (the seller wants to sell something, the buyer wants to buy something), the declarations of intent must be mirror images of the same. You have to reach mutual agreement on the desired legal consequences. A contract is only concluded by agreement when the contracting parties have agreed on all points that even one of them wants to be regulated. A single controversial or unregulated secondary point causes a contract to fail (see punctuation ).

Agreement in the law of obligations and property law

Agreement in the law of obligations

In the law of obligations , the agreement is usually the only requirement for a contract (for example in the case of a purchase contract or assignment ). The contract under the law of obligations is therefore nothing more than a voluntary agreement.

In German law, Section 311 (1) BGB is the central provision for the creation of an obligation based on a contractual agreement. Since a contractual relationship not only creates rights, but each of the contracting parties also has to assume obligations, they usually have to express their consent to this contract with their express legal will. However, an agreement does not always have to be express. If there are no special legal regulations, the agreement can also be reached through coherent action , for example if the buyer points to a product without a word and the seller hands it over to him . Such an implied agreement exists whenever one of the contracting parties aims to achieve a certain result with its performance , the other party recognizes this and, by accepting the performance, indicates that the intended purpose is approved.

Agreement in property law

In property and intellectual property law , in addition to the agreement, an announcement of the legal change (according to the principle of publicity ) is regularly required for a contract , for example when transferring ownership by handing over or transferring the patent by changing the patent register ( Section 30 Para. 3 PatG). Such agreements are also referred to as agreements in rem because they are aimed at disposals of rights to objects .

Lack of clarity

If the explanations on which an agreement is based are not clear, they must be interpreted . Explanations are open to interpretation if they are ambiguous and need to be interpreted if the declaring parties claim different understandings for themselves. Interpretation should determine the meaning and content of explanations and explore what is really wanted. The goal of both agreements, such as the desired contract, is important for this.

Lack of agreement

If the related declarations of intent do not match or if not all points of a contract are conclusively regulated, there is a lack of agreement . This includes open ( § 154 BGB) and hidden dissent ( § 155 BGB). As for the agreement underlying declarations capacity of the declarant is required, there are also several ineffectiveness reasons . A declaration of intent and thus an agreement can be null and void due to legal incapacity§ 104 ff. BGB), lack of form ( § 125 BGB), violation of a legal prohibition ( § 134 BGB), immorality ( § 138 paragraph 1 BGB), usury ( Section 138 (2) BGB), contestation ( Section 142 (1) BGB) or (partial) ineffectiveness of terms and conditions ( Section 305 ff. BGB).

Transition to an agreement in rem

Agreements under the law of obligations are often aimed at legal consequences under property law, but cannot bring about the change in the law in rem. In the case of the purchase contract, the seller and the buyer agree on a purchase item and a purchase price and undertake in the obligation transaction to transfer and hand over the goods ( Section 433 (1) BGB), to pay the purchase price and to accept the goods (Section 433 (1)). 2 BGB). The fulfillment is done because of the separation principle by separate fulfillment of transactions in which the seller's goods via suitable and accepts the purchase price and the buyer transfers the purchase price and accept the goods. This transfer of ownership of the goods and the purchase price according to § 929 BGB requires, in addition to the handover, a real agreement . In the case of real estate , this agreement in rem is called abandonment . The legal terminology speaks of an agreement instead of a contract (e.g. § 873 BGB) and thus makes it clear that the agreement of the declarations of intent aimed at a change in the law in rem is a special kind of "unity".

Individual evidence

  1. a b Kurt Schellhammer, Law of Obligations according to Claim Basis , 2011, p. 1059
  2. ^ A b Jacob Joussen, Law of Obligations I, General Part , Volume 1, 2008, p. 20.
  3. BGHZ 44, 321, 323.
  4. ^ Karl Heinz Schwab / Hanns Prütting, Property Law , 23rd edition, 1991, p. 13.