Objection of the unfulfilled contract
The plea of non-performance ( exceptio non adimpleti contractus ) is the German law of obligations a plea by which a not even perform in advance requiring a party to a mutual agreement its duty performance until full and proper consideration may refuse.
General
In section 320 (1) sentence 1 BGB , this objection is designed as a special form of the right of retention from section 273 (1) BGB. Unlike this, however, it is an expression of the existing functional synallagma of mutual contracts. In this respect, an objection is understood here as the right to refuse to fulfill a claim in whole or in part. As long as the debtor who is obliged to perform in advance has not fulfilled the performance incumbent on him, his contractual partner is entitled to the objection of the non- fulfilled contract from the due date of his own performance. The contractual partner can invoke his right to refuse performance if the consideration due has not been rendered, has not been rendered in full or has not been properly rendered.
Affected contract types
The contracting parties of apartment tenants ( Section 556b (1) BGB), land or ship rental companies ( Section 579 (1) BGB), landlords ( Section 587 (1) BGB), employees and persons obliged to serve ( Section 614 BGB ) can withdraw from the objection of the non-fulfilled contract ), Contractors ( § 641 BGB) and custodians for payment ( § 699 BGB).
For example, in the case of a work contract, the contractor has to pay in advance, since the due date of the remuneration of the work contract only occurs with the acceptance of the commissioned work ( § 640 , § 641 BGB). With this, the entrepreneur makes advance payments with the creation of the work, unless otherwise agreed. The regulation of § 16 VOB / B is also based on the contractor's obligation to perform in advance for work contracts. As a result, the contractor's customer may withhold payment with the objection of the non-fulfilled contract until the work has been properly accepted.
Purpose and legal consequences
On the one hand, the objection is intended to exert pressure on the debtor who is obliged to perform in advance so that he also performs his performance first, and on the other hand, it gives the other contracting party security. Because this means of pressure also prevents the other contracting party from having to bear the risk of the debtor's potential incapacity or the risk of a defective delivery . As long as the right of retention exists in the context of the objection, the non-performance of the other contracting party does not constitute a breach of duty and does not result in default of the debtor . The debtor who is obliged to perform in advance is also not entitled to a security deposit (e.g. according to Section 273 (3) BGB) against his contractual partner (Section 320 (1) sentence 3 BGB). The defense prevents the intermediate consumption requiring borrowers because effectively an extension of § 439 to put the Civil Code, the contract withdraw , damages for non-performance or to demand to cancel .
Individual evidence
- ↑ Dirk Looschelders, Law of Obligations. General part , Cologne: Carl Heymanns, 2009, Rn. 348, ISBN 978-3-452-27138-9 .
- ↑ Richard Riedl / Martin Rusam / Johann Kuffer, Handkommentar zur VOB , 2008, p. 1322.
- ↑ Ulrich Huber : Performance Disorders , 1999, p. 307.
- ↑ Ulrich Huber, Performance Disorders , 1999, p. 315.
