Messenger (law)
According to the representation theory prevailing in Germany today , a messenger ( Latin nuncio ) is in the legal sense anyone who forwards a declaration of intent from his client to the recipient (declaration messenger ) or who receives a declaration of intent for another person and forwards it to him without being a passive representative (receiving messenger ).
Essence of the messenger
conditions
No requirements are placed on the messenger. In particular, full legal capacity is not required, as the messenger is purely a messenger and does not make his own declaration of intent. The motto here is: "If the child is still so small, it can already be a messenger!"
Examples
A messenger of explanation is, for example, a five-year-old child who is sent by his father to the neighbor to hand in a letter of confirmation to buy a washing machine that the neighbor had offered to the father. Here the child delivers an embodied declaration of intent from the father (acceptance of a purchase contract) and does not make its own declaration of will. It is therefore irrelevant that the child is legally incompetent according to Section 104 No. 1 BGB .
The receptionist is e.g. B. a child living in the household who receives a letter to the father from the postal worker.
Differentiation from representation
The messenger must be distinguished from the representative in that the representative submits his own declaration of intent instead of the person represented (cf. § 164 I BGB ). Since the representative makes his own declaration of intent, he must not be legally incapacitated, because according to § 104 , § 105 I, § 131 I BGB , the declaration of intent of an incapacitated person is always void. However, this does not apply to the messenger, as he only delivers a declaration of intent from his client, as described.
In case of doubt, messenger or representative
Whether an intermediary has made his own declaration of intent (e.g. as part of a deputy) or a third-party declaration of intent is, according to probably h. M. through interpretation ( § 133 , § 157 BGB ) from the perspective of the recipient of the declaration. It is basically irrelevant what was agreed between the declaring person and the intermediary in the internal relationship. It only depends on what the recipient of the declaration was allowed to understand based on the behavior of the intermediary.
Individual evidence
- ↑ Munich Commentary on the Civil Code, Volume 1, 6th edition, 2012 / Schramm , Vor. Section 164 Rn. 67; Mock in JuS 2008, 309, 310.
- ↑ BGHZ 12, 327, 334; 36, 30, 33.
