Remuneration
The term fee (n .; plural fees ) refers to the consideration agreed in a contract . A paid contract is therefore in particular a mutual contract in which performance and consideration are in a reciprocal relationship ( synallagma ). The bond can also be established in other ways, for example by agreeing a condition . The concept of remuneration is thus broader than that of reciprocity.
In contrast, the contract is free of charge if no consideration has been agreed.
Colloquially, remuneration is often understood to mean wages , i.e. the remuneration that has been agreed for a job. Colloquially, but also in price lists and general terms and conditions , the term fee is incorrectly used for fees that are levied for private-sector services (example: " bank fees " or "registration fee"), which in certain cases can constitute an infringement of competition law. See also: nominal fee , fee .
Pay and money
Services are “paid for” or “paid for” with something in return, but this initially has nothing to do with a cash payment, which is why the often found spelling “ fee” is wrong. Conversely, free does not mean free of charge.
Often, however, the remuneration actually consists of a cash benefit. But also the exchange (for example postage stamps for postage stamps) is a legal transaction against payment: Each exchange object is given for the other's sake. The guarantee, on the other hand, in which money typically has to be paid, does not have any consideration and is therefore just as free of charge as the donation itself of a sum of money.
Performance and consideration
Claim for payment (which is mentioned, for example, in Germany in Section 286 (3) sentence 1 and Section 288 (2) BGB ) is therefore not synonymous with “monetary claim”, even if it is a specific case. Rather, it is a claim that was promised in return for a service. Therefore, for example, the lender's repayment claim, although it is a monetary claim, does not fall under the increased interest on arrears under Section 288 (2) of the German Civil Code: The return is not payment for giving up the loan. Likewise, claims for damages , contractual penalties and claims for enrichment are excluded.
The terminology is no longer strictly adhered to in the case of more recent legislative changes, particularly those influenced by European law; for example, the (unilaterally binding) guarantee should also be “paid” within the meaning of § 312 BGB.
Depending on the type of contract (which is determined by the type of service) is referred to, for example, pay (of employment ); Instead of “work remuneration”, on the other hand, one speaks more of “ work wages ”, instead of “rent” of “rent” or, since the modernization of the law of obligations, of “ rent ”.
Which of the two promises is called performance and which is called consideration is in a way interchangeable. Basically, what is called a service is what gives the contract its typical character: for example the provision of services in a service contract , the production of a work in a service contract and so on. Nevertheless, the consideration can also be a performance within the meaning of the legal regulations.
Fee in sales tax law
In sales tax law, the remuneration is the performance of the recipient of the service without sales tax , which the supplier receives as part of the exchange of services. This means that the sales tax fee is not to be equated with the terms price and fee under private law (see, for example, for Germany Section 10 Paragraph 1 Sentence 2 UStG , Section 1 Paragraph 1 No. 1 Sentence 1 UStG).
Legal transactions free of charge
By definition, free legal shops are in German law, for example, the order (as opposed to remunerated management contract ), the lending (otherwise it is called rent ), the donation (otherwise buy ) and the guarantee . The correct terminology is usually not used colloquially.
Even the brokerage contract is free in the strict sense: the broker is not obliged to act according to the (mostly contractually waived) legal model of the BGB, the services are therefore at no time in a reciprocal relationship.
The BGB distrusts legal transactions that are free of charge. Since the person who promises a service will not receive any consideration , he must be protected against hasty conclusion of the contract (see the formal requirement of § 518 BGB for donations). On the other hand, those who have received a service free of charge are less worthy of protection (cf. § 528 BGB, § 816 para. 1 sentence 2 BGB, § 822 BGB).
See also
Web links
Individual evidence
- ^ Palandt - Heinrichs . 64th edition. 2005, trans. v. § 311, Rn. 8th.
- ↑ a b Palandt- Weidenkaff . 64th edition. 2005, § 516, Rn. 8th.
- ↑ Regional Court Wiesbaden judgment of December 19, 2014 - Az .: 13 O 38/14
- ↑ Palandt- Heinrichs . 64th edition. 2005, § 288, Rn. 8th.
- ↑ Palandt- Heinrichs . 64th edition. 2005, § 286, Rn. 27.
- ↑ Palandt- Heinrichs . 64th edition. 2005, § 312, Rn. 7 f.
