Declaration

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In the German General Law of Obligations, the term de- concretization describes the process in which a concretization that has occurred once is reversed. The possibility of such a breach of the binding effect of the concretization is affirmed by parts of the legal literature, but rejected by the case law.

Concept and start of the concretization

The term describes the concrete legal process, a in the debt ratio only to a particular thing is limited, although initially only one of the genus was due under certain thing. In German civil law, it can be specified in accordance with Section 243 (2) of the German Civil Code (BGB) or, in the case of default in acceptance (= creditor's default ), as a so-called quasi-specification according to Section 300 (2) of the BGB.

In the legal literature, this process is often referred to as the conversion of a generic into a piece debt and is of great importance in the law of impossibility . If something that has already been (effectively) specified is lost, impossibility occurs in accordance with Section 275 (1) BGB. This has the consequence that the primary claim of the obligee against the debtor for the performance of the originally owed item is lost and the obligee can no longer demand the performance of another similar item. There is thus the prevailing opinion, no Nachlieferungsanspruch at demise of the matter.

The basic prerequisite for the limitation of a generic debt to a piece debt - therefore for the occurrence of concretization - is that a debtor selects a thing of medium type and quality for the fulfillment of the contractual obligation and, in addition, "what is necessary for the performance" according to § 243 para 2 BGB has done. If, on the other hand, a debtor performs a defective item (and thus one that is fundamentally unfit for performance in the sense of Sections 362 et seq. BGB), the wording of Section 243 (2) BGB precludes the occurrence of concretization. In this case, what remains owed is an item that is only of the same type, so that the debtor remains obliged to perform another item of the same type to the obligee. The other prerequisites that have to be placed on "what is required for the performance" are directly linked to the performance action owed. In the individual case, the content of the performance depends on the type of debt agreed in the specific contractual relationship ( debt to collect , debt to deliver , debt to send ).

The binding effect of concretization

If it has become more specific and the obligation is thus limited to a certain thing, the follow-up question arises as to whether the debtor can still legally undo a specification that has taken place in a legally permissible manner. The following example illustrates the problem:

K ordered a computer from V. Both agree that V should bring the device to K's apartment and install it there. When V arrives at his apartment on the agreed delivery date with the computer selected for K, he does not find it. V therefore decides to deliver the computer to another customer (D) who lives “on the way” and has ordered the same model.

In the above case, V and K expressly agree on an obligation to deliver. The place of performance and the place of success therefore coincide at the seat of the obligee (here: K). The required act of performance of the debtor therefore consists in the handover or in the actual offer of the owed item in a manner justifying default in acceptance at the seat of the obligee. If in the above case no mere temporary prevention of acceptance in accordance with Section 299 of the German Civil Code (BGB) is to be assumed, it will become more specific at the moment when K is in default of acceptance.

The main problem in the example is whether V has canceled the specifics that had occurred or could have permissibly canceled the fact that he took the computer with him again and subsequently delivered it to D. This leads to the question of whether it is legally permissible to reverse the process of concretization or to maintain a binding effect.

  • According to the will of the legislature, to which the jurisprudence and parts of the literature have joined, the debtor should no longer be able to revoke a specific definition of the starting point. Section 243 (2) of the BGB is a provision that cannot be reduced teleologically to protect the creditor and aims to protect the creditor from any speculative risks on the part of the debtor. The wording of the standard should be observed, since it also has the objective purpose of protection against speculation just mentioned. Unreasonable results should be corrected in individual cases using the rule of good faith according to § 242 BGB.
    According to this view, a binding effect is to be assumed as a result of a concretization once it has occurred.
  • According to the opposite view, Section 243 (2) BGB is to be interpreted as a debtor protection provision. This is teleologically reducible and to that extent is to be interpreted restrictively according to its meaning and purpose. The debtor should no longer have to perform from the entire class and should bear the full replacement risk if he has already done everything on his part. The debtor must be free to reverse the specification and deliver another similar item to the obligee, especially since the obligee has no legitimate interest in the delivery of the one specific - already specified - item. If, on the other hand, the debtor voluntarily waives this protection, he should also be able to offer his service from the category again. However, reversing the specification would mean that the debtor would again bear the full risk of performance. A binding effect is rejected according to this view.
  • The will of the parliamentary legislature, on the one hand, to design Section 243 of the German Civil Code as a creditor protection provision and, on the other hand, the wording of the law, speaks in favor of the case law. Section 243 of the German Civil Code (BGB) regulates in paragraph 2 the legal prerequisites for the occurrence of concretization, but not the reverse case that a concretization that has already occurred is to be revoked.
    For the opposite view, it can be argued that it is entirely up to the debtor to dispose of whether he or she cancels the existing state of specification, continues to be obliged to perform and bears the full risk of performance with all replacement risks.

literature

  • Claus-Wilhelm Canaris : The importance of the transfer of the risk of consideration in the context of § 243 II BGB and § 275 II BGB , in: Juristische Schulung (JuS) , 2007, p. 793 ff.
  • Florian Faust: Limits of the claim to replacement delivery in the case of generic debt , in: Journal for the entire law of obligations (ZGS) , 2004, p. 252 ff.

Individual evidence

  1. ↑ Timo Fest, ZGS 2005, 18 (21); Stephan Lorenz , ZGS 2003 421 (422); Florian Faust , ZGS 2004, 252 (256); different view Georg Bitter , ZIP 2007, 1881; Stephan Balthasar / Marius Bolten, ZGS 2004, 411 (414).
  2. ↑ Dirk Looschelders, Law of Obligations AT , 10th edition 2012, Rn. 296.
  3. ↑ Christian Grüneberg, in: Palandt, Bürgerliches Gesetzbuch , 71st edition 2012, § 243 Rn. 5.
  4. ^ Tettinger , in: NK Dauner-Lieb / Langen, 2nd edition 2012, § 243 Rn. 28.
  5. ↑ BGH, judgment v. December 2, 1981 - VIII ZR 273/80 , NJW 1982, 873; OLG Cologne, judgment of May 5, 1995 - 19 U 151/94 , NJW 1995, 3128 (3129).
  6. ↑ See Hans Brox / Wolf-Dietrich Walker, law of obligations AT , § 8 marginal no. 7th
  7. ↑ Dirk Looschelders, Law of Obligations AT , 10th edition 2012, Rn. 296.