German civil law is based on the principle that the mutual or unilateral performance obligations arising from a contract must also be fulfilled ( Latin Pacta sunt servanda , "contracts are to be fulfilled / adhered to"). The general obligation of the debtor to neither endanger nor impair the purpose of the contract and the success of the service follows from the duty of loyalty. A contract is therefore to be regarded as fulfilled if the mutually promised services have actually been performed. The purchase contract, as the most common form of contract in everyday life, provides in German Civil Code (BGB) the obligation of the seller to hand over the item to the buyer free of material and legal defects and to give him ownership of it (Section 433 (1) of the BGB). The buyer in turn has to pay the agreed purchase price and accept the item (Section 433 (2) BGB). If these “typical contractual obligations” have been fulfilled by both parties, the purchase contract is fulfilled.
Requirements for fulfillment
Fulfillment is only regulated fragmentarily in the law of obligations in § to BGB with regard to its economic importance. The legal definition in Section 362 (1) of the German Civil Code (BGB) only states that an obligation expires when the performance owed has been effected. It is not stated here by whom the service owed is to be provided. As a rule, this will be the debtor himself, but third parties can also provide his owed performance for him ( (1) BGB); the believer can therefore be indifferent to who fulfills. The debtor only has to provide the service in person in exceptional cases ( , (1) BGB). With debt ratio in turn are legal transactions (such as the purchase agreement), legal (such as unjust enrichment ) or very similar to business obligations (such as Culpa in contrahendo meant). Under owed service other than money all other benefits liabilities (such as the delivery of goods the purchase contract) understood. Debt Liberating is only the performance to the creditor, unless the creditor has approved the power to an unauthorized person ( para. 2 BGB) can or should such apply by law against him (§ et seq. BGB). Under causes finally not the making of the power of action is usually understood, but only the entry of the successful performance.
The legal effects of a fulfillment therefore only occur if
- the real debtor
- the right fault
- at the right time
- in the right place
- the right believer
- in the right way
- has caused
(so-called "obligatory performance").
In some cases, performance is only deemed to have been effected when the debtor expresses his will to repay a particular debt . This is necessary in the case of performance by someone other than the debtor ( third-party repayment will ; (1) BGB) and if the same creditor pays for a large number of similar claims and the performance is not sufficient for total repayment ( (1) BGB). In the latter case, there is a legal rule of interpretation (Section 366 (2) BGB), according to which, in case of doubt, the debt due is repaid first, the less secured debt among several due debts or the more annoying for the debtor among several equally safe ones.
Already at the time of common law it was discussed whether the fulfillment effect occurs as a mere objective factual consequence by law or an additional purpose agreement must be added. In this respect, there are different views on the purpose of the fulfillment effect.
In the context of the dispute, four jurisprudential significant theories have developed, the contract theory, the purpose theory and the theories of the final and the real achievement effect . The contract theory is based on the fact that in addition to the act of performance, there is a performance contract, i.e. there is agreement on the performance effect when the transaction to be performed is carried out (so-called "modified contract theory"). The “purpose theory”, on the other hand, allows a mere purpose agreement as a legal basis instead of the contract, but requires legal responsibility to receive the declaration of agreement.
Ultimately, the “theory of real performance effects” has established itself as the prevailing opinion . In addition to the objective service act, it does not require an agreement on purpose, but also the responsibility to receive for the fulfillment of the service obligation. Otherwise, the wording of the law is sufficient for compliance. The reason given is that due to the lack of standardization of further prerequisites in Section 362 (1) BGB, the purely objective bringing about the success of the service is decisive and is therefore sufficient for the fulfillment effect. This also corresponds to the law, which is based on "effected performance".
The BGH has never expressly commented on this, but some of its judgments express that the theory of h. M. is followed. Insofar as no subjective characteristics are required for fulfillment, a necessary repayment provision is the exception.
Types of fulfillment
If the "obligatory performance" is not provided, but rather the performance consists of a performance not in accordance with the contract, different types of performance can be distinguished.
In the law of obligations , the fulfillment surrogate is a legal transaction that takes place in place of the actual fulfillment. Fulfillment surrogates, like fulfillment, lead to the extinction of guilt. The performance surrogates include performance in lieu of performance ( (1) BGB), deposit (Section ff. BGB), self-help sales ( f. BGB), offsetting ( ff. BGB) and the decree ( (1) BGB). It is controversial whether the performance as a performance substitute instead of actually a performance surrogate, since part of the literature understands the agreement of a performance as a performance instead of a debt amendment contract ( Paragraph 1 BGB) that is fulfilled immediately.
- In the case of performance in lieu of fulfillment , the debtor does not provide the contractually stipulated performance (e.g. money ), but a different performance (e.g. goods of equal value ). Initially, there is no contractual fulfillment. The obligee can, however, accept this compensation (Section 364 (1) BGB). If he accepts them, he has the same rights as a buyer in the event of material defects and defects of title ( BGB).
- Deposit : When depositing, the debtor does not pay to the contractual creditor, but rather deposits his monetary debt for the purpose of fulfillment at the competent local court . You cannot deposit in principle, but must comply with the requirements. These result from , BGB in connection with the deposit regulations as well as Abs. 1 HGB .
- Self-help sales : In self-help sales (also covering sales ) , the debtor sells movable objects owed by the obligee during the period of default in acceptance because they are unsuitable for deposit. The authorization for this can be found in , BGB, for commercial purchases in Paragraph 3–5 HGB.
- Offsetting : Offsetting can be used for the purpose of fulfilling an obligation through a unilateral declaration of intent requiring receipt . In order to be able to offset, the requirements must again be met.
- Remission : A remission contract cancels the obligee's claim against his debtor. The debtor is released from performance although he has received something in return from the obligee. A sub-form is the so-called “negative acknowledgment of debt”, in which the obligee acknowledges through a contract with his debtor that a claim no longer exists ( (2) BGB).
Performance on account of performance
Even a performance on account of performance is initially not performance in the legal sense. A performance on account of performance exists when the obligee is given an object from which he is supposed to seek satisfaction ( e.g. assignment of a claim ). The fulfillment of the obligation only occurs when the obligee actually receives funds from the object provided on account of fulfillment; until then, his claim remains in full ( (2) BGB).
This category includes, in particular, the payment of a monetary debt by issuing a check or bill of exchange . In these cases, the debtor enters into a new liability (check or bill of exchange) to meet his debt to the obligee. Since there is no security claim against the related check from a credit institution is ( Akzeptverbot ) remains a paid by check or bill debt exist as long was finally credited to the creditors of the check or bill amount in his account. The note " Receipt reserved (E. v.)" On the account statement does not yet constitute a final credit ; only when the check or bill of exchange has been redeemed by the debtor is the debtor's main debt extinguished.
In the absence of an express agreement, it must be determined through interpretation whether the contracting parties wanted a service in lieu of performance or a performance on account of performance . For this interpretation, Section 364 (2) BGB lays down an interpretation rule for the event that the debtor's performance consists in entering into a new liability towards the obligee (e.g. by handing a check or a bill of exchange). In this case, the law assumes that the performance should be performed on account of performance.
Fulfillment of monetary debts
The law only recognizes the fulfillment of monetary debts through cash payments, although this form is not expressly regulated either. According to traditional understanding, the cash payment is the “actually” owed performance of the debtor and therefore leads to the fulfillment of the debt through the transfer of ownership of the cash. Due to the widespread use of current accounts with the option of cashless payment transactions , a cash payment can also be excluded as a performance service in exceptional cases (contractually in employment and rental contracts ; by law, for example in (3) sentence 1 AO , (1) BAföG , (1) sentence 2 ZVG ).
The bank transfer or real-time transfer represents a payment using book money , which is not legal tender and therefore does not trigger any obligation to accept the creditor. Payment by bank transfer using book money is still controversial with regard to the issue of fulfillment. It should be noted that the recipient bank is not a “third party” within the meaning of Section 362 (2) of the German Civil Code (BGB), but merely acts as the creditor's paying agent. The required consent of the obligee for a transfer can be tacitly seen in the disclosure of his current account on business letters or invoices . In the case of a bank transfer, in the absence of any other agreement, the success of the service required for the fulfillment will only be achieved if the obligee finally receives the amount owed at his disposal. This is the case when the transferred amount is credited to the creditor's account and the creditor has sole power of disposal over the account (ie individual account or "or" account for the joint account ). The prevailing opinion sees cashless payment transactions as a performance rather than fulfillment, because book money was paid instead of the cash owed. The performance in lieu of performance requires an agreement between the creditor and the debtor (Section 364 (1) BGB), which can be implied by specifying the account. The repayment effect occurs through the performance in lieu of fulfillment.
Since the mere act of performance (cash: handover, transfer: issuing a transfer order to the debtor's bank) is not sufficient for the fulfillment, the performance must be successful (cash: acquisition of ownership of the money by the creditor, transfer: final credit of the book money to the giro account of the Creditor with his free disposal).
The fulfillment, on the other hand, is neither explicitly nor regulated in service law or administrative law. This led to numerous disputes with service providers and with authorities because of sheer effort and insufficient sufficiency . Since the corresponding amendment, according to the new law of obligations that came into force in Germany on January 1, 2002, reference can be made instead to the breach of duty under German Civil Code.
- Paul Kretschmar : The fulfillment. Volume 1: Historical and dogmatic foundations. Veit & Co., Leipzig 1906.
- Georg Stierle: The enrichment compensation for incorrect bank transfers (= European university publications. Row 2: Law. 251). Lang, Frankfurt am Main 1980, ISBN 3-8204-6079-9 (also: Heidelberg, University, dissertation, 1979).
- Franz Schnauder: Basic questions on performance conditions in third-party relationships (= writings on civil law. 67). Duncker & Humblot, Berlin 1981, ISBN 3-428-04928-4 (also: Heidelberg, University, dissertation, 1979/1980).
- Joachim Gernhuber : The fulfillment and its surrogates as well as the extinction of the obligations for other reasons (= manual of the law of obligations. 3). 2nd, revised edition. Mohr, Tübingen 1994, ISBN 3-16-145976-8 .
- Felix Maultzsch : The limits of the fulfillment claim from a dogmatic and economic point of view. In: Archives for civilist practice . (AcP). Vol. 207, No. 4/5, 2007, pp. 530-563, JSTOR 40995981 .
- BGHZ 11, 80 , 83 ff .; BGHZ 90, 302 , 308; BGH WM 1995, 1288, 1289
- BGHZ 87, 156 , 162
- Otto Palandt , Christian Grüneberg: Comment on the Civil Code . 73rd edition. C. H. Beck, Munich 2014, ISBN 978-3-406-64400-9 , § 362, Rn. 5.
- Gesa Kim Beckhaus: The legal nature of fulfillment. 2013, p. 31.
- Gesa Kim Beckhaus: The legal nature of fulfillment. 2013, p. 30.
- for example Joachim Gernhuber: The fulfillment and its surrogates. 1994, § 10, 3; Eike Schmidt, Gert Brüggemeier: Basic civil law course. 6th edition, 2002, p. 133.
- Jörg Fritzsche: Cases for the law of obligations I - contractual obligations . 8th edition, Munich 2019, p. 33.
- BGH NJW 1986, 875, 876
- Guido Toussaint: The law of payment transactions. 2009, p. 11.
- BGHZ 72, 316 , 318
- BGH NJW 199, 210
- BGHZ 103, 143 , 146
- Peter Schlechtriem: Law of Obligations, General Part. 2005, p. 185.
- After Guido Toussaint: The law of payment transactions. 2009, p. 13.