Explanatory awareness

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The awareness of the explanation (also the will to explain or the abstract legal consequence ) is part of the legal business theory, together with the will to act and the will to do business, to the subjective part of a declaration of intent . A person has explanatory awareness when they know that they are doing some kind of legal business with their act . Which explanation is exactly wanted, on the other hand, is not a question of the awareness of the explanation, but of the will to do business . Related to the awareness of explanations is the will to be legally bound .

School example case

A famous school example of the lack of explanatory awareness is the Trier wine auction : Here, the trader raises his hand at a wine auction to greet a friend. He is not aware that he has made a legally binding declaration. To his great surprise, he is then slammed a barrel of Moselle wine .

Awareness of explanations in the dogmatics of declarations of will

It is controversial whether the consciousness of explanation is a necessary subjective element of a declaration of intent. Legal dogmatics requires the will to act as a constitutive element of a declaration of intent . Similar to the will to do business (reverse conclusion from contestability due to content error ) it is often assumed that the awareness of the explanation is typically present, but not necessarily.

Legal consequences

The legal consequences of the lack of such a willingness to explain are disputed.

On the one hand, it is assumed that Section 118 of the German Civil Code (“ Joke Declaration ”) is to be applied analogously , because there too there is a lack of awareness of the explanation. The declaration of will without a consciousness of explanation leads to nullity .

Others do not consider the cases to be comparable and the solution to be unsustainable. While the declaring person does not expect to be “taken at his word” when making a joke, the declaring person has an interest in accepting an explanation that is favorable to him. Therefore, a contestation according to § 119 Abs. 1 Alt.2 BGB is possible analogously, but the declaration of intent is initially effective. The challenge then (just like the application of § 118 BGB) led to an obligation to pay damages under § 122 BGB. The Federal Court of Justice has decided in favor of the contestability of the declaration of intent in any case in which the declaring party negligently failed to notice that he was acting as a legal transaction. In this context, in addition to the Trier wine auction case , the Sparkasse case from 1984 is often cited. Unintentionally - i.e. without any awareness of the explanation - a bank negligently issued a guarantee declaration for one of its customers and, after discovering the error, advised the creditor that it was not intended to accept a guarantee. After the customer's creditor could not prosecute him, he took the bank from the guarantee. The BGH held that it did not consider the "declaration of guarantee" issued to be void, but rather to be contestable.

Taking into account the criteria of choice, risk of validity and compensation, the solution of a pending ineffectiveness by means of an overall analogy to § § 108 ff. And § § 177 ff. BGB. Due to the possibility of approval, the person concerned has the right to choose, but is not subject to the risk of validity and thus an expiration of the deadline. Compensation for damages can then result from culpa in contrahendo ( § 280 Paragraph 1, § 241 Paragraph 2, § 311 Paragraph 2 BGB).

literature

Individual evidence

  1. ↑ Dieter Medicus, General Part of the BGB, Volume 10
  2. ^ A b Dieter Medicus: Civil law . 19th edition Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , Rnr. 130.
  3. ↑ Burkhard Boemke, Bernhard Ulrici, BGB general part
  4. ^ Franz Wieacker JZ 1967, 385 ff. (389)
  5. ↑ Werner Flume : General part of civil law. (Vol. 1, part 1. The partnership, 1977; Vol. 1, part 2, The legal person, 1983; Vol. 2, The legal transaction, 4th edition 1992, ISBN 3-540-55211-1 ) Springer, Berlin 1992, § 20, 3; 23, 1.
  6. ↑ judgment of 07.06.1984, Az .: IX ZR 66/83, BGHZ 91, 324 ff.
  7. ↑ Thomas Lobinger : Legal obligation and autonomous binding, Mohr Siebeck, Tübingen 1999, pp. 172 ff., 218 ff., ISBN 3-16-147232-2 .