Factual contractual relationship

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According to the doctrine of the factual contractual relationship , a contractual relationship in certain areas of legal transactions can already come about when someone actually uses a service that is actually made available. This means that a contractual relationship should come about regardless of the will of the parties involved, bypassing the usual prerequisites - offer and acceptance .

The de facto contractual relationship should do justice to the conditions of modern society, in that in those areas in which an express declaration of intent is typically missing, the actual behavior to conclude the contract is sufficient (keyword: socially typical behavior ). Therefore, such a contractual relationship should only be able to come about in the area of ​​(1) “services of general interest” and (2) “mass traffic”. In these cases, the actual use of the service replaces the user's declaration of intent. Efforts to dissolve incorrect legal relationships by means of the factual contract were made in the case law of the BGH in the area of company law and the BAG in the area of labor law, with the result that the often barely detectable shifts in assets become ineffective - not retrospectively but only for the future - could be asserted.

The doctrine of the factual contractual relationship is subject to massive criticism and is essentially rejected today. It is essentially aimed at disregarding the general rules of contract law without necessity: (1) As a rule, in the case groups in which a factual contractual relationship is to come about, there is already an implied declaration of intent to conclude the contract. Although often very shortened (change in train, use of the machine), the declaration of intent is recognizable in the action and sufficient for the acceptance of a "classic contract conclusion", if necessary without acceptance of the declaration to the applicant (via § 151 BGB ). (2) In cases in which the party making use of the service declares that it does not want to conclude a contract, this declaration is irrelevant due to the rule that the protestatio facto contraria according to § 242 BGB is irrelevant.

See also

literature

Individual evidence

  1. ↑ a b Medicus / Petersen , civil law according to claims , 25th edition, marginal no. 189 ff.
  2. ↑ BGH NJW 2014, 3150; BAG DB 1974, 1531.
  3. ↑ BGHZ 55, 5.