Assessment contract

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A declaration of agreement means the acknowledgment of a contractual obligation without creating a new reason for guilt in addition to an existing liability .

General

Within the scope of the freedom of contract granted by Section 311 (1) BGB , this type of contract covers acknowledgments of debt which, in contrast to the constitutive acknowledgments of debt according to Sections 780 to 782 BGB, are of a purely declaratory, i.e. confirmatory, nature.

Legal issues

The legal literature speaks in this context often of "causal" or "one-sided abstract" guilty pleas. The case law has barely given the construct any room so far. In most cases, there is a lack of a will to be legally bound , which can be determined through interpretation . Most of the acknowledgments in question are only indications of a reversal of the burden of proof or a waiver of objection , provided that the construct is not rejected at all.

Example: The drunk A is involved in a traffic accident with B. Concerned that the police possibly called in by B would investigate him for drunkenness on the road, he admits that B was solely responsible. He asserts that he will pay for the entire damage.

If the case were such that an additional reason for guilt should arise in addition to the claim for damages, it would be a case of admission of guilt if this was given in writing within the meaning of § 781 BGB. In most cases, it is questionable whether B can even rely on A's information in the situation and whether the mere declaration should even create full legal binding. The Federal Court of Justice deduces from this that consequences based on evidence alone are usually intended.

Missing with a promise to pay or -anerkenntnis the causa , it is as abstract legal transaction pursuant to § 812 para. 2 BGB expressly kondizierbar . The declaratory, guilt-confirming acknowledgment, on the other hand, is causal and therefore no longer needs any further causa in order to be stable with terms.

literature

  • Hans Tägert : Contributions to the theory of the declaration of agreement , studies to explain civil law, Issue 53, Breslau 1934 (dissertation).

Remarks

  1. ^ Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2015, ISBN 978-3-8006-3908-3 , Rnr. 772-775b.
  2. ↑ BGHZ 98, 160.
  3. ^ Friedrich Kübler : Determination and guarantee. A comparative law and dogmatic treatise against the doctrine of the abstract contract of obligations in civil and commercial law. , Tübingen Mohr 1967, (habilitation thesis 1965/66).
  4. ↑ There cannot be a will directed towards abstraction. Already turned against the legal institution: Friedrich Karl Neubecker : The abstract contract in its historical and dogmatic basic features , Carl Heymanns Verlag, Berlin 1903 ( online ).
  5. ↑ BGH NJW 1984, 799 f .; 1986, 2571.
  6. ↑ BGH NJW 1980, 1158 (to differentiate between declaratory and constitutive acknowledgment of guilt).
  7. ↑ Julia Haas: promises of debt and acknowledgment of debt , 2010, p. 170.