Fixed deal

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A firm deal exists when compliance with a precisely defined performance time (fixed date or specific deadline ) is an essential part of the contractual performance obligation . A distinction is made between the absolute and the relative firm deal .

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The fixed deal is to be classified dogmatically in the general part of the law of obligations . Legal regulations regarding fixed deals can be found in the Commercial Code , the Insolvency Code and the Securities Trading Act . The decisive regulations can be found in the civil code , the most common case is the fixed purchase .

The question of whether there is an absolute or relative firm deal is to be answered by interpreting the contract according to the objective recipient horizon of §§ 133, 157 BGB. The interests of the parties are to be included in the evaluation; simply agreeing a fixed performance time is not sufficient. If there is a firm deal, it should be noted that an absolute firm deal is rarer and a relative firm deal more common.

The question of whether a legal transaction is a firm deal plays a role, especially with regard to the legal consequences of non-performance, the determination of secondary rights.

Absolute firm deal

An absolute firm deal is when compliance with the performance time is so essential for the obligee, according to the purpose of the contract and the given interests, that a delayed performance no longer represents fulfillment.

Examples of absolute fixed deals are ordering a taxi for a predetermined date, hiring a singer for a concert and delivering seasonal goods such as chocolate Santa Clauses or ordering a bridal bouquet.

The absolute firm deal is not regulated by law. However, the general rules on impossibility apply: If the debtor does not meet the performance time, this justifies permanent impossibility of performance. According to Section 275 (1) of the German Civil Code ( BGB), the right to performance and according to Section 326 (1) sentence 1 of the German Civil Code ( BGB), in principle, the right to consideration is also excluded.

The obligee can therefore assert the general secondary rights in the event of the impossibility of performance: Compensation for damages instead of performance without setting a deadline according to §§ 280 paragraph 1, 3, 283, 275 paragraph 4, withdrawal according to §§ 346 paragraph 1, 323 paragraph 1 , 326 paragraph 5, 275 paragraph 4 BGB, demand the surrogate according to § 285 BGB, reimbursement of wasted expenses according to § 284 BGB and according to §§ 346, 326 paragraph 4 the repayment of a consideration rendered but not owed.

Relative fixed business

A relative firm deal exists if compliance with the performance time is so essential that the business should "stand and fall" with the timely performance.

Just-in-time agreements are a typical example of a relatively fixed deal .

Later fulfillment is still possible despite culpable failure to meet deadlines. Impossibility within the meaning of § 275 BGB therefore does not occur. Therefore, Sections 323, 281 BGB are relevant and give the obligee the following rights: Compensation for damages instead of performance after setting a deadline in accordance with Section 280 (1), (3), 281 BGB and withdrawal without setting a deadline in accordance with Sections 346 (1), 323 (2) No. 2 alt. 1 BGB.

Special regulations

Special provisions on fixed deals can be found in Sections 376, Paragraph 1, Clause 1 of the German Commercial Code ( fixed trade purchase ), 99 ff. WpHG ( financial futures ) and 104 InsO (fixed deals and financial services).

example

I and A want to get married on July 26th, 2013, the day of honor of the Andalusian donkey. For this purpose, they order a wedding cake with a donkey figure as decoration from confectioner K and conventional white tablecloths without any decoration from tailor S. S and K know about the wedding of I and A. The delivery date for the wedding cake and the tablecloths is July 26, 2013.

Is there a firm deal? And if so, what kind of firm deal is it? The delivery time (performance time) is essential for compliance with the contract. There is a firm deal. However, a distinction must be made between the wedding cake and the tablecloths:

The wedding cake is to be delivered on the wedding day. If K delivers the cake at a later point in time, I and A can no longer use it for their purposes in view of the specific decoration (and the limited uses for a wedding cake). Your wedding is over by then. The late delivery no longer represents fulfillment for the bride and groom. It is an absolute firm deal . If the cake is not delivered on time, I and A do not have to pay and K does not have to deliver it afterwards either.

The tablecloths are also to be delivered on the wedding day. Delayed delivery by tailoring S remains possible because the goods are conventional, white tablecloths. The couple can no longer use them for their wedding, but can use them for other festivities. There is a relative firm deal . In the event of a delayed delivery, I and A can only claim the damage they have suffered, for example the cost of renting other tablecloths. In addition, you have the right to withdraw from the contract until the tablecloths are delivered late.

literature

Individual evidence

  1. ↑ Dirk Looschelders : Law of Obligations General Part, Vahlen, 10th edition, Munich 2012, § 35 Rn. 705
  2. ↑ Roland Schwarze / Hansjörg Otto , in: Julius von Staudinger (greeting) / Manfred Löwisch (red.), Commentary on the German Civil Code , right to disrupt performance 2, revised 2009, § 323 B 100.
  3. ↑ Dieter Medicus / Stephan Lorenz , Law of Obligations I General Part. 20th edition, Beck, Munich 2012, § 36 Rn. 420 f.
  4. ↑ Christian Grüneberg , in: Otto Palandt (Ent.): Bürgerliches Gesetzbuch. 72nd edition, Beck, Munich 2013, § 271 Rn. 18th
  5. ↑ Christian Grüneberg, in: Otto Palandt (Ent.): Bürgerliches Gesetzbuch. 72nd edition, Beck, Munich 2013, § 323 Rn. 19th
  6. ↑ Dieter Medicus , in: Hanns Prütting / Gerhard Wegen / Gerd Weinreich (eds.), BGB Commentary, Beck. 7th edition, Munich 2012, § 323 marginal number § 32.
  7. ↑ Wolfgang Ernst , in: Roland Rixecker / Franz Jürgen Säcker / Hartmut Oetker (eds.) / Wolfgang Krüger (ed.), Munich Commentary on the Civil Code, Volume 2, Beck, 6th edition, Munich 2009, § 323 Rn. 112.
  8. ↑ Christian Grüneberg, in: Otto Palandt (Ent.): Bürgerliches Gesetzbuch. 72nd edition, Beck, Munich 2013, § 271Rn. 17th
  9. ↑ Federal Court of Justice , judgment of November 30, 1972, Az. VII ZR 239/71, BGHZ vol. 60, pp. 14, 16 = Neue Juristische Wochenschrift 1973, pp. 318–321.
  10. ↑ Federal Court of Justice, judgment of January 17, 1990, Az. VIII ZR 292/88 BGHZ 110, pp. 88–98, 96 = NJW 1990, pp. 2065–2067.
  11. ↑ Wolfgang Ernst, in: Roland Rixecker / Franz Jürgen Säcker / Hartmut Oetker (eds.) / Wolfgang Krüger (ed.), Munich Commentary on the Civil Code, Volume 2, Beck, 6th edition, Munich 2009, § 323 Rn. 116.
  12. ^ Harm Peter Westermann , in: Barbara Grunewald / Georg Maier-Reimer / ders., BGB, 13th edition, Otto Schmidt, Cologne 2011, § 323 Rn. 19th
  13. ^ Case based on OLG Düsseldorf , judgment of December 8, 2000, Az. 22 U 104/00, NJW-RR 2002, 633.