Generic guilt
Generic guilt is a legal term from the law of obligations . It is a debt relationship over a thing that is only determined according to general characteristics. These characteristics are called generic characteristics. Class debts often exist for goods from series production . They are to be distinguished from piece debts , in which the debt relationship is limited to a selected thing.
The question of the type of guilt in the right to disrupt performance , more precisely in the case of the loss of the purchased item, is relevant . The question is whether the debtor is obliged to deliver a new item of the type owed or not.
determination
Whether there is a generic guilt arises from the party agreement. The parties are not interested in this is that the creditors a certain thing going on is. This is the case, for example, with products from series production such as new vehicles. In such genera, the individual elements are equivalent, so that it is of no importance for the creditor which specific item he receives from the species.
If a generic debt has been agreed, the debtor has the right to choose the thing to be performed. He can determine which specific thing from the agreed class he would like to perform. The debtor cannot exercise the right to choose freely. According to Section 243, Paragraph 1 of the German Civil Code, the obligee in Germany is entitled to commercial quality , which the law describes as medium type and quality . The debtor does not have to issue one of the best pieces, nor can he deliver one of the worst.
Generic debt before specification
If the thing goes under before the debtor has been able to fulfill his obligation to perform, he is obliged to organize another thing from the class owed and to use it to fulfill his duty to the obligee. For the debtor, the generic debt is associated with a procurement risk.
The obligation of the debtor to perform is generally only excluded due to impossibility if the entire class from which the service is to be performed has perished. An exemption from performance of the debtor due to objective impossibility ( Section 275 (1) BGB) is only given when the entire class has perished. For example, if the dealer's warehouse burns down, the buyer's claim remains as long as the item is still available on the market . However, in extreme cases, the debtor can invoke the economic impossibility according to Section 275 (2) BGB. It is necessary for this that the effort for a new procurement represents a disproportionate burden for the debtor. Slightly narrower limits are in stock guilt set when power is owed from the supply (regularly is their own production). If this goes under, impossibility occurs without the debtor having to take care of a replacement item.
The obligee loses his right to the transfer of ownership of a thing owed by type even if only his debtor has made the performance impossible (personal impossibility). Personal impossibility is relatively rare in the case of debts of the generic type, since certain items are usually freely available on the market according to the type. For the creditor, it then applies to warranty rights . If the owed thing is only determined according to its type, as a rule, however, as long as the performance from the type is possible, the debtor is responsible for his inability to perform even if he is not at fault because he is within the framework the agreement of a class debt has also assumed a procurement risk with regard to an object from the class.
Specification of the generic guilt
However, the debtor may reduce the risk of new purchase requirement to the fact that it according to § 243 , para. 2 BGB a concrete causes the power article. This presupposes that the debtor has done what is necessary for the performance of an item that is eligible for performance. The debt relationship then depends on the piece on which the specification has been made. If the thing goes under without attributable fault ( § 276 , § 278 BGB), the debtor is released from the performance despite the procurement risk of § 276 Paragraph 1 Clause 1 BGB in accordance with § 275 Paragraph 1 BGB.
In the case of a dispatch obligation , the specification occurs when the debtor hands the item over to a suitable transport person in a proper manner (for example: with sufficient postage and the correct address). In the case of a debt to collect , the specification occurs when the debtor separates the thing and notifies the obligee that it is ready for collection. In the case of an obligation to deliver , it becomes more specific when the debtor - or his assistant - hands the thing over to the obligee at his place of residence. Regardless of the nature of the guilt, it is required that the thing selected and set apart be of middle nature and goodness. If this is not the case, according to Section 243, Paragraph 1 of the German Civil Code (BGB), no further details can be given.
The legal consequence of the specification is the conversion of the generic debt into a piece debt. This means that the debtor is released from his obligation to perform if the specified object of performance is lost due to impossibility. The procurement obligation does not apply.
Another option that releases the debtor from the risk of performance is default in acceptance . If the obligee does not accept the service offered to him, according to § 300 BGB the risk passes to the obligee with effect of the delay.
Situation in other countries
France
The French Civil Code does not differentiate between obligatory business and disposition business . According to Art. 1196 para. 1 C. civ. In principle, ownership of an item passes with the conclusion of the contract. One of several exceptions to this principle, however, is the generic debt, in which according to Art. 1585 Hs. 1 C. civ. the transfer of ownership only takes place through the specification in the form of weighing, counting or measuring.
literature
- Hans Brox , Wolf-Dietrich Walker : General law of obligations . 39th edition. CH Beck , Munich 2015, ISBN 978-3-406-64653-9 .
- Jacob Joussen : Law of Obligations I - General Part, Volume 1 . Kohlhammer Verlag , Stuttgart 2008, ISBN 978-3-17-019563-9 , pp. 71-72 .
- Harm Peter Westermann , Peter Bydlinski , Ralph Weber : BGB - law of obligations general part . Hüthig Jehle Rehm Publishing Group , Heidelberg 2013, ISBN 978-3-8114-9859-4 .
Web links
- Wolframerz case: RG , judgment of March 9, 1918, Az. I 235/17, full text = RGZ 92, 369 (distinction between class debt and piece debt)
Individual evidence
- ↑ a b c d e Brox / Walker, pp. 87-89.
- ^ A b Westermann / Bydlinski / Weber, p. 51.
- ↑ a b Brox / Walker, p. 215.
- ↑ Joussen, pp. 71-72.
- ↑ Brox / Walker, p. 307.
