Thus, the courtesy relationship is a non-binding, non-profit agreement based on a non-legal basis such as kinship , friendship , collegiality or neighborhood . There is therefore no legal will to be bound by the courtesy relationship, because services are provided voluntarily out of pure willingness to help . The courtesy relationship and the order again differ from one another in terms of their commitment . The assignment is a contract , and because it is free of charge, it is a courtesy contract . If, under the circumstances, performance can only be expected against payment in the case of a courtesy relationship , a service contract is always present in accordance with (1) BGB .
The term courtesy is not clearly used in jurisprudence . A distinction is usually made between three types of courtesy:
- Complacency in the narrower sense. These are purely social obligations.
- The demarcation of the courtesy from the binding legal relationship is controversial. The prevailing opinion here follows a fundamental decision by the Federal Court of Justice (BGH), which is based on the existence of a will to be legally bound . Despite its wording, this belongs to the external, i.e. H. objective fact of a declaration of intent . The decisive factor is not the inner will of the person making the declaration , but how an objective and sensible third party was allowed to understand the declaration according to the general understanding and the circumstances of the individual case . However, the actual decision as to whether the relationship is purely a favor is also based on normative criteria.
- According to this, a courtesy relationship often exists when one person renders or provides a service for another person without any payment or other consideration being provided for this.
- The jurisprudence only grants compensation for offenses. This results in a number of restrictions due to the weakness of the tort law : Liability only for damage to the legal interests protected by (1) BGB, no asset protection via (1) BGB (but probably via (2), BGB) , Possibility of exculpation according to sentence 2 BGB when using auxiliary persons, no reversal of the burden of proof with regard to fault (exception: product liability )
- Complacency contracts ( order , loan , free custody ): As with every contract, there are both performance and due diligence obligations . Liability from a contract (e.g. (1) BGB) and from a crime is conceivable.
- Because of inadequacies in tort law, one opinion in the literature advocates a third group of courtesies, namely courtesies in the area of legal transactions (see vicarious agents without the possibility of exculpation and a reversal of the burden of proof with regard to having to represent in accordance with (1) sentence 2 BGB also apply via German Civil Code. (2) No. 3 BGB). These are not contracts of convenience and therefore do not establish any primary performance obligations. But they are more than just favors, so that in addition to the tortious protection of BGB also the duties of care i. S. v. (2) BGB should exist and their violation can lead to claims for damages under (1) BGB. A recognizable advantage of this view is that it guarantees comprehensive asset protection. Liability for
A typical example of pure favors are the courtesy trips , which were again the subject of a ruling by the Federal Court of Justice in July 2015. If the members of an amateur sports club are driven to sports events by their family members or members of other club members, it is basically - also in relation to the sports club - a mere courtesy that takes place outside of the law, so that claims for reimbursement of expenses against the club, such as the replacement of one Traffic accident damage. Here, the Supreme Court made it clear that it depends on the legal bond will, if anyone for another a business within the meaning of worried BGB or only proves someone a (non-legal) complacency. A contractual commitment will be affirmed, in particular, if it is apparent that the recipient of the service is of an economic nature and is relying on the promise of performance or if the person providing the service has his own legal or economic interest in the matter. A will to commit will therefore usually be negated in so-called courtesy actions in daily life, in promises in the social area or in processes that are similar to these.
- Tobias Johannes Abend: The Complacency - History and Dogmatics. Heidelberg University, dissertation 2013, number: 415886368 (SWB catalog no.).
- Wolfgang Hromadka / Frank Maschmann: Labor Law: Individual Labor Law , Volume 1, 2018, p. 8.
- BAG , judgment of August 30, 1973, Az. 5 AZR 122/73, and judgment of September 28, 1977, Az. 5 AZR 303/76, both also AP No. 28, 29 on § 612 BGB.
- BGH, judgment of June 22, 1956, Az. I ZR 198/54, full text = BGHZ 21, 102.
- Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 368.
- BGH, judgment of July 23, 2015, Az. III ZR 346/14, full text .
- BGH, judgment of November 14, 1991, Az. III ZR 4/91, full text .