From a mutual contract, each contractual partner owes the promised performance according to BGB only step by step against receipt of the consideration. Performance and consideration are therefore usually mutually dependent, because according to Paragraph 1, Clause 1 BGB, the obligation to perform ( Section 4 BGB) also eliminates the obligation to perform. exceptions areParagraph 1
- the partial impossibility ( multiple delivery contracts ) para. 1, clause 2, para. 3 BGB), in which an impaired consideration must be provided (Installment supply contracts, but not
- the poor performance , if the debtor the supplementary performance is impossible (qualitative material and legal defects ), the counter- performance obligation according to paragraph 1 sentence 2 BGB does not apply, and
- if the obligee is responsible for the impossibility , the debtor retains the right to consideration according to para. 2 sentence 1 alternative 1 BGB.
Consideration for contracts in everyday life
In a sales contract , the purchase price is the consideration for the goods and vice versa, in a rental agreement the rent is the consideration for the granting of use and vice versa. The contract for work deals with the production of a work, the payment of which represents the consideration and vice versa. Every service is owed because of the consideration ( do ut des ). The loan contract , on the other hand, is a unilaterally binding contract, because the borrower does not promise anything in return; his obligation to return from BGB is only intended to process the terminated loan agreement.
Risk of performance and risk of consideration
In the performance risk is the risk of the creditor , in the event of loss of BGB to lose his entitlement because the debtor in case of impossibility of its performance obligation becomes free. The risk of consideration is the risk of having to provide one's own consideration even though the service has not materialized. This risk is borne solely by the creditor of the consideration. This means that there is no entitlement to the consideration if the contractual partner's performance was previously lost.
The BGB does not differentiate between the risk of performance and the risk of counter-performance ( price risk ). However, this can be inferred from the systematic position of the regulations in relation to one another. While (2) BGB refers to the risk of performance, and BGB regulate the risk of counter-performance. Since the legal term consideration is only introduced in BGB, the previous provisions can only refer to the risk of performance, the following provisions then refer to the risk of consideration (exception: in and BGB both dangers regulated).
Consideration from credit institutions
At credit institutions , the services and considerations in securities , derivatives , foreign exchange , currency and precious metal trading consist on both sides of book money or money-like / near-money services. They are exchanged at a point in time at which the other contractual partner cannot be sure whether his contractual partner has already provided the service incumbent on him or will still do so. This uncertainty is realized in the advance payment risk , which according to Art. 379 Capital Adequacy Ordinance arises for a bank if it has paid for financial instruments before it has received their delivery or vice versa or in cross-border transactions if at least one day has passed since payment or delivery . This advance payment risk ultimately contains a risk of insolvency to which each of the counterparties is subject (see Herstatt risk ).