Mixed contract
In jurisprudence, a mixed contract is a contract made up of different types of contract.
General
Not all contract types are regulated in the law of obligations (e.g. service contract , purchase contract , rental contract , work contract ). These types of contracts only form part of the contracts that occur in everyday life; freedom of contract under the law of obligations applies . In addition to the typified contracts, there are atypical contracts (also contract sui generis or in Swiss law: Innominat contracts ) and mixed or type-mixed contracts that contain elements of typical contracts, but cannot be clearly subsumed under one type.
A classic example of the mixed contract is the accommodation contract , the main service obligation of which is room rental, to which rental contract law (commercial room rental) is applicable. However, depending on the content of the contract, elements of service contract law (room service), work contract law (hotel meals), sales law (drinks), loan agreement (dishes) and custody (cloakroom) may also be applicable.
Classification
In law, a distinction is made between the following types of mixed contracts:
- Typical contract with a different kind of ancillary service
- The service owed by one contracting party corresponds completely to one type of contract, but the other party owes a different kind of ancillary service. (e.g .: room rental with service).
- Type combination contract
- A party owes principal services that correspond to several different types of contracts. (e.g .: accommodation contract).
- Linked contract
- The parties exchange services that correspond to different types of contracts. (e.g .: caretaker contract - the caretaker carries out repairs and maintains the house, but he is allowed to live in an apartment free of charge).
- Type merger agreement
- In the performance owed by a party, elements of different types of contract are inextricably linked. (e.g .: scaffolding contract , concert contract or mixed donation ).
Legal treatment
Jurisprudence treats the mixed contract in three theories:
- Absorption theory : it considers the law of the principal service to be applicable.
- Combination theory : The relevant norms for the relevant part of the contract are applicable, contradictions are balanced according to the presumed party will.
- Theory of the analogous application of law : Although the result is similar to the combination theory, it only wants to apply the appropriate regulations of the law of obligations in an analogous manner.
However, none of the theories alone is capable of resolving the legal treatment of mixed contracts in a meaningful way. For example, a disruption in the performance of a contract can negate the obligee's interest in the entire performance of the contract . Therefore, in the absence of agreements, the presumed will of the party is decisive. This is determined by the purpose of the contract, the interests of the parties involved and the custom of the trade .
Demarcation
While a mixed contract combines elements of several legally regulated (or unregulated) types of form, a "contract sui generis" is a deliberately independent type of contract. For example, the leasing contract , in which it is in dispute whether it is a mixed or a sui generis contract , Elements of the purchase and rental agreement. The franchise contract, which is sometimes seen as a mixed contract, sometimes in the form of a type combination, but also as a sui generis contract, is discussed in a similarly contentious manner .
