approval
In civil law, consent is the declaration of consent to a legal transaction concluded by other legal subjects .
General
The consent therefore requires at least three parties, namely the at least two concluding the legal transaction and the consenting legal subject. The law requires in those cases, the consent of a third party when it is affected by the transaction or because at least one participating in the transaction entity does not act , or any representative authority has.
Consent is an umbrella term that includes consent and approval. Whether consent or approval is given depends on the time of its submission. If consent is required before the conclusion of a legal transaction, it is called consent ( Section 183 BGB ); if it can also be given after conclusion, it is a permit ( Section 184 BGB).
Legal issues
From § 182 BGB it follows that the consent is a unilateral legal transaction , consisting of a declaration of intent that must be received. This means that the declaration of intent will not take effect before the recipient has received is. Consent is the declaration of consent to the legal transaction intended or carried out by another. These legal transactions requiring approval are subject to approval or consent , so that contracts concluded prior to approval are pendingly ineffective until approval is granted . Once approved, the contract is deemed to be effective from the start (Section 184 (1) BGB). If no approval is given, the contract is ineffective from the start ( Latin ex tunc ).
According to Section 182 (2) of the German Civil Code (BGB), consent does not need the form required for the legal transaction . Unilateral legal transactions that require consent can only be carried out effectively with consent (as in the case of minors in accordance with Section 111 sentence 1 BGB).
The agreement provides a design right , and is - as all unilateral legal transactions - condition hostile . This is to save the recipient of the consent the uncertainty of the occurrence of the conditions and thus the uncertainty about the fate of the legal transaction requiring consent.
species
The different types of consent can be classified according to legal areas:
- General part of civil law : The legal transactions of incapacitated persons are void ( Section 105 (1) BGB), legal transactions of minors require consent in accordance with Section 107 BGB for a declaration of intent - through which they do not merely obtain a legal advantage - in accordance with Section 1629 (1) BGB of the legal representative .
- As part of the delegate approval by the represented party is not required because the deputies in the exercise of its power of representation (is § 164 1 para. BGB). In contrast, the representative without power of representation requires the authorization of the person represented ( Section 177 (1) BGB).
- The disposition of an unauthorized person ( Section 185 (1) BGB) only becomes effective with the approval of the person entitled ( Section 185 (2) sentence 2 BGB).
- Law of obligations : In the case of life insurance in particular , the assignability of a claim is made dependent on the consent of the third party debtor (i.e. life insurance) in accordance with Section 399, clause 2 of the German Civil Code (see Section 13 (3) General Life Insurance Conditions). If an assignment is made without notification to the insurance company, the assignment is pending ineffective. This also applies if a certain form (such as a form , official form) is contractually stipulated for the assignment . However, if the assignment violates a legally stipulated form requirement ( e.g. written form or certification ), it is incurably void.
- The assumption of debt is in the case of agreement between Neuschuldner and Altschuldner by the creditor to approve ( § 415 , para. 1, sentence 1 BGB). The consent of the shareholders to the transfer of membership regularly also includes the consent to the assumption of debt within the meaning of § 415 BGB.
- Treatment contract : the patient's consent is a prerequisite for any medical treatment . According to Section 630d (1) of the German Civil Code (BGB), the attending physician is obliged to obtain the patient's consent before carrying out a medical measure, in particular an intervention in the body or health . If the patient consent incapable , consent must be obtained from a person entitled thereto, unless a living will by § 1901a , para. 1 sentence 1 BGB the measure permitted or prohibited. The patient has to be informed about all circumstances according to § 630e Abs. 1 BGB ( informed consent ).
- In payment services law , consent is also called authorization ( Section 675j (1) BGB). According to this, a payment transaction (for example, in the case of a transfer or real-time transfer ) is only effective for the payer if he has consented to it ( authorization ). Consent can either be given as consent or, if previously agreed between the debtor and his payment service provider, as approval. If the payment transaction was initiated by or through the payee (e.g. in the case of direct debit ), the payer can no longer revoke the payment order after sending the payment order or his consent to the execution of the payment transaction to the payee ( Section 675p (2) BGB) .
- In matrimonial law , there are a number of approval requirements. The consent of the other spouse is required for the effectiveness of the dispositions of a spouse referred to in § 1511 BGB to § 1515 BGB ( § 1516 Paragraph 1 BGB). Of particular importance in the community of gains is the disposal of one spouse over the entire marital property , which according to § 1365 BGB requires the consent of the other spouse. Contracts ( § 1366 BGB), unilateral legal transactions ( § 1367 BGB) or the disposal of household items ( § 1369 BGB) also require the consent of the other spouse.
- Family law : Placement of the child that is associated with deprivation of liberty requires the approval of the family court ( Section 1631b (1) BGB).
- In the case of guardianship , the guardian needs the approval of the family court for numerous legal acts (§ § 1809 ff., § 1821 to § 1824 BGB). For legal transactions for the child, the parents require the approval of the family court in those cases in which a guardian requires approval according to Section 1821 BGB and Section 1822 No. 1, 3, 5, 8 to 11 BGB ( Section 1643 (1) BGB ).
- In the case of supervision , the supervision court can separately order that the supervised person requires the supervisor's consent in order to protect him / her for a declaration of intent (and thus for the conclusion of contracts) within the scope of the supervisor's scope of duties ( reservation of consent according to § 1903 BGB). This leads in fact to limit the capacity of assisted.
- Inheritance law : Certain dispositions of the previous heir are only effective against the subsequent heir if the latter has given his consent (§ § 2113 to § 2115 BGB). A prospective right under inheritance law arises , which becomes a full right with the occurrence of the subsequent heir case ( § 2139 BGB).
Here, too, the principle applies that legal transactions remain pending ineffective without consent, become effective from the start with consent, and are void without consent.
Delimitations
Conceptually, the consent must be distinguished from the purely actual act with which another person is allowed to do something, for example consent to access, which in the case of trespassing ( Section 123 StGB ) does not constitute a criminal offense . The consent to injury plays in the doctor's medical treatment involved ( § 228 of the Criminal Code).
International
The Swiss Civil Code (ZGB) and the Code of Obligations (OR) use the term consent very often. According to Art. 19 of the Civil Code, persons who are incapable of judgment may only enter into obligations or give up rights with the consent of their legal representative. The legal representative can expressly or tacitly give consent in advance or approve the transaction retrospectively ( Art. 19a ZGB). If the legal representative does not approve, each part can claim back the services provided ( Art. 19b ZGB). According to Art. 19c of the Civil Code, persons who are incapable of making judgments and who are incapable of acting independently exercise the rights to which they are entitled for the sake of their personality ( highly personal rights ); Cases in which the law provides for the consent of the legal representative remain reserved. A spouse can only terminate a rental agreement with the express consent of the other, sell the family's house or apartment or restrict the rights to the family's living space through other legal transactions ( Art. 169 ZGB). Consents are also often required in the family law of the Civil Code. The OR knows the approval of, for example, the guarantee of spouses ( Art. 494 OR), resolutions of the shareholders of a simple partnership ( Art. 534 OR) or other legal forms .
In Austria the terms consent / consent / approval are often used synonymously. Then according to the need, for example, a transaction the consent of the legal representative of the consent of the other parent or the approval of the Pflegschaftsgerichts, § 167 Civil Code , the child who has reached only from this obligation effectively in their absence when it declared in writing to accept these obligations as legally effective . According to § 170 ABGB, a minor child can neither dispose of nor undertake a legal transaction without the express or tacit consent of his legal representative. If the consent to medical treatment lacks the necessary decision-making ability, the consent of the person entrusted with the legal representation in care and upbringing is required according to Section 173 ABGB. In Austrian contract law , consent to a contract ( Section 869 ABGB) is understood to mean acceptance in the German legal sense. The type of consent is determined in the purchase contract ( Section 1054 ABGB). Even with the assumption of debt according to § 1345 ABGB, consent is given by the new debtor and previous creditor ( § 1405 ABGB).
In common law are also third-party consent / approval ( English approval, assent ) or consent ( English consent are) required to certain transactions when affected by this in any way. Thus, the informed consent applies ( English informed consent ) of patients in the US today as a basic medical ethical and legal standards.
Web links
Individual evidence
- ↑ Winfried Boecken, BGB - General Part , 2007, p. 404
- ↑ Michael Jaensch, Grundzüge des Bürgerlichen Rechts , 2018, p. 114
- ↑ BGHZ 112, 387 , 389 f.
- ↑ BGH WM 1977, 819
- ↑ BGH NJW 1986, 2107
- ^ BGH WM 1966, 221
- ^ Margery Wayne Shaw, Informed consent , in: German Lesson, ICLQU. 35, 1986, p. 864
