Business unit (law)
According to German law, a business unit exists if the parties agree that several independent legal transactions are related to a single purpose.
A legal regulation concerning the business unit can be found in § 139 BGB . This is an exception to the principle that a void clause does not make an effective clause ineffective ( utile per inutile non vitiatur ).
For example, a property purchase agreement and a construction supervision agreement can be combined. If the land purchase contract is ineffective in this case, the construction supervision contract is also ineffective. Contracts for hardware and software can also be linked with each other if both contracts stand and should fall with one another.
Effects on the abstraction principle
The business unit can acquire importance in particular if, according to the will of both parties, the causal transaction ( obligation transaction ) and the fulfillment transaction ( disposition transaction ) are to be linked. This means that the principle of separation and abstraction that applies in German civil law is broken. For this reason, the applicability of Section 139 of the German Civil Code (BGB) and thus the possibility of forming both transactions into one business unit are rejected by parts of the literature. The settled case law, however, affirms the applicability. This is justified, among other things, by the fact that under civil law the will of the party must take precedence over legal principles.
According to the case law, however, what is required is a clear will of the parties or specific indications and not just a practically constant economic connection between the two legal transactions. For this reason, the business unit in this constellation has little practical relevance, because at least in those cases in which a clear will of the parties is to be assumed, there is a conditional relationship according to § 158 BGB.
According to the causal principle applicable in Austria, for example , the effectiveness of the fulfillment transaction always depends on the effectiveness of the underlying causal transaction.
Individual evidence
- ↑ BGH NJW 1976, 1931
- ↑ BGH NJW 1990, 3012
- ↑ Jens Petersen, The legal capacity, in JURA 2004, 100; Othmar Jauernig, abstraction principle , in JuS 1994, 721, 724; Holger Schlueter in JuS 1969, 10, 11
- ↑ See BGHZ 31, 323; BGH NJW 1952, 60, 67; BAG NJW 1967, 751
- ↑ Palandt , 72nd edition, 2013, § 139 Rn. 7th
- ↑ BGH DNotZ 1990, 170
