Management without order (Germany)

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The management without order (GoA) is a legal obligation that is regulated in Germany in §§ 677 - 687 of the German Civil Code (BGB) and is one of the contract-like claims .

According to the legal definition, a GoA exists when someone does business for another without being entitled to do so on the basis of an order or any other reason. The term business is to be understood broadly and includes any non-profit activity, for example the protection of another person's legal interest from danger and the assumption of a third-party liability. The regulations of the GoA aim to achieve an appropriate balance of interests between the person who does the business and the person for whom the business is done. The former is referred to as the managing director, the latter as the owner. The regulations of the GoA provide for claims for both parties.

In which cases which claims come into play, depends on the attitude of the parties towards the management: A distinction is made between the real and the fake GoA. The decisive difference between the two institutes lies in the will of the managing director. In a real GoA, the latter wants to act in a non-profit manner. In the case of a fake GoA, on the other hand, the managing director wants to act exclusively in his own interest. For both forms of the GoA, subcases are standardized, which differentiate according to the need to protect the managing director.

History of origin

The management without commission is largely due to the Roman legal institute of the negotiorum gestio . This legal institute provided for reciprocal claims of the principal and the managing director in the event that a foreign business was carried out. The guiding principles of these regulations are interpreted in different ways in jurisprudence. Altruistic behavior was often seen as a central area of ​​application . Even in the legal practice of antiquity, the negotiorum gestio was used in numerous other legal relationships. As a result, it developed into a subsidiary standard regulation that came into play when more specific legal institutions were not relevant.

The authors of the BGB followed this structure. They incorporated regulations on management without an order as a legal obligation in the body of law and based themselves on the functional diversity of their predecessors. Although they did not go so far as to subject all actions to the rules of the GoA that had an impact on a foreign interest group, they also rejected numerous more restrictive suggestions that the management wanted to limit without commission to unselfish actions or to contractual relationships. The legislator saw the conscious perception of foreign interests as a decisive prerequisite for the GoA. Therefore, he drafted the requirement of the will to run a business outside of the company, which describes the will to act in a group of foreign interests.

The first commission convened in 1874 to draft the BGB placed the GoA within the draft law following the enrichment law . The second commission postponed the contractual relationship to the end of the contract law because of its proximity and its content . Since then, the set of standards has remained essentially unchanged until today.

Because of the Roman legal origin of the management without a mandate, it is particularly widespread in the legal systems of the Roman legal system . This is the case, for example, in Italy, France , Scotland and Louisiana . A comparable regulation also exists in the Burgerlijk Wetboek , the civil code of the Netherlands .

Scope of the GoA

The GoA has a broad scope: A claim from the set of standards comes into consideration as soon as a person is active in someone else's task area without a legal basis for this. The legislature saw the main focus on situations in which someone is altruistically committed to another. However, cases of this kind only make up a small proportion in court practice, as the GoA is applied in numerous other legal relationships due to its broad norms. In addition, some standards of the BGB refer to the regulations of the GoA as a processing model, such as § 539 Paragraph 1 or § 994 Paragraph 2 BGB. Both standards deal with the reimbursement of expenses that someone makes on someone else's cause.

In some constellations, the wording of which can be subsumed under the provisions of the GoA, their application is excluded from the outset: For example, the GoA can be superseded by other sets of norms, such as the law on enrichment . In addition, their applicability can be excluded in order to avoid contradicting results. This is the case , for example, with the statutory liability regulations for road traffic: Section 7 StVG provides for above-average liability on the part of the vehicle owner, which is only excluded in exceptional cases - in the event of force majeure . This liability system would be undermined if the GoA were to apply: If, for example, the vehicle owner evades a cyclist with his car in order not to run over him and thereby damages his car, he could demand reimbursement of expenses from the GoA. However, this contradicts the liability of the StVG, since the vehicle owner would normally be obliged to compensate the cyclist if he were injured. Because of this contradiction, the GoA cannot apply here.

The GoA is also not applicable if it clashes with the main features of the contractual law . Such a collision existed, for example, in the so-called heir seeker case. There, a person helped unsolicited other at registration of inheritance rights by this provided them with supporting information. She then asked the heirs who successfully enforced their inheritance claims to pay a fee for their expenses. Since contractual claims could not be considered due to the lack of a contract, the Federal Court of Justice examined a claim from the GoA. He refused this because the expenses of the heir seeker served to initiate a contract. However, this is associated with the risk of failure for both parties, with the result that the parties incurred expenses up to that point to bring about the conclusion of the contract are in vain. This risk distribution, which is based on the principles of private law, is not intended to be undermined by the GoA, which is why it is not applicable in such cases.

Ultimately, the management without an order is excluded if there is a case of unsolicited performance by an entrepreneur. In such cases, Section 241a of the German Civil Code stipulates that the entrepreneur has no claim to remuneration. This evaluation must not be broken by the GoA, so that its applicability is excluded.

Real management without a mandate (§§ 677-686)

The real GoA regulates the conflict of interest that arises when consciously acting in someone else's task area. This action can be convenient for the principal, but it can also constitute undesirable interference in his affairs. Who is entitled to which claims is therefore based on the will of the principal. If the management is carried out with his will, there is a justified GoA. If it takes place without his will, it is an unjustified GoA. Both forms of the real GoA have different requirements. While the authorized managing director can demand comprehensive reimbursement of expenses for his work from the principal, the unauthorized managing director is more liable to the principal for damages .

Authorized and unauthorized GoA have several common prerequisites: the conscious management of a foreign business without an order or other authorization.

general requirements

Managing directors

Running a business without a mandate first requires running a business. The concept of business is to be understood broadly, as in contract law. It is not limited to legal transactions, but also includes everyday actions, as far as it is beneficial to others. What is required, however, is volitional action. Mere toleration or omission is therefore not sufficient. Running a business is an actual act. Therefore, the managing director does not need to be legally competent .

Examples of business in the sense of the GoA include not only concluding legal transactions, but also evading traffic, stopping a vehicle and the burial of a deceased.

strangeness

Furthermore, the business must be foreign. This is true if the business falls in the interests of someone else. Here, the prevailing view differentiates between three levels: objective, subjective and objective-subjective strangeness.

A case of objective strangeness exists if the business can already be assigned to a group of foreign interests based on its outward appearance. This is the case, for example, when fulfilling someone else's fault and when helping in a dangerous situation.

If the business looks like a manager's business from its outward appearance, it is objectively neutral. Such a business can represent a foreign one, if the managing director aims to protect foreign interests with the management. This is the case, for example, when someone buys something for someone else: the management itself does not see that its fruits are not intended to benefit the managing director himself, but someone else. Therefore, the strangeness of such a business arises only from the fact that the managing director wants to run the business in the interests of another. In order for the managing director's business partner to be protected, this will must be externally recognizable. Since this business appears neutral when viewed objectively and its strangeness results solely from the manager's attitude towards the business, it is referred to as a subjectively alien business.

The objective-subjective or also-strange business occupies an intermediate position between these two businesses. Such a transaction exists when the managing director pursues both external and his own interests with the management. This was the case, for example, in the following case by the Federal Court of Justice: The owner of a warehouse stored foreign milk powder in a hall in which a fire later broke out. He received an order from the authorities to remove the powder, which is now unusable and harmful to health. After the disposal was completed, he demanded reimbursement of expenses from the owner of the milk powder. The court affirmed a claim from GoA: Although the owner of the warehouse complied with an order addressed to him by cleaning, he was thus active in his own legal sphere, but at the same time he took on an obligation of the powder resulting from § 1004 Paragraph 1 Clause 1 BGB -Owner to dispose of the powder true. That is why the court saw this as a foreign business. The recognition of foreign business is viewed critically by some voices in legal doctrine, as it harbors the risk that the scope of application of the GoA regulations is determined without contours and largely by considerations of equity.

It is controversial whether a business that the managing director conducts under his own contractual obligation can be foreign. Duty-based management of this kind applies, for example, when a towing company tows vehicles on behalf of a parking space owner. In the past, jurisprudence affirmed a foreign business in such cases. The objection was that an overlap between the GoA and the contractual obligation was not possible. If the managing director becomes active within the framework of a contract, he is solely entitled to claims from the contract against his contractual partner. The more recent case law of the Federal Court of Justice rejects the acceptance of management without an order if the contract conclusively regulates the rights and obligations of the manager. This is especially the case when the contract includes a remuneration agreement. If this is the case, the managing director is not entitled to any claims against the managing director (the towed person), as otherwise both the managing director (tow truck) and his client (parking lot owner) could claim the full amount. In the example case, however, according to the case law and some voices of legal doctrine, the parking space owner from GoA can take action against the wrongdoer, since by removing the vehicle he is fulfilling the towed person's duty to end the wrong parking situation.

In cases of a GoA under public law , the case law assumes that a sovereign also carries out a business that is not part of the company, so that claims for reimbursement for his expenses can result from the analogous application of §§ 677 ff. BGB. On the other hand, the objection is made in the literature that a public authority neither fulfills the external duties imposed on a managing director, nor that the cost allocation regulation achieved by the GoA is appropriate.

Foreign management will

The managing director must run the business with the awareness and the will that the business is strange. In accordance with Section 686 of the German Civil Code, it is not necessary for him to know about the person of the business owner: If the managing director is wrong about the identity of the business owner, the person in whose interest the business is managed is obliged to comply with the GoA standards.

If there is an objectively third-party business, the will to manage the business outside of the company is presumed to be rebuttable, since the conduct of such a business suggests that the managing director is acting with a will to run a business outside the company. It is therefore up to the party who denies the will to manage the foreign business to prove its lack in court proceedings. According to the prevailing view, the same applies to business that is also foreign. In the case of subjectively foreign business, on the other hand, the will to conduct an external business must be proven by the party who invokes its existence, since there is no presumption here. Since the business does not give any indications for this, circumstantial evidence is used in practice to prove the will to manage the external business. For example, correspondence between the business owner and manager before the management or a down payment from the business owner come into consideration.

Without an order or other authorization

The managing director must not have been obliged or authorized to manage the business by the managing director, since then there would be a contractual relationship within the meaning of Section 662 BGB, which itself provides for mutual claims for the parties involved. It is controversial whether a GoA can exist if someone acts on the basis of a void contract by providing an allegedly owed service. This can happen, for example, if a contract violates a prohibition law ( § 134 BGB) or is immoral ( § 138 BGB). In such cases, the case law considers claims from GoA to be possible in principle, as they can be subsumed under the wording of Section 677 of the German Civil Code. The legal doctrine objects to this that this misunderstands the purpose of the GoA. This does not lie in the reversal of void contracts, since other sets of norms are relevant, in particular the right to enrichment. Therefore, the GoA is not applicable due to legal competition. Others already reject the existence of the will to run the business outside the company, since the managing director only acts to receive the remuneration promised to him. There can therefore be no question of altruistic behavior.

Takeover in the spirit of the principal

Only the authorized management without an order grants the managing director a claim against the principal for reimbursement of his necessary expenses from § 670 BGB, which refers to the order law. If the managing director acts against the will of the principal and the exception regulation of § 679 BGB is not relevant, there is an unauthorized GoA. From the point of view of the managing director, this is less favorable in that it only grants him a claim for reimbursement of expenses within the limits of the enrichment law and opens up an additional claim for damages for the principal with § 678 BGB.

Authorized GoA (§ 683)

The decisive prerequisite for the legitimate GoA is that the takeover of the management corresponds to the actual or presumed will of the principal and that it is in his interest. The true will of the business owner has priority. If the managing director knows this, he has to respect it, even if it may appear unreasonable and contrary to the objective interests of the principal.

Section 679 BGB makes an exception to the priority of the will of the principal . The standard stipulates that any will of the managing director that is contrary to the management should be irrelevant if this is necessary to fulfill an obligation of the principal that is in the public interest. Such a case are, for example, the burial of a corpse and the detoxification of a drug addict. The same applies if the management serves the fulfillment of a legal maintenance obligation . Finally, § 679 BGB is applied analogously to cases in which the real will of the business owner violates a legal prohibition or good morals .

If the real will of the principal cannot be determined, his presumed will is important. Action corresponds to the presumed will if the managing director acts in a way that someone with the knowledge of the principal would have considered to be in line with his interests. This is regularly the case when the management is economically advantageous for the principal.

If the principal is a minor , it is not his will, but that of his legal representative - usually his parents - that is decisive.

According to the prevailing view in jurisprudence, a legitimate GoA is also possible if the managing director saves the principal from suicide, since the suicidal’s conflicting will may be ineffective. However, the way in which the ineffectiveness can be derived is controversial.

Unauthorized GoA (§ 684)

If the management contradicts the will of the principal and if this is not neglected, there is an unauthorized GoA. This gives the principal a claim for damages against the managing director. This claim assumes that the managing director negligently disregards the opposing will of the principal. If this is the case, the managing director is obliged to compensate for all damage caused by his management. This is the case even if the managing director is not at fault with regard to the specific damage caused.

In the case of the unauthorized GoA, the managing director cannot demand reimbursement of his expenses according to § 683 BGB, since the principal should not be financially burdened by an undesirable management. However, the managing director can demand that the principal surrender the enrichment obtained through the management in accordance with the provisions of the enrichment law .

Claims from real GoA

In the context of real management without an order, claims by the managing director against the principal for reimbursement of expenses may be considered. Conversely, the principal can demand compensation from the managing director for the damage caused by the management. Claims for reimbursement of expenses expire within three years according to § 195 BGB. Claims for damages only expire after ten or thirty years, depending on the reference point.

Reimbursement of expenses

Section 670 BGB provides for a claim for reimbursement of expenses. This entitlement requires the existence of a real legitimate GoA; the management must therefore be in harmony with the will of the principal. Furthermore, the managing director must have incurred expenses. This is understood to mean voluntary property sacrifices that the managing director undertakes to manage the company or that are an inevitable consequence of managing the company. The managing director must have justifiably considered these expenses to be necessary. The benchmark for this is the assessment of an expert managing director at the time the business is arranged. As a result, the managing director is required to check whether his expenses are reasonable. For example, obviously useless expenses or those that only serve the interests of the managing director are not eligible for compensation. The same applies to expenses that contravene the legal system. This is the case, for example, with expenses that are associated with inadmissible legal advice .

Damage does not correspond to the concept of expenditure, but rather represents its opposite as involuntary loss of assets. Nevertheless, it can also be replaced for reasons of equity via § 670 BGB in analogous application if the damage results from a risk that is typically associated with the risk of management connected is. The management must therefore be associated with a risk that goes beyond the general risk to life .

Even work that is part of the manager's professional activity is a reimbursable expense. However, the wording of the law indicates the opposite on this point: From § 662 BGB, which is part of the contract law, to which § 683 sentence 1 BGB refers, it follows that the agency is free of charge. However, this would inappropriately privilege the principal. Section 685 sentence 1 BGB also regulates the management of the business as a gift , which suggests that the paid management was intended as a rule. In part, this inconsistency is seen as an editorial mistake by the legislature. Some also apply Section 1835 (3) of the German Civil Code (BGB) analogously in the case of the manager's work. This provision gives the guardian a right to compensation for his work that is part of his trade or profession. In any case, the representatives of both views assume that the managing director is entitled to remuneration for professional work.

If the managing director incurs expenses that also serve his own interest, his claim against the principal is to be reduced analogously in accordance with § 254 BGB for reasons of equity . The same applies if the managing director increases the costs of the expenses in a reproachable manner. This is the case, for example, if the managing director is injured due to negligent self-endangerment while managing the company. According to § 685 S. 1 BGB, the claim is finally completely excluded if the managing director wanted to turn the management over to the principal free of charge. This regulation arises from the general prohibition of contradicting behavior.

If it is an unauthorized GoA, the businessman Lord can according to § 684 cause S. 2 BGB the legal consequences of the legitimate GoA by the management approved . If he does not do this, the managing director is still entitled to reimbursement of expenses, but this is subject to additional restrictions. It is not based on § 670 BGB, but on the right to enrichment. Therefore, the principal is entitled to the objection of depletion under Section 818 (3) of the German Civil Code (BGB), which limits the manager's claim to the enrichment that is available to the principal at the time the claim is made. This protects the business owner from the costs of unsuccessful management, which would be eligible for compensation under Section 670 of the German Civil Code (BGB).

If the management is carried out in the interests of several business owners, they are liable to the managing director as joint and several debtors .

damages

The managing director is liable for damages in accordance with Section 280 (1) BGB if he culpably commits a breach of duty in the management that causes damage. The duties of the managing director arise primarily from § 677 BGB. This standard obliges the manager to conduct the business in a way that is in the interests of the principal. This obligation is supplemented by some provisions of the contract law, which are also applied in the law of the GoA by reference in § 681 sentence 2 BGB. These duties include, for example, the duty to provide information and accountability from Section 666 of the German Civil Code. In addition, from § 681 sentence 1 BGB there is an obligation to inform the business owner about the management.

If the managing director violates an obligation, he must be responsible for this. In accordance with Section 276 (1) of the German Civil Code (BGB), this applies in principle if the managing director is at least slightly negligent . This standard of liability is modified by § 680 BGB, which limits the liability of the managing director to intent and gross negligence if he acts to avert an immediate threat to the principal. The purpose of the liability privilege is to protect the willingness to help in the population by protecting against claims due to slight negligence in emergencies. Such cases are, for example, assistance after traffic accidents and preventing an unfit driver from driving. According to widespread opinion, this liability privilege should also be applied in the case of the erroneous assumption of an urgent danger. The unauthorized business owner also benefits from the liability privilege.

In the case of unauthorized managing directors, in addition to this liability according to § 280 BGB, liability according to § 678 BGB is possible. Section 678 of the BGB stipulates additional liability for damage resulting from the unwanted takeover of the business. The starting point for the fault of the managing director is therefore the failure to take into account the will of the managing director. If the managing director overlooks, at least negligently, that his management contradicts the will of the principal, he is liable to him for all damages that arise in the course of his management. It is irrelevant whether he is at fault separately for this damage. However, the liability privilege of § 680 BGB is also applicable to the liability from § 679 BGB.

In both cases of the GoA the liability of the managing director is limited according to § 682 BGB, if he is legally incapable or limited .

Release of what has been obtained

According to § 667 BGB, the business owner can demand from the managing director what he has obtained through the management. This includes every advantage that the managing director acquires in connection with the management.

Fake management without a mandate (§ 687)

In the case of the false GoA regulated in § 687 BGB, the managing director lacks the will to run the business outside of the company because he does not want to run the business for someone else, but as his own. The law distinguishes between two cases: the supposed conduct of proprietary business and business presumption.

Alleged conduct of proprietary business (paragraph 1)

If someone worries about a third-party business in the opinion that it is their own, the regulations of the management without an order are not to be applied as a whole according to § 687 Para. 1 BGB. This includes both the regulations that favor the managing director as well as those that serve to protect the principal. The handling of such legal relationships is therefore based on other institutions, such as the law of enrichment, the owner-owner relationship or tort law .

Business presumption (paragraph 2)

In the case of business presumption, in contrast to erroneous self-management, someone consciously intervenes in a foreign legal sphere and runs a foreign business as his own. This is the case, for example, with the unauthorized sale of someone else's item. A business presumption is also possible according to § 142 Abs. 2 BGB if the managing director knows that the business entitling him is contestable . In contrast, the unauthorized subletting of an item does not constitute business presumption. There is no third-party business, since only the tenant is able to transfer direct ownership of the rental item.

The principal is particularly in need of protection in cases of business presumption. Therefore, he can determine the legal consequences of the management: He can take action against the managing director either from the GoA regulations that favor him or from other standards, depending on which way is more advantageous for him. The claims from GoA are of practical importance, especially in the case of the infringement of industrial property rights , since the injured party can only demand the surrender of the profit based on the infringement from the infringer via Section 667 BGB. In addition, the claim for damages from § 678 BGB has the advantage that it does not require any fault with regard to causing the damage and is not limited to certain legal interests, which is both the case with the central tortious claim from § 823 Paragraph 1 BGB. If the principal chooses the claims from the GoA, the managing director can, however, demand reimbursement of his expenses according to § 684 S. 1 BGB, insofar as these enrich the principal. If, on the other hand, the principal takes action against the managing director based on other norms, he is not entitled to any claims against the principal.

Competitions

In the case of management without an order, claims from other legal obligations come into consideration, for example from the law of enrichment, the owner-owner relationship or the law of tort.

The legitimate management without an order represents a legal basis . Therefore, it excludes claims under enrichment law that serve to reverse the unlawful shifting of assets. It also establishes a right of ownership . Therefore, claims from the owner-owner relationship are ruled out if the occupation takes place within the framework of the management, since these claims presuppose that someone owns an object without being entitled to do so. In addition, according to the prevailing opinion, the legitimate GoA represents a justification in criminal and tort law, so that no claims due to tortuous damage come into consideration in the case of interventions that are necessary for proper business management. A contradicting view rejects this and emphasizes that the rules of the GoA serve solely to balance the law of obligations between the business owner and the managing director. The emergency rules are intended to justify non-profit actions .

According to the prevailing opinion, the unauthorized management represents neither a legal reason nor a justification . Whether it establishes a right to possession is disputed. Proponents argue that like the legitimate GoA, it contains final regulations. Therefore, claims from unjustified GoA stand alongside claims from other sets of standards. In the case of claims for damages, it should be noted that the privileges of § 680 BGB also apply to claims arising from contracts and offenses.

Since the supposed self-management leads to the exclusion of the applicability of the GoA regulations, claims from other sets of standards, such as the owner-owner relationship and the right to enrichment, are applicable without restriction. Even business presumption does not lead to the displacement of other norms. However, it limits the applicability of claims for reimbursement of expenses by the managing director to cases in which the owner of the GoA takes action against the managing director.

Application in public law

It is controversial in jurisprudence to what extent the rules of management without a mandate also apply in public law . It is undisputed that special legal regulations have priority. Such overriding regulations are, for example, the provisions on the bearing of costs in the law of administrative enforcement or the allocation of costs in the hazard prevention law .

In principle, the GoA is excluded in relation to both the citizen's activity for the administration and the administration's activity for the citizen. There are exceptions for citizens to act in the legal sphere of a sovereign, for example if they clean a body of water for which the public sector is responsible but cannot be reached (especially in emergencies). This can also apply if no specific sovereign powers are required for the measure (simple administrative action) or if the authority has reduced its discretion to “zero”.

If a sovereign is active in the legal sphere of a citizen, for example because he is averting a danger in his interest, claims from GoA are excluded according to the prevailing opinion . Nevertheless, the case law has already affirmed this possibility. Legal theory is largely opposed to this because its application leads to the circumvention of public cost law and prescribed means of coercion.

GoA claims are also discussed among administrative bodies and generally recognized if, for example, they are indicated in emergencies due to the distribution of responsibilities. So it can come into consideration if the water police in a country clears a puddle of oil on a federal waterway. In these cases, however, financial equalization is mostly achieved through Art. 104a, Paragraph 2 of the Basic Law , so that no room remains for the application of the GoA.

In order for the management to justify a claim for reimbursement of expenses, it must be made with the will of the authority or - if such a will cannot be determined - in their interest. This is usually only considered in exceptional cases and emergencies, since the public interest is usually directed towards the fact that a task is carried out by the competent sovereign and not by a private person.

Legal recourse to the administrative courts is opened for claims arising from public-law management without a mandate in accordance with Section 40 (1) sentence 1 VwGO .

literature

  • Philipp Brennecke: Medical management without an order . Springer, Heidelberg 2010, ISBN 978-3-642-10758-0 .
  • Gunter Deppenkemper: Negotiorum gestio - Management without a mandate: On the emergence, continuity and change of a common European legal institution . Vandenhoeck & Ruprecht, Göttingen 2014, ISBN 978-3-8470-0293-2 .
  • Marilen Hilbert: The foreign business in the jurisdiction . Nomos, Baden-Baden 2015, ISBN 978-3-8487-2111-5 .
  • Florian Loyal: The "paid" management without a contract: Basics and limits of a non-contractual exchange of services . Mohr Siebeck, Tübingen 2011, ISBN 978-3-16-150963-6 .
  • Johannes Meier: The subjective system of management without an order , §§ 677-686 BGB in the light of the two-part subjective theory, dissertation, Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156446-8 .
  • Roland Wittmann: Concept and functions of management without a mandate: a civilistic-dogma-historical treatise . CH Beck, Munich 1981, ISBN 3-406-08149-5 .
  • Christian Wollschläger: The management without a mandate: theory and jurisprudence . Duncker & Humblot, Berlin 1976, ISBN 3-428-03782-0 .

Web links

Individual evidence

  1. ^ Andreas Bergmann: Before § 677, Rn. 6. In: Andreas Bergmann, Dieter Reuter, Olaf Werner (eds.): J. von Staudinger's commentary on the German Civil Code: §§ 677–704 (management without mandate) . De Gruyter, Berlin 2015, ISBN 3-8059-0784-2 . Nils Jansen: §§ 677-687 I , Rn. 8. In: Mathias Schmoeckel, Joachim Rückert, Reinhard Zimmermann (eds.): Historical-critical commentary on the BGB. Volume III: Law of Obligations Special Part . Mohr Siebeck, Tübingen 2013, ISBN 3-16-147909-2 . Tiziana Chiusi: The reimbursement of expenses of the managing director without an order . In: Jürgen Bröhmer (Ed.): International Community and Human Rights: Festschrift for Georg Ress on his 70th birthday on January 21, 2005 . Carl Heymanns, Cologne 2005, ISBN 3-452-25862-9 .
  2. ^ A b Hans Hermann Seiler: Before § 677 , Rn. 1. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 .
  3. ↑ Josef Kohler: The human aid in private law. In: Jhering's yearbooks 1887, p. 42.
  4. ↑ Friedrich Lent: Will and interest in business management. Deichert, Erlangen 1938, p. 12 .
  5. ↑ Andreas Bergmann: The management without mandate as a subordination relationship: the legal institutions of the negotiorum gestio in terms of subordination law . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150329-0 , p. 48 .
  6. ↑ Hans Hermann Seiler: § 677 , Rn. 2-4. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 . Andreas Bergmann: The management without mandate as a subordination relationship: the legal institutions of the negotiorum gestio in terms of subordination law . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150329-0 , p. 49 .
  7. ^ Andreas Bergmann: Before § 677, Rn. 7-8. In: Andreas Bergmann, Dieter Reuter, Olaf Werner (eds.): J. von Staudinger's comment on the German Civil Code: §§ 677–704 (management without mandate) . De Gruyter, Berlin 2015, ISBN 3-8059-0784-2 .
  8. ↑ Herman Boonk: Aspects of Private International Law Relating to Questions of Carriage under Bills of Lading and Cargo . In: Marc Hendrikse (Ed.): Source Aspects of Maritime Law: Claims under Bills of Lading . Kluwer, 2008, ISBN 90-411-2623-6 , pp. 340 (English).
  9. ↑ Nils Jansen: gestio negotiorum and Benevolent Internvention in Another's Affairs: Principles of European Law? In: Journal for European Private Law 2007, p. 958.
  10. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 3, Rn. 1.
  11. ^ Christian Wollschläger: The management without an order: theory and jurisprudence . Duncker & Humblot, Berlin 1976, ISBN 3-428-03782-0 , pp. 28-33 .
  12. ↑ On the concept of force majeure, see Michael Burmann: § 7 , marginal no. 17-22. In: Michael Burmann, Rainer Heß, Katrin Hühnermann, Jürgen Jahnke (eds.): Road traffic law . 25th edition. CH Beck, Munich 2018, ISBN 978-3-406-70386-7 .
  13. ↑ a b c BGHZ 38, 270 .
  14. ^ Claus-Wilhelm Canaris: State of emergency and "self-sacrifice" in road traffic . In: JuristenZeitung 1963, p. 655 (659).
  15. ^ BGH, decision of February 23, 2006, Az. III ZR 209/05, full text = NJW -RR 2006, 656.
  16. ^ Christian Grüneberg: § 241a , Rn. 7. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  17. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 2, Rn. 5.
  18. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 2, Rn. 10.
  19. ↑ Christoph Hirsch: law of obligations special part . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6491-4 , Rn. 1773.
  20. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 4, Rn. 1.
  21. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 4, Rn. 3.
  22. ↑ a b BGHZ 43, 188 .
  23. ↑ BGHZ 191, 325 .
  24. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 4, Rn. 5.
  25. ↑ a b Hans Hermann Seiler: § 677 , Rn. 6. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 .
  26. ↑ BGHZ 47, 370 .
  27. ↑ BGHZ 33, 251 .
  28. ↑ a b BGHZ 110, 313 .
  29. ↑ Ulrich Falk: From title dealers and heir seekers - The GoA jurisdiction at the crossroads . In: Juristische Schulung 2003, p. 833 (835). Stephan Lorenz: Failed contractual relationships between management without commission and right to enrichment: late inspection by the BGH? , NJW 1996, 883.
  30. ↑ Stephan Lorenz: Failed contractual relationships between management without mandate and right to enrichment: late inspection of the BGH? , NJW 1996, 883.
  31. ↑ BGHZ 16, 12 .
  32. ↑ Christoph Hirsch: law of obligations special part . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6491-4 , Rn. 1809.
  33. ↑ Hans Hermann Seiler: Basic cases on the law of management without an order . In: Juristische Schulung 1987, S. 373. Dieter Medicus, Jens Petersen: Bürgerliches Recht . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 414.
  34. ↑ BGH, judgment of March 11, 2016, Az. V ZR 102/15, full text = NJW 2016, 2407.
  35. ^ Stephan Lorenz: Private towing - property protection or "rip off"? , NJW 2009, 1025. Günter Schwarz, Astrid Ernst: Claims of the property owner against “parking offenders ” , NJW 1997,2550. Bernhard Janssen: Towing in Civil Law , MJW 1995, 624.
  36. ↑ BGHZ 40, 28 .
  37. ↑ Dieter Medicus: Statutory obligations: tort and damage law, enrichment, management without commission . 5th edition. CH Beck, Munich 2007, ISBN 978-3-406-54445-3 , p. 175-176 . Marco Staake: The police as managing director without a mandate . In: Juristische Arbeitsblätter 2004, p. 801.
  38. ↑ Marco Staake: The police as managing director without assignment . In: Juristische Arbeitsblätter 2004, p. 801.
  39. ↑ Hartwig Sprau: § 677, Rn. 4. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 . Manfred Wandt: Legal obligations: tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 4, Rn. 30th
  40. ↑ BGHZ 40, 28 . BGHZ 38, 270 .
  41. ↑ Heinz-Peter Mansel: § 677 , Rn. 4. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  42. ↑ RGZ 149, 205 (207-208).
  43. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 4, Rn. 32.
  44. ↑ Christoph Hirsch: law of obligations special part . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6491-4 , Rn. 1778.
  45. ↑ BGHZ 37, 258 (262); BGH, judgment of October 5, 2005, Az. VIII ZB 52/04, full text = NJW 2005, 3786. However, the case law denied a claim from GoA in BGHZ 181, 188 for providing for an ineffective cosmetic repair clause, as it is here lacking in someone else's business.
  46. ↑ Frank Schäfer: § 677 , Rn. 86-88. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 5/2 . Sections 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2017, ISBN 978-3-406-71018-6 .
  47. ↑ Heinz-Peter Mansel: § 677 , Rn. 6. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  48. ↑ Martin Schwab: § 677 , Rn. 43a. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 . Benjamin Schmidt: The scope of the authorized management without an order . In: Juristische Schulung 2004, p. 862 (866).
  49. ↑ BGHZ 138, 281 (287).
  50. ↑ Hartwig Sprau: § 683, Rn. 5. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  51. ↑ BGHZ 191, 325 .
  52. ↑ BSGE 67, 100 .
  53. ↑ Hans Berg: Main problems of the management without an order . In: Juristische Schulung 1975, p. 686.
  54. ↑ BGHZ 47, 370 (374).
  55. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 5, Rn. 10.
  56. ↑ Dirk Looschelders : law of obligations special part . 8th edition. Vahlen, Munich 2013, ISBN 978-3-8006-4543-5 , Rn. 861 .
  57. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 8, Rn. 28.
  58. ↑ Frank Schäfer: § 679 , Rn. 13. In: Martin Henssler (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 5/2 . Sections 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2017, ISBN 978-3-406-71018-6 . Hans Berg: Main problems of the management without an order . In: Juristische Schulung 1975, S. 686. Michael Martinek, Uwe Theobald: Basic cases to the law of the management without order . In: Juristische Schulung 1998, p. 27 (31).
  59. ↑ a b Hans Hermann Seiler: § 678 , Rn. 6. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 .
  60. ↑ Michael Martinek: § 670 , Rn. 7. In: Andreas Bergmann, Dieter Reuter, Olaf Werner (eds.): J. von Staudinger's comment on the German Civil Code: §§ 677–704 (management without mandate) . De Gruyter, Berlin 2015, ISBN 3-8059-0784-2 .
  61. ↑ RGZ 149, 205 (207). BGH, judgment of September 21, 2012, Az. V ZR 230/11, full text = NJW 2012, p. 3781.
  62. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 5, Rn. 34.
  63. ↑ RGZ 149, 205 (209).
  64. ↑ BGH, judgment of July 3, 2008, Az. III ZR 260/07, full text = NJW 2008, 3069.
  65. ↑ BGHZ 89, 153 . BGHZ 38, 270 .
  66. ↑ BGH, judgment of May 4, 1993, Az. VI ZR 283/92, full text = NJW 1993, 2235.
  67. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 5, Rn. 42.
  68. ↑ Hans Hermann Seiler: § 683 , Rn. 25. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 .
  69. ↑ Andreas Bergmann: § 683, Rn. 58. In: Andreas Bergmann, Dieter Reuter, Olaf Werner (eds.): J. von Staudinger's commentary on the Civil Code: §§ 677–704 (management without mandate) . De Gruyter, Berlin 2015, ISBN 3-8059-0784-2 .
  70. ↑ Heinz-Peter Mansel: § 683 , Rn. 6. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  71. ↑ Martin Schwab: § 685 , Rn. 1. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  72. ↑ According to the prevailing opinion, § 684 sentence 2 BGB is a reference to legal consequences ; on the dispute see Martin Schwab: § 684 , marginal no. 4-7. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  73. ↑ OLG Frankfurt , judgment of January 10, 1995, Az. 22 U 198/93, 9 O 166/92, guiding principle = NJW-RR 1996, 1337.
  74. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , § 5, Rn. 93.
  75. ↑ BGHZ 63, 167 .
  76. ↑ a b BGH, judgment of November 30, 1971, Az. VI ZR 100/70, full text = NJW 1972, 475.
  77. ↑ Martin Schwab: § 680 , Rn. 6. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 . Hartwig Sprau: § 680 , Rn. 2. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  78. ↑ Hartwig Sprau: § 680 , Rn. 1. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  79. ↑ Hartwig Sprau: § 667, Rn. 3. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  80. ^ Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 12 marginal no. 5.
  81. ↑ Hans Hermann Seiler: § 687 , Rn. 7. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 . Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 416.
  82. ↑ Hartwig Sprau: § 687, Rn. 2a. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  83. ↑ BGHZ 59, 51 .
  84. ^ Karl-Nikolaus Peifer: Law of Obligations: Statutory Obligations . 6th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6170-8 , § 13 marginal no. 1.
  85. ↑ BGHZ 82, 299 (307).
  86. ↑ Hans Hermann Seiler: § 687 , Rn. 16. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 .
  87. ↑ BGH, judgment of September 30, 1993, Az.VII ZR 178/91 = full text = NJW 1993, 3196.
  88. ↑ a b Hans Hermann Seiler: § 677 , Rn. 18. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 .
  89. ↑ Gunter Deppenkemper: negotiorum gestio - agency without authority: At creation, continuity and change of a common European Law Institute . Vandenhoeck & Ruprecht, Göttingen 2014, ISBN 978-3-8470-0293-2 , p. 664 .
  90. ↑ Hartwig Sprau: Before §§ 677 , Rn. 5. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  91. ↑ Hans Hermann Seiler: § 677 , Rn. 17. In : Martin Henssler (Ed.): Munich Commentary on the Civil Code . 6th edition. tape 4 : §§ 611–704, EFZG, TzBfG, KSchG. CH Beck, Munich 2012, ISBN 978-3-406-61464-4 .
  92. ↑ Marco Staake: Statutory Obligations . Springer, Berlin 2014, ISBN 978-3-642-30093-6 , § 14, Rn. 9.
  93. ^ OVG North Rhine-Westphalia , judgment of February 16, 2007, Az. 9 A 4239/04, full text = NWVBl. 2007, 437.
  94. ↑ BGH, judgment of November 13, 2003, Az. III ZR 368/02, full text = NVwZ 2004, 764.
  95. ↑ BGHZ 63, 167 . BGH, judgment of July 19, 2007, Az. III ZR 20/07, full text = NVwZ 2008, 349.
  96. ↑ Marco Staake: The police as managing director without a mandate? In: Juristische Arbeitsblätter 2004, p. 800. Christoph Thole: The management without a contract on the retreat - the end of the "also foreign" business? , NJW 2010, 1243.
  97. ^ OVG North Rhine-Westphalia, judgment of September 12, 2013, Az. 20 A 433/11, full text = DÖV 2014, 129.
  98. ↑ BVerwG , judgment of September 6, 1988, Az. 4 C 5.86, full text = NJW 1989, 922 (923).
  99. ↑ a b Elke Gurlit: § 35 , marginal no. 16 . In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
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