Design business

from Wikipedia, the free encyclopedia

Design shops are in the German civil law unilateral legal transactions through which, entity established without the participation of other new laws or changes an existing legal relationship or reverses and thus "shaping" is active. The declaration of intent contained in the design transaction is referred to as the design declaration . For example, termination after receipt of the notice of termination ends the contract without the other party having to consent. Structural transactions are therefore of a dispositive nature.

In order to protect private autonomy (principle of pacta sunt servanda ), every structuring transaction requires a corresponding authorization based on law or contract: the structuring right (right of appeal, right of withdrawal, right of termination, etc.).

Contractual and property law structuring transactions

According to their content, the structuring transactions can be divided into contractual and property law structuring transactions.

Contractual structuring transactions

If the structuring business is aimed at the structuring of an obligation , one speaks of a contractual structuring business. According to § 311 Abs. 1 BGB, the establishment of an obligation by legal transaction as well as the change of the content of an obligation requires a contract , i. H. a bilateral legal transaction (protection of private autonomy ). As a result of a design transaction, i.e. a unilateral legal transaction, an obligation can only be designed if there is an authorization based on law or contract, a design right .

Contractual arrangements are for example:

Property law structuring transactions

If the structuring business is aimed at the structuring of a legal relationship with a thing , one speaks of a property law structuring business.

Property law structuring transactions are, for example:

Design statement

The design declaration (declaration of rescission, resignation, termination, etc.) is to be given to the opposing party in accordance with the legal text "to" the respondent in order to protect the other party, who should at least have clarity about the changed legal situation due to the lack of opportunity to cooperate (cf. only Section 143 (1) BGB for the challenge ). The design declaration is therefore a declaration of intent that needs to be received and that must be sent to the other party in accordance with Section 130 (1) BGB . For the same reason, structuring transactions are fundamentally hostile to conditions (see, for example, Section 388 sentence 2 BGB for offsetting). So that the other part is not uncertain about the change in the legal situation, stricter content-related requirements with regard to clarity and unambiguity are placed on the design declaration: the design declaration is fundamentally irrevocable and does not tolerate a pending state. For example, representation without power of representation is not permitted, § 180 BGB, and even doubts about the power of attorney are taken into account by the possibility of rejecting the legal transaction ( § 174 BGB). If the legal transaction is carried out by a minor without the necessary consent of the legal representative, it is fundamentally ineffective, § 111 BGB.

Duty to give reasons

It is disputed whether the designation reason is necessary for the so-called basic-dependent design rights to be effective. According to the prevailing view in case law and literature, the specification of the design reason in the design declaration is not a prerequisite for effectiveness, as long as the law does not require it. Some voices in the literature are of a decidedly different opinion. Only in isolated cases does the law expressly require the specification of the design reason in the design declaration (cf. § 569 Paragraph 4, § 573 Paragraph 3 Sentence 1, § 2336 Paragraph 2 BGB). The consequence of violation of this legally stipulated obligation to give reasons is the nullity of the declaration.

See also

Individual evidence

  1. cf. on this Attila Michael Kali, The justification-dependent design declaration, A contribution to the termination of rental and employment contracts, 2003, Peter Lang Verlag, ISBN 3-631-51335-6 .