Design right

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The right to design is a relative subjective right by which a new right can be unilaterally established or an existing legal relationship can be changed or canceled. It is a prerequisite for an effective design business .

General

As a rule, design rights are rights that are more or less closely linked to a main right, such as the termination of a loan in a loan agreement . The right to design (exception: e.g. appropriation, see below) must be exercised vis-à-vis the other part by means of a design declaration (declaration of intent requiring receipt ). The design right then takes effect upon receipt of the declaration. However, there are also structuring rights that have to be exercised through court proceedings (so-called structuring rights ).

species

Because of this unilateral legal power, which is conferred by design rights, the granting of a design right requires a special justification from contract or law .

Design rights are for example:

exercise

When the right of termination is exercised, the terminated contract ends, when the right of withdrawal is exercised (e.g. in the case of a purchase contract), the contract in question changes into a guarantee obligation, and when the right of pre-emption is exercised, a sales contract is immediately concluded between the person exercising the right of withdrawal and the debtor. The specialty of appropriation is that no other person is affected by the legal structure.

Like all unilateral legal transactions (including litigation ) , design rights are in principle hostile to terms and conditions , and irrevocable because legal uncertainty is to be avoided.

In the process, however, so-called intra - procedural conditions are allowed, since there the court has to decide on the applications of the parties and so there is no legal uncertainty. Internal procedural conditions are the result of the parties' right of disposition , according to which they alone determine the subject of the dispute , i.e. can dispose over it. Another exception to the hostility to conditions are so-called potential conditions , which exist when the recipient of the declaration can control the occurrence of the condition on his own, i.e. there is no legal uncertainty at his expense. In addition, conditions are permitted that are made dependent on a legal question , so-called legal conditions .

The irrevocability does not apply when designing opponents dispute the effectiveness of the design, because only the state restores in this case the revocation, claims which the design of opponents and thus no further uncertainty for these generated (except see. § 9 Dismissal Protection Act ).

Relevant point in time

The effectiveness of all design rights is assessed exclusively according to the circumstances at the time of the declaration. A subsequent elimination of the design reason does not matter. In areas of law with a pronounced social component, this is often viewed as not appropriate for every case. Therefore, legislators and jurisprudence have made corrections: In labor law , the employee is entitled to re-employment if the reason for termination does not apply subsequently, e.g. B. because an intended job reduction is not implemented by the employer. In tenancy law, § 569 Paragraph 3 No. 2 BGB standardizes the ineffectiveness of termination due to circumstances occurring after receipt of the notice of termination. If the landlord exercises the right to extraordinary termination in the event of default in payment, the tenant can make the termination ineffective by satisfying the landlord up to two months after the pending eviction claim has been made with regard to the rent due. The initially effective termination becomes subsequently ineffective as a legal consequence of the provision.

transmission

The transferability of the design rights is controversial . According to Section 413 of the German Civil Code (BGB), they are not all independently transferable, only the non- accessory rights such as the right of first refusal , right of repurchase or right of withdrawal . Your transfer takes place in the context of the assignment according to § 398 BGB. Certain design rights can be assigned with the main claim to which they belong. A right to the transfer of ownership of a book for which the contracting party has a right of cancellation can also be assigned with this right of cancellation ( Section 413 BGB).

Withdrawability

In principle, an exercised design right can no longer be unilaterally withdrawn, as this would contradict legal certainty. However, e.g. B. a pronounced termination can be canceled by both parties by mutual agreement.

Going out

For reasons of legal certainty , many design rights expire after a certain period of time when they expire .

No statute of limitations

Design rights are not claims , so they cannot expire ( Section 194 (1) BGB).

Limitation periods

Of the limitation are time-limits to be distinguished. When the deadline expires, the right to design is lost. Exclusion periods can be stipulated by law. In labor law in particular, preclusion periods based on collective agreements or employment contracts also play a major role.

  • Avoidance of errors by mistake must be made "immediately" ( § 121 sentence 1 BGB), the challenge due to fraudulent deception or unlawful threat within one year ( § 124 paragraph 1 BGB).
  • The revocation protecting the consumer must be declared within the deadlines of § 355 Paragraph 2 or Paragraph 3 BGB. With the right of withdrawal , the start of the period usually depends on the fact that the consumer has been instructed about the possibility of withdrawal.

Occasionally, the expiry of a design right is linked to the statute of limitations of a claim, as is done in Section 218 of the German Civil Code for the right of withdrawal , in order to design the expiry as an objection .

Design counter-rights

In some cases, reciprocal rights of the person affected by the right to design are possible. In certain cases, for example, the law provides for the tenant's right (which cannot be waived here) against a termination by the landlord in accordance with Section 574 of the German Civil Code (BGB). Theoretically, no judicial enforcement is necessary for the validity of the mutual right, even if in practice there is likely to be one. Is the reciprocal rights enforceable only by way of an action is also called a design countersuit law .

Legislative action rights

Here, the designer must file a lawsuit in order to achieve the design effect through judgment. Such judgments are also called design judgments, which in contrast to z. B. Performance judgments do not require enforcement. Examples of legal actions can be found in family and corporate law:

Individual evidence

  1. ↑ a b c Medicus, general part of the BGB 10th edition, CF Müller