Hamburg parking lot case
The Hamburg parking lot case is a decision of the 5th Civil Senate of the Federal Court of Justice (BGH) on July 14, 1956. It is important for the teaching of socially typical behavior .
facts
In 1953, the Hamburg Senate converted parking spaces, including on part of the Rathausmarkt, into chargeable parking spaces. The company of the commissioned plaintiff guarded the vehicles parked there and collected the fee. The tariff provided for 20 pfennigs for the first hour of parking, 30 pfennigs for the second and 50 pfennigs each for the following hours . At the town hall market signs with the inscription “PARKING REQUIREMENT AND GUARDED” were put up.
The defendant had parked her car there several times from September 3 to October 12, 1953 and explained to the stewards who worked for the plaintiff there that she refused to guard her vehicle and thus also refuse to pay the fee.
The Hamburg Regional Court had complied with the plaintiff's demands. The Hamburg Higher Regional Court, however, supported the defendant's position.
Decision of the BGH
The BGH precipitated with the judgment two fundamental decisions . First it was clarified whether companies on public roads a joint ownership (pursuant to § 866 BGB in conjunction with § 854 BGB) can achieve. This was answered in the affirmative if the company was granted a special right of use to guard parked vehicles for a fee. The court justified this with the fact that the security and the central location, where parking space would otherwise be difficult to find, would create a certain added value. This is comparable to renting beach chairs or chairs in public facilities.
The defendant had based its demand that the action be dismissed with its right to public use . The BGH contradicted this: This right was not violated by the new ownership structure, but only restricted. The free parking is no longer part of the common use, but in principle it remains. For example, it is still possible to enter or drive on the area to turn a vehicle. Rather, the defendant claimed a special right of use for itself, which ran counter to public use, in that it parked its vehicle on the areas reserved for paying parkers.
Second, the BGH basically regulated the validity of the security contract, which justifies the right to payment of the fee. The defendant had expressly spoken out against the conclusion of a contract and thus the conclusion of a contract according to § 151 BGB in conjunction with § 631 BGB seems to be excluded. For the conclusion of the contract, the defendant's consent, which it had just not given, should have been available.
The court agreed with the lawyers Günter Haupt (1904-1946) and Karl Larenz , who significantly developed the doctrine of socially typical behavior and the doctrine of the factual conclusion of contracts . According to this, a contract is concluded through “purely actual public offer of a service” and “purely actual use of this service”. For a “normal” conclusion of a contract, expressly expressed declarations of intent (namely offer and acceptance ) are required.
As a result, the defendant was sentenced to pay the claimant the 25 DM , which resulted from the parking tariff and which the defendant had unlawfully enriched at the expense of the company by using the parking spaces without paying.
Today's relevance
Today, the doctrine of socially typical behavior is fundamentally rejected in legal literature as well as in case law, since the doctrine of socially typical behavior does not result from the law. In addition, the affirmation of a contract leads to the annulment of any objections that may protect the affected party and prevent the right of law . Most cases of this kind are resolved using the legal rule protestatio facto contraria non valet , according to which custody against contrary behavior is ineffective. The defendant in this case would therefore accept the applicant's offer by doing (parking the vehicle). The statement that she does not want to conclude a contract would be irrelevant and a valid security contract would have come about.
See also
Web links
Individual evidence
- ↑ BGHZ 21, 319, Az. V 223/54, NJW 1956, 1475.
- ↑ Medicus / Petersen , civil law according to claims , 25th edition, marginal no. 190
- ↑ Medicus / Petersen, civil law according to claims , 25th edition, marginal no. 191
- ↑ cf. W. Flume, Allgemeine Teil des Bürgerlichen Rechts, Volume 2, 4th edition (1992), p. 99 ff .; as well as BGHZ 95, 393, 399.
