Healing (law)
In jurisprudence, healing (or convalescence ) means overcoming a lack of form by fulfilling certain legal transactions .
General
If a legal transaction is faulty, the legal consequence is either its contestability or its ineffectiveness . A significant fault is it of informality . This is, however, not considered to be so serious to be this way each transaction are subject to appeal or even ineffective. Leiden form requiring transactions on a molding defect, which are commitment transactions usually void ( § 125 BGB ). In a few cases, however, the BGB allows certain legal transactions that require a specific form to be valid, even without observing the prescribed form, if they are fulfilled . The possibility of healing legal transactions that are not legally required, which is linked to fulfillment, is only regulated selectively in civil law or private law with different objectives in individual cases. In the case cited, it was about the purchase of an inheritance , which according to § 2371 BGB requires notarial certification , which cannot be cured by the analogous application of § 311b para. 1 sentence 2 BGB.
history
The Roman law was based on the principle that void legal transactions can not be cured by time. However, there seem to have been exceptions to this. For example, the invalidity of the legal transaction of a minor was considered cured when he reached the age of majority.
In France, the Civil Code (CC), which came into force in March 1804, stipulates in Art. 1599 CC that the sale of someone else's property is absolutely null and void. The healing principle of certain legal transactions is unknown here. In 1834, Hermann Friedrich Brandis understood “relative nullity” to mean the convalescence of a legal transaction through the consent or waiver of the injured person. Carl Georg von Wächter spoke for the first time in 1880 of the "curable nothingness". During the preparatory work on the Civil Code in 1896, the editor Albert Gebhard assumed that a need to heal the nullity through the passage of time should not be recognized. The passage of time did not play a role when the BGB came into force in January 1900, but the legislature allowed some defective legal transactions to be cured through fulfillment or entry in a public register.
Legal issues
Healing has not been elevated to a general principle in the current private legal system; it only occurs in those cases in which it is expressly prescribed. An analogous application of healing regulations to legal transactions with no formal requirements, for which the law does not provide for healing, is therefore excluded. If the cure is intended in individual cases, it extends to the entire legal transaction, i.e. also to the parts that are not formally correct, which led to the total invalidity of the legal transaction. In the case cited, the Federal Court of Justice (BGH) ruled that an invalid land purchase contract would be subsequently cured by relinquishing and registering the purchaser in the land register , so that the contract would become valid “in its entirety”, meaning that the cure would extend to the entirety of the contractual agreements . This also applies to individual agreements in the overall contract which, as such, are subject to a different, lesser formal requirement ( e.g. the written form of an annuity in accordance with Section 761 of the German Civil Code) if the protective purpose of the lesser formal requirement is covered by that of Section 311b (1) of the BGB.
Healing in civil law
The cure is expressly provided in the absence of parental consent to legal transactions of minors in accordance with Section 108 of the German Civil Code (BGB) , in the case of land purchase contracts ( Section 311b (1) sentence 2 BGB), consumer loan contracts ( Section 494 (2) BGB), partial payment transactions ( Section 507 (2) sentence 2 BGB), promise of donation ( Section 518 (2) BGB, Section 2301 (2) BGB) or guarantees ( Section 766 (3) BGB). The cure occurs through fulfillment within the meaning of § 362 BGB, i.e. for minors by paying with pocket money according to § 110 BGB (so-called pocket money paragraph ), in the land purchase contract by relinquishment and entry in the land register, in the partial payment transaction by handing over the thing or rendering the service, in the consumer loan contract through payment of the loan, in the case of a donation "by effecting the promised performance" (in the case of a gift of a movable object through transfer of ownership in accordance with § 929 sentence 1 BGB, § 518 paragraph 2 BGB), in the case of the guarantee by payment of the surety . A "bad" marriage is valid according to § 1310 para. 3 BGB also be deemed closed when the registrar marriage in the marriage register has entered.
In procedural law, a formal deficiency is cured by entering into the arbitration hearing on the main matter ( Section 1031 (6 ) ZPO ).
Healing in corporate law
In corporate law in may GmbH missing notarization requiring commitment of a shareholder ceding of business share by a notarized assignment (to be cured of the share § 15 4 para. GmbHG ). The invalidity of a resolution of the general meeting at an AG that has not been notarized or not properly notarized can no longer be asserted if the resolution has been entered in the commercial register ( Section 242 AktG ). In the case of the AG, a deficiency that affects the provisions on the operational purpose of the company can be remedied by means of amendments to the articles of association ( Section 276 AktG). If there is no notarial certification of a merger agreement , this is cured by registration ( Section 20 (1) No. 4 UmwG ).
Administrative law
According to general principles, all formal errors would make an administrative act illegal and thus reversible, which in some cases would, however, be uneconomical. Healing according to § 45 VwVfG can lead to the legality of an unlawfully issued administrative act if it is limited to the non-serious procedural errors mentioned in § 45 Paragraph 1 No. 1-5 VwVfG . According to this, a violation of procedural or formal regulations that does not make the administrative act void according to § 44 VwVfG can be irrelevant if the application required for the adoption of the administrative act is made retrospectively, or the necessary reasoning is given retrospectively, or the required hearing of a Parties involved , or the decision of a committee, whose participation is required for the adoption of the administrative act, is taken retrospectively, or the necessary participation of another authority is made up for.
International
Examples are also the convalescence according to Austrian § 1432 ABGB (insofar as the agreed services are actually provided) or - based on the principle of exceptio rei venditae et traditae according to § 366 sentence 2 ABGB - a healing of the disposal transaction through later acquisition of property by the person who sold an item without owning it. In Switzerland , the still prevailing opinion assumes that the mutual voluntary fulfillment of a contract that is not formal has in principle no healing effect and that both parties can claim their services back. However, there are exceptions to this. For example, the fulfillment of a formal donation promise has a healing effect ( Art. 243, Paragraph 3 in conjunction with Art. 242, Paragraph 1 of the Swiss Code of Obligations ), even if the donor mistakenly believed he was obliged to do so and did not recognize the formal deficiency. According to Art. 3 Para. 2 ZGB in conjunction with Art. 33 Para. 3 OR, third parties are protected in the event of a lack of power of attorney , provided that they have exercised the necessary care ; the lack of power of attorney is remedied, the contract is handled as if the power of attorney had existed. When buying a property, however, fulfillment is not considered a healing effect.
literature
- Dietmar Schanbacher: The convalescence of liens in classical Roman law. Duncker & Humblot, 1987, ISBN 978-342806261-4
Individual evidence
- ↑ Sebastian Mock, The healing of faulty legal transactions , 2014, p. 34
- ↑ BGH NJW 1967, 1128 , 1131
- ↑ Iulius Paulus , Digesten , 50, 17, 29: ( Latin quod initio vitiosum est non potest tractu temporis convalescere )
- ↑ Bernhard Windscheid / Theodor Kipp , Textbook of Pandect Law , Volume II, 1906, § 83 2
- ↑ Hermann Friedrich Brandis, Ueber absolute and relative nullity , in: Journal for Civilrecht und Prozessrecht VII, 1834, p. 121 f.
- ^ Carl Georg von Wächter, Pandekten , Volume I, 1880, § 84 III, p. 424 f.
- ^ Albert Gebhard, preliminary draft of the general part , 1896, p. 213
- ↑ BGH NJW 1967, 1128, 1131
- ^ BGH NJW 1978, 1577
- ↑ Medicus / Petersen , Civil law according to claims , 25th edition, 2015, Rn. 173 mwN
- ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 125 Rn. 13
- ↑ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 694
- ↑ quoted after the decision of the Supreme Court , March 29, 2006, reference number 7Ob269 / 05t
- ↑ BGE 87 II 28, 86 II 398 (402/03)
- ↑ BGE 106 II 146
