Ius variandi

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The ius variandi is a term in Latin legal language and denotes the right of a believer to assert various claims. It is the counter-principle to the binding effect in unilateral design declarations. The ius variandi is of particular importance in civil warranty law .

In sales and work contract law, the following warranty claims for defects are in elective competition :

  • in contract law:
    • Right to subsequent performance ( § 635 BGB),
    • Entitlement to reimbursement of expenses and advance payment in the case of self-performance ( § 637 BGB)
    • Right of withdrawal ( § 634 No. 3 BGB and the regulations mentioned there),
    • Reduction ( § 638 BGB),
    • Right to compensation ( § 634 No. 4 BGB and the regulations mentioned there).

In principle, the transition from the performance claim to withdrawal and compensation is possible, since the BGH is of the opinion that such assertion has no legal effect. It is not a matter of an election guilt , in which the election according to § 263, Paragraph 2 of the German Civil Code would have a creative effect, but rather so-called "elective competition". If the creditor exercises his right to choose only after the claim initially asserted has become pending , this does not constitute a change in the action ( Section 264 No. 3 ZPO), but he must change his application.

See also

literature

  • Theodor Baums (ed.), Johanneswertebruch (ed.), In association with Marcus Lutter , Karsten Schmidt : Festschrift for Ulrich Huber on his seventieth birthday , Beate Gsell (author): Contractual supplementary performance pending. Effect of performance after expiry of the grace period and in the event of delayed choice of supplementary performance by the buyer. Ius variandi , Mohr Siebeck Tübingen 2006, ISBN 3-16-148709-5 , pp. 299-319 (312 ff.).
  • Abbas Samhat: The demarcation of election guilt from elective competition according to the BGB , in studies on private law Volume 25, Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-152032-7 , p. 265 ff.

Individual evidence

  1. ↑ Hans Georg Leser: The withdrawal from the contract: Settlement relationship u. Design powers
  2. ^ Theodor Baums , Ulrich Huber , Johanneswertebruch , Marcus Lutter : Festschrift for Ulrich Huber for his seventieth birthday
  3. ↑ Stephan Lorenz : Influence of the performance request on an arisen right of withdrawal: No legal effect, no elimination of the right of withdrawal, no renewed requirement to set a deadline; Brokerage costs and reimbursement of expenses according to § 284 BGB zu BGH, judgment of January 20, 2006 - V ZR 124/05
  4. ↑ Christoph Althammer: Ius variandi and self-commitment of the performance creditor . NJW 2006, 1179. Summary by Nadja Goldmann, VerwaltungsNews, April 25, 2006.
  5. ↑ Clemens Maurer: Transition from reduction to large compensation instead of full performance in accordance with § 325 BGB analogous to SVR Road Traffic Law 2017, pp. 321-324.