Cardinal obligation
The term cardinal obligation comes from civil law, more precisely the law of obligations or contract law. In practice, it is primarily used in terms and conditions clauses in connection with regulations on liability or limitations of liability.
The Federal Court of Justice defines a cardinal obligation as an obligation "the fulfillment of which enables the proper execution of the contract in the first place and on which the contractual partner can regularly rely" .
The cardinal obligations of a contract are the main (performance) obligations. It describes all essential contractual obligations that are owed on the basis of the respective individual contract and are "of eminent importance" for the achievement of the contractual objective . Cardinal obligations can theoretically also represent secondary obligations of a contract, provided that these secondary obligations are so essential in individual cases that "the achievement of the purpose of the contract is jeopardized" if they were violated or not fulfilled.
The liability for the violation of cardinal obligations can not and must settled law in general terms and conditions (more precisely, in application of § 307 para 2 no. 2. BGB ) can not be completely ruled out. This applies even if the breach of the cardinal obligation was only slightly negligent . In practice, however, it is customary to set at least a cap on liability in the event of a slightly negligent breach of cardinal obligations , in relation to the "typically occurring damage" or to the "damage that is foreseeable and typical for the contract when the contract is concluded" . Intentional or grossly negligent liability cannot be effectively excluded in general terms and conditions anyway.
The Federal Court of Justice also decided in 2005 that the term cardinal obligation must be explained in terms and conditions. This applies to both consumers and entrepreneurs in so-called B2B business transactions when using the term in terms and conditions . Otherwise - according to the BGH - the term would not be sufficiently clear and the corresponding clause would be ineffective as a result. An explanation could be given, for example, by using the definition used by the Federal Court of Justice (see above).
Individual evidence
- ↑ BGH, judgment of July 20, 2005, file number VIII ZR 121/04 (see https: //juris.bundesgerichtshof.de / ... (PDF) - there point X.2.b), page 43)
- ↑ Medicus / Petersen, BGB according to claim bases , 25th edition, Rn. 74
- ↑ for example in BGH, judgment of July 17, 2012, file number VIII ZR 337/11 (see http: //juris.bundesgerichtshof.de / ... (PDF) ).
- ↑ see BGB § 276 Abs. 3 (regarding intent) and BGB § 309 No. 7b (regarding gross negligence)
- ↑ a b BGH, judgment of July 20, 2005, file number VIII ZR 121/04 (see https: //juris.bundesgerichtshof.de / ... (PDF) - there point X., pages 41-44)
