Laesio enormis
Under Laesio enormis ( Latin literally, excessive damage ', excessive injury', 'enormous injury') is called an extraordinary overreaching end shortening of contractual justice in legal language that originated in Roman law has. Together with the clausula rebus sic stantibus , the laesio enormis is seen as an essential predecessor of the doctrine of the discontinuation of the business basis developed at the beginning of the 20th century . Today it can be found in the legal institution of the disruption of the business basis and is codified in § 313 BGB .
The term goes back to two constitutions of the Roman emperor Diocletian from the years 285 and 293 (C. 4, 44, 2 and C. 4, 44, 8), which were initially included in the codices Gregorianus and Hermogenianus . According to the Codex Iustinianus from the year 534, a property seller who had not even received half the value for a thing (commodity) could cancel the purchase contract with the objection of excessive overreaching or the difference to the usual price (iustum pretium) desire.
France
In French law, in accordance with Art. 1591 C. civ. that the sales price is determined by the contracting parties. Art. 1168 C. civ. stresses that mutual contracts are in principle not null and void because of inequality of services. The focus is not on an objective, but on a subjective fairness of performance. Exceptions to this are only possible in rare cases.
In favor of the landowner, the Civil Code exceptionally provided a laesio enormis right of avoidance for the property seller ( Art. 1674 - 1685 C. civ. ), Which exists if the seller has received less than five-twelfth of the value of the property, cf. Art. 1674 C. civ. According to Art. 1678 C. civ. this deviation from the value must be proven by three experts in a joint report. In the case of a laesio enormis, the buyer has the right to acc. Art. 1681 para. 1 C. civ. a right to choose between withdrawing from the purchase contract (returning the item and receiving the purchase price back) or maintaining the purchase contract (keeping the item and paying the difference, reduced by 10%). The claim generally expires within two years after the conclusion of the contract, Art. 1676 Paragraph 1 C. civ.
French copyright law provides in Art. L. 131-5 C. propr. intell. also a right of avoidance based on laesio enormis in favor of the author, which is also based on the receipt of less than five-twelfth of the value of the work, Art. L. 131-5 para. 1 C. propr. intell. In this case the author can request a renegotiation of the remuneration. The prerequisite for this is Art. L. 131-5 para. 2 C. propr. Intelligent, however, that the remuneration took the form of a flat rate .
Austria
In the case of bilateral binding deals, if one part has not received half of what it has given to the other in the common value, the law grants the injured party the right to cancel and restore it to the previous state demand ( § 934 ABGB ).
The "shortening (also injury) over half" (according to Napoleonic French lésion outre moitié ) enables the shortened person to cancel the contract if the value of his performance is more than twice as large as the value of the consideration at the time the contract is concluded. So it depends on the objective equivalence of the services.
- Example: A buyer pays € 10,000 for a used car, which is only worth a maximum of € 4,999. If the used car were worth exactly € 5,000 or even more, the reduction of over half would not be applicable.
The legal term "shortening by half" (Laesio enormis) also means that a debt expires at the latest when double the amount originally borrowed has been paid. Any further interest claims are immoral and therefore void.
Legal consequences
The shortened party can contest the contract and demand the cancellation of the contract. The cancellation of the contract can, however, be averted by the contracting party of the shortened person by paying the difference between the services (substitute authority, e.g. Facultas alternativa ).
- in the example above: € 10,000 - € 4,999 = € 5001
Exceptions
The shortened cannot contest the contract,
- if he has taken over the thing out of special preference (§ 935 ABGB)
- if he knew the true value (§ 935 ABGB)
- in the case of a mixed donation (§ 935 ABGB)
- if the actual value can no longer be ascertained (§ 935 ABGB)
- if he has acquired the item in a judicial auction (§ 935 ABGB)
- for happiness contracts (§ 1268 ABGB)
- for comparisons (§ 1386 ABGB)
- in the case of the division of assets in the course of an amicable divorce
The application of § 934 ABGB cannot be excluded when the contract is concluded (but possibly afterwards). The cancellation must be asserted in court within three years of the conclusion of the contract. At the expense of an entrepreneur, the application of § 934 ABGB in accordance with § 351 UGB can be contractually excluded.
In the event of a subsequent shortening of more than half, § 1048 ABGB applies.
Germany
The Prussian General Land Law only allowed contestation due to laesio enormis in favor of the buyer.
German civil law has no written principle of prohibiting enormous violations. However, the Federal Court of Justice has consistently ruled that a transaction according to Section 138 (1) BGB is immoral and therefore void if there is a noticeable imbalance between the value of the service and that of the consideration. The Federal Court of Justice assumes such a disproportion if the difference in value is 100%. In addition to the objective equivalence disruption, the BGH also demands subjective factors from the party benefiting from the transaction. Their reprehensible sentiments must regularly be affirmed. This is basically the case if the beneficiary contracting party has recognized the imbalance or negligently ignored it. Since, according to the Federal Court of Justice, a particularly gross disproportion in performance is an actual presumption for the reprehensible attitudes of the beneficiaries, which must first be refuted by special circumstances, the literature speaks of a renaissance of the enormous violation.
Switzerland
The Swiss Code of Obligations orders the following in its Art. 21 on "taking advantage" (= enormous violation):
- (Para. 1) »If an obvious disproportion between the service and the consideration is justified by a contract, the conclusion of which was brought about by one party by exploiting the distress, inexperience or carelessness of the other, the injured party can declare within one year that he will not keep the contract and demand back what has already been achieved «.
- (Paragraph 2) “The one-year period begins with the conclusion of the contract”.
The provision has so far not been used frequently, although reference should be made to the more recent leading ruling of the Swiss Federal Court BGE 123 III 292.
Russia
The Russian jurisprudence recognizes (at least in the case of the rental agreement) an obligation to perform which exceeds the value of the consideration or market prices twice as violating Art. 10 , 168 GK RF (counterparts to §§ 242, 134 BGB).
Louisiana
Art. 2589 of the Louisiana Civil Code provides for a right of avoidance when purchasing real estate in the event that the consideration is less than half the market price.
Economic analysis of law
The enormous breach was rejected from an economic perspective because of its bad incentive effects. In particular, due to the enormous violation, there are no incentives to invest in the production of information, such as B. to search for petroleum, unrecognized valuable works of art, etc., if this information cannot be used due to this determination. (As already explained, the work of art by the well-known painter, whose “true value” is € 10,000, cannot be purchased for the presumed value of € 100. An offer of € 5001 would already give the owner the valuable one Signaling information, i.e. making it available free of charge.) If the legal system prohibits the reimbursement of information costs, search costs are not incurred, which means that the goods are not found or the particular property of the goods is not recognized. The undiscovered works of art, oil deposits, etc. are lost to social welfare.
Individual evidence
- ↑ Brox / Walker, General Law of Obligations , 35th Edition, § 27 Rn. 4 mwN
- ↑ a b Mayer-Maly: Renaissance of the laesio enormis? In: Claus-Wilhelm Canaris, Uwe Diederichsen (Ed.): Festschrift for Karl Larenz on his 80th birthday on April 23, 1983 . Munich 1983, pp. 395-409. Thomas Finkenauer: On the renaissance of laesio enormis in sales contracts . In: Lutz Aderhold, Barbara Grunewald, Dietgard Klingberg, Walter G. Paefgen (Ed.): Festschrift for Harm Peter Westermann on his 70th birthday . Cologne, 2008, pp. 183-207.
- ↑ Max Kaser , Rolf Knütel , Sebastian Lohsse: Roman private law . 2016, p. 255.
- ↑ I, 11 § 69 PrALR (PDF). Wassili Michailowitsch Netschajew: laesio enormis In: Brockhaus-Efron . St. Petersburg 1896.
- ↑ BGH, NJW-RR 1989, 1068
- ↑ BGHZ 141, 257 (263)
- ↑ BGH, NJW 2004, 2671 (2673)
- ↑ Определение ВАС РФ от 06.12.2013 N ВАС-13846/13 по делу N А19-2903 / 2010
- ↑ Kristoffel R. Grechenig: The laesio enormis as an enormous laesion of social welfare? In: Journal for Legal Policy , No. 1, 2006.
