Performance (law)

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The legal concept of power is in the Civil Code used (BGB) with different semantic content. The law therefore differs between the power of the law of obligations and performance in unjust enrichment senses. The VAT law uses an independent power term.

In the sense of the law of obligations

In the law of obligations ( §§ 241 ff. BGB) performance refers to an act , toleration or omission to fulfill a debt . Obligations can oblige the debtor to perform ( Section 241 (1) BGB); the right of the obligee to demand this performance is referred to as a claim ( Section 194 (1) BGB).

The content of the service is determined by the respective type of contract . About as must the sales contract the seller the goods transfer ownership and passed , the buyer the purchase price paid ( § 433 BGB). If the performance owed is effected, fulfillment occurs: the obligation to perform and the obligee's claim based on it expire. In the event of the impossibility of performance, the claim directed to you is excluded ( Section 275 (1) BGB).

In a mutual contract , only the “typical” performance is referred to as performance, the promised remuneration - often, but not necessarily, a cash payment - as consideration . Nevertheless, the consideration is also a performance in the sense of the legal regulations, which may be fulfilled and, in exceptional cases, may also become impossible.

In the sense of enrichment law

In enrichment law ( §§ 812 ff. BGB), performance refers to the conscious and purposeful increase in third-party assets . If a service is provided without a claim or any other legal reason , this can trigger a claim to surrender (return) of the enrichment of the service recipient brought about by this (so-called service condition ). It is controversial whether a service is a legal transaction, an act similar to a legal transaction or just an act (so-called real act ). The prevailing opinion assumes that a service contains a declaration of intent by the provider in the form of a service purpose. In some cases, it is also argued that a declaration from the recipient is also necessary. Another view completely dispenses with legal transaction.

In terms of sales tax law

In terms of sales tax law, the term “service” summarizes the delivery of objects and other services. The value added tax definition of services covers actual processes without these having to be based on an effective civil law contract. However, civil law contracts usually facilitate the tax classification of the service. A sales tax service can also arise from legal or official compulsion.

An item is delivered for sales tax purposes if another person is given the power to dispose of this item. The creation of the power of disposal does not require a transfer of title under civil law. Rather, it depends on whether the recipient can actually dispose of the item like an owner. The giving of money is usually not a performance, but merely a payment of remuneration.

Any other performance can consist of any act, toleration or omission. It is crucial that someone should be given a certain advantage. The transfer of rights is not a delivery, but a different service.

See also