Performance risk

from Wikipedia, the free encyclopedia

The performance risk (less often the risk of delivery ) is a legal term from the general law of obligations . It concerns the question of who in a synallagmatic contract in the period between the conclusion of the contract and complete fulfillment i. S. d. § 362 BGB bears the risk of accidental loss of the object of performance. For the debtor of the main performance, it describes the risk of having to continue to perform the promised performance (or have to provide replacement), and conversely, for the obligee, the risk of losing the right to the promised performance.

Opposed to the risk of performance is the risk of price .

Piece guilt

After the Civil Code is between piece guilt and indeterminate obligation to distinguish. In the case of a piece debt, the risk of performance is generally borne by the creditor of the main performance, since the debtor is released from his performance obligation in the event of the loss of the thing ( regardless of fault ) according to § 275 BGB.

Example: Buyer K and seller V agree on the sale of V's crocodile. If a meteorite kills the crocodile before delivery, V does not have to pay according to Section 275 (1) BGB.

Generic guilt

In the case of generic debt, however, the debtor of the main performance bears the risk of performance. Until the entire class disappears, he is obliged to procure the agreed goods (if they are available on the market).

Example: K and V, who runs a pet shop, agree to sell a crocodile cage. If the crocodile cage is destroyed by a meteorite impact in the V's shop before it is handed over, it nevertheless remains obliged to perform and must otherwise procure a cage of medium type and quality (§ 243 I BGB).

If the generic debt changes into a piece debt due to specification in accordance with Section 243 (2) BGB, the risk of performance passes to the obligee ( transfer of risk ). Likewise, the risk of performance is transferred according to Section 300 (2) BGB if the obligee does not accept the goods offered, even if it has not been specified. According to the prevailing opinion, however, the separation of the matter is necessary.

Historical derivation

The current rules on the transfer of risk are based on the bona fides clause of actio empti . The Roman jurists distributed the risk of the subsequent loss of a thing or its subsequent deterioration between the parties. After that, the seller of an item bore the risk for dolus and culpa , whereas the buyer was fully liable for coincidence .

literature

  • Dagmar Coester-Waltjen : Risk of delay, risk of property, risk of performance , in: Jura 2006, 829–833.
  • Stephan Lorenz : Risk of performance, risk of consideration and place of fulfillment in the sale of consumer goods - BGH , NJW 2003, 3341 , also in: JuS 2004, 105-107.

Individual evidence

  1. ↑ a b c Compare Christian Berger , in: Othmar Jauernig (Hrsg.): Bürgerliches Gesetzbuch , 12th edition 2007, preliminary remarks on §§ 446, 447 marginal numbers. 3.
  2. ↑ Martin Schmidt-Kessel , in: Hanns Prütting , Gerhard Wegen, Gerd Weinreich (Hrsg.): BGB - Commentary , 2nd edition 2007, § 243 Rn. 1; Section 275 Rn. 3.
  3. ↑ Martin Schmidt-Kessel, in: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): BGB - Commentary , 2nd edition 2007, § 243 Rn. 1.
  4. ↑ Martin Schmidt-Kessel, in: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): BGB - Commentary , 2nd edition 2007, § 243 Rn. 7th
  5. ↑ Vgleiche Hans Brox , Wolf-Dietrich Walker: General Obligations , 30th edition 2004, § 8 para. 6th
  6. ^ A b Hans Brox , Wolf-Dietrich Walker : General Law of Obligations , 30th Edition 2004, § 27 Rn. 13.
  7. ^ So BGH WM 1975, 917 (920); Günther Hönn : On the dogmatics of risk-bearing in default of creditors with debts of a class , in: AcP 177 (1977), 385 (390 ff.); Brigitta Jud, in: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): BGB - Commentary , 2nd edition 2007, § 300 Rn. 7th
  8. ↑ AA Jan Schröder : On the interpretation of § 300 Abs. 2 BGB in: MDR 1973, 466 (467); Andreas Schlüter: The practical case - civil law - the antique peasant cupboards , in: JuS 2001, 1190 (1191 f.).
  9. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 236–239.