Place of performance
In German civil law, the place of performance is the place where the debtor has to carry out the act of performance that he has to perform by virtue of a contractual obligation . The law also designates this place in § 447 , § 644 of the Civil Code (BGB) and § 29 of the Code of Civil Procedure (ZPO) as the place of performance . The place of performance is to be distinguished from the place of success , which designates the place at which the success of the service occurs.
The provisions on the place of performance also include the place of consideration. Basically, the place of performance and consideration is determined independently and independently of each other. For example, in the case of a sales contract, the seller may have to transfer ownership of the item in one place and the buyer may have to pay the purchase price in another.
Determination of the place of performance
In German civil law, Section 269 of the German Civil Code (BGB) stipulates that the performance must take place at the place where the debtor was domiciled at the time the obligation arose , if a place for the performance is neither determined nor from the circumstances, in particular from the nature of the Obligation , can be found. If the liability arose in the business of the debtor, if the debtor had his commercial establishment in another place, the place of the establishment takes the place of the place of residence.
In the normal legal case, the place of performance (and the place of success ) lies with the debtor ; He is therefore only required to provide the service for collection from himself. One speaks therefore of a debt to collect . The law wants to protect the debtor in this way.
In is for the agreement of the place of § 269 para. 3 BGB stipulates that from the fact alone that the obligor has assumed the costs of shipping, it is not apparent that the place must be according to which the shipment, the place of supply should be. Thus, although the performance success at the creditors the power of action is to occur, the debtor to effect: The place of performance and place of effect then fall apart. This is known as blame for sending .
If it has been agreed that not only the performance, but also the performance should take place with the obligee, it is, however, an obligation to perform .
This all applies unchanged to the monetary debt , because according to § 270 Paragraph 4 BGB the regulations on the place of performance remain unaffected. The regulation on the place of payment does not make the monetary debt an obligation to deliver, but, because the place of performance remains with the debtor, an obligation to send , more precisely: to a qualified obligation to send, because the risk for the loss (contrary to the prevailing opinion now also for the delay! (Pal 71.A § 270 Rn. 5)) is regulated differently.
Overview of the types of debt
In the case of the obligation to collect, the place of performance and the place of success lie with the debtor (the obligee has to "collect"), in the case of the obligation to bring both lie with the obligee (the debtor has to "bring"). In the case of dispatch guilt, the places fall apart - the debtor only has to "dispatch". The pecuniary debt is (in the case of the transfer of risk qualified) dispatch debt:
| debtor | creditor | |
| Debt to collect | LeistO ErfoO | |
| Dispatch blame | LeistO | Success |
| Money debt | LeistO | "LeistO" 1 ErfoO |
| Obligation | LeistO ErfoO | |
| 1 treats the risk of loss as an obligation to deliver | ||
meaning
In terms of material law, the place of performance is important for the question of when fulfillment has occurred, when the generic debt is concretized as a piece debt , when the obligee is in default of acceptance and when the debtor is in default .
The place of performance has procedural significance for the local jurisdiction (place of jurisdiction ), § 29 ZPO. From there, restrictions on the agreement on the place of performance may arise in order to prevent improper agreements on the place of jurisdiction.
example
Let us assume that K von V from Verden , who lives in Cologne , buys a car.
The entitlement to delivery of the car is an obligation to collect: V only has to provide the car and inform K of it, K has to pick it up in Verden himself. The place of achievement and success are there. If the car is destroyed, for example by a lightning strike, V does not have to pay again, because even a generic debt would have concretized on the thing provided after he had done everything on his part.
If V does not deliver, K has to sue him for delivery in Verden: His general place of jurisdiction is there ( § 12 , § 13 ZPO), and there is also the place of jurisdiction of the place of performance ( § 29 ZPO). If, on the other hand, an obligation to deliver had been agreed, V would not only have to deliver to Cologne, K could also conveniently sue him in Cologne, because the place of jurisdiction for the place of performance would be Cologne.
Conversely, it is true: K must bring the purchase price to Verden at his own risk; if the money is lost on the way, he has to pay again. Nevertheless, the place of performance is not Verden, because debts are qualified debts. The place of success would be Verden, but the place of performance would be Cologne. V must therefore sue him in Cologne for payment.
See also: sale by mail
