Be required
In German civil law , a legal subject is obliged if an obligation in the narrower sense is directed against him. Guilt (as a demarcation from liability ) is also not used congruently .
For content, a distinction between the obligation ( primary and secondary ) performance requirements , the due performance even in a failure may be, and so-called protective or dropoff, inconsiderateness duties d. H. Obligations, the fulfillment of which does not constitute a performance, but must be observed by the debtor when the performance is provided.
A classification according to the purpose of origin separates the originally intended primary obligations from the secondary obligations that arise from a disruption in performance (e.g. the obligation to pay contractual damages ).
Content of the commitment
According to their content, § 241 BGB differentiates between two different types of obligations:
Performance obligations
The obligations to perform are described in Section 241 (1) BGB: “By virtue of the debt relationship, the obligee is entitled to demand performance from the debtor. The performance can also consist of an omission. ” The debtor is therefore obliged to do a very specific act or omit.
A subjective right of the obligee should oppose this: the obligee is entitled to demand compliance with the obligation. This “right to demand that someone else do something or not do something” ( Section 194 (1) BGB) is called a claim .
So about the seller by virtue of the purchase agreement , obliged to hand over the goods to the buyer and to transfer them ( § 433 para. 1 sentence 1 BGB). This corresponds to the buyer's claim to require the seller to fulfill these obligations. If the seller does not comply, the buyer can use state power to force him to do so: the seller is liable for this debt.
The performance obligations can be further subdivided into main performance obligations and ancillary performance obligations. In the sales contract, for example, the obligations to handover and transfer ownership on the one hand and to pay the purchase price on the other hand are the main performance obligations. The obligation to properly pack the item or to accept it may be considered as an ancillary service obligation .
Where the claim is payable, in the regulations on the place of performance ( pick-up , of fate , Bringschuld ). The performance time, on the other hand, concerns the question of when the service may be provided (feasibility) and requested ( due date ). The obligation to perform can relate to a specific object ( piece debt ) or to an element of a large number of similar objects ( inventory debt or generic debt ). The consideration is also a performance, so that the provisions on the creation, content and expiry of the performance obligations also apply to it.
Protection obligations
Section 241 (2) of the German Civil Code, on the other hand, describes a different type of obligation, which can be described as protection obligations, duties of consideration or duties of consideration: "According to its content, the contractual obligation can oblige each part to take into account the rights, legal interests and interests of the other part."
The seller of the car from the example above is obliged, for example, not to lay a slippery floor covering in the sales salon on which the buyer slips and injures himself.
In the case of such obligations, there is no point in demanding that they be fulfilled: They are not initially specified in concrete terms, but are generally directed towards consideration. When the concrete situation arises, it is too late: Either the damage has already occurred or the danger has been recognized and therefore no longer poses a threat. Duties to protect are therefore not enforceable ; unlike the obligations to perform , the law does not even speak of them there is a corresponding claim by a creditor.
Relevance of the distinction
The distinction becomes particularly important when the duties are violated ( impairment of performance ). The consequences are namely different:
If the performance obligations are breached, the obligee's interest in equivalence is disturbed. Although the law does not evaluate the agreed performance and consideration , it accepts that the contracting parties the performance was worth the agreed consideration (“subjective equivalence”) - this follows from the principle of private autonomy . However, this subjective equivalence, i.e. the presented equivalence of performance and consideration, is missing if the agreed upon is not performed. If the car is worth 10,000 euros to the buyer, his interest in the equivalent consideration is disrupted if he does not receive the car at all or if it is damaged. There are therefore legal remedies such as supplementary performance , reduction in price , withdrawal or “ compensation instead of performance” to restore the equivalence between performance and consideration: the buyer receives another, intact car, has to pay less for the damaged car, is paid for the repair or can to withdraw from the contract entirely.
On the other hand, the breach of protective obligations has nothing to do with the actual exchange relationship: performance and consideration remain unaffected if, regardless of this, other damage occurs to the previous assets of the obligee. So it is only a matter of violations of the integrity interest, which can be compensated for by so-called "compensation in addition to the performance". Subsequent performance would also be pointless: the damage has already occurred. The obligee can only withdraw from the contract or demand compensation instead of performance in exceptional cases, namely if, in view of the breach of protective obligations, the further performance of the contract with such an unreliable debtor is no longer reasonable (cf. § 324 and § 282 BGB).
Origin of the obligation
In view of the consequences for the debtor, the occurrence of obligations is regulated by law.
Performance and protection obligations
"In order to establish an obligation through a legal transaction and to change the content of an obligation, a contract between the parties involved is required, unless otherwise stipulated by law." ( Section 311 (1) BGB). By virtue of private autonomy, everyone can contractually - within certain limits - undertake to provide any services. In addition, the law also stipulates performance obligations, for example by recognizing unilateral legal transactions ( claims ) or in the law of enrichment , tort law , etc. Such obligations can also give rise to protective obligations, Section 241 (2) BGB.
Exceptionally, the obligations may also benefit third parties who are not a party (fake and genuine contract in favor of third parties , contract with protective effect in favor of third parties ).
Protection obligations
Section 311 (2) and (3) BGB go beyond that: An obligation with obligations according to Section 241 (2) BGB (protective obligations) also arises from entering into contract negotiations, initiating a contract and similar business contacts. Here the culpa in contrahendo, previouslyrecognized under customary law, has been codified: Between the duties of everyone under tort law and contractual obligations, there is a third group of cases, which is characterized by the fact that someone is given the opportunity to influence rights, legal interests and interests with regard to a legal transaction becomes. Even a third party who is not a party to the contract can, in exceptional cases, make a corresponding protection obligation.
However, it is disputed whether this regime is a legal protection relationship, a "third trace" between contract and tort law (especially Canaris ), or whether the protection obligations only arise in the pre- and post-contractual stage by virtue of the law, otherwise to “fold down” contractual obligations.
Expiry of performance obligations
The typical reason for expiry for performance obligations is fulfillment with their surrogates ( set-off , deposit ). Exceptionally, the performance obligations expire regardless of this, for example if the performance has become impossible . The risk of having to perform again (e.g. because the owed item was destroyed) is referred to as the risk of performance .
