Dysfunction

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Power failure is in the law used legal term for various cases in which the parties to a contractual obligation not behave as the purpose of the contractual obligation - the provision of a specific performance by the debtor to the creditor requires -. The term was probably coined by Heinrich Stoll , who in 1936 presented a memorandum of the Committee for Personal, Association and Obligations Law of the Academy for German Law with the title The Doctrine of Performance Disorders.

In particular, non-performance , impossibility of performance, default by the debtor and the obligee, and cases of poor performance are counted among the performance disruptions. In detail, there is no full agreement on the delimitation of the right to disrupt performance.

Examples

One speaks of impossibility of performance if the debtor can no longer provide the performance to which he is obliged due to the contractual obligation. Anyone who has sold a car owes the buyer the handover and transfer of ownership of this car. If the car is completely destroyed in a traffic accident, the performance owed is impossible.

The debtor is in default if he does not provide the service, although it is possible and he has been requested to do so by a reminder. This is the case, for example, when the buyer of a car does not pay the seller the purchase price even though the seller asks him to do so.

If the buyer refuses to accept the car that the seller intends to deliver to him in accordance with the contract, he is in default of the creditors .

One speaks of poor performance, for example, when the sold car is delivered to the buyer as agreed, but has an engine failure and is therefore unusable.

Legal regulation in Germany

The right to disrupt performance is largely regulated in the BGB in Sections 275 to 304 BGB and Sections 320 to 326 BGB. Special regulations on poor performance in special contracts can be found in the provisions on warranty, for example in sales law (§ § 434  ff. BGB) and in the law of the work contract (§ § 633  ff. BGB).

In the framework of the law of obligations reform of 2001/2002, the right to disrupt performance was fundamentally changed. The core of the new regulation is the introduction of the generic term of breach of duty for some (but not all) forms of performance disruptions.

Statutory regulations in Austria

The ABGB's right to disrupt performance (§ § 922  ff.) Is threefold: A distinction is made between subsequent impossibility of performance, delay (together also referred to as non-performance) and warranty (also known as poor performance.) An EC directive made an amendment as in Germany in 2002 of the right to disrupt performance is necessary.

literature

  • Wolfgang Ernst: Commentary on §§ 275, 280, 281-284, 286-304, 311a, 323-327 BGB . In Kurt Rebmann , Franz Jürgen Säcker , Roland Rixecker (ed.): Munich Commentary on the Civil Code . Vol. 2a. 4th edition. Munich 2003, ISBN 3-406-49821-3 (detailed description of the legal status after the reform of the law of obligations)
  • Ulrich Huber : Performance disruptions . 2 vol. Tübingen 1999, ISBN 3-16-147114-8 and ISBN 3-16-147115-6 (for a definition of the term, see vol. 1 pp. 2–7).
  • Ludes / Lube: Must be represented in Section 281 BGB; ZGS 2009, 259
  • Hans-Peter Richter: Basic legal courses. 3rd volume - BGB, law of obligations, general part . 19th edition. Richter, Dänischenhagen 2004. ISBN 3-935150-28-8
  • Heinrich Stoll: The doctrine of the performance disturbances. Memorandum of the Committee on Personal, Association and Obligations Law. (Writings of the Academy for German Law) Tübingen 1936.