Dissent
Dissent (from Latin dissensus = “disagreement”, Latin dissentio , “I do not agree”, Latin dissentire , “disagree”) is generally used to denote a difference of opinion on certain issues , issues and topics . It is therefore the opposite of consensus .
Dissent in law
In the context of contract law , dissent means a lack of agreement . A distinction is made between open dissent according to § 154 BGB and hidden dissent according to § 155 BGB. In terms of legal methodology, the dissent is in the vicinity of the regulations on the right to error and the right of interpretation .
Open dissent (§ 154 BGB)
The open dissent demands that a mutual contract be considered. However, one of the contracting parties feels the need to regulate at least one point in the contract. This point does not necessarily have to be decisive for the contract. However, no decision has yet been made on this point and both contracting parties know this.
- Legal consequence
- Normal case: If both contractual partners have not yet started to fulfill the contract, no bond has yet been established between the two partners. The contract is therefore not yet concluded ( Section 154 BGB).
- Exception: It is possible, however, that both persons have already started to fulfill the contract, although knowledge of the existing deficiency exists. Here the contract is considered concluded and § 154 BGB does not apply. However, since no agreement has been reached on the point of the contract, either the interpretation of the contract on this point or statutory regulations will take effect here.
Hidden dissent (§ 155 BGB)
In the case of hidden dissent, both contracting parties assume that a contract has been concluded and each point of the contract has been agreed ( Section 155 BGB). However, if there is a (normative) consensus according to the (normative) interpretation according to the so-called objective recipient horizon, the hidden dissent is ruled out, so that a contract or a valid declaration of intent is present. It is to ask what is objective receiver, instead of the actual recipient of good faith ( § 242 BGB) and in view of the prevailing practice could understand. Therefore what is objectively said applies and not what is actually wanted; this to protect fair business dealings. However, recognizing the error in the case of hidden dissent does not render the contract null and void, rather the contractual partner is given the opportunity to contest it . This breakdown can show itself in different ways:
- Hidden incompleteness : Here both partners think that they have agreed on a point, but accidentally failed to negotiate or reached an agreement.
- Explanatory dissent : This is a kind of misunderstanding between the two contracting parties. Both talked past each other and so did not notice that their wording did not match objectively. Total dissent is a special form. Either no agreement was reached on any point or an essential point remained open (e.g. purchase price , contractual partner, etc.). Thus, the basic prerequisites of a contract ( Latin essentialia negotii ) are missing and the contract did not come about.
- Sham consensus : In the case of a sham consensus, both parties did not reach an agreement because they used a term that has an ambiguous meaning ( homonym ) and both partners have therefore interpreted this term differently.
- Legal consequence
In the case of hidden dissent, the contract applies as far as it would have been concluded without the point that was not agreed.
In Islamic jurisprudence
In Islamic jurisprudence , the dissent between the various legal scholars or schools of law is referred to as Ichtilāf . In premodern times it was mostly positively assessed because there is a hadith that says that it represents a divine grace.
Web links
Individual evidence
- ^ Dieter Medicus : Civil law . 19th edition Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 6 I, 3.
