reduction
The abatement (from "mitern" in the sense of to reduce, reduce, etc.) is an institute of guarantee in German civil law . With certain mutual contracts, it maintains the relationship to the agreed consideration in the event of a defective performance . This happens because due to such a disruption in performance, the right to the counter-performance partially expires: Those who receive a poorer performance should also have to pay less for it.
In tenancy law, this effect comes into effect by law; in the case of sales and work contracts, on the other hand, it depends on the exercise of a corresponding structuring right . Therefore, the reduction is not regulated in the general law of obligations , but in the respective contract types.
Service and employment contracts do not know the reduction.
Reduction by law
In tenancy law, a material or legal defect in the leased property means that the tenant only has to pay an appropriately reduced rent for the period in which the suitability is reduced ( Section 536 BGB ). The right to payment of the rent expires automatically in a certain amount or even completely. If the tenant has already paid in advance or in ignorance of the defect, the legal reason no longer applies and the tenant can claim the money back according to the right of enrichment .
In the case of a rental relationship for living space, a different agreement to the detriment of the tenant is ineffective. Under certain circumstances, the reduction does not occur, for example if the tenant was aware of the defect ( § 536b ff. BGB).
The reduction also applies to the travel contract by virtue of the law ( Section 651m BGB).
Reduction as a design business
In sales and work contract law, the reduction does not come into effect by law, but can be brought about by the buyer or orderer as a legal transaction ( design transaction ). The prerequisite is that he is entitled to a right to a reduction in price ( design right ) and that he declares the reduction to the contractual partner ( design declaration ).
Poor performance
The customer can demand that the craftsman properly and flawlessly fulfill the obligations from the (here exemplary) work contract. According to § 633 BGB , the craftsman has to provide the agreed service including all warranted properties. Furthermore, the work must be free from material and legal defects in order not to reduce the intended use.
Rights of the customer in the event of poor work performance
With effect from January 1, 2002, the law to modernize the law of obligations came into force. This has significantly changed the liability for defects in the contract for work and services. It is now embedded in the general right to disrupt performance. Defects of an entrepreneur are seen as a failure to fulfill his obligations. A defective work gives rise to rights of the customer. These differ from whether or not he accepted the work. Furthermore, it is important whether the customer was aware of the defects when he accepted the work.
If the customer has not yet accepted the work in accordance with Section 640 BGB , he can only assert the following rights due to not inconsiderable defects.
- Rework by the craftsman ( § 635 BGB supplementary performance )
- Self-implementation ( § 637 BGB ). He can remedy the defect himself and claim the necessary costs. He can also claim an advance payment.
- Withdrawal (early conversion) ( § 636 BGB )
- Reduction of the wages ( § 638 BGB ) that means reducing the remuneration by the reduced value.
- Assertion of further claims for damages ( § 636 BGB )
The customer can only assert his rights in stages. In the first stage, the customer only has the right to supplementary performance . To do this, he has to grant the entrepreneur a second chance of performance and allow him a reasonable period of time to do so. The request for subsequent performance must be made specifically, that is, it must specify the defects precisely.
The purchaser is only entitled to further rights after unsuccessful or not accepted supplementary performance.
If the work has already been accepted, the purchaser's rights are restricted. The acceptance can also take place verbally or without a word ( implied ).
The fulfillment stage by the entrepreneur ends with the acceptance. The legal consequences are:
- The craftsman's claim to remuneration is due .
- The risk passes to the customer.
- The limitation period for the performance claim begins.
Legal consequence
The reduction is regulated in § 638 BGB and § 441 BGB of the German Civil Code. In the case of a reduction, the remuneration is to be reduced in the ratio in which the value of the work in a defect-free condition would have been to the actual value at the time the contract was concluded.
The following calculation results from § 441 BGB:
or converted into a rule of three:
The amount of the reduction is obtained using the following formula:
The exercise of the right of reduction converts the obligation . The performance claims, the right to self-help and the right of withdrawal expire. Any existing claims for damages continue to exist insofar as they do not relate to the compensation of the defect that has already been compensated by the reduction. The prerequisite for the reduction is that
- at transfer of risk a shortage existed
- a reasonable deadline has been set for removal or, in exceptional cases, this is unnecessary
- the deadline has passed without success or the defect has not been remedied
- the right to reduce the price has not expired.
A threat of rejection , with which one would have to warn the other side of the forfeiture of their claim, is no longer necessary since the modernization of the law of obligations.
Web links
Individual evidence
- ↑ Examination- relevant information on sales law: No reversal due to large damages in the event of a previous reduction. In: Juraexamen.info. Retrieved May 30, 2018 .
