Secondary obligation

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In German civil law , secondary duties are subordinate, serving duties within an existing obligation between two legal subjects . The term is used inconsistently. In any case, it must be strictly separated from the ancillary service obligation .

General

This sometimes means - misleadingly - the duties of care , custody , care or consideration according to Section 241 (2) BGB , which oblige the other party to “consider the rights, legal interests and interests”. The culpable violation of these protective obligations establishes liability for damages according to § 280 ff. BGB and can, in exceptional cases, even entitle the other party to withdraw . Secondary obligations are then the opposite of the performance obligations .

Ancillary service obligations

Often, ancillary duties are also understood to mean ancillary performance obligations , i.e. those performance obligations that are not included in the mutual contract as main performance obligations in Synallagma . Secondary obligations are then the counterpart to the main performance obligations. Since the modernization of the law of obligations, the distinction only plays a role for the objection of the non-fulfilled contract , while the right of withdrawal is generally linked to the breach of performance obligations, the law on damages even allows any breach of duty to be satisfied.

Others refer to the main obligations as the typical contractual obligations, i.e. those that make the contract such as is typified in the BGB. In this respect, the function of the term is to find the appropriate legal rules to fill in gaps in the contract. The main obligation of the purchase contract would then be the obligation to transfer ownership and handover , so the term refers to the performance as distinct from the consideration .

Because of the different use of the term secondary obligations, there is “a lot of confusion” about the legal consequences associated with the designation .

See also

Individual evidence

  1. ↑ Dieter Medicus , JuS 1986, pp. 665, 671