Ineffectiveness
The legal term ineffectiveness means that a contract or one of its clauses or the declarations of intent on which the contract is based do not develop any legal consequences . A legal definition of the term does not exist. In addition, the concept of retrospective nullity stands for declarations of intent that are removed by means of a justified challenge .
Differentiation of terms
The terms ineffectiveness and nullity are sometimes used differently. But even for Werner Schubert , a legal transaction was null and void “which, due to its deficiency, cannot produce the intended legal effect; that which can be challenged is that which produces the legal effect, but because of its deficiency only produces it in such a way that the effect cannot withstand in the event of an attack ". The legislature uses the term nullity to mean that the legal transaction is to be viewed as if it had not been carried out at all. If nullity is to occur, the law usually uses the term “null”, but the terms “ineffective” and “cannot” are also used to designate grounds for nullity.
Ineffectiveness
A legal transaction is ineffective if it violates mandatory legal regulations, but a cure is still possible and can therefore still be valid. Conversely, legal transactions can also initially be effective, but subsequently become ineffective through the successful use of design rights. The defect underlying the legal transactions is minor, so that the law provides for a cure.
Pending ineffectiveness
In the case of pending ineffectiveness, the effectiveness of the concluded legal transaction remains pending until the missing effectiveness requirement is made up. An initially ineffective legal transaction becomes effective as soon as the required approval by a third party or the expiry of a certain period has occurred. The pending ineffectiveness is thus a temporary condition that can develop into the full effectiveness or ineffectiveness of the business. The conclusion of a contract by a minor is ineffective until approval by the legal representative (mostly parents) ( Section 108 (1) BGB ). This also applies to “representation without power of representation” ( Section 177 (1) BGB) and the disposal of an unauthorized person ( Section 185 BGB). Both are fundamentally ineffective, but can be cured with approval by the person represented or the person entitled. Once approved, the contract is considered effective from the start ( Section 184 (1) BGB). A legal transaction carried out in violation of the prohibition of self-contracting ( § 181 BGB) is pending ineffective, unless it is subsequently cured, for example by a shareholder resolution. On the other hand, services already provided can be reclaimed in accordance with Section 812 of the German Civil Code. There is a special relationship of mutual consideration between the parties involved during the limbo. If contracts require official approval, the parties are obliged to do everything necessary to obtain the required approval. Injuries, for example, can lead to cic claims .
Contestability
The legal transactions mentioned so far are characterized by the fact that they are initially ineffective and can be cured by third parties (see healing ). There are also legal transactions that are initially effective, but subsequently become ineffective due to design rights . Contracts can become void by avoidance if the declaration of avoidance ( § 143 BGB) with grounds for avoidance (§ § 119 f., § 123 BGB) is submitted within the avoidance period ( § 121 , § 124 BGB). Only the effective contestation renders the contract retrospectively “null and void from the start” ( ex tunc ; § 142 Paragraph 1 BGB). The legal transaction remains effective without contestation. The law names errors , malicious deception and unlawful threats as grounds for avoidance .
Relative ineffectiveness
If a protective law only aims to protect certain persons, a legal transaction that violates it is only ineffective against these persons; however, it is fully legally effective for all other groups of people. After the entry of a reservation , the debtor's disposals of a property are ineffective to the extent that they would thwart or impair a claim of the obligee to this property ( Section 888 (1) BGB). A legal transaction which, however, violates an absolute prohibition of sale (e.g. § 3 Narcotics Act ) is void towards everyone, i.e. absolutely. The violation of relative prohibitions on disposal or sale ( § 135 , § 136 BGB), on the other hand, only leads to relative ineffectiveness, i.e. H. the legal transaction is only ineffective with regard to the protected persons, but effective in relation to others. The reservation is effective against all other land register participants, except for the beneficiary creditor.
The relative ineffectiveness is to be observed ex officio . It will be cured if the reason for the ineffectiveness no longer applies or the person protected by the prohibition waives the assertion of the ineffectiveness.
Nullity
If legal transactions or declarations of intent show such serious deficiencies that the law does not grant them any legal effect from the start, they are void. This nullity can only be cured in a few cases, which the law finally enumerates. The nullity exists from the beginning ("ex tunc"), regardless of the will of those involved and works against everyone.
Nullity in the BGB
A distinction is made here according to whether there are deficiencies in person, form or content. These legal transactions are void from the start ( ex tunc ) and can only be cured in exceptional cases. If the serious defect is due to the person of one of the contracting parties, the law only recognizes the legal consequence of nullity. So assigns § 105 of the Civil Code, the declaration of intent of a person under a disability is incurably void. This is to protect the incapable of doing business. In civil law there is fundamental freedom of form for legal transactions. Only in exceptional cases does the law order compliance with certain functions (evidence, warning, clarification or control function) in a legally prescribed form . These are text form , written form , notarial certification and notarial certification . If these forms are not adhered to, the legal transactions - with a few exceptions - are incurably void ( § 125 BGB). The land purchase contract ( § 311b BGB) and the marriage contract ( § 1410 BGB) require notarization, the law provides for the written form for the consumer loan contract ( § 492 Paragraph 1 BGB). If essential information is missing in the latter or if the written form is not adhered to, the contract is void ( Section 494 (1) BGB). Likewise is loan mediation and incurably void occurs when the consumer is not or not sufficiently informed in writing on pre Required Fields of the mediator ( § 655b para. 2 BGB).
The invalidity of a contract can also arise from its content . So sham deals ( § 117 BGB), joke deals ( § 118 BGB), immoral or usurious contracts ( § 138 BGB) are incurably void. This also applies to the secret reservation , provided that the other party is aware of the reservation ( Section 116 sentence 2 BGB). A last group of cases, which is part of the content of the contract, deals with the invalidity of contracts that violate a legal prohibition ( Section 134 BGB). This assumes that individual passages of the contract or the entire content violate a prohibition law. There must be a violation of mandatory provisions of the legal system. A violation of a law only leads to the nullity of the contract if the nullity is expressly intended or results from the protective purpose. A contract between a thief and a stealer is void, because stealing is punishable and this act is classified as a legal prohibition. Certain agreements between companies aimed at restricting competition are also prohibited and therefore void ( Section 1 GWB ; ban on cartels ).
According to § 139 BGB, the partial invalidity of a contract leads to the invalidity of the entire agreement. This can be excluded by a severability clause . The partial invalidity of a general terms and conditions , on the other hand, only leads to the ineffectiveness of the relevant clause in accordance with Section 306 (1) BGB , otherwise the contract remains effective.
Nullity in special regulations
Various special laws provide for the consequences of nullity in certain cases. For example, established annual financial statements pursuant to Section 256 AktG (except in the cases of Section 173 (3), Section 234 (3) and Section 235 (2) AktG) are void if a. its content violates regulations that exist exclusively or primarily to protect the company's creditors ( Section 256 (1) No. 1 AktG; balance sheet truth ). The resolution in a general meeting of a stock corporation can be null and void according to § 241 AktG if it is B. is not compatible with the nature of the stock corporation or its content violates regulations that are exclusively or primarily for the protection of creditors or otherwise in the public interest ( Section 241 No. 3 AktG).
Nullity of administrative acts
In public law, the administrative act is often the focus of criticism. According to Section 44 (1) VwVfG , an administrative act is null and void if it suffers from a particularly serious error and if this is obvious after a reasonable assessment of all the circumstances in question. The cases mentioned in § 44 para. 2 VwVfG lead in any case to nullity (so-called absolute grounds for nullity): these are e.g. B. the lack of the issuing authority ( § 44 Abs. 2 Nr. 1 VwVfG) or the violation of an administrative act against morality ( § 44 Abs. 2 Nr. 6 VwVfG). If administrative acts are impracticable ("which no one can carry out for actual reasons", Section 44 (2) No. 4 VwVfG), they are also automatically null and void. However, in the cases of Section 44 (3) VwVfG, a cure may be considered ( Section 45 VwVfG) so that nullity can be avoided. In the case of less serious defects, invalidity can be brought about through legal remedies (challenge, objection or withdrawal).
Nullity of municipal legal transactions
Local law largely takes over the provisions of civil law. In many municipal ordinances, for example, it is stipulated that legal transactions by the municipality that require approval by the supervisory authority are ineffective without this approval (e.g. Section 130 of the municipal regulations in North Rhine-Westphalia). These regulations are to be understood as a reservation of approval. Such reservations by the supervisory authorities regarding the approval of municipal legal acts are a means of preventive state supervision. They are intended to prevent legal acts from becoming valid which, in particular, are inconsistent with certain legal requirements; In this type of supervision there is a particularly strong interference with local self-government. It is a form of state codecision that empowers the state to review not only the legality, but also the expediency of the legal transaction.
The change of the municipality name (§ 13 GemO), official seal / coat of arms / flag (§ 14 GemO), reduction of the general reserves (§ 75 Abs. 4 GemO) or the budget security concept (§ 76 Abs. 2 GemO) require approval. The regulatory approval, even if it is granted for a legal transaction under civil law, is an administrative act which, although not part of the legal transaction to which the approval relates, is a prerequisite for its effectiveness. Approval must be applied for by the municipality. Until the approval is granted, the underlying legal transaction is pending ineffective and binds the business partners until a decision has been made on approval or the parties cancel the contract. The approval allows the legal transaction to take effect, retrospectively to the date on which the transaction commenced. Unless otherwise stipulated by law, a decision on the approval must be made at the discretion of the law, so that a claim to the approval that can be pursued through administrative law only exists in the event of a breach of discretion.
There is also a risk of invalidity from municipal guarantees that are subject to EC notification obligations. The municipality is responsible for checking whether the modalities of guarantees and warranty agreements comply with the requirements of Art. 107 and Art. 108 of the EC Treaty. If this notification obligation is violated, the aid or municipal guarantee is void. The reason for nullity is the violation of a legal prohibition ( § 134 BGB) because the BGH classifies the notification obligation as a prohibition law.
Nullity of laws
The legislature can also make mistakes when issuing ordinances or laws ( error calculation ). In the case of post-constitutional laws in the formal sense (i.e. below the Basic Law), nullity can only be pronounced by the Federal Constitutional Court (BVerfG) or the competent state constitutional court (rejection monopoly). The rejection monopoly of constitutional jurisdiction means that only the Federal Constitutional Court may declare a formal norm null and void and not every single court may disregard the will of the legislature. If laws or ordinances violate the constitution, their (partial) nullity can be brought about by way of the norm review procedure or constitutional action . The BVerfG must proceed with the utmost restraint when suspending laws, because this always means a considerable encroachment on the legislature's freedom of design. The invocation of the BVerfG must not become a means by which those parties who have been defeated in the legislative procedure can delay the effectiveness of a law. If, however, a law is found to be unconstitutional by the BVerfG, the law concerned is void from the start ( Section 78 BVerfGG ).
Nullity of court judgments
In a few cases, court judgments were also found to be null. The prerequisite is that the faultiness of the judgment so clearly contradicts the spirit of the Code of Criminal Procedure and essential principles of the rule of law that it seems unbearable to accept them as binding.
Partial invalidity
Section 139 of the German Civil Code (BGB) stipulates that if part of a legal transaction is null and void, the entire legal transaction is null and void if it cannot be assumed that it would have been carried out without the null and void part. However, there are exceptions to the restriction of use. Thus, § 139 BGB does not apply if special laws make regulations. If, for example, general terms and conditions have not become part of the contract in whole or in part or are ineffective,the rest ofthe contract remainseffective inaccordance with Section 6 (1) AGBG . Partial invalidity does not apply to employment contracts either .
cure
In very specific cases, the law provides that legal acts can be cured despite existing deficiencies , with the result that they are effective from the start. These deficiencies can therefore lose their significance if the parties later realize an offense behind which the statutory protective purpose then takes a back seat. The law tries to maintain contracts with deficiencies as far as possible, so that contractual autonomy only has to be disturbed in unavoidable situations. Often it is the sufficient entry itself vain contracts in a public register or the fulfillment, to eliminate the invalidity. If, in the case of a non-formal property purchase contract, the conveyance and subsequent entry in the land register , the nullity of the contract is annulled ( Section 311b (1) sentence 2 BGB). If there is a formal deficiency in the promise of donation that is subject to notarization, this will be remedied by donation ( Section 518 (2) BGB). If the guarantee is not in writing, this form deficiency will be remedied through fulfillment (i.e. payment of the surety ) ( § 766 sentence 2 BGB).
The invalidity of a resolution in the general meeting is cured according to § 242 AktG by entry in the commercial register and a subsequent period of three years. Invalid annual financial statements can be cured under the requirements of Section 256 (6) AktG.
See also
literature
- Andreas Cahn : On the concept of nullity in civil law . In: JZ 1997, pp. 8-19.
Individual evidence
- ^ "The editors' templates for the first commission for the elaboration of the draft of a civil code" (1875), p. 741.
- ↑ Eberhard Wagner, "Contractual assignment prohibitions in the system of civil law obstacles to disposal", 1994, ISBN 3-16-146209-2 , p. 188 .
- ↑ See Palandt , BGB , 46th ed. 1987, p. 69.
- ↑ BGHZ 65, 123.
- ^ Otto Palandt : Bürgerliches Gesetzbuch . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , overview. v. Section 104 Rn. 30th
- ↑ Hartmut Giebler, Günther E. Nath, Marlies Johannkemper: Legal studies . 8th edition. Bildungsverlag EINS, Troisdorf 2007, ISBN 978-3-8237-4751-2 , p. 149 ( online [accessed September 30, 2011]).
- ↑ Kay Waechter, Kommunalrecht , 2nd edition 1995, margin no. 202 f., ISBN 978-3-452-22906-9
- ↑ BGH NJW 1999, 3335
- ↑ BGH WM 2004, 468
- ^ BGH WM 2003, 1491
- ↑ Press release of the Federal Constitutional Court ( Memento of the original dated June 11, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ See BGH NStZ 1984, 279; BGHSt 10, 278 [281]; 33, 126 [127]; RGSt 72, 78; OLG Düsseldorf VRS 75, 50 [52]; Luther ZStW 70 (1958), 88 ff .; OLG Cologne Ss290 / 02 jusmeum.de .
