Pactum de non petendo
A pactum de non petendo ( Latin : contract, not to be demanded ) describes in jurisprudence a standstill agreement, namely an agreement not to assert a claim, regardless of whether this exists, will exist, is supposed or veritable, transferred , inherited, dissolving and / or suspensive, conditional or unconditional, controversial or undisputed. Typically, therefore, the pactum de non petendo is an anticipated clause.
The legal institution of the pactum de non petendo was introduced as an informal debt cancellation contract as early as the classical period of Roman law . Informal issuance and deferral were still considered uniformly. The objection of the exceptio pacti conventi sprang from him.
Legal consequences
The legal consequence is a legal objection , in principle with effect inter partes , which prevents the enforcement of the claim concerned and is an obstacle to enforcement in all procedural stages .
Exceptionally, for legal reasons, a pactum de non petendo can be assumed as a quasi-legal legal relationship if a right was acquired abusively or the assertion of certain aspects would be abusive by a particular petitioner without having to destroy the right concerned himself (see abuse of law ) . In such cases, the legal technical boundary to material preclusion is fluid.
admissibility
In certain cases, pacta de non petendo are inadmissible, for example if they are intended to circumvent legal regulations, for example the prohibition of Section 1614 (1) BGB to waive future (family law) maintenance by waiving this claim.
function
The function essentially consists of the following:
- Mediation function, already during contract negotiations the parties can isolate conflicting points and make them ineffective for the execution of the contract; the same applies to legal disputes.
- Exclusion of liability and limitation of risk, which can be done for purely economic considerations while neglecting the legal situation.
to form
- limited: so-called deferral
- pactum de non cedendo (contract, not to be assigned), a prohibition of assignment that adheres entirely to the law and makes it fundamentally inalienable (cf. § 399 2nd alternative BGB ) or only the sale of rights, the acquisition of rights or the rights derived therefrom to a specific petitioner prohibited (see prohibition of disposal , reservation ).
- pactum de non licitando (contract, not to be compulsorily auctioned ) contractual prohibition for a petitioner to conduct a compulsory auction on a property.
Individual evidence
- ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 106.
- ↑ Gai. 4.119 ff.
- ↑ BGH, decision of January 29, 2014 - XII ZB 303/13 , official guideline c).
