Pactum de palmario

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A pactum de palmario (also: Siegesprämie , prize ), a performance fee, in addition to the normal fee (base fee) of some countries lawyer may be agreed legitimately. This is not a pure contingency fee ( pactum de quota litis ), which is sometimes viewed as incompatible with the status or practice of the profession of lawyer.

Name derivation

The name pactum de palmario should be traced back to the ancient custom, according to which the winner of a competition is entitled to a “victory price” (palmarium).

Admissibility of the Agreement

In France , the pactum de palmario is basically a permissible agreement, also in Italy and under certain conditions also in Germany ( § 4a ) and (disputed) in Austria or not yet clarified by a court in Liechtenstein .

According to the legal view of the Swiss Federal Court (BG), the basically permissible pactum de palmario must be within certain limits. Such limits were set by the Federal Supreme Court:

  1. Regardless of the outcome of the proceedings, the lawyer must obtain a fee that not only covers his own costs, but also enables him to make a reasonable profit;
  2. the fee component, which is dependent on success, must not be so high in relation to the fee owed in each case that the independence of the lawyer is impaired and there is a risk of being overreached;
  3. The conclusion of a pactum de palmario must be concluded at the beginning of the mandate relationship or after the end of the legal dispute, but not during the current mandate.

Individual evidence

  1. The remuneration of the lawyer is regulated by law in many countries and deviations from this are only permitted within certain limits.
  2. Gaudez G. Zindel, Developments in Lawyers' Law , Journal for Legislation and Jurisprudence in Graubünden (ZGRG), 2/06, p. 43. See also Article 19, Paragraph 3 of the Swiss Code of Conduct for Lawyers (SSR).
  3. Marcel Pilshofer in Fundamentals and Limits of Free Fee Agreements in the Legal Profession , Dissertation, Vienna 2010, p. 161 with reference to Jahoda, ÖJZ 1954, p. 605.
  4. ^ Jutta Laurich, The success fee in French case law , Anwaltsrevue 10/2008 p. 461; Hubert Metzger, L'honoraire de l'avocat et le résultat - la situation en France , in: The success and the fee of the lawyer , 2007, p. 45 ff.
  5. ^ Corinne Widmer Lüchinger, The Civil Law Assessment of Legal Success Fee Agreements , AJP 2011, p. 1452.
  6. See e.g. B .: Michael Auer, what is more expensive than a lawyer - not a lawyer! , in: The success and fee of the lawyer , 2007, p. 40 ff .; Michael Kutis, Das "pactum de quota litis in Austria , Anwaltsrevue 10/2008 p. 457; Marcel Pilshofer in" Basics and limits of free fee agreements in the legal profession ", dissertation, Vienna 2010, p. 161 ff.
  7. 4A 240/2016 , BG judgment of June 13, 2017.
  8. However, the Federal Supreme Court considers the limit to be exceeded if the success-related fee is higher than the non-success-related fee.
  9. See also: Martin Rauber, Hans Nater, Das pactum de palmario is valid - but only with restrictions , in: Schweizerische Juristenteitung (SJZ), Zurich 2017, Schulthess, Bd. 113 (2017), 24, p. 605, ISSN 0036 -7613.