Breach of duty

In German law of obligations, a breach of duty is understood to be behavior when a debtor acts differently than what is prescribed for him by the contractual relationship and thereby violates a legal obligation .

The term breach of duty is based on the objectively existing duty, not on the debtor's " having to represent " within the meaning of Section 276 of the German Civil Code. Even if the debtor is not responsible for the breach of duty, one speaks of a breach of duty.

General

According to the new law of obligations that has been in force in Germany since January 1, 2002, the breach of duty is a central element of the offense and an essential legal term in the law of impaired performance .

Breaches of duty can, for example, be committed within contractual obligations. As part of a purchase contract , the seller is z. B. obliged to transfer ownership of the sold item free of material defects and defects of title ( Section 433 (1) sentence 2 BGB). If the seller delivers a defective item, he violates the aforementioned obligation.

Obligations, the violation of which can result in a claim for damages in accordance with Section 280 (1) BGB, also exist within statutory or contractual obligations. Example: Person A has damaged a shop window belonging to Person B and therefore owes compensation for tortious acts ( Section 823 (1) BGB). If person A repairs the damage and damages the shop window displays of person B, person A commits a breach of duty within a legal obligation and is liable according to Section 280 (1) BGB.

Concept history

In the context of the modernization of the law of obligations , the appropriate central term of the new law on impairment of services has long been discussed. Within the law of obligations commission of the Federal Ministry of Justice , the terms " breach of contract ", " breach of claim" and " non-performance " were initially proposed. Ultimately, however, the commission followed the concept of breach of duty proposed by Uwe Diederichsen .

What spoke against the term “breach of contract” was that it should also include legal obligations for which no contract exists. The expression “breach of claim” would have created problems for such behavioral obligations that do not correspond to any direct claim right, e.g. B. the obligation to take the other legal interests of the obligee into consideration. The term “non-performance” was also considered to be too narrow, since non-performance only meant the partial or complete absence of an owed service.

The double offense of breach of duty

The term “obligations arising from the contractual relationship” in Section 280 (1) of the German Civil Code (BGB) comprises two types of obligations: performance and consideration obligations (also known as protective or secondary obligations). A breach of duty is initially given if a performance obligation is not performed or not performed as owed. For example, if someone owes a bank the repayment of a loan of € 200,000 and does not pay, then he is committing a breach of duty. The same applies if the seller of a car does not deliver the sold vehicle to the buyer.

On the other hand, it is a breach of duty if the debtor does not fulfill his obligation to take into account the legal interests of the obligee ( Section 241 (2) BGB). Another example: A craftsman is called into an apartment to repair a tap. He carries out this assignment, but inadvertently knocks over a valuable vase in the hallway. The craftsman has fulfilled his obligation to perform, but has not taken sufficient account of the client's property and has thus violated the obligation to be considerate. He has therefore committed a breach of duty within the meaning of Section 241 (2) BGB (compensation for damages in accordance with Section 280 (1) BGB).

Legal consequences of breach of duty

Section 280 (1) of the German Civil Code (BGB) stipulates that the debtor has to pay compensation if he has committed a breach of duty. This does not apply if the debtor is not responsible for the breach of duty. The burden of proof for this is borne bythe debtordue to the negative wording of Section 280 (1)sentence2 BGB. According to Section 276 (1) BGB, the debtor is responsible for intent and negligence (fault).

The basic rule of Section 280 (1) BGB is modified by the following paragraphs. Section 280 (1) of the German Civil Code (BGB) is only the sole basis for a claim for damages in addition to performance. If the requested compensation is compensation due to delay in performance, the requirements for delay according to Section 286 of the German Civil Code must also be met in accordance with Section 280 (2) BGB . In the event of compensation instead of performance, Section 280 (3) links the compensation to the additional requirements of Section 281 , Section 282 and Section 283 of the German Civil Code. The obligation to pay damages then takes the place of the original obligation to perform.

In the event that there are several breaches of duty - in the context of § 281 BGB, namely the original non-performance or poor performance and subsequently the non- (proper) supplementary performance - the question arises as to which of the two breaches of duty must be represented within the meaning of § 280 para 1 sentence 2 BGB refers. The answer is hotly debated in the literature. As a result, it will have to be enough that the culprit has to represent one of the two.

Under the conditions of Section 323 BGB, the obligee can withdraw from a mutual contract .

Comparative international classification

A uniform liability norm due to breaches of duty, as it has existed since the modernization of the law of obligations with Section 280 (1) BGB, corresponds to the current international legal development. The “Principles of European Contract Law” drawn up by the Lando Commission contain a corresponding regulation in Art.

literature

Wolfgang Fikentscher / Andreas Heinemann: law of obligations . 10th edition, De Gruyter, Berlin 2006.
Harm Peter Westermann (ed.): The law of obligations 2002 - systematic presentation of the law of obligations reform . Boorberg, Stuttgart 2002.
Stefan Tetenberg: The reference point of having to represent in compensation instead of performance, JA 2009, 1.
Sebastian Ludes / Sebastian Lube: Must be represented in § 281 BGB, ZGS 2009, 259.

Individual evidence

↑ Wolfgang Fikenschter / Andreas Heinemann: Law of Obligations , Rn. 361.
↑ Michael Schultz, in: Harm Peter Westermann (Ed.), Das Schuldrecht 2002 , 2003, p. 21
↑ See only about Dirk Looschelders , FS Canaris, p. 737ff .; Otto, in: Staudinger, BGB, § 280 Rn. D 11; Tetenberg, JA 2009, 1; Ludes / Lube, ZGS 2009, 259.
↑ so Stefan Tetenberg, JA 2009, 1 (4).
↑ Helmut Heinrichs in Palandt (63rd edition), § 280 Rn. 2.

[1] Wolfgang Fikenschter / Andreas Heinemann: Law of Obligations , Rn. 361.

[2] Michael Schultz, in: Harm Peter Westermann (Ed.), Das Schuldrecht 2002 , 2003, p. 21

[3] See only about Dirk Looschelders , FS Canaris, p. 737ff .; Otto, in: Staudinger, BGB, § 280 Rn. D 11; Tetenberg, JA 2009, 1; Ludes / Lube, ZGS 2009, 259.

[4] so Stefan Tetenberg, JA 2009, 1 (4).

[5] Helmut Heinrichs in Palandt (63rd edition), § 280 Rn. 2.