Positive breach of contract

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The positive breach of contract was a legal institution recognized by customary law in German civil law , which recorded those cases of breach of contract that did not belong to the legally regulated impossibility , default , non-performance / poor performance or warranty law .

General

Shortly after the BGB came into force in January 1900, it turned out that the negative model of non-fulfillment / poor fulfillment of the BGB is too narrow to cover all forms of breach of contract (such as the delivery of unhealthy goods , reject- producing machines), breaches of cease and desist obligations (such as contractual confidentiality obligations ) or of secondary obligations . The lawyer Hermann Staub therefore coined the term “positive breach of contract” in 1902, intended as a supplement to the non-fulfillment or poor fulfillment understood as a purely negative fact. With his doctrine of positive breach of contract, Staub closed a loophole in the law .

The positive breach of contract was called “positive” because the contract was breached “positively” (ie despite fulfillment ) - and not “negatively” (ie through non-fulfillment). Soon there were also claims for damages from the violation of secondary obligations from unilateral claims rights or from statutory obligations , so that the positive breach of contract became a "positive breach of claim".

Legal issues

Staub was of the opinion that the cases of positive breach of contract through analogous application of § 276 a. F., § 326 a. F. BGB are to be closed. The Reichsgericht (RG) shared its legal opinion for the first time in June 1902 and made the legal institute permanent jurisdiction for all damage caused by material defects. In the case before the RG, a grain dealer had bought rye, which was rejected by a mill as "not grindable". The RG saw the change as inapplicable and granted the claim for damages due to positive breach of contract. The Federal Court of Justice (BGH) first confirmed the legal institution of positive breach of contract in November 1953.

Today's regulation

With the reform of the law of obligations that came into force in January 2002 , the positive breach of contract was finally taken into account as a breach of duty . Now governs § 280 para. 1 BGB the basic offense for service disruptions , according to which a duty to replace from the obligation infringing debtor to the creditor the therefrom resulting damage must, if it be the breach represented has. This new regulation also covers the cases in which the positive breach of contract has been applied so far.

A similar legal institution, not regulated by law, which justified a claim for damages , was culpability in contract negotiations ( Latin culpa in contrahendo ). The culpa in contrahendo is now also legally regulated in Section 311 (2) and (3) BGB.

International

In addition to non-performance, the Swiss Code of Obligations (OR) also regulates poor performance of contracts in Art. 97 ff. OR. The bad performance is linked to the difference between the promised and the actual performance of the debtor. Art. 97 para. 1 OR primarily includes the impossibility, but teaching and jurisprudence have extended the scope of Art. 97 OR ff. To positive breach of contract. In the judgment, the Federal Supreme Court defined the positive breach of contract as "a breach of the general obligation of each contracting party to refrain from all actions that are likely to endanger or thwart the purpose of the contract". This includes all types of improper fulfillment of contractual obligations in which the debtor performs (no impossibility of performance) and he does so in good time (no delay).

In Austria there is no legal loophole in the ABGB with regard to these breaches of contract, so that the legal institution of positive breach of contract was never needed. § § 918 ABGB, § 921 ABGB explicitly record the damage caused by delay and non-performance in the event of delay (§ 918 para. 2 ABGB: partial delay), § 920 ABGB regulates the prevention of performance ( impossibility ) and § 932 para. 1 ABGB provides a regulation for the Bad performance. The general compensation regulation of § 1295 Paragraph 1 ABGB requires the damaging party to compensate for the damage which the injured party has caused the injured party to be at fault; the rules on contractual damages ( Latin ex contractu ) apply. Finally, § 1298 ABGB sanctions the breach of “contractual or legal obligations” in the area of ​​non-performance.

The common law projected into contracts a guarantee by ( English warranty ) into it. If the contractually promised service does not cause is a breach of contract ( English breach of contract ) prior to, regardless of whether it is not, provided too late or bad; the obligee can claim damages or in the event of a breach of fundamental contractual obligations ( English fundamental breach ) withdraw from the contract ( English discharge by breach ).

literature

Individual evidence

  1. ^ Hermann Staub, The positive breaches of contract and their legal consequences , commemorative publication for the 26th German Lawyers' Conference, Berlin 1902, p. 46 ff.
  2. ^ Harm Peter Westermann / Peter Bydlinski / Ralph Weber, BGB - Law of Obligations, General Part , 2010, p. 177
  3. ^ Hermann Staub, The positive breaches of contract and their legal consequences , commemorative publication for the 26th German Lawyers' Conference, Berlin 1902, p. 15
  4. ^ RG, judgment of June 13, 1902, Az .: II.26, 169/02 = RGZ 52, 18, 19
  5. ↑ BGHZ 11, 80 , 83
  6. ↑ Swiss Federal Court , judgment of June 29, 1943, BGE 69 II 243, 244 f.
  7. ↑ BGE 69 II 243
  8. ↑ Konrad Zweigert / Hein Kötz, Introduction to Comparative Law , 3rd edition, 1996, p. 501 f.