Price risk

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The price risk (less often the risk of compensation or consideration ) is a legal term from the general law of obligations . It concerns the question of whether in a synallagmatic contract in the period between the conclusion of the contract and full performance i. S. d. § 362 BGB, if the main service according to § 275 BGB ceases to exist, the agreed consideration still has to be provided, which usually consists of a cash benefit ( price ). For the obligee of the main performance, it describes the risk of still having to provide the consideration despite the failure of the main performance, and conversely for the debtor the risk of not receiving the consideration because of the failure.

Basic rule

The price risk is regulated in German law in the principle of Section 326 (1) BGB. Anyone who does not have to perform according to Section 275 BGB has no claim to the agreed consideration. Basically, the price risk lies with the debtor of the main service.

Example: Buyer K buys seller V's dachshund, which is struck by lightning immediately after the conclusion of the contract (but before the handover). According to Section 275 (1) BGB, V does not have to pay the purchase price in return ( Section 326 (1) sentence 1 BGB) or can claim it back if he has already paid ( Section 326 (4) BGB).

Exceptions

The law makes some exceptions to this, however, and shifts the risk of price to the creditor.

Section 326 (2) sentence 1, alt. 1 BGB

If the obligee is solely or predominantly responsible for the impediment to performance, he remains obliged to provide consideration.

Example: K buys V's dachshund, who this time is not struck by lightning but is shot by K (before it is handed over). He has to pay the purchase price, although he has no claim to the main service due to Section 275 (1) BGB.

In cases where the purpose has been achieved and the purpose is no longer applicable , Section 326 (2) sentence 1, Alt. 1 BGB cannot be applied without further ado, however, there is usually a right to part of the consideration according to § 645 BGB analogous ; see contract law . In cases of initial impossibility , Section 326 Paragraph 2 Clause 1 Alt. 1 BGB are not applied.

According to Section 326, Paragraph 2, Clause 2 of the German Civil Code (BGB), the debtor must have the benefits credited that he has acquired or maliciously failed to acquire because of the exemption from the obligation to perform or through other use of his labor.

Section 326 (2) sentence 1, alt. 2 BGB

Even if the impossibility occurs at a point in time when the obligee is in default of acceptance ( § 293 to § 304 BGB), his counter-performance obligation remains, provided the debtor is not responsible for the impossibility. The special rule of fault of § 300 BGB, according to which the debtor is not responsible for slight negligence during the creditors' default, must be observed .

Example: If K and V have agreed an appointment for the handover of the dachshund, at which K does not appear and the dog is then run over due to slight negligence on the part of V, K remains under Section 326 (2) sentence 1, old. 2, § 293 , § 296 sentence 1 BGB obliged to provide consideration; V is not responsible for slight negligence in the event of default in acceptance, Section 300 (1) BGB.

It is disputed whether, in cases in which there is default in acceptance of a generic debt even without specification , this is necessary for the transfer of the price risk.

Also in the case of § 326 Paragraph 2 Sentence 1 Alt. 2 BGB, the debtor must also have the advantages mentioned in Section 326 (2) sentence 2 BGB credited.

Other exceptions

Sales law

For sales law , § 446 sentence 1 BGB stipulates that the price risk is transferred to the obligee through the handover - and thus regardless of the transfer of ownership - of the purchased item. Clause 3 makes it clear that the risk of price is transferred even if the obligee defaults in acceptance. This is in relation to Section 326 (2) sentence 1 alt. 2 a priority special regulation. In the special case of mail order sales , according to Section 447 (1) BGB, the handover to the transporter leads to the transfer of the price risk to the obligee. However, according to Section 475 (2) BGB, the standard does not apply to the sale of consumer goods .

Service contract law

For the service contract , Section 615 sentence 1 of the German Civil Code (BGB) stipulates that in the event of default in acceptance, the obligee is obliged to remunerate the services not provided for this reason; has not acquired; this is also a priority special regulation to § 326 para. 1 sentence 2 alt. 2. S. 3 extends this for labor law to those cases in which the employer bears the risk of loss of work, see business risk theory .

Contract law

For the contract for work and services , Section 644, Paragraph 1, Clause 1 of the German Civil Code (BGB) transfers the risk of price to acceptance of the item. It is the same if the acceptance is fictitious ( Section 640 Paragraph 1 Clause 2, Paragraph 2 BGB) or replaced by the completion of the work ( Section 646 BGB). According to Paragraph 1 Clause 2, the price risk (according to Section 326 Paragraph 2 Clause 1 Alt. 1 BGB) is also transferred in the event of default in acceptance, according to Paragraph 2, Section 447 BGB applies accordingly when the work is dispatched - the risk then passes with the handover to the transport person.

According to § 645 BGB, the debtor can demand a part of the remuneration corresponding to the work performed as well as replacement of the conditions not contained therein if the work has perished, deteriorated or become impracticable due to a defect in the material supplied by the customer or an instruction by the customer before acceptance.

It used to be controversial to what extent Section 645, Paragraph 1 of the German Civil Code (BGB) can be applied analogously: According to an older view, the standard reflects a general legal concept according to which all risks that are in the sphere of the customer are to be applied (analogously) to Section 645 Para. 1 BGB lead (so-called spherical theory ). According to the contrary opinion that prevails today, the differentiated regulation of §§ 644 f. BGB cannot be undermined by a general theory of spheres, so that an analogous application of Section 645 (1) BGB is only possible within narrow limits. The case decided by the Federal Court of Justice (BGH) of a barn burned down by hay stored by the customer before completion leaves room for such an analogy, since it is a risk created by the customer under his own responsibility. An analogy of the prevailing opinion for cases in which the purpose is achieved is also affirmed.

Example: A ship to be towed is freed by a storm .

See also

literature

Individual evidence

  1. ^ A b Carl Creifelds : Legal dictionary , 19th edition 2007, risk bearing .
  2. ↑ a b c d Dirk Looschelders : law of obligations. General part , 5th edition 2007, Rn. 724-728.
  3. ↑ See Christian Berger, in: Othmar Jauernig (Hg.): Bürgerliches Gesetzbuch , 12th edition 2007, preliminary remarks on §§ 446, 447 marginal numbers. 3.
  4. ^ Felix Hütte / Marlena Helbron, Law of Obligations - General Part , 4th Edition 2007, Rn. 779.
  5. ↑ a b c d e Brox / Walker, pp. 231-235.
  6. ↑ Dirk Looschelders: Law of Obligations. General part , 5th edition 2007, Rn. 732.
  7. ^ A b Dieter Medicus : Law of Obligations I - General Part , 15th Edition 2004, Rn. 503c and 522.
  8. ↑ For this: Astrid Stadler, in: Othmar Jauernig (ed.): Bürgerliches Gesetzbuch , 12th edition 2007, § 326 Rn. 17th
  9. ↑ Against: Wolfgang Ernst, in: Kurt Rebmann / Franz Jürgen Säcker / Roland Rixecker (eds.): Munich Commentary on the Civil Code , Volume 2, 5th Edition 2007, Section 326 Rn. 71.
  10. ↑ Greiner, p. 16.
  11. ↑ Dirk Looschelders: Law of Obligations. General part , 5th edition 2007, Rn. 735
  12. ↑ Dirk Looschelders: Law of Obligations. General part , 5th edition 2007, Rn. 736
  13. ↑ a b c d Dirk Looschelders: law of obligations. Special part , 2nd edition 2008, marginal no. 656-657.
  14. ↑ Dirk Looschelders: Law of Obligations. General part , 5th edition 2007, Rn. 738
  15. ↑ For example Ludwig Enneccerus / Heinrich Lehmann, Law of Obligations, 15th edition 1958.
  16. ↑ BGH, judgment of July 11, 1963, Az.VII ZR 43/62, full text = BGHZ 40, 71.
  17. ↑ Jan Kropholler, in: Ders .: Study Commentary BGB , 8th edition 2005, § 645 Rn. 3.