Protestatio facto contraria non valet

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Protestatio facto contraria non valet ( Latin : a contradiction against (actual) action does not apply) is a rule from Roman law , according to which an expressed reservation is ineffective, which is factually in contradiction with the simultaneous, own behavior. In other words: a custody that is against a certain interpretation of one's own behavior is irrelevant if one's own behavior contradicts the custody.

This is because both the contradiction ( protestatio ) and the actual action ( factum ) can be understood as opposing declarations of will. The interpretation based on the rule protestatio facto contraria non valet shows that the declaration of intent declared by implied action is legally valid and the expressly declared contradiction is ineffective.

Example:

  • Someone gets on a subway and exclaims: “I don't want to conclude a transport contract!” Here, a contract is still concluded because the actual behavior (entering the subway) is to be understood as an act of will to conclude the transport contract. The contradiction expressed at the same time, on the other hand, is irrelevant, since the declaration of intent expressed through the actual behavior has greater weight.
  • Someone uses a service on the basis of a contract, but contradicts certain provisions in the general terms and conditions of their contractual partner. Here, the contract applies together with the general terms and conditions. Because the contractual partner only offers its service under these conditions, and by making use of it, you declare your consent. Such ineffective contradictions often circulate on social networks.

In German civil law , the legal rule is to be understood as an interpretation rule for declarations of intent. The Hamburg parking lot case , which is very similar to the first example, is solved according to today's understanding by applying protestatio facto contraria non valet . One can understand the rule as a sub-case of the principle venire contra factum proprium . If the objection is not even expressed, it is an ineffective secret reservation according to § 116 BGB .

Linguistically, the rule can be classified according to the theory of language levels. It correlates with the theory of language levels and their distinction between object and metalanguage , according to which self-referential statements either belong to another language level or are meaningless or can be refuted ( liar's paradox ).

Individual evidence

  1. ↑ Werner Flume : General part of civil law. Volume 2: The legal transaction. 3rd, supplemented edition. Springer, Berlin et al. 1979, ISBN 3-540-09157-2 , p. 76, § 5/5.
  2. ↑ Brox, Hans and Walker, Wolf-Dietrich: General part of the BGB, 42nd edition, Munich 2018, § 8, marginal no. 40 f.
  3. ↑ Jens Ferner: " Data protection - The current Facebook hoax: 'Hereby I contradict' ..." ( Memento of the original from September 8, 2014 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.ferner-alsdorf.de archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , Ferner-alsdorf.de, November 12, 2012.
  4. ↑ Christian Solmecke, Sibel Kocatepe: Law in Online Marketing. This is how you protect yourself from pitfalls and warnings . Rheinwerk, Bonn 2015, ISBN 978-3-8362-3476-4 , pp. 272 .