Puncture

from Wikipedia, the free encyclopedia

Punctuation is an interpretation rule in German law , according to which even a written agreement on certain parts of the contract is not binding in case of doubt as long as other parts of the contract are still open. In Austria there is a stricter legal regulation, which already classifies individual elements of agreement as legally binding.

General

The word derived from Latin (Mittellat. Punctare , "to set points") has a long term tradition in German-speaking law. In the 18th century, punctuation was still understood as a state treaty; Brockhaus defined it in 1911 as a preliminary draft treaty with a determination of the main points. What German and Austrian law have in common with regard to punctuation is that they are contracts in which an agreement has already been reached on individual parts of the contract, but not yet on others. The difference between the two legal systems lies in the question of how this contractual status is assessed. BGB and ABGB actually know punctuation as a rule of interpretation. This means that in the event of a dispute, the law provides regulations that are intended to help the courts in the interpretation of controversial legal transactions. The interpretation rule is then used regularly when it comes to contracts in which either extensive detailed questions still need to be clarified or an agreement cannot be reached immediately on details that have remained open.

German law

The law is based on the basic standard that all contractual declarations form a unit ( Section 139 of the German Civil Code) and that a contract is only legally effective if the parties have agreed on all issues considered to be in need of clarification. The central regulation for the interpretation of incomplete contracts is § 154 Abs. 1 BGB. In case of doubt, a contract has not come about as long as the partners have not agreed on all points. It does not matter whether these are essential or insignificant points for the legal transaction. A legal validity fails - even in the written form - if there is disagreement on insignificant points. The interpretation standard also assumes that the parties are aware of the lack of agreement. This applies even if the law contains a regulation for the outstanding points, because the legal regulation does not replace the lack of agreement between the parties. If the parties erroneously assume that they have agreed on all points, there is a hidden dissent ( § 155 BGB). According to German law, the punctuation in case of doubt is a completely non-binding text in the form of a declaration of intent that does not even qualify as a preliminary contract . If nothing else is regulated in a term sheet and the contents of the contract are otherwise still open, it can be qualified as a punctuation.

Whether a mere punctuation within the meaning of Section 154 (1) sentence 2 BGB, in special cases a binding preliminary contract or even a final main contract is desired, must be determined in each individual case by judicial interpretation. Unlike in Austria, the BGB does not recognize a mere partial agreement as being binding. Punctuation is the recording of the agreement on individual contract points without an agreement having been reached on all parts of the contract. The punctuation does not contain a will to be legally bound.

Austria

In Austria, § 885 ABGB applies: “If the formal document has not yet been drawn up, but an article on the main points has been drawn up and signed by the parties (punctuation), such an article already establishes the rights and obligations that are expressed in it . “If the parties agree on the main points of a contract, the contract is deemed to have been concluded. The punctuation of § 885 ABGB is already the main contract and thus differs both from the option, because this only allows the main contract to become effective when the option declaration is received, and from the preliminary contract. According to the will of the party, only the execution of the formal contract document is missing when puncturing. The preliminary contract obliges to conclude the main contract, the punctuation (after "submitting" the declaration) to its fulfillment. The punctuation is suitable to secure individual negotiation results.

State treaties

Often previously in Germany and Austria treaties referred to as punctuation, especially the "unfeierlichen treaties". On July 28, 1955, the BVerfG had denied the Lippische Punktation (accession to the state of North Rhine-Westphalia through 16 directives) the quality of a legally binding state treaty because it had not been submitted to any parliament for approval. Punctures therefore only became binding through ratifications . According to the BVerfG, the term punctuation is generally used with particular weight for political agreements. Based on the concept of puncture, the Lippische Punktation should be viewed as a non-binding agreement with regard to a contract to be concluded soon. Here, the court emphasizes that, according to the wording, these are not regulations that contain a legal obligation for the parties. The Lippe punctuation would also have a political meaning in the form of declarations of intent, which, however, could not be judged legally.

See also

Individual evidence

  1. ↑ Brockhaus Kleines Konversationslexikon, 5th edition, Volume 2, 1911, p. 470
  2. ↑ Kurt H. Johannsen, BGB , 1982, p. 40
  3. ↑ Dieter Medicus, General Part of the BGB , 2010, p. 179
  4. ↑ Staudinger / Borg, BGB , 13th edition, § 145 Rn. 14; MünchKomm / Kramer, BGB , 3rd edition. Before § 145 Rn. 34
  5. ↑ Bamberger / Roth, BGB § 145 Rn 20-29
  6. ^ Franz Gschnitzer / Sabine Engel / Christoph Faistenberger, General part of civil law , 1992, p. 662
  7. ^ Lippe punctuation of January 17, 1947
  8. ↑ BVerfGE 3, 267
  9. ↑ Hans Schneider / Wilfried Schaurmann / Walter Mallmann, contracts between member states in the federal state , 1973, p. 29
  10. ↑ BVerfGE 4, 250, 279
  11. ↑ BVerfGE 4, 250, 293