Resignation (civil law)
With the withdrawal , a contracting party can unilaterally withdraw from a (mostly recently concluded) contract . In principle, contracts are to be fulfilled as agreed, but there are numerous exceptions under which circumstances and how a contract can be reversed (right of withdrawal of a contractual partner). In most cases, a withdrawal period must be observed within which the withdrawal must take place after the conclusion of the contract.
General
A contract comes about through the identical declarations of intent of at least two legal entities ( natural person , company , associations of persons , the state with its subdivisions). The parties are generally bound by their declarations of intent ( Latin pacta sunt servanda ). The right of withdrawal is a unilateral right to structure that must be explicitly formulated - through general legal provisions ( Latin ex lege ) or special contractual provisions.
Unlike the conversion , the resignation is not a claim , but a design business . It must therefore be exercised by the contracting party entitled to withdraw .
The withdrawal declared in this way is of course only effective if the person wishing to withdraw was also entitled to withdraw from the contract. The right of withdrawal is a relative subjective right (more precisely: a right to design ) because it changes the legal situation without the other side being involved: the mutually agreed contract is unilaterally reversed. With the withdrawal, the contract is immediately ( Latin ex nunc ) transformed into a reversal obligation, which is the legal reason for the return . Accordingly, the legal consequences of the withdrawal are not determined by the right to enrichment . If there was no right of withdrawal - i.e. in the event of an unjustified, unilateral withdrawal from the contract - all of the usual contractual deadlines continue to apply , i.e. the consequences of default will occur .
The reversal of a contract is colloquially called cancellation . Legally, however, it is always a withdrawal. Cancellation is a term used in accounting . In all contracts, internal bookings must be canceled due to the reversal obligation , but contract law must generally be applied.
Legal issues
In the German law of obligations, the withdrawal leads to a reversal of the contract, so that services received must be returned ( Section 346 (1) BGB ); All the more so , claims that have not yet been fulfilled expire ( objection that destroys the law ). Withdrawal is only possible in exceptional cases.
Withdrawal is part of the general law of obligations , so it is basically applicable to all types of contracts. It was in the course of Schuldrechtsmodernisierungsgesetz regulated and is also the place of the limited to the purchase and service contract law Wandelungsanspruchs entered.
Compatible
A right of withdrawal can be contractually agreed ("Has a contracting party contractually reserved the right to withdraw", Section 346 (1) BGB, 1st case). In this case it must be exercised within the agreed withdrawal period. If no deadline has been agreed, the other side should at some point obtain security as to whether the contract will be carried out or not. Therefore, it can then set a reasonable deadline for the person entitled to withdraw, the expiry of which also invalidates the right of withdrawal ( § 350 BGB).
Legally
More important is the statutory right of withdrawal ("you have a statutory right of withdrawal", Section 346 (1) BGB, 2nd case). Since contracts are basically to be fulfilled, the law only grants such a right if the implementation encounters particular difficulties ( performance disruption ): the debtor does not perform , does not perform in accordance with the contract or violates protective obligations when performing the service . Then the obligee should get rid of his obligation to provide consideration in the mutual contract .
The legal regulation distinguishes whether the performance is still possible or whether, for example, because the owed item has been destroyed, it is impossibility .
In the first case, the right of withdrawal follows from § 323 BGB. Previously needs of creditors generally a grace period set to the debtor to fulfill to allow even ( priority of remedy ).
In the event of impossibility, on the other hand, the claim to the consideration usually lapses by virtue of the law ( Section 326 (1) sentence 1 BGB), so withdrawal is not required: if the seller can not deliver the car because it was destroyed in an accident, the Buyers do not pay either (but also see paragraph 2). If he has already rendered the consideration, he can demand it back (para. 4). If, on the other hand, only subsequent performance is impossible, for example because the owed car has irreparable damage, this result would be unfavorable because the creditor may still want to accept the performance. Therefore, in such cases ( qualitative impossibility ), the consideration does not apply by virtue of the law (Paragraph 1 Sentence 2): here the obligee can choose the reduction or withdraw. This right of withdrawal due to the impossibility of subsequent performance ( Section 326 (5) BGB) naturally does not require the setting of a deadline.
There is also a right of withdrawal if the business basis § 313 BGB is disrupted, provided that an adjustment of the contract is not possible or cannot be reasonably expected of a contractual partner (paragraph 3).
Finally, Section 324 of the German Civil Code grants a right of withdrawal if the debtor renders the service faultlessly but violates other obligations and the obligee can no longer be expected to “stick to the contract”.
The right of withdrawal is a structuring right and is therefore not subject to the statute of limitations . Instead, it depends on the effectiveness of the declaration of withdrawal, which in turn can be based on an existing, unenforced claim. For example, Section 218 (1) of the German Civil Code (BGB) renders the withdrawal ineffective “if the claim to performance or the claim for supplementary performance is statute-barred and the debtor invokes it”, so that in these special cases there is an effect similar to the statute of limitations.
For the travel contract , § 651h BGB contains a special right of withdrawal for travelers and tour operators for package tours . Travelers may withdraw from the contract at any time before the start of the trip, but the tour operator loses the right to the agreed travel price , but can demand appropriate compensation. In the general travel conditions , the tour operator may stipulate appropriate flat-rate compensation that covers the period between the declaration of withdrawal and the start of the trip, the expected savings in expenses for the tour operator and the expected acquisition through other use of the travel services. The tour operator can withdraw from the contract before the start of the journey if the minimum number of participants is not reached or in the event of force majeure .
Notice of withdrawal
As a design transaction, the right of withdrawal must be exercised by the entitled party: "The withdrawal is made by declaration to the other party", § 349 BGB. Because the other side must be able to gain knowledge of the change in the legal situation. As with other design declarations , it is a declaration of intent that needs to be received and must be sent to the other contracting party . It is therefore anti-conditional .
Legal consequences
If the withdrawal is effective, the contract will be transformed into a reversal obligation. The contractual performance obligations are converted into contractual restitution claims through the withdrawal ( Section 346 (1) BGB). Each party must return the services provided and surrender the benefits obtained . For example, the seller would have to repay the purchase price and the buyer would have to transfer the car back . The legal ground does not cease to exist, for example after contestation , but continues to exist “in mirror image” with opposing obligations. As a result, unlike after a dispute ( § 142 BGB), there is no reversal according to the right to enrichment .
If the return of the received item or the surrender of the benefits drawn is impossible or impractical, instead of the return or surrender, compensation is owed. Section 346 (2) sentence 1 BGB lists these cases of impossibility or impossibility (non-exhaustively). The original relationship between performance and reward Synallagma is obtained by the obligations arising from the resignation obligations of the parties only train to train to be met ( § 348 BGB). The right to claim damages in a mutual contract is not excluded by the withdrawal ( § 325 BGB).
The reduction in sales and work contract law also refers to the right of withdrawal in the event that the (then: too high) consideration has already been paid ( § 441 Paragraph 4, § 638 Paragraph 4 BGB).
Special forms of withdrawal
The Civil Code also speaks of resignation in other places, but does not mean these general regulations, but introduces separate resignation norms for certain areas. What these cases have in common is that they are about breaking away from a legal transaction.
For example, there is a withdrawal from the engagement . Since the engagement is not an exchange contract, the question arises less about the reversal in the true sense than about the protection of the trust of those who have expected a marriage. There is also no reversal obligation for the return of gifts: Section 1301 BGB instead refers to the law on enrichment .
When will the cancellation problem does not arise: the testator may at any time amend or revoke, in return does not exist. For the inheritance contract, on the other hand, §§ 2293 ff. BGB contain their own withdrawal regulations. Withdrawal is possible if it was reserved in the inheritance contract, in the case of misconduct and similar cases. Here, too, there is no reversal obligation: a service of the testator is not provided as long as he is alive; any consideration provided is to be returned in accordance with the right to enrichment ( condictio ob rem ).
International
Austria
In Austria, if a paid contract is either not performed by one part at the appropriate time, at the appropriate place or in the stipulated manner, the other party can either demand performance and compensation for the delay or declare withdrawal from the contract by setting a reasonable deadline for making up Section 918 (1) ABGB ). The law provides for the possibility of withdrawing from the contract in particular for:
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Delay in delivery in the case of forward transactions - the obligee has a right to choose: either insist on compliance with the contract or - subject to a reasonable grace period - withdraw from the contract
- Exception for fixed-term transactions (deliveries that have to take place at a
- especially for online orders: the seller must reimburse all payments made (including delivery costs) immediately (at the latest within 14 days of receipt of the declaration of withdrawal); If the entrepreneur has violated information obligations (for example to refer to the basic 14-day right of withdrawal), the period does not end until 12 months after both parties have fully fulfilled the contract; Likewise, the buyer must return the goods immediately (at the latest within 14 days from the submission of the declaration of withdrawal) and at his own expense; Only trying out the goods is permitted (such as trying on clothes once, testing the functionality of electrical devices); There is no right of withdrawal, for example, for goods whose price depends on financial market fluctuations within the withdrawal period; Custom made, perishable goods; Magazines, newspapers or magazines, with the exception of subscriptions (see E-Commerce Act , ECG)
In the warranty , the service recipient is entitled to improvement (repair) or exchange (in a similar, defect-free item); If this is not expedient or unreasonable for the service recipient, there is a right to conversion (reimbursement of the purchase price), in the case of minor irreparable defects only to a price reduction. An explicit resignation is not necessary or therefore possible.
Switzerland
In Switzerland , Art. 107 Para. 2 OR provides that the obligee can still sue for fulfillment and compensation for delay after a grace period set by him, but instead, if he declares it immediately, waive the subsequent performance and can either demand compensation for the damage resulting from the non-performance or withdraw from the contract. Whoever withdraws from the contract can refuse the promised consideration in accordance with Art. 109 Para. 1 OR and reclaim what has been achieved.
Web links
- Cancellation of the contract. kleingewerbe.info (for Germany)
Individual evidence
- ↑ a b c d e f Withdrawal and cancellation of the contract - Withdrawal means dissolution of the contract . Austrian Chamber of Commerce (accessed on January 15, 2016)
- ↑ Right of withdrawal for online orders. help.gv.at; in particular general information on the right of withdrawal , obligations of the online shop operator in the event of consumer withdrawal and consumer withdrawal from the purchase contract .
