The legal transaction ( Latin negotium juridicum ) consists in law of one or more declarations of intent that, either alone or in conjunction with other constituent elements, bring about a legal consequence because it is intentional.
The relationship between the terms “legal transaction”, “declaration of intent” or “ legal act ” has always caused difficulties and is still little clarified. In any case, the legal transaction is only the result of the legal act and the declaration of intent is a necessary component of the legal transaction. Often the declaration of intent and legal transaction are equated, which is due to the fact that declarations of intent are a necessary component of every legal transaction and thus of the legal relationships that substantiate the contractual rights and obligations . The legal transaction is not identical to the mere legal act, in which the legal consequence occurs regardless of the will of the person who acts - it rather arises solely from the legal system (by virtue of the law). Actions that are carried out in the course of a legal proceeding (litigation) are also not legal transactions.
The declaration of intent gives the legal transaction its final character based on the legal consequences, but is usually not limited to this alone. Apart from simple unilateral legal transactions, such as the termination of a contract , set-off or contestation , legal transactions are mostly characterized by further elements, such as further declarations of intent ( agreements in rem ) for transfer acts or the transfer acts themselves, such as the handover of a mobile item or the authorities to deal with the transfer of property To be entered in the land register.
Etymology and history
The compound “legal transaction” is made up of the word component “law” for something legally significant and “business” - not in the sense of an economic transaction , but in the sense of a declaration of intent aimed at legal success . The Roman law known as generic terms neither the act ( Latin actus ) nor the treaty ( Latin negotium ), but only individual Rechtsgeschäfts- and contract types. The colloquial German word first appeared in Cologne in 1511. The legal term probably goes back to Daniel Nettelbladt , who introduced the Latin "negotium juridicum" into legal literature in 1748 . In 1772 he translated the “legal business” from the Latin “actus juridicus seu negotium juridicum ”. For Christoph Christian von Dabelow in 1794 there was “an excellent class of human actions that is called legal actions or legal transactions (...)”.
The General Prussian Land Law (APL), which came into force in June 1794 , did not yet use the term legal transaction, but spoke in 169 paragraphs of the declaration of intent (I, 4 APL). Gustav von Hugo is considered to be the first lawyer to investigate the legal transaction in 1805. For Albrecht Hummel, legal transactions in 1805 were considered legal acts that changed rights. It was followed in 1807 by Georg Arnold Heise , who developed the “doctrine of legal transactions”. Through Friedrich Carl von Savigny, the term finally moved to the center of the legal discussion in 1840. The Saxon Civil Code of March 1865 for the first time provided a precise legal definition : "If an action involves the will to establish, cancel or change a legal relationship in accordance with the law , the action is a legal transaction". In the BGB of January 1900, however, there is no legal definition, although it mentions the legal term 159 times.
Obligation and disposition business
In the German legal circle , legal transactions are divided into obligation and disposition transactions ( principle of separation ). Commitment transactions create the obligation to do something, to tolerate or not to do something (e.g. purchase contract). Disposal transactions include a direct effect on a right, by transferring, encumbering, canceling or changing its content (e.g. transfer of ownership of the purchased item). If they allow a one-sided change in the legal situation, one speaks of structuring transactions .
The relationship between the obligation and disposition business can differ depending on the legal system. The principle of abstraction applies in German law and the causal principle in Austrian and Swiss law .
If, as with the will (disposition due to death), no obligation transaction is required as a legal basis for the disposal transaction, the separation principle does not apply accordingly.
Separation principle and abstraction principle (German law)
With regard to the classification of legal transactions, it should be noted that the terms causal legal transaction and obligation transaction or abstract legal transaction and disposition transaction are not congruent. Most causal transactions are obligation transactions, but - albeit many - not all abstract transactions are also disposal transactions.
Causal legal transaction
The causal legal transaction provides the legal basis for the abstract legal transaction. The legal basis carried by the causal legal transaction represents the legally targeted success of the transaction. In the case of multi-sided legal transactions, an agreement on the legal basis is required.
Abstract legal transaction
The abstract legal transaction refers to the legal transaction that is carried out independently of the legal basis. In Germany, the doctrine of the abstraction principle is represented in civil law : The disposition transaction can therefore be effective without a legal basis (causal legal transaction) being present. Any disposition , e.g. B. the transfer of ownership or assignment is an abstract legal transaction. But also binding transactions, such as B. the admission of guilt or the promise of guilt belong to the abstract legal transactions.
Separation principle and causal principle (Austrian and Swiss law)
In Austrian and Swiss law, as in German law, the principle of the conceptual separation of obligation (title) and disposition (mode) applies, although it is not expressly referred to here as the “separation principle”. The principle of causal tradition ( causal principle ) applies to the relationship between title and mode . Austrian and Swiss law also strictly separate obligatory transactions (e.g. purchase contract) and disposition business (e.g. handover), but neither allows an abstract obligation nor an abstract disposition transaction. Rather, both must be causal.
Title (obligation transaction)
The obligation transaction must be causal in the sense that it has a reason that makes it economical. In a sales contract , this is z. B. the interest of one side in getting one thing and the other side money.
Mode (supply transaction)
Furthermore, the transaction must be causal in the sense that it is only effective if there is a valid obligation, a title (principle of the causal tradition).
The result is the following scheme: economic purpose → causal link → obligation transaction → causal link → disposition transaction
Types and systematics
According to type and system, the legal transactions can be classified as follows:
- Unilateral legal transactions
- Bilateral legal transactions ( contract )
- Mandatory on one side
- mandatory on both sides
- Imperfectly mandatory on both sides
- Multi-sided legal transactions
- Articles of association ( BGB).
Unilateral legal transaction
In the case of a unilateral legal transaction, only a declaration of intent is required. It is irrelevant how many people the unilateral legal transaction is linked to. If two people are renting an apartment at the same time, they can only cancel together. This unilateral legal transaction is also called the overall act (e.g. will ).
Other typical examples of unilateral legal transactions are, in particular, the rights to design ( e.g. termination ; contestation (Section 143 (1) BGB), set-off (Section 388 BGB), withdrawal (Section 349 BGB), rejection according to Section 174 p. 1 BGB).
Multi-sided legal transaction
In the case of a multi-sided legal transaction, there are several matching, related declarations of intent that have been declared by at least two people.
If these declarations of intent are reciprocal, then there is a contract .
Identical, parallel declarations of intent from at least two people are called overall acts (e.g. joint termination of a rental contract by several tenants), identical, parallel declarations of intent in a meeting of resolutions (e.g. general meeting of an association ).
Legal transaction under personal law
The personal legal transactions is transactions that are specifically related to the person or their status. Legal transactions under personal law can usually only be carried out personally. They are unconditional and regularly require a certain form (e.g. marriage in accordance with German Civil Code).
Incorrect legal transaction
The effects of a legal transaction may lag behind the intended legal consequences if it suffers from defects that are considered to be legally significant (e.g. legal incapacity , formal errors). Not every faulty legal transaction is void . Further stages are the relative ineffectiveness, the pending ineffectiveness and the contestability of the legal transaction.
- Information on the legal transaction. jura-basic.de
- Otto Palandt , Jürgen Ellenberger : BGB comment . 73rd edition. 2014, overview before Section 104, marginal no. 2
- Joachim Rückert / Martin Schermaier , Historical-Critical Commentary on the Civil Code , 2007, before Section 104 Rn. 8th
- Otto Palandt : Bürgerliches Gesetzbuch . 73rd edition. 2014, ISBN 978-3-406-64400-9 , overview before Section 104 marginal no. 2
- Werner Flume: General part of civil law . Volume two: The legal transaction . 1992, p. 28
- Bruno Kuske: Sources on the history of Cologne trade and traffic in the Middle Ages , Volume 3, 1923, p. 321
- Daniel Nettelbladt: Systema elementare universae iurisprudentiae positivae . Volume I. 1748, §§ 63 ff.
- Christoph Christian von Dabelow: System of today's civil law . Volume I. 1794, § 366
- Gustav von Hugo: Textbook of the Pandekten or today's Roman law . 1805, p. 581
- Albrecht Hummel: Encyclopedia of the entire positive law . 1805, p. 433
- Georg Arnold Heise: Outline of a system of common civil law for the purpose of pandect lectures . 1807, II, A
- Friedrich Carl von Savigny : System of today's Roman law . Volume 1. 1840, p. 331 ff.
- Werner Flume : General part of civil law . Volume two: The legal transaction . 1992, p. 30
- Peter J. Lipperheide: Private Economic Law . 2009, p. 35