Referral

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In jurisprudence, the term reference to the legal basis denotes a reference from one legal norm to another norm ( target norm ).

A reference to the legal basis exists if reference is made not only to the legal consequence but also to the facts (the legal basis) of the other standard. Therefore, with this type of reference, the prerequisites of the standard to which reference is made must also be met so that its legal consequences occur.

If, on the other hand, reference is only made to the legal consequence of the other standard, one speaks of a legal consequence reference .

Examples:

  • after h. M. represents the reference made in Section 254 (2) sentence 2 BGB to Section 278 a legal reference , with the result that for contributory negligence on the part of the debtor due to behavior of the third party attributable to him, a special connection within the meaning of Section 278 BGB between the Debtor and the third party must be necessary.
  • § 437 BGB lists the possible rights of a buyer in warranty cases, but does not constitute a separate basis for claims. These arise only in the form of a legal reference through the standards listed in § 437 BGB.
  • Section 531 (2) BGB
  • Section 635 (4) of the German Civil Code (BGB), interpreting the wording "in accordance with", which is to be understood as "under the conditions", represents a legal reference
  • Section 951 (1) BGB ("Anyone who ... suffers a loss of rights can ...demandremuneration in money according to the provisions on the surrender of unjustified enrichment .") Is a legal reference to Section 812  ff. BGB, as the legal consequence is additional one of the elements of these paragraphs must be realized.
  • § 992 BGB ("If the owner has ..., he is liable to the owner according to the regulations on compensation for tortious acts .") As a legal reference to the compensation law of § 823 ff. BGB.
  • Section 1301 sentence 1 BGB (disputed, different view according to legal consequences reference)

An example of a partial legal reference is the reference to the management without an order in the context of the claim to compensation for use of § 994 Paragraph 2 BGB. This reference is a partial legal reference, as the will of a third party business management within the meaning of Section 687 Paragraphs 1 and 2 of the German Civil Code (BGB) is not required when making uses. However, the further requirements of the management without an order must still be present.

Individual evidence

  1. ↑ Bamberger / Roth / Faust § 437 BGB margin no. 1
  2. ↑ BGHZ 140, 275, 277; Staud / Lorenz Before § 812 margin no. 34; MüKo / Kollhosser § 531 margin no.3
  3. ↑ Wörlen / Leinhaus, JA 2006, 22 ff.
  4. ↑ established case law BGHZ 40, 272, 276; 55 176, 177
  5. ↑ BGHZ 45, 258, 262 ff
  6. ↑ MüKoBGB / Roth, 7th edition 2017, BGB § 1301 Rn. 5