Secret reservation
A secret reservation (also mental reservation or reservatio mentalis ) exists if the person who makes a declaration of intent secretly does not want what he has declared. The reservation is secret if it is kept secret from the person to whom the declaration of intent is to be made; It is irrelevant whether third parties have knowledge of it.
A declaration of intent that is not meant to be serious and which is made in the expectation that the recipient of the declaration will take it seriously is also called a bad joke . Such a secret reservation is basically irrelevant according to § 116 sentence 1 BGB , the declaration of intent is therefore effective and binding for the person making it.
As an exception, however, the declaration of intent is null and void if the recipient is aware of the reservation, Section 116 sentence 2 BGB. However, positive knowledge is required here. A must-know is not enough. In these cases, there is often a sham deal . Then it is not what has been declared but what is actually intended by both sides that is bindingly agreed, Section 117 (2) BGB. Such deals are sometimes closed in an effort to save taxes. However, this is risky. Because according to established case law, declarations of intent are not legally divisible. If the parties reach a certain civil law agreement in order to achieve success under tax law, in the event of a dispute they cannot invoke the fact that they actually did not want the business to be so under civil law.
