Conclusive action

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Conclusive action or implied actions ( lat. Concludere "inferred", "a final pull") (also estoppel , implied declaration of intent or implied action ) is present in legal transactions when someone his will through non-verbal behavior expresses and the honest recipient thereof may conclude that there is a will to be legally bound, so that a contract can also be concluded without an express declaration of intent.

In principle, the tacit declaration of intent must be distinguished as tacit behavior in relation to silence , which, however, can also be a tacit declaration of intent and thus legally effective.


In the case of a declaration of will , the inner will must be explained, i.e. made externally recognizable. The articulation of the will is usually done expressly (verbally or in writing), but can also be tacit, i.e. H. be undertaken by conclusive or implicit action . While mere silence basically represents doing nothing, means neither “yes” nor “no” and is therefore not a declaration of intent, implied behavior expresses a will to be legally bound. Since silence in exceptional cases can also fall under the ambiguity of the legal conceptual designation “tacit declaration of intent”, it must be distinguished from the declaration of intent through coherent behavior. Silence can be made as a declaration of intent by virtue of an agreement or by virtue of legal fiction .


From § 116 BGB it can be taken indirectly what is to be understood by coherent behavior. According to this, implied behavior can be assumed if the person making the declaration does not express his intended action in writing or with words, but with his non-verbal behavior. These actions then enable the recipient to draw an indirect conclusion on the legal consequences of the declaring party. This conclusion of the recipient on the willingness of the declaring party to be legally bound has led to the designation "coherent behavior". However, behavior is only “conclusive” if it reliably indicates a certain legal consequence. Silence and inaction alone never justify this conclusion. Silence becomes an act of declaration of will only when the person who is silent is aware of the meaning of his silence as an explanatory sign. The silent person must therefore be aware that his behavior could be interpreted as an expression of a willingness to accept. Not every action or behavior of a person is conclusive in this sense. It is necessary and sufficient that there is an outwardly protruding behavior from which the will to accept the addressee clearly results. The will of the person making the explanation is not expressed directly in conclusive action, but arises indirectly from the circumstances or the behavior of the person making the explanation.

An express declaration of intent is given when someone uses the language in writing or word to express his or her legal will. Non-verbal communication such as facial expressions , gestures or other body movements in a certain situation is part of the coherent behavior from which the recipient can derive a will to be legally bound . The case law speaks of the "objective recipient horizon", according to which it depends on "whether, from the standpoint of an uninvolved objective third party, the behavior of the offer recipient based on all external indications suggests a real willingness to accept ( § 133 BGB)."

Typical cases of implied behavior

Many declarations of intent in everyday life are made wordlessly through facial expressions, gestures or movements (pointing to the goods, depositing the goods at the checkout, boarding public transport) and may be understood by the other party as an expression of a will to be legally bound.

Public transportation

If someone gets on public transport, a coherent behavior automatically creates a transport contract with the transport company. By stopping at the bus stop, the transport company submits an offer to everyone (ad incertas personas), which the passenger accepts by simply getting on ; The logical behavior lies in getting in. The passenger thus submits to the contract of carriage including the conditions of carriage when boarding.

For a long time it was controversial whether this also applies to the case of the Protestatio facto contraria non valet (denying a declaration of intent clearly declared by coherent behavior), which denotes a reservation when an implied declaration of intent is made that does not match the external circumstances. If someone gets on public transport and states that they do not want to conclude a transport contract, such a reservation is void and the contract is concluded anyway. This statement is ineffective because from the behavior of the person it must necessarily be inferred that there is a certain legal will, whereby the way in which he acts does not allow any other interpretation. Although the contractual partner knows through corresponding statements that the declaring party does not want to conclude a contract, the behavior of the declaring party is sufficient to conclude the contract.

According to this prevailing opinion today, the contract of carriage comes about through the implied behavior - even in spite of the lack of a will to be legally bound. The conclusive “yes” outweighs the explicit “no”. If someone expresses before boarding that they do not want to conclude a contract, this presents itself as contradicting behavior, which is contrary to good faith according to § 242 BGB . Accordingly, the contract is concluded so that the (possibly increased) transportation fee is due. Under criminal law, a transport service will already be “fraudulently obtained” within the meaning of Section 265a (1) StGB if the perpetrator uses a means of transport without authorization and generally appears to meet the conditions required by the operator's terms and conditions.

Continuous obligations

A rental contract can also be concluded implicitly and is then concluded through conclusive behavior. If the tenant remains in the rental property after the agreed rental period has expired and the rental property is paid, and the landlord tacitly tolerates this behavior, the rental relationship is implicitly extended according to § 545 BGB. Both parties agree (tacit) declarations of intent that are expressed in actual behavior - transfer of use against payment of rent. Even in the case of fixed-term service contracts , an extension is possible according to § 625 BGB through coherent behavior. In the case of long-term obligations, the purpose is to prevent a state without a contract.

Account Credits

The so-called protestatio rule also plays a role if the recipient of the transfer rejects an account credit (§ § 780 , § 781 BGB) . If one assumes that abstract promises of debt are contracts (controversial) and therefore require acceptance by the recipient, the solution via Section 151 of the German Civil Code (BGB) is viewed as unsuccessful. For the BGH, an account credit is also effective if the beneficiary account holder has not (yet) gained knowledge of it. If a transfer is carried out by electronic data transfer, the beneficiary account holder's entitlement to the credit only arises at the point in time at which - regularly due to a subsequent disposition at the recipient bank - the recipient bank, through an organizational act with the intention of legally binding, the credit data for unconditional notification to the recipient of the transfer provides; up to this point in time the transfer is revocable. The BGH depends on the point in time at which the recipient bank, with an externally recognizable will to be legally bound, makes the credit note data accessible to the recipient of the transfer through an organizational act. This can be done by unconditionally sending the account statements or making them available, or by making the database of the bank relating to them available to the customer without reservation, for example via an account statement printer . In the event of a transfer carried out solely in electronic data traffic, in which the data is transferred to its database without the possibility of prior checking by the recipient bank, the electronic credit is usually subject to the so-called post-disposition, in which the account number and recipient name match Compliance with the agreement on bank transfers and the existence of a revocation are checked.

Hospital treatment

A contract is also effective if the contracting party making use of a service - which is generally only provided for a fee - expressly declares that it will not pay any remuneration. In such a case it must rather accept the objective explanatory value of its behavior towards itself. Namely someone shows a behavior according to good faith and common usage can be considered only as an expression of a certain will, as its literal protest against a corresponding interpretation of behavior is irrelevant, because he sets himself in opposition to his own actual behavior and has forfeits the assertion of a different interpretation through his actual behavior.


Anyone who raises their hand during the bidding phase during an auction implicitly expresses that they are bidding. His bid is the application, the acceptance of the auctioneer its acceptance. This is based on the prevailing objective theory (see Trier Wine Auction ), which focuses on external behavior, even if it does not coincide with the intention of the person explaining it. If the person making the declaration only wanted to greet someone with his hand and never bid, the rules of error are used to compensate . The auctioneer was allowed to understand the raising of hands as a commandment in the given situation. The - erroneously submitted - declaration of intent is effective, but can be challenged analogously according to § 119 BGB, which leads to the contestant's liability for damages according to § 122 BGB ( fidelity ).


An approval of pending ineffective transactions through coherent behavior usually requires that the approver knows the ineffectiveness or at least expects it and that his behavior is an expression of the will to make the transaction previously regarded as non-binding. This is about business in which at least three people are involved because a minor has obtained the consent of the parents ( Section 108 (2) sentence 2 BGB; contract of a minor without consent) or a representative has the consent of the person represented ( Section 177 (2) Sentence 2 BGB; conclusion of contract by a representative without power of representation). In general, the law requires explicit consent in those cases; According to this judgment, conclusive behavior must make it clear to the recipient that the approver wants to conclude the transaction in a legally binding manner.

It is controversial whether the declarations of intent through implied behavior also include the so-called transactions of will, i.e. relinquishment of ownership, appropriation or acceptance of inheritance.

Consistent behavior without the will to be legally bound

If, as an exception, conclusive behavior without an awareness of the need to explain or without the will to be legally bound is treated as a declaration of intent, the person making the statement must have negligently aroused the trust of the recipient of the declaration in a certain content. In spite of a lack of awareness of the explanation (will to be legally bound, the will to do business), there is a declaration of intent if the declaring party, having exercised the care required in traffic, could have recognized and avoided that his statement could be interpreted as a declaration of intent in good faith and in accordance with customary practice, and the recipient actually made it understood so. This statement can be contested according to §§ 119, § 121 , § 143 BGB . This case deals with the circumstances underlying the “ Trier Wine Auction ”.

Explicit explanation and formal constraints

Mere conclusive behavior is not sufficient in those cases where the law requires an express explanation. Then the declaration does not have to be in writing, but has to be particularly clear and unambiguous; mere conclusive behavior then does not meet the requirements for an express declaration. According to Section 244 (1) of the German Civil Code (BGB), a foreign currency debt can also be settled in euros, unless payment in foreign currency has been expressly agreed. In this case, implied action by paying in euros does not lead to success if an express agreement provides for payment in foreign currency. In § 305 Abs. 2 Nr. 1 BGB it is pointed out that the inclusion of the General Terms and Conditions in contracts can only be legally effective with the express notice of the user and the consent of the consumer . General terms and conditions can therefore never become part of contracts with consumers (but certainly with entrepreneurs, cf. § 310 Paragraph 1 BGB) through implied behavior. A similar regulation is contained in Section 700 (2) of the German Civil Code (BGB) for the case of irregular safekeeping of securities in the event of a deposit.

If the law even requires written form ( e.g. a guarantee according to § 766 BGB) or notarial certification (e.g. land purchase agreement according to § 311b BGB), conclusive behavior is certainly not sufficient. If the statutory form requirement is not complied with, the corresponding contracts are void ( Section 125 BGB).

Common law

In Anglo-American law, behavior that legally binds a person even without their express will is referred to as acquiescence .

Web links

Wiktionary: Konkludent  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. BGH NJW 2002, 3629
  2. ^ Otto Palandt : Bürgerliches Gesetzbuch . CH Beck, 77th edition, Munich 2018, ISBN 978-3-406-71400-9 . Einf v § 116 no. 6th
  3. ^ BGH NJW 1986, 977
  4. Werner Flume, General Part of Civil Law, Volume 3 , 1992, p. 73
  5. BGH NJW-RR 1986, 415
  6. BGHZ 74, 352, 356
  7. BGHZ 111, 97, 101 (under II 2 a)
  8. OLG Karlsruhe, May 25, 2009, Az .: 1 U 261/08
  9. a Parömie of common law
  10. ^ BGH NJW-RR 1986, 1496
  11. ^ Franz Gschnitzer / Sabine Engel, General Part of Civil Law , 1992, p. 536
  12. BGH, decision of January 8, 2009, Az .: 4 StR 117/08
  13. BGH ZMR 2005, 781, 782
  14. cf. Stephan Meder, acceptance by silence with transfer agreement and credit , JZ 2003, 443–447
  15. BGHZ 103, 143, 146
  16. ^ BGH, decision of November 23, 1999 - XI ZR 98/99 = BGHZ 103, 143
  17. so-called "authorized on-demand presence"; see. for the paperless DTA procedure: OLG Nürnberg WM 1997, 1524, 1526
  18. BGH ZIP 1988, 294, 296
  19. BGH NJW 2000, 3429; "Hospital Treatment Contract"
  20. Kurt Schellhammer, Law of Obligations according to Claim Basis , 2008, p. 973
  21. BGH NJW 2002, 2325
  22. ↑ in favor of Werner Flume, General Part of Civil Law, Volume 3 , 1992, p. 76
  23. BGH NJW 1995, 953
  24. BGHZ 91, 324