Poor performance
The poor performance (or bad performance ) is in Germany in many areas of law occurring power failure , a qualitative deviation of the services provided by the due performance has to content.
General
The law recognizes non-performance due to impossibility , non- performance despite the possibility , late performance in the event of debtor default and poor performance as performance disruptions. The legal concept of poor performance occurs in all contracts aimed at performance and relates to poor performance by the service debtor. The consideration usually consists of a monetary payment by the creditor, which he will not be prepared to provide in the event of poor performance . The content of the service is determined by the respective type of contract. In particular, poor performance can affect purchase , rental , lease , loan , service , labor , work , travel , leasing or material loan contracts . With them, the service debtor has to provide a typical service specified in the contract. However, if his actual performance deviates negatively from the one to be provided in accordance with the contract, this is a poor performance. Poor performance can occur in the event of a breach of a primary or secondary obligation .
Legal position
According to § § 323 para. 1, para. 5 sentence 2 BGB , § 326 para. 1 sentence 2 BGB is the facts in front of a poor performance when a "power ... not according to the contract" is provided. This general regulation of poor performance is replaced by special regulations for individual contract types. This applies to the purchase, rental, travel and work contract. What the service debtor has to do specifically results from the respective contract. The buyer has the right to a commercial quality, what the law describes as "medium type and quality". The seller does not have to issue one of the best pieces, nor can he deliver one of the worst.
Purchase contract
For example, if a sales contract provides for the delivery of a new car , the service debtor must provide the buyer with the object of purchase free of material defects and defects of title in accordance with Section 433 (1) sentence 2 of the German Civil Code . For this purpose, the new vehicle must have the condition assured by the manufacturer and, in particular, must be “brand new” ( Section 434 (1) BGB). The deviation in fuel consumption of less than 10% is insignificant and therefore not a material defect or poor performance.
employment contract
An employee fulfills his contractual obligation under the employment contract if he works with adequate use of his personal capabilities . If there is a negative deviation from the work owed, there is poor performance, which can entitle the employer to take action under labor law , including termination .
In labor belong to the poor performance the cases differing work intensity ( procrastination , go slow , slow work, passive resistance ).
rental contract
The rental agreement obliges the landlord in accordance with Section 535 (1) of the German Civil Code (BGB) to allow the tenant to use the rented property during the rental period in a condition suitable for use in accordance with the contract. In particular, rented rooms are to be handed over ready for occupancy . On the other hand , rented apartments that have not been renovated do not represent a defect when they are taken over by the tenant and may later be handed over unrenovated.
Travel contract
According to § 651i BGB, the tour operator is obliged to provide the package tour free of travel defects . He must provide the trip in such a way that it has the warranted characteristics and is not afflicted with defects that negate or reduce the value or suitability for the usual benefit or benefit assumed in the contract. The term “error” includes all malfunctions that include events and circumstances that affect the entire trip or individual travel services. This also includes risks such as tropical storms or civil war that the tour operator cannot influence . Committed travel characteristics are all circumstances that after the common usage effect because of their nature and duration on the value and suitability of the journey.
Work contract
If the work does not have the agreed quality in the contract for work, there is a material defect and thus poor performance according to Section 633 (2) BGB. This is the case, for example, if the bricklayer did not build the brick perpendicularly . When work contract is added that the contractor has to deliver the promised work without defects, because the actual performance success is crucial for the realization of the work contract.
Unless otherwise specified, the state of the art or Lege artis can be used as a benchmark for the performance owed.
Legal consequences
Insofar as the service debtor does not provide its due service as owed according to § 281 Para. 1 Clause 1 2nd Alternative BGB, the obligee must set him a reasonable deadline for performance or supplementary performance . If this has elapsed without success, he can generally demand compensation from the debtor in accordance with Section 280 (1) BGB . In the event of poor performance, the law provides for different legal consequences for individual contract types.
Purchase contract
The buyer of a non-functional lamp has the following options according to § 437 BGB:
- According to §§ 439 Paragraph 1, 437 No. 1 BGB, he can demand rectification , i.e. elimination of a defect, for example through repair ;
- He can withdraw from the purchase contract in accordance with § 437 No. 2, § 323 Paragraph 1 Clause 1 BGB if the factual defect is fulfilled and the warranty period ( § 438 BGB) has not yet expired;
- he can reduce the purchase price according to § 441 BGB or
- according to §§ 440, § 280 , § 281 , § 283 and § 311a of the German Civil Code, he can demand compensation for damages or, in accordance with § 284 of the German Civil Code, reimbursement of wasted expenses.
In doing so, he must observe the limitation periods contained in § 438 BGB .
employment contract
Whether a performance is to be regarded as poor performance is determined by the employment contract. If the work performance in the contract is usually not described or not described in more detail in terms of the volume and quality of work , the content of the performance promise depends on the one hand on the work content to be determined by the employer by exercising the right of direction and on the other hand on the personal, subjective performance of the employee. The worker has to do what he should and do it as well as he can. An objective standard cannot be used. If the performance of an employee remains significantly behind those of comparable employees and if the average performance falls significantly below, then one can speak of poor performance. With her, the relationship between performance and consideration is severely impaired. Poor performance based on breaches of duty are suitable to justify a proper termination .
According to a judgment of the Federal Labor Court (BAG) from January 2008, a termination due to poor quality of work is only legally permissible if the employee has performed below average over a longer period of time and either produces less or makes significantly more mistakes than the average employee in the company or when he is able to perform better according to his personal abilities. In the case cited, it was about a shipping worker in a mail-order department store who had an error rate between 4.01 ‰ and 5.44 ‰, while the average error rate of the 209 comparable employees employed was only 1.34 ‰. In the ruling, the BAG made it clear that the long-term clear excess of the average error rate, depending on the actual number of errors, type, severity and consequences of the incorrect work performance, can be an indication that the employee is accusingly violating his contractual obligations.
rental contract
If, in accordance with Section 536 (1) of the German Civil Code, the rental object has a defect when it is made available or during the rental period, which eliminates or reduces its suitability for contractual use, the lessee is first obliged to notify the lessor of the defect in accordance with Section 536c (1) of the German Civil Code and then exempt from paying rent or only needs to pay an appropriately reduced rent. The case law has developed percentages of rent reduction for the numerous rent deficiencies, which can vary depending on the severity ( mold up to 100% of the rent, rat infestation up to 80%, heating failure in winter up to 75%, considerable construction work in the house up to 60%, moisture in the walls up to 50%, noise pollution from neighbors up to 35%, vermin up to 25%, failure of the water supply up to 10%). According to Section 536a, Paragraph 1 of the German Civil Code, the tenant can also optionally request compensation.
Travel contract
In a present travel lack the traveler can to § 651i para. 3 BGB § 651k Abs. 1 BGB Remedy 2 BGB itself require according to § 651k Abs. Remedy and reimbursement of expenses in accordance with § 3 BGB Remedy require 651k para. By other travel services ( Replacement services), demand payment of the necessary accommodation according to § 651k Paragraph 4 and 5 BGB, terminate the contract according to § 651l BGB , assert rights resulting from a reduction in the travel price ( § 651m BGB) and compensation according to § 651n BGB or demand reimbursement of wasted expenses in accordance with § 284 BGB.
Work contract
In the event of poor performance , the customer can request supplementary performance in accordance with Section 635 BGB, remedy the defect himself in accordance with Section 637 BGB and demand reimbursement of the necessary expenses, withdraw from the contract in accordance with Sections 636 , 323 and 326 Paragraph 5 BGB or reduce the remuneration in accordance with Section 638 BGB or demand compensation for damages according to §§ 636, 280, 281, 283 and 311a BGB or reimbursement of wasted expenses according to § 284 BGB ( § 634 BGB).
meaning
The legal sanctioning of poor performance aims to force the seller or manufacturer to maintain a certain quality standard through quality assurance during production and to offer it permanently, while consumer protection enables the buyer or purchaser to legally enforce his quality standards. If the quality level expected by the customer is delivered, customer satisfaction arises .
Individual evidence
- ↑ Roland Schwarze, The right of performance disruptions , 2017, p. 205
- ↑ Hans Brox / Wolf-Dietrich Walker , General Law of Obligations , 39th Edition, 2015, p. 88
- ^ BGH, judgment of October 15, 2003, Az .: VIII ZR 227/02
- ^ BGH, decision of May 8, 2007, Az .: VIII ZR 19/05
- ↑ Oliver Vollstädt / Daniela Turck / Patrick Wiederhake / Ivonne Faerber, dealing with difficult employees , 2016, p. 57
- ↑ Kerstin Tillmanns, structural questions of the service contract: performance disruptions in the free service contract and in the employment contract , 2007, p. 216
- ↑ BGH, judgment of March 18, 2015, Az .: VII ZR 185/14
- ↑ Otto Palandt / Hartwig Sprau, BGB Commentary , 73rd edition, 2014, § 651c Rn. 2
- ↑ Roland Schwarze, The right of performance disruptions , 2017, p. 205
- ^ BAG, judgment of May 21, 1992, Az .: 2 AZR 551/91
- ^ BAG, judgment of June 26, 1997, Az .: 2 AZR 502/96
- ↑ BAG, judgment of January 17, 2008, Az .: 2 AZR 536/06
- ↑ Mietrecht-Hilfe.de, rent reduction table
