Modernization of the law of obligations

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Under Schuldrechtsmodernisierungsgesetz is understood in Germany in the law to modernize the law of obligations (of 26 November 2001 Gazette page. I 3138) controlled changes in the law of obligations in the Civil Code (BGB). The law, sometimes called the Law of Obligations Modernization Act and abbreviated to SMG , came into force on January 1, 2002 . It also provided all paragraphs of the BGB with official headings. The complete new announcement of the BGB of January 2, 2002 (BGBl I page 42) takes into account the changes to the law on the modernization of the law of obligations and a larger number of other preceding amendment laws.

Reasons for the new regulation

The modernization of the law of obligations was carried out on the one hand to implement EC directives (in particular the consumer goods purchase directive ), which aim to harmonize the warranty rights of a consumer against an entrepreneur when buying a vehicle in the individual member states at a uniform minimum level. The reform was also used as an opportunity to integrate numerous ancillary civil law laws into the BGB . Mention should be made of the Consumer Credit Act that emerged from the Payment Act , the Act on General Terms and Conditions , the Distance Selling Act , the Part-Time Housing Act and the Doorstep Cancellation Act .

On the other hand, there was also a need for reform regardless of this. The extent to which the changes made necessary by the consumer goods directive should be understood as an opportunity to regulate areas of the BGB that the directive did not even affect was the subject of numerous controversies. Some advocated an isolated implementation of the EC directives, be it by changing the relevant BGB regulations or by introducing a separate consumer goods law (“small solution”). Others wanted to use the opportunity to initiate an overall revision of the German law of obligations (“big solution”). The Federal Ministry of Justice headed by Herta Däubler-Gmelin finally decided on the big solution .

Reasons for a great solution

Because of the very ramified distinctions between the service disorder categories, each with different legal consequences and statute of limitations in the law applicable until the end of 2001, there were countless delimitation difficulties. A distinction was made between liability for poor performance , liability for default and liability for impossibility .

  • The old sales law made a fundamental distinction between material defects , i.e. defects in the purchased item (§ § 459 ff. BGB old version), and legal defects ( § 440 BGB old version):
    • The previous law did not provide for an immediate obligation on the part of the seller to transfer the purchased item to the buyer free of defects. If the seller delivered a defective item, he had fulfilled his obligations under the purchase contract; In addition, in the event of not inconsiderable errors, the buyer could immediately (i.e. without setting a deadline) claim against the seller to change the purchase contract or reduce the purchase price ( Section 462 BGB old version) without the need to represent the seller . Compensation for non-fulfillment could alternatively only be claimed in the absence of a warranted quality or in the event of fraudulent deception (for individual debts according to § 463 BGB old version for generic debts according to § 480 paragraph 2 BGB old version). The claim for damages according to § 463 / § 480 Abs. 2 BGB old version was comprehensive. It included both defect damage and consequential damage. Compensation for mere negligent poor performance was not provided. For the consequential damage caused by a defect (example: the wheat sold is spoiled and kills the chickens fed with it), the seller's liability was created through judicial law in the form of positive breach of contract . Only in the case of items that were owed according to their type was the buyer entitled to the delivery of a defect-free item as an alternative (Section 480 Paragraph 1 BGB old version) The right to rescission, reduction, compensation according to Section 463 / Section 480 Paragraph 2 BGB old version and positive breach of contract expires in 6 months in the case of Fahrnis and in one year in the case of real estate.
    • Liability for legal defects was subject to a completely different regime, because the seller was obliged to transfer ownership of the item free of legal defects. If the matter had a legal defect, there was a case of non-compliance. If a legal defect could be remedied, the seller was in default with his obligations ( see: liability from default); If the legal defect was irreparable, the seller was liable for impossibility ( see: Liability for impossibility).
  • Liability for default occurred if the seller did not deliver the purchased item or delivered another item ("aliud delivery"), although delivery of the owed item was possible ("seller does not want to perform"). The right of default regulated the cases of a remediable legal deficiency. The compensation for delay in performance was compensation in addition to the performance ( Section 326 (1) sentence 1 BGB old version). Only after a deadline with a threat of rejection had expired without success, the buyer could claim damages for non-performance ( today: instead of performance) or withdraw (Section 326 (1) sentence 2 BGB old version). The same applied if the buyer's well-understood interest in the performance by the seller ceased as a result of the delay (Section 326 (2) BGB old version). The right to compensation due to delay generally expires in 30 years.
  • Liability for impossibility (example: the sold painting is destroyed before transfer ) took effect if the seller did not transfer ownership of the purchased item and it was impossible for him to perform . It was also relevant if the matter had an irreparable legal defect. The impossibility of liability was made more complicated by the distinction between initial and subsequent, between subjective and objective, and between impossibility for which the debtor is responsible and for which the debtor is not responsible. In the event of subsequent impossibility of transferring ownership of the purchased item for which the debtor is responsible (subjective and objective), the buyer's claim changed from transfer of ownership to a monetary claim in the guise of compensation ( Section 325 (1) BGB old version). Alternatively, the buyer could withdraw. In the event of a subsequent, objective impossibility for which the debtor is not responsible, he was released from the obligation to perform according to Section 275 (1) BGB old version. The buyer did not have to pay a purchase price due to § 323 BGB old version. The same applied to the subsequent inability for which the debtor is not responsible (subjective impossibility) according to § 275 Paragraph 2 BGB old version.If the performance was initially impossible, the contract was fundamentally void ( § 306 BGB old version) and the debtor was liable insofar as the Impossibility had to know on the negative interest ( § 307 BGB old version). In sales law, however, there was a liability for the existence of the claim based on the positive interest when buying a claim ( § 437 BGB old version). There was no provision whatsoever for liability for initial inability. The right to compensation due to impossibility also lapses in principle after 30 years.
  • Liability for violation of other rights, legal interests and interests of the other party was not codified. Compensation could be claimed according to the customary principles of positive breach of contract and culpa in contrahendo . Withdrawal was possible if the performance was no longer reasonable for the obligee due to the seriousness of the breach of ancillary obligations.

The detailed regulation of service disruptions led to numerous delimitation difficulties. This applied in particular to the differentiation between material defects (faults) and legal deficiencies (is the lack of building status on the property a material defect or a legal defect?), Between Aliud delivery and defects (is summer wheat worse winter wheat or something other than winter wheat?) And between the Existence of a mistake or another breach of ancillary obligations (is a lack of lake view a material defect in the property?). The delimitations were not always based on the significance of the facts themselves, but were often guided by the desired legal consequence or the desired limitation of the legal consequence. It was also difficult to distinguish between sales law and contract law, which at that time were based on completely different regulatory systems.

In general, the six-month limitation period for warranty claims was considered too short and the 30-year limitation period for service disruption claims too long.

Contents of the new regulation

Changes caused by the Consumer Sales Directive

As a result of the new regulation, the EC directives to be implemented have been integrated into the BGB. The Consumer Goods Sale Directive ( Directive 99/44 / EC ) only required the following regulations for purchases made by the consumer from the entrepreneur, which the BGB did not already provide:

  • Determination of an obligation of the selling entrepreneur to deliver an item free of material defects (Art. 2 Paragraph 1 RL; implemented in Section 433 Paragraph 1 Sentence 2 BGB new version )
  • Inclusion of public statements by the seller or manufacturer, especially in advertising, when assessing whether there is a material defect (Art. 2 Paragraph 2 Letter d Directive; implemented in Section 434 Paragraph 1 Clause 3 BGB new version )
  • Incorrect assembly instructions or improper assembly are considered defects in the item (Art. 2 Paragraph 5 RL; implemented in Section 434 Paragraph 2 BGB new version)
  • The consumer's right to (priority) free rework or a new delivery of the item of his choice (Art. 3 Para. 2, 4 RL; implemented in § 439 Para. 1, 2 BGB new version), if this is not disproportionate (Art. 3 Para . 3 RL; implemented in § 439 Paragraph 3 BGB new version)
  • Recourse by the final seller against the previous seller or manufacturer (Art. 4 RL; implemented in § § 478 f. BGB new version)
  • Minimum warranty period of 2 years after delivery of the purchased item (Art. 5 Paragraph 1 RL; implemented in Section 438 Paragraph 1 No. 3 BGB new version)
  • Presumption lasting 6 months in favor of the consumer that a defect already existed at the time of delivery (Art. 5 Para. 3 RL; implemented in § 476 BGB new version)
  • Minimum requirements for guarantees (Art. 6 RL; implemented in § 477 BGB new version)
  • Determination of the indispensability of the consumer's rights according to the directive (Art. 7 RL; implemented in § 475 BGB new version)

Changes beyond the guidelines

In addition to the requirements of the Consumer Goods Sale Directive, the German legislature has subjected the law of obligations to a major amendment to remedy the shortcomings of the old law of obligations , which was seen primarily in the very strong breakdown of the circumstances of the failure to perform, each with its own different legal consequences and statute of limitations.

Abolition of a separate warranty law

The starting point of the reform is that the seller is now obliged to deliver the purchased item free of material defects ( Section 433 (1) sentence 2 BGB new version ). If the purchased item now has a material defect, then this, like a legal defect, is treated as a sub-case of non-performance. Depending on whether the defect can be remedied, the rules on delaying performance ( qualitative delay ) or impossibility of performance ( qualitative impossibility ) apply. As a result of this separation of the warranty law into the general right to disrupt performance, the new sales law no longer has any warranty rights in the true sense. The rules of sales law only modify the general right to disrupt performance. As a result, the impossibility as a service disruption category gains significantly in importance, so that the differentiated design in § § 275 , § 280 , § 283 , § 326 BGB of the right of impossibility is no longer in conflict with its practical meaning. In the event of a material defect, the seller must now also pay damages in the case of negligence, as for any other delay or any other impossibility. A different classification of a breach of duty by the seller as a material defect or legal defect no longer has any practical significance. The classification of a breach of duty as a defect or as a breach of ancillary performance obligation is also insignificant for the assessment of the legal consequences and only relevant insofar as the modification of the right to disrupt performance by the sales law links the existence of a defect with a different regulation (e.g. shorter limitation period; possibility a reduction; exclusion of rights in the event of negligent ignorance of the buyer regarding the defect). Whether a breach of duty consists in a wrong delivery (aliud) or in a defect (peius) or in an insufficient delivery has become insignificant even with regard to the modification of the right to disrupt performance by the sales law, because Section 434 (3) BGB new version regards all three breaches of duty as a defect . A distinction between debts of a class and piece debts is no longer anchored at the level of the legal text.

Introduction of a uniform set of performance impairments

Since the modernization of the law of obligations, there has now been the "upper" offense of breach of duty (Section 280 BGB) as a central concept of the new right to disrupt performance , which includes the previous disruption of performance , delay and impossibility, but also poor performance and the violation of ancillary and protective obligations. The breach of duty leads to an obligation to pay compensation if the debtor cannot prove that he is not responsible for the breach of duty. Only in the case of the initial impossibility does the legislature make an exception with Section 311a (2) BGB. However, the legislature divides the offense of breach of duty in § § 281 ff. BGB into delay of performance, qualified breach of secondary duty and impossibility.

other changes

The obligee can now exercise damages instead of the performance and the withdrawal together ( § 325 BGB).

Changes to the statute of limitations

The general statute of limitations has been reduced from 30 years to 3 years ( § 195 BGB new version). Their start depends on whether the obligee is aware of the circumstances on which the claim is based or is not aware of them as a result of gross negligence.

Changes to the law on work contracts

The changes in the law on contracts for work and services were minor. Only the now changed classification of the contract for work and services is essential. According to § 651 BGB new version, the sales law applies to a contract that includes the delivery of movable objects to be manufactured or produced. In the manufacture or production of things that are not determined in terms of size, number and weight in traffic, certain provisions of the contract for work are used accordingly.

Further changes

The legal institutions of the culpa in contrahendo and the discontinuation of the business basis were regulated by law in § 311 and § 313 BGB.

The new version of § 497 means that debtors are much better off vis-à-vis credit institutions when a loan is terminated.

The operational risk theory was anchored in § 615 sentence 3 BGB.

Transitional provisions for the entry into force are contained in Art. 229 Sections 5 to 7 EGBGB .

Criticism of the law of obligations modernization law

The reform of the law of obligations has sometimes met with fierce resistance. She was accused of technical shortcomings (including so-called "referral carousels") and the creation of new problems and disputes.

The insight that the criticism is wrong on such a broad scale has meanwhile gained acceptance. The fine gradation of the definition of a defect in § 434 BGB according to subjective and objective elements almost always enables an interest-based delimitation. Also a purchase "as seen and with the exclusion of any warranty" is no longer easily possible under the new law because of the regulation of the sale of consumer goods in § 474 BGB or the general terms and conditions law in §§ 305 ff. BGB, which is also welcome from a consumer protection point of view .

The criticism had largely subsided about seven years after the reform of the law of obligations and is hardly being taken into account.


  • Gesa Kim Beckhaus: The legal nature of fulfillment: a critical consideration of the fulfillment theories with special consideration of the modernization of the law of obligations , Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-151969-7 .
  • Heinrich Dörner, Ansgar Staudinger : Law of Obligations Modernization Act. Law for the modernization of the law of obligations , Nomoskommentar, Baden-Baden 2002, ISBN 978-3-7890-7531-5 .
  • Lars Ferenc Freytag: Basic structures of the sales contract: Effects of the modernization of the law of obligations on the obligations of the seller , Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149335-5 .
  • Däubler-Gmelin: The decision for the so-called Great Solution in the Reform of the Law of Obligations - On the Draft of a Law to Modernize the Law of Obligations , NJW 2001, 2281.
  • Walther Heintzmann, Volker Heintzmann: Guide to the modernization of the law of obligations and the reform of civil procedure , series of publications: Jurathek Praxis, Müller, Heidelberg 2002, ISBN 3-8114-1802-5 .
  • Jürgen Schmidt-Räntsch: Ten years reform of contract law , Journal of the Legal Studies (ZJS) 03/2012, 301 ( PDF )

Web links

Individual evidence

  1. Introduction to the law on the modernization of the law of obligations
  2. Palandt / Heinrichs (67th edition 2008), introduction, marginal no. 10 (p. 3)