Silence (law)

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In the legal system, silence means neither “ yes ” nor “ no ”, neither approval nor rejection of a legal transaction , but nothing at all. It is basically not a declaration of intent .


German law ( BGB , HGB and StPO ) is based on the principle that simple silence has no explanatory value and is therefore of no legal significance (so-called "legal nullum "). Silence neither articulates a will nor makes a declaration . In the case of silence, the other part is therefore neither known whether there is a legally binding will at all, nor is any declaration made, as is the case with other tacit acts. The old legal principle "Whoever remains silent where he should and could speak (contrary) is subject to consent" ( Latin "qui tacet consentire videtur, ubi loqui debuit atque potuit" ; Pope Bonifatius VIII. ) Only applies in German law as an exception.

Types of silence

However, silence can exceptionally be legally relevant. It then depends on legal regulations or the will of the contractual partners whether silence is to be regarded as approval or rejection.

Standardized silence

The so-called “standardized” silence (also “fictitious declaration of intent”) has explanatory value by virtue of the law, since legal consequences are linked to it. The legal regulation is based on the security of legal transactions and the (rebuttable) presumption of certain regulations that the person who remains silent agrees to the conclusion of the contract. In these cases, silence "counts" as a declaration of will, although it is not.

The "standardized" silence has an explanatory effect as an exception if the law so provides. For example in the cases of Section 108 (2) sentence 2 BGB (conclusion of a contract by a minor without consent), Section 177 (2) sentence 2 BGB (conclusion of a contract for a representative without power of representation ) and Section 416 (1) sentence 2 BGB (approval of an assumption of debt ) silence counts as rejection; on the other hand, section 416 (1) sentence 2 BGB (assumption of a mortgage by the property purchaser), section 454 (1) BGB (approval for trial purchases ), section 516 (2) sentence 2 ( acceptance of gifts after the deadline), section 362 (1) sentence 1 HGB (fiction of a business application being accepted by merchants) and Section 377 (2) HGB (failure to report defects in commercial transactions ) silence as consent. These constellations affect some three-person relationships in which someone carries out a legal transaction that requires consent, someone acts as an authorized person ( Section 182 BGB) and the third party asks the authorized person for approval. The legally stipulated “no” leads to the failure of a contract. Something else only applies to the representative without power of representation (Section 177 (2) sentence 2 BGB); Under certain conditions, this provision also applies to unilateral legal transactions, provided that they are declarations of intent that require receipt ( Section 180 BGB).

Where the law feigns consent, doing nothing through silence leads to the conclusion of a contract by imposing a legally irrefutable consent. This is also a three-person constellation. The § provide § 75h ( clerk ) and § 91a HGB ( sales representatives ) derogations § 177 2, sentence 2 BGB with reversed regulatory content is the fictitious approval covered here merely an obstacle effectiveness of the contract..; The offer and acceptance must be available anyway.

These legal fictions only replace the (missing) declaration of intent as such and its content. All other requirements for a declaration of intent are not replaced by the aforementioned regulations. Therefore, defects are the capacity§ 104 to § 113 BGB) and defects (§ access 130 § to § 133 BGB) of these standards continue to be observed in a similar application. The § § 116 et seq. BGB, in particular the avoidance rules are applicable by analogy. As an exception, in the case of a content error, a contestation cannot be made according to Section 119 Paragraph 1 Alternative 1 BGB on the grounds that the person to whom the legal fiction applies was not aware of this fictional effect (irrelevant motive error ).

The undisputed actual continuation of unlimited rental or employment relationships§ 545 BGB, § 625 BGB) is considered to be a contract extension. In these cases, the standardized silence pursues the purpose of preventing these long-term obligations from being in a contractless state . In contrast, the lessor's silence in response to a tenant's request for continuation in the case of a fixed-term tenancy does not usually mean that the tenant agrees; rather, it must be checked in individual cases whether the silence is to be regarded as an acceptance of the contract. The silence on a termination is meaningless and in particular does not result in the recipient's consent to the termination. In inheritance law , if the heirs remain silent, doing nothing leads irrefutably to the acceptance of the inheritance after the expiry of the disclaimer period ( § 1943 BGB).

Elaborate silence

For the legal layperson, "eloquent" silence is initially a contradiction in terms. In legal jargon, however, "eloquent silence" is used when the silence is to be given explanatory value through an express contractual agreement. If it is agreed in the contract that the silence of one part of the contract should lead to a certain legal consequence, this legal consequence occurs automatically if the contractual partner concerned remains silent. Elaborate silence is deemed to be consent in the sense of an acceptance of the contract if, after the preliminary negotiations, there has been agreement on the essential points of the contract and both parties have firmly expected a contract to be concluded. If the contracting parties agree that a delivery offer has been accepted if the buyer does not reject it immediately, the contract is concluded by not responding to the offer.

In labor law, the omission of services and characteristics customary in the industry in a job reference is to be understood as an indication of only below-average performance and is inadmissible as "eloquent silence". In the case of bank reports , too , negative findings are usually expressed through eloquent silence, in that statements that actually belong to the general content of a bank report as is customary in banking are left out. In criminal law there is eloquent silence on the part of the accused when he generally denies the allegation, asserts his innocence or declares that he has nothing to do with the act.

Silence as a declaration of will

Generally speaking, silence does not constitute a declaration of intent, unless it is an exception

  • an implied statement:

Silence can then be viewed as an implied (conclusive) declaration of intent if there are special circumstances in which silence represents a declaration of business intent . The implied declaration is to be understood as an expression of will which, without directly serving the purpose of the announcement, is aimed at the realization of the will. The silence on an offer, which is based on preliminary negotiations relating to all important points and which corresponds to the result, is usually to be seen as a tacit acceptance. The other party is not expected to confirm an offer, as is customary. When buying a mail-order company, the buyer does not have to expect the mail-order company to confirm his order, but rather that the goods will be sent to him (customary silence).

  • Silence on a prior contractual agreement:

The regulation of § 151 BGB does not include a case of a very significant silence, for it only states that the parties waive a notification of acceptance or that consent due to the prevailing practice is not expected; the assumption itself cannot be dispensed with. Traffic custom is the actual practice prevailing in the traffic of the circles involved, which must have acquired a certain stability. An inner decision and - according to the prevailing opinion - confirmation is required.

In the context of commercial transactions between merchants , silence is more important. A merchant must immediately object to the commercial confirmation letter, which is not expressly regulated in the HGB, under certain conditions if he does not want the content of this letter to apply against him. If he does not respond to a commercial letter of confirmation and remains silent, this can be regarded as an acceptance.

  • Silence of the merchant on an offer:

The regulation of § 362 HGB only applies to business people. According to this, silence on the offer is deemed to be acceptance, even in the context of commercial customs, silence is to be assessed as acceptance. Within a commercial business relationship or when the merchant is requested to submit an offer, special obligations are imposed on the merchant. He has to react to the offer, otherwise his silence counts as acceptance. The regulation has two variants:

1) Section 362 sentence 1 HGB (offer within a permanent business relationship):

The trade run by the merchant must entail doing business for others. This includes the commercial transactions of commission, freight forwarding, warehouse and freight business, brokerage and trust agreements as well as banking and stock exchange transactions in particular. In addition, the application made to the merchant must include such a business agency. Furthermore, a permanent business relationship between the merchant and the applicant is required. This is the case when a number of legal contacts have been made among business people and there is agreement to continue to conclude business with each other.

2) Section 362 sentence 2 HGB (invitation to submit an offer; " Invitatio ad offerendum "):

The required application for the procurement of a business corresponds to that of § 362 sentence 1 HGB. Instead of the special subject of the trade and the permanent business relationship, an offer of agency to the applicant is required. This is to be understood as an invitatio ad offerendum , which, however, must be addressed individually and not to an indefinite group of people (“ad incertas personas”) . Otherwise every offer for an advertisement would be a case of § 362 HGB. However, such a broad area of ​​application is not intended by law because this would represent too extensive a restriction of private autonomy; Any advertising would therefore mean that offers would have to be rejected immediately.

Unordered goods

If an entrepreneur ( § 14 BGB) sends goods or other services to a consumer without ordering (i.e. without a request by the consumer), the entrepreneur has no claims against the consumer according to § 241a BGB, even if he is silent. In addition, the entrepreneur does not have any claims against the consumer if the entrepreneur declares that the contract is deemed to be concluded if the goods are not rejected or returned or the consumer undertakes activities of appropriation or use (these do not apply - in deviation from § 151 BGB - as acceptance) . The consumer does not become the owner, but according to the prevailing opinion, he can use or consume the things as he likes; he is also not subject to any retention obligation.

Silence in the terms and conditions

In the general terms and conditions, use is often made of fiction of authorization and access, which means that the consumer's silence is supposed to mean consent. In § 308 No. 5 BGB, clauses are declared ineffective that unilaterally impose silence on the recipient as a means of explanation and impose an obligation to provide a declaration. According to Section 308 No. 6 BGB, access fictions that assume that the consumer has received and approved certain communications are void . This has been confirmed by case law in favor of the consumer. According to this, terminations, reminders, setting of deadlines and grace periods or declarations of withdrawal in the terms and conditions with adverse legal consequences for the consumer are ineffective.

If a large number of comparable contracts are to be changed in the same way , the fees of credit institutions or telephone providers can be increased without the express consent of the consumer; However, the contracts must give him sufficient time to object and must be reasonable overall (Section 308 No. 4 BGB). If there is no objection and the customer remains silent, the new fee regulation comes into force. In these cases, use is made of the fictitious explanation which, after the expiry of a preclusive period without contradiction, is based on the approval of the fee increase by the consumer. Consumer's approval of a fee increase may therefore be faked if the customer does not object to the increase after prior notification, but tacitly continues the contractual relationship, since his silence may not be related to the minimum contractual content .

However, this does not apply without restriction. For example, if the customer remains silent on bank statements from the credit institutions, there is no consent to their interest rate determination and no implied approval of their content. This is different in the case of closing accounts for current accounts and the fictitious authorization of direct debit postings in the authorization procedure after six weeks. According to No. 7, Paragraph 3, Clause 2 of the General Terms and Conditions of Savings Banks, accounts are considered approved if they are not contradicted within six weeks of receipt. The customer will be informed of this legal consequence when the statement of account is issued. If the bank customer remains silent, this provision leads to the conclusion of a balance recognition contract . With him the current accountable mutual claims and services are lost, only the claim from the balance acknowledgment remains. This applies in particular to direct debits with a direct debit authorization procedure, for which there is an unlimited possibility of cancellation. Thereafter, the possibility of the account holder to object to debiting his account on the basis of direct debits is not limited and only ends with the approval of the account-holding bank. Approval of such debits cannot be seen in a silence on a financial statement. If incorrect debits are only recognized after the 6-week period has elapsed, the current account can no longer be offset; the claim can then only be asserted separately.

In the case of companies as bank customers, however, according to the Federal Court of Justice, the bank could, after a reasonable period of time, have the justified expectation that the debit entry should endure if, in the course of business transactions with regular direct debits that the debtor has not yet contradicted, it is aware of a new one Direct debit amount does not differ significantly. The judgment applies to all direct debits resulting from long-term obligations (such as rent, credit, insurance, health insurance, etc.). These approval fictions of six weeks are considered to be compatible with Section 308 No. 5 BGB.

Silence in labor law

Tacit approval is the inactivity of a contractual partner who is contractually obliged to express itself. If he fails to make this statement, this implied action constitutes approval. However, this is not always the case. In labor law, employees do not agree to a contract change by initially continuing to work under changed conditions without objection. If you have not signed the amendment contract, you can also take action against the changes retrospectively, as the Nuremberg Regional Labor Court decided. The employer cannot assume a tacit (implied) consent to the change in the contract. Because mere silence is not the same as accepting a proposal. An implied acceptance of the offer can only apply if the employee continues the employment relationship without contradiction if the proposed change has a direct effect on the employment relationship, but not as long as the consequences do not emerge. Only the actual implementation of changed contractual conditions can be an implied declaration, which equates to an acceptance within the period of § 147 BGB.

Silence in administrative law

Administrative acts and court decisions become definitive when one takes them implicitly, rather than opposition appeal against this, action to raise or appeal ( appeal , revision appeal). Legal remedies of this kind can only be exercised if the person concerned takes action and are also subject to a time limit. Appeal received after the deadline is inadmissible and may no longer be considered ex officio . In certain cases, the silence of the authorities can also be regarded as approval, for example in the case of a fictitious administrative act (also known as “fictitious administrative act”). Official silence is not a regulation; However, this can be seen as a fictitious administrative act which, after a certain period of time, links a certain legal consequence to the inaction or the silence of an authority.

Silence in criminal law

Right to refuse to testify

According to German criminal procedure law, the defendant is free to comment on the charge or not to testify on the matter. Witnesses, parties to the litigation and accused are granted the right to give evidence or to refuse to provide information in the event of self-incriminations. Silence is a fundamental characteristic of a constitutional process and not an unnecessary hindering of the judge's work; Rather, silence has constitutional status. No negative conclusions may be drawn from it if a defendant remains completely silent on the charge. In particular, if the defendant remains silent, the court must not assume that the defendant has anything to hide. The situation is different when the accused makes statements. Then his silence may lead to negative conclusions in further questioning by the court and public prosecutor. If the defendant only comments on one of several allegations, there is no partial silence, so that no conclusions can be drawn from this. In terms of criminal proceedings, however, silence does not only mean that the accused does not say anything. Silence also includes the general denial of the allegations, blanket statements or legal statements.

Silence towards the police does not constitute an admission of the act and must not be interpreted by the public prosecutor or the court as an admission of the act. Here, too, silence is not detrimental to the accused. Nobody has to incriminate themselves and participate in their own conviction. He only has to provide mandatory information, these are personal details in the sense of § 111 of the Law on Administrative Offenses (OWiG).

Right to testify and refuse to provide information

Certain types of witnesses have the statutory right to refuse to testify, which entitles them to remain silent . Either the witness has a personal relationship with the accused (consanguinity; Section 52 StPO) or a professional legal relationship ( lawyers , tax advisors , doctors ; Section 53 StPO). If a witness does not belong to either of the two groups, he is only entitled to a so-called right to refuse to provide information for self-protection if he would expose himself to criminal prosecution through his testimony ( Section 55 StPO). The witness is also not obliged to appear for a police questioning ( Section 161a (1) StPO). This is different with the interrogation by the public prosecutor; he must appear here, but can exercise his right to remain silent. Again, witnesses must either remain silent or answer all questions.

Silence in international law

It is disputed whether the tacit acceptance of the behavior of other states ( acquiescence ) can result in new customary international law .

See also

Individual evidence

  1. Peter Gottwald, Examens-Repetitiorium, BGB General Part , 2008, p. 25
  2. Apostolos Tassikas, Dispositives Law and Freedom of Choice, 2004, p. 158
  3. Apostolos Tassikas, Dispositives Right and Freedom of Choice, 2004, p. 157
  4. ^ AG Königstein / Taunus, judgment of April 18, 1996, Az .: 23 C 350/95 (NJW-RR 1997, 1504)
  5. BGH NJW 1996, 919
  6. ^ BGH NJW 1975, 40
  7. ^ BAG, judgment of August 12, 2008, Az .: 9 AZR 632/07
  8. BGH NJW 1970, 1737
  9. BGHSt NJW 1992, 304
  10. BGHSt NStZ 2007, 417
  11. BGHZ 1, 353, 355; BGH BB 1960, 306
  12. Heinz Hübner, General Part of the BGB , 1996, p. 302
  13. BGH NJW 1995, 1281, 1285
  14. Palandt, Bürgerliches Gesetzbuch , 69th edition, No. 21 to § 133
  15. Julius von Staudinger / Roland Michael Beckmann / Michael Martinek, Commentary on the BGB , Volume 8, 2005, p. 191 with further references
  16. Karsten Schmidt, Commercial Law , Section 19 II 2 d)
  17. Karsten Schmidt, Commercial Law , § 20 I 3 d)
  18. BGHZ 97, 221
  19. BGHZ 174, 84, 97
  20. BGHZ 80, 172, 176
  21. BGH NJW 2000, 2667
  22. BGH, judgment of June 6, 2000, Az .: XI ZR 258/99
  23. ^ BGH, judgment of October 26, 2010, Az .: XI ZR 562/07
  24. ^ LAG Nuremberg, judgment of December 15, 2009, Az .: 7 Sa 204/09
  25. ^ Federal Labor Court, judgment of November 25, 2009, Az .: 10 AZR 779/08
  26. ^ Franz-Joseph Peine, General Administrative Law , 2008, p. 120
  27. ^ KG Berlin, judgment of June 11, 2010, Az .: 2 Ss 157/10
  28. BVerfG NJW 1981, 1431
  29. BGHSt 32, 140, 144
  30. BGHSt 20, 298, 300
  31. BGHSt 32, 140, 145
  32. Ewald Löwe / Peter Riess, Criminal Procedure Code and Courts Constitution Act , 1999, p. 257