Deputy commodum
In the law of obligations, a substitute commodum is a pecuniary advantage that economically takes the place of an owed object and only occurs because the owed object no longer has to be performed. The debtor must surrender this vicarious commodum to the obligee . This is regulated in § 285 BGB , in Austrian law in § 1447 ABGB . Although there is no express regulation in Swiss law, the commodity claim is now recognized there as well. Parallels can also be found in numerous other legal systems.
In some cases it is not possible for the debtor retrospectively to provide the service owed. This is e.g. B. the case with a sales contract if the goods sold are destroyed after the contract has been concluded (objective impossibility / subjective inability). According to the principles of the law of impaired performance, the debtor is released from the obligation to perform. Not so if the debtor has a claim against a third party (e.g. insurance ). In this case, instead of the (impossible) agreed service, the obligee can demand the surrender of the replacement (e.g. the insurance benefit), the so-called "Deputy Commodum".
In principle, the creditor has a right to choose. In principle, he can demand compensation for non-performance or the right to compensation . In the event of a supplement, a claim for damages from non-performance is reduced by the value of the replacement. Should the substitute commodum have a higher value than the service it has replaced, the creditor is nevertheless entitled to the entire substitute commodum. The claim to a commodity claim is not a claim to preservation of value or to compensate for unjustified enrichment , but follows from the consideration that the performance that has become impossible should be due to the obligee according to the contract and therefore the full compensation obtained for it is also due to the obligee. Otherwise, the impossibility would also make the debtor better off than if he had fulfilled. However, if the obligee demands the surrender of the replacement, he will not be released from his obligations according to § 326 BGB. However, in accordance with Section 441 (3) BGB, these are reduced to the extent that the value of the replacement is lower than that of the service owed.
See also
- Latin in law (The term “commodum” denotes a “benefit” in the Latin language .)
literature
- Raimund Bollenberger : The representative Commodum , Vienna: Springer, 1999, ISBN 978-3-211-83356-8
- Felix Hartmann : The claim to the deputy commodum , Tübingen: Mohr Siebeck, 2007, ISBN 978-3-16-149468-0
