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Synallagma (from Greek συνάλλαγμα "exchange, trade") is a term used in German law of obligations and means mutual contract . It denotes the reciprocity or exchange relationship between two services in the contract . One part pays in order to receive the consideration (the payment ) and vice versa. This is the principle of the do ut des ( Latin : "I give so that you may give").

Scope of the synallagma

The main area of ​​application are reciprocal paid contracts . This always includes the purchase contract according to § 433 , the exchange according to § 480 , the rental agreement according to § 535 , the lease according to § 581 as well as the service ( employment ) and the work contract according to § 611 and § 631 BGB . In this sense, the synallagmatic performance relationship of the sales contract is based on the fact that the seller promises the handover and transfer of ownership of the purchased item, while the buyer promises to pay the purchase price (the acceptance is usually not part of the synallagmatic.) If the parties have the will, reciprocity can also be paid for Guarantee according to § 765 BGB or interest-bearing loan according to § 488 paragraph 3 BGB. Even atypical contracts, because they are not explicitly regulated by law, can be reciprocal, such as the leasing , factoring and franchising business types , and ultimately also the paid guarantee contract .

The opposite is formed by the bilateral free contracts in which both partners are also obliged to provide services, but which are not reciprocal. An example is the loan according to §§ 598 ff. BGB, in which the lender grants the borrower the use of the item free of charge. The latter is obliged to return it later. This also includes interest-free loans, such as courtesy loans between friends and acquaintances. Although paid, but not synallagmatic, the legal form of the brokerage contract is in accordance with § 652 BGB, because the broker himself owes nothing. However, contrary terms and conditions regularly apply .

Effects of the synallagma

A distinction is usually made between the genetic synallagma and the functional synallagma.

The genetic synallagma states that the mutual obligations depend on each other in their “ creation ”, which means: if one does not arise, the other does not arise either. It is not limited to mutual contracts, which can be read from the nullity rules of § 306 or § 105 or, for minors, from § 108 BGB. The regulation of a genetic synallagma is therefore not necessary.

The functional synallagma states that mutual obligations are dependent on each other in addition to the creation of " enforcement " and " continuation " (fulfillment of the obligation to perform against fulfillment of the obligation in return). In turn, the rules of Sections 320 to 322 of the German Civil Code (BGB) apply to this, whereby the performance obligations covered are always the central obligations of the parties, referred to as the main performance obligations.

Sections 320 ff. BGB go beyond the otherwise applicable right of retention of Section 273 BGB in the event of service disruptions with regard to the “enforcement” of mutual obligations . The objection that the contract has not been fulfilled cannot be averted by providing security, as in Section 273 (1) sentence 3 of the German Civil Code ( BGB) , since the consideration should remain enforceable. This also applies to partial services (Section 320 (2) BGB) and services to several creditors (Section 320 (1) sentence 2 BGB). In contrast to Section 273 of the German Civil Code, it must also be questioned whether the debtor protected by the objection of the non-fulfilled contract can fall into arrears . The literature answers the question positively in those cases in which they fail to assert the objection . This is relevant for the obligation of the debtor to pay interest on arrears, although none of the services has yet been performed. Example: The seller and buyer have concluded a previously unfulfilled sales contract. Now the seller is dunning for payment, even though he has not yet delivered the item himself. As a result, he is entitled to default interest in the proceedings, provided he is willing to perform.

The existing special regulations on service disruptions in Section 320 et seq. BGB also include the principle “No service in return” ( Section 326 (1) sentence 1 BGB). The rule is of course broken when the price risk has passed. Rights from this provision should be allowed to those who behave in accordance with the contract . According to this case law of the BGH , the raising of the objection does not end the delay, but rather the offer of the service step by step .

Synallagma and reversal

The idea of ​​the functional synallagma can also be found in the stage of reversing void contracts. Under enrichment law , such are subject to the obligation to return benefits and, in the event of the objection of depletion within the meaning of Section 818 (3) BGB (see the conflict between (limited) two-condition theory and the theory of balance ), can already be unbalanced and - therefore in need of correction - Results. The netting (according to the BGH), as well as the principle of the right of withdrawal (see Section 346, Paragraph 3, No. 3 BGB), which prefers a step-by-step settlement, take into account the structure of the synallagma in the reversal equally.

Synallagma under accounting law

The synallagma under accounting law specifies the compensation area when creating a provision for impending losses from pending transactions in accordance with Section 249 of the German Commercial Code .

See also


Individual evidence

  1. a b Brox / Walker, p. 20.
  2. Weidenkaff in Palandt, 17th edition, § 433 Rn. 43; Study commentary BGB (Kropholler / Jacoby) § 433 Rn. 8th
  3. ^ Dieter Medicus : Civil law . 19th edition Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 12.
  4. Brox / Walker, p. 21.
  5. restricting this, however, Joachim Gernhuber : Festschrift Larenz , 1973, p. 455 ff. (476); same in civil law, a systematic revision course for advanced learners , 2nd edition 1983, § 15 II.
  6. ^ Karl Larenz : Textbook of the law of obligations I: General part , 14th edition, Munich 1987, § 15 I (pp. 190 f.).
  7. ^ Arwed Blomeyer : General Law of Obligations , 4th edition 1969, § 21 IV 2;
  8. BGH NJW 1971, 1747.
  9. BGH NJW 2000, 3046.
  10. BGH NJW 1995, 454