Barter agreement

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The swap contract (or exchange ) is a law of obligations contract , both by the parties for the mutual surrender , transfer and conveyance of goods or rights are committed.

General

The exchange contract is one of the contract types regulated in the BGB , such as purchase , loan , rental or donation contracts , which differ from one another in terms of the type of consideration . The exchange contract is similar to the sales contract; however, no purchase price is to be paid, but rather one thing or one right is to be handed over, transferred and assigned as consideration. There is therefore no payment process when exchanging .

history

When there was no money , barter was the only way to buy goods. Traders and farmers exchanged objects or livestock for food or other everyday necessities in order to meet their needs . Already the Old Testament demanded in the 3rd book of Moses that the exchange value of both exchange objects should be approximately the same: “One should neither exchange nor exchange an animal, a good for a bad or a bad for a good. But if someone exchanges one animal for the other, they should both be holy ”( Lev 27.10  EU ). For the ancient Babylonians , there was no great legal difference between buying and trading, because they were viewed as identical legal transactions with the aim of selling goods.

The Romans were also familiar with barter ( Latin permutatio mercium , "exchange of goods"), because until the introduction of money, only the barter contract ( Latin contractus permutatorius ) existed, in which the contracting parties exchanged things with approximately the same exchange value. Cicero understood the "permutatio" to mean sales. According to Iulius Paulus , the exchange contract later had to provide ownership of the thing for both parties to the respective recipient. It was clear to him that when exchanging, it was impossible to differentiate between buyer and seller. In early Roman law , the exchange contract began to be replaced by the purchase contract ( Latin emptio venditio ; literally: "purchase / sale"). The high-class lawyer of the 2nd century, Gaius , demanded in his institutions that the purchase price had to exist “in sounding money”; the exchange contract was now considered outdated. Since then, the previous exchange value has been replaced by the more objective monetary value . But the lack of money, which began under Augustus , kept the barter contract alive. The Greeks obtained wine by devoting bronze, iron, skins and slaves.

In the early Middle Ages, bartering continued to predominate, goods changed hands without money being paid for them. The Middle High German word “tûsch” (“fun, mockery, deception, fraud”) first established itself in 1172 in Priest Wernher's “Three Songs of the Maid” (“Driu liet from the maget”). The middle-high word already indicated that when exchanging, one can be deceived or deceived by differently assessed exchange values. In the Middle Ages, barter transactions in addition to sales contracts remained common despite the available money. It happened that within Germany, double customs duties were charged for exchange transactions. The exchange of land was also common, in this way land neighbors pursued private land consolidation .

The General Prussian Land Law (APL) of June 1794 named the two exchange counterparties buyer and seller (I 11, § 364 APL) and gave both of them the option of "withdrawing from the exchange" if the exchange value was unequal (I 11, § 365 APL ). The Austrian ABGB of January 1812 defined the exchange as a contract, "whereby one thing is surrendered for another thing" ( § 1045 ABGB).

The rules governing payment transactions stipulated in state treaties (“clearing agreements”) formed the basis for Swiss economic relations with the Axis powers both in the prewar and in the war years of the Second World War . The global economic crisis resulted in 1929 in the Central and Eastern European countries to a dramatic shortage of gold and foreign exchange reserves. The governments of Germany and Italy adopted rigorous payment and trade restrictions, which also severely impaired foreign trade relations with Switzerland. To protect the export industry and tourism, the Swiss government concluded clearing agreements with Germany in 1934 and with Italy in 1935, which ensured bilateral trade with almost no real foreign currency exchanged. Even if the agreements were officially called clearing agreements, they were compensation transactions because around 20% of the volume had to be paid for in foreign currency.

Developing countries with weak foreign currencies are usually the only option today to import finished products from the industrialized countries by exporting their raw materials in exchange for barter transactions. Even if market power is exploited , the developing countries usually fail to improve the terms of trade in their favor.

Legal issues

Because of this similarity, the provisions on the purchase contract ( § 433 ff. BGB) apply accordingly to the exchange contract according to § 480 BGB . The exchange contract is a bilateral binding contract. Each contracting party promises a performance in order to receive something in return. Performance and consideration are therefore primarily linked to one another under the law of obligations (the synallagma des do ut des ). They are physically connected with each other as soon as a contracting party has performed. Both contracting parties mutually undertake to deliver and accept the exchange objects. In the case of a reduction , it should be noted that a reduction in the purchase price is not possible due to a lack of cash payment. Accordingly, Section 441 (3) of the German Civil Code (BGB) is to be applied, whereby the objective value of the goods in a defect-free condition must be determined and settled in cash.

economic aspects

When bartering ( English barter , "trade") are international goods or services exchanged directly for other goods or services, without that there will be a payment transaction. This form of trading is common when at least one of the paying trading partners ( importer or its state ) suffers from a lack of foreign currency or money . Barter leads to more transactions in an economy because market participants suffering from a lack of money can also participate as buyers . Instex , founded in January 2019, is a clearing house for barter clearing , which is supposed to carry out barter trade with Iran in order to avoid exports or imports in exchange for monetary payments threatened by sanctions. In compensation transactions ( English counter trading ) is not a barter agreement under because each goods are delivered and invoiced and the fractional amounts of money are to be compensated.

Bedeutsamster exchange contract in the economy is the introduction of operating assets ( English transfer of assets ) or a co-entrepreneurs stake in a capital or partnership . Also at acquisitions occurring share exchange ( english stock swap ) means that the purchase price for a company in whole or in part by mutual exchange of treasury shares financed is.

literature

Individual evidence

  1. ↑ Mariano San Nicolò, The Final Clauses of the Old Babylonian Purchase and Exchange Contracts , 1974, p. 109
  2. ^ Gaius, Institutiones , 2, 4, 2
  3. ↑ Iulius Paulus, Digest , 19, 4, 1
  4. ^ Gaius, Institutions , 3, 139-141
  5. ^ Karl Friedrich Thormann, Der doppelte Ursprung der Mancipatio , 1969, p. 125
  6. ^ Gaius, Digest , 3, 141
  7. ↑ Neil Grant, Das Mittelalter , 2006, p. 27
  8. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 245
  9. ↑ Dietrich Denecke / Helga-Maria Kühn (eds.), Göttingen: From the beginnings to the end of the Thirty Years War , Volume I, 1987, p. 423
  10. ^ Christian Friedrich Koch, General Land Law for the Prussian States , Volume 1, Issue 1, 1852, p. 684
  11. ^ Stefan Frech, Clearing. Payment transactions between Switzerland and the Axis powers , in: Independent Expert Commission Switzerland, Volume 3, 2001, p. 2 ff.
  12. ^ Stefan Frech, Clearing. Payment transactions between Switzerland and the Axis powers , in: Independent Expert Commission Switzerland, Volume 3, 2001, p. 2 ff.
  13. ↑ Axel J. Halbach / Rigmar Osterkamp, The role of barter for developing countries , 1988, p. 117
  14. ↑ Emmy Stoessel, The exchange contract with special consideration of Switzerland. Code of Obligations , 1927, p. 38
  15. ↑ Otto Palandt / Walter Weidenkaff, BGB Commentary , 73rd edition, 2014, § 480 Rn. 8th
  16. ↑ Klaus Peter Berger, The Offsetting Contract , 1996, pp. 40 ff.