Trier wine auction
The Trier wine auction case is a fictitious legal textbook case that has been teaching prospective lawyers in Germany for more than 100 years the problem of the contestability of a declaration of intent in the absence of an awareness of the explanation .
General
The case was brought up for discussion by Hermann Isay in his book The Declaration of Will in the Facts of the Legal Transaction. At the time his book was being written, Isay was a trainee lawyer in Trier . According to § § 145 ff. BGB , the conclusion of a contract presupposes that two declarations of intent are available from both contracting parties with the same content. If this is not the case, there is an error .
case
The local unfamiliar A visits a wine auction in Trier . When he discovers his friend B, he waves to him. The auctioneer then awards A the bid for the current item of wine and demands A payment of the bid.
solution
The solution to the case depends on whether an effective sales contract for the bottle of wine has been concluded between A and the auctioneer . Only then is there a right to payment of the purchase price .
A purchase contract is also concluded at an auction by means of two identical declarations of intent, which is why it depends on whether the fact that A has raised his hand is to be regarded as an effective declaration of intent. A raised his hand without realizing that the auctioneer might think that A wanted to bid for the bottle.
The A lacks the so-called will to explain : he was not aware of making a legally significant declaration, rather he just wanted to wave.
The solution to this question is controversial in jurisprudence. According to the subjective theory , all that matters is what the person explaining wanted. According to her, there is no declaration of intent in this case. According to the prevailing objective theory, for which the point of view of legal certainty is decisive, the focus is on external behavior, even if it does not coincide with the idea of the person making the declaration. Thereafter, the declaration of intent is effective, but can be challenged analogously to § 119 BGB, but the contestant is obliged to pay damages in accordance with § 122 BGB.
The jurisprudence differentiates according to whether the declaring person could see that his action had to be understood as a declaration of intent. The Federal Court of Justice formulates as follows:
"Despite lack of explanation of consciousness (legal binding will, business will) is a declaration of intent before, if the declarant when applying the care necessary in the would recognize and avoid that his statement of good faith and the prevailing practice could be construed as a declaration of intent, and if the recipient she actually understood it that way. "
Since, in the case of the Trier wine auction, if the required care had been exercised, A would certainly have been able to recognize that raising one's hand in the auction would be understood as a bid, his declaration of intent is effective, but according to § 142 , § 119 , § 121 , § 143 BGB contestable. A can withdraw from the contract by contesting it, but has to compensate for the so-called fidelity damage if such damage has occurred (e.g. because the bottle could not be auctioned off to another person immediately).
See also
Individual evidence
- ↑ Hermann Isay, The declaration of will in the factual situation of the legal transaction , 1899, p. 25
- ↑ BGHZ 91, 324
